Because an instruction to state governments to take title to waste, standing alone, is beyond Congress' authority, and because a direct order to regulate, standing alone, is also beyond Congress' authority, it follows that Congress lacks the power to offer the states a choice between the two. The take title incentive does not represent the conditional exercise of any congressional power enumerated in the Constitution. In this provision, Congress has not held out the threat of exercising its spending power or its commerce power; it has instead held out the threat, should the states not regulate according to one federal instruction, of simply forcing the states to submit to another federal instruction. A choice between two unconstitutionally coercive regulatory techniques is no choice at all. Either way, the Act commandeers the states' legislative processes by directly compelling them to enact and enforce a federal regulatory program.
In an effort to combat a burgeoning radioactive waste disposal problem, Congress passed the Low-Level Radioactive Waste Policy Amendments Act of 1985. The Act included monetary incentives, access incentives, and a take title provision, which offered states the option of taking title to and possession of low level radioactive waste generated within their borders and assuming liability for damages that waste generators suffer due to the states' tardiness. The state of New York and two counties sued, claiming that the Act violated U.S. Const. amend. X. The case was elevated by write of certiorari to the Supreme Court of the United States.
Did the take title clause exceed U.S. Const. amend. X restrictions?
The Supreme Court declared the Act unconstitutional in part, holding that (a) monetary incentives constituted permissible exercises of congressional power under the Commerce, Taxing, and Spending Clauses of the Constitution; (b) access incentives represented permissible conditional exercise of Congress' commerce power; but (c) the take title clause exceeded U.S. Const. amend. X restrictions, because the take title incentive was not an exercise of congressional power enumerated in the Constitution. The take title provision of the Low-Level Radioactive Waste Policy Amendments Act of 1985, 42 U.S.C.S. § 2021b et seq., offers states, as an alternative to low level radioactive waste regulating pursuant to Congress' direction, the option of taking title to and possession of the low level radioactive waste generated within their borders and becoming liable for all damages waste generators suffer as a result of the states' failure to do so promptly. This provision crosses the line distinguishing encouragement from coercion, and thereby violates U.S. Const. amend. X.