ArtI.S1.4.4.1 Delegations to the States

Article I, Section 1:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Beginning in the Nation’s early years, Congress has enacted hundreds of statutes that contained provisions authorizing state officers to enforce and execute federal laws. 1 Challenges to the practice have been uniformly rejected. Although the Court early expressed its doubt that Congress could compel state officers to act, it entertained no such thoughts about the propriety of authorizing them to act if they chose. 2 When, in the Selective Draft Law Cases, 3 the contention was made that the 1917 statute authorizing a military draft was invalid because of its delegations of duties to state officers, the argument was rejected as too wanting in merit to require further notice. Congress continues to empower state officers to act. 4 Presidents who have objected have done so not on delegation grounds, but rather on the basis of the Appointments Clause. 5

Footnotes

  1.  See Warren, Federal Criminal Laws and the State Courts, 38 Harv. L. Rev. 545 (1925); Holcomb, The States as Agents of the Nation, 3 Selected Essays on Constitutional Law 1187 (1938).
  2.  Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539 (1842) (duty to deliver fugitive slave); Kentucky v. Dennison, 65 U.S. (24 How.) 66 (1861) (holding that Congress could not compel a governor to extradite a fugitive). Doubts over Congress’s power to compel extradition were not definitively removed until Puerto Rico v. Branstad, 483 U.S. 219 (1987), in which the Court overruled Dennison.
  3.  245 U.S. 366, 389 (1918).
  4.  E.g., Pub. L. No. 94-435, title III, 90 Stat. 1394, 15 U.S.C. § 15c (state attorneys general may bring antitrust parens patriae actions); Medical Waste Tracking Act, Pub. L. No. 100-582, 102 Stat. 2955, 42 U.S.C. § 6992f (states may impose civil and possibly criminal penalties against violators of the law).
  5.  See 24 Weekly Comp. of Pres. Docs. 1418 (1988) (President Reagan). The only judicial challenge to such a practice resulted in a rebuff to the presidential argument. Seattle Master Builders Ass'n v. Pacific N.W. Elec. Power Council, 786 F.2d 1359 (9th Cir. 1986), cert. denied, 479 U.S. 1059 (1987).