Reno v. Condon

[Larry Tribe]

I've long taught that, as several posts suggest a number of others on the
list believe as well, Printz and New York are impossible to square with the
Supremacy Clause without an affirmative/negative distinction, but I've also
been puzzled about the endless situations in which such a distinction feels
hopelessly arbitrary. Consider, e.g., the provision of the Brady Bill
requiring CLEOs to destroy unacted-upon gun applications after 21 days,
seemingly an affirmative obligation. Rephrasing that as a ban on retaining
unacted-upon gun applications beyond 21 days makes it seem a standard
negative constraint, binding on the states under standard preemption
principles. What practical guidelines -- guidelines perhaps unsatisfying to
a philosopher but "good 'nuff for government work" -- can anybody suggest
for classifying obligations such as that noted above, drawn from the actual
Brady Bill and not from a professorial imagination, in terms of the
dichotomy essential to make Printz and New York thinkable? -- Larry Tribe

-----Original Message-----
From: Douglas Laycock [mailto:dlaycock at MAIL.LAW.UTEXAS.EDU]
Sent: Monday, October 16, 2000 5:25 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: Reno v. Condon


        I'm not sure what carried the most weight in the Condon opinion.
But the
affirmative-negative distinction, however problematic, is essential once
New York and Printz are on the books.  Telling a state it must do some
specific thing is commandeering; telling a state there some specific thing
it may not do is pre-emption.  If the commandeering analysis is extended to
negative restrictions on state conduct, the whole law of pre-emption begins
to unravel.  And without the power to pre-empt state action inconsistent
with federal policy, what exactly does the Supremacy Clause do?

        If you don't like the affirmative-negative distinction, I think you
have
to question New York and Printz.  Maybe some other line could be found, but
I don't think it will have much principal.

At 04:21 PM 10/16/2000 -0400, you wrote:
>Even if the distinctions you mention are persuasive (I'm somewhat
>skeptical), why would the conservatives work so hard to distinguish Printz
>and New York? Is there something going on here outside the pure doctrinal
>development?
>
>At 03:36 PM 10/16/00 -0400, Ken Katkin wrote:
>>I just taught that case this morning to my Con Law I students, and they
>>certainly shared your puzzlement.   In explaining the distinction from New
>>York and Printz, I relied on Evan Caminker's distinction:  that the
>>Drivers Privacy Protection Act at issue in Condon "merely restrains state
>>action" while the federal statutes at issue in New York and Printz "impose
>>affirmative obligations on state officials."  See Evan Caminker, Printz,
>>State Sovereignty, and the Limits of Formalism, 1997 S. Ct. Review 199,
>>200 n.6 (1998) (discussing district court holding in Condon).   This
>>distinction needs to be applied with some functionalistic common sense,
>>because the Condon court did find that the Drivers Privacy Protection Act
>>placed an "affirmative obligation" on state DMV officials to learn the
>>rules about what data they could not sell.  But given that this
>>"obligation" was apparently too de minimis to trouble the court, Prof.
>>Caminker's distinction works nicely.
>>
>>In addition, the Condon court itself hinted at a second possible
>>distinction:  that the unconstitutional provisions of the statutes at
>>issue in New York and Printz applied ONLY to States, while the
>>restrictions on dissemination of motor vehicle information set forth in
>>the Drivers Privacy Protection Act applied to non-State owners of such
>>data, as well (e.g. insurance companies, auto dealers and manufacturers,
>>etc.).  In discusssing this issue, the Condon court raised the possibility
>>(also alluded to in Printz's discussion of Garcia) that a law which might
>>be constitututionally applied to States and private actors alike might be
>>unconstitutional if applied only to States.  However, because the Drivers
>>Privacy Protection Act was construed to be generally applicable to both
>>State and private actors, the Court's dicta on this point is inconclusive
>>at best.
>>
>>Eric Segall wrote:
>>>I'm not sure if Reno v. Condon has been discussed before on this list but
I
>>>am having a hard time distinguishing it from New York and Printz and need
>>>help.  It seems like the federal government was telling South Carolina
what
>>>it could and could not do with its DMV information and requiring South
>>>Carolina to implement federal regulations vis a vis private purchasers of
>>>that information. Why isn't that commandeering? The opinion is very short
>>>and unhelpful. Any assistance would be appreciated.
>>
>>--
>>Prof. Ken Katkin
>>Salmon P. Chase College of Law
>>561 Nunn Hall
>>Northern Kentucky University
>>Highland Heights, KY 41099
>>(859) 572-5861 phone
>>(859) 572-5342 fax
>>katkink at nku.edu
>>
>


Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX  78705
        512-232-1341 (phone)
        512-471-6988 (fax)
        dlaycock at mail.law.utexas.edu