On Garcia

[Mark Tushnet]

Ann Althouse writes:  "The conservatives have built a new doctrinal structure on top of Garcia that I think they think is a much better crafted design for protecting the states than National League ever was."  I just want to figure out what that structure is, and why it might be better crafted.

Is the structure this:  (1)  In general, Congress has the power to subject state activities to its regulatory authority, unless the form of regulation amounts to a commandeering of state officials (other than judges). (2)  But Congress cannot (in general) enforce its permissible regulatory impositions by means of suits by individuals seeking monetary relief for past failures by the state to comply with those regulations.

This second element means, I suppose, that Congress's choice of means of implementing regulations is somewhat constrained.  It is insufficient, given this second element, that Congress believe that such individual lawsuits are a good method of ensuring compliance with the permissible regulations.  I take it that it is at this point that David Shapiro's observation enters the discussion.

Do I have the structure of the argument right?

Mark Tushnet
Georgetown University Law Center
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