Commandeering Research Paper

- The commandeering doctrine prevents Congress from forcing the states to enact and enforce a federal regulatory program. New York; Printz. But states are free to voluntarily implement any federal regime. Section 200(a) – requiring states that have received federal funds to cap number of bar admits – is probably commandeering. States are being required to enforce federal law by capping the admits, which is not okay following Printz. Section 200(b) – requiring states to enact and enforce law to comply with the federal regulation in order to receive additional funds – is probably not commandeering. The states have not received the funds yet and are free to opt out of this provision. The DOJ reporting regulation – requiring states to compile and report ¬pro bono hours – is probably commandeering. The reporting regulation came six months after the states had already accepted the funds provided in §§ 200(a) & (b), and this was not something that the states initially agreed to. The

Boerne. Here, it evidently is easier to establish regulatory takings with the FYCIA, but there is no constitutional violation that it is preventing or remedying. However, if there was a violation, the legislation would be congruent and proportional to it. No § 5 power here.

- The proposed standard for regulatory takings is likely to be proved workable. Satisfying the standard for workability can be established by how determined the rule is and the consistency of outcomes. The proposed standard satisfies both criteria: the rule is determined because it clearly lays out exactly what the government must do in order to comply with the standard; and it will result in consistent outcomes because the standard is applied to all levels of government.

(D)