Prohibiting the Conscription of State Officers for Commonwealth Purposes: An American Future for the State Immunity Doctrine?
| Published date | 01 September 2007 |
| DOI | 10.22145/flr.35.3.3 |
| Date | 01 September 2007 |
| Author | Matthew Moorhead |
| Subject Matter | Article |
PROHIBITING THE CONSCRIPTION OF STATE OFFICERS
FOR COMMONWEALTH PURPOSES: AN AMERICAN
FUTURE FOR THE STATE IMMUNITY DOCTRINE?
Matthew Moorhead*
INTRODUCTION
In undertaking its responsibility to interpret and construct federalism, the High Court
of Australia has frequently considered the Supreme Court of the United States'
treatment of the same subject.1 The US influence has been particularly pronounced in
the area of State immunity.2 This article considers whether an American constitutional
innovation of the 1990s, the anti-commandeering doctrine articulated in the case of
Printz v United States,3 can and should be transplanted to Australia.
'Printz v United States embodies the [Supreme] Court's most emphatic acclamation
of state sovereignty since the New Deal';4 it is a 'watershed in the jurisprudence of
federalism.'5 In the lead judgment, written by Scalia J, the Supreme Court expounded a
new bright-line rule:
The Federal Government may neither issue directives requiring the States to address
particular problems, nor command the States' officers, or those of their political
subdivisions, to administer or enforce a federal regulatory program.6
This rule, the Supreme Court made clear, is categorical and permits no exceptions:
It matters not whether policymaking is involved, and no case-by-case weighing of the
burdens or benefits is necessary; such commands are fundamentally incompatible with
our constitutional system of dual sovereignty.7
The rule in Printz has been brought to the attention of the High Court. Appearing in
Austin v Commonwealth,8 the Solicitor-General for South Australia, B M Selway QC,
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* BA/LLB (Hons) (ANU). I am grateful to Professor Fiona Wheeler, Amelia Simpson and the
anonymous reviewers for their comments on earlier versions of this article.
1 Paul von Nessen, 'The Use of American Precedents by the High Court of Australia, 1901–
1987' (1992) 14 Adelaide Law Review 181, 184.
2 See, eg, references to the influence of American judicial developments on Dixon J prior to
his decision in Melbourne Corporation v Commonwealth (1947) 74 CLR 31 ('Melbourne
Corporation') in Austin v Commonwealth (2003) 215 CLR 185 ('Austin'), 251 (Gaudron,
Gummow and Hayne JJ).
3 521 US 898 (1997) ('Printz').
4 Evan Caminker, 'Printz, State Sovereignty, and the Limits of Formalism' [1997] Supreme
Court Review 199, 199.
5 Andrew Gold, 'Formalism and State Sovereignty in Printz v United States: Cooperation by
Consent' (1998) 22 Harvard Journal of Law and Public Policy 247, 258.
6 Printz, 521 US 898, 935 (1997).
7 Ibid.
400 Federal Law Review Volume 35
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invoked Printz and argued that a similar anti-commandeering rule was applicable to
the Australian constitutional context:
The Constitution establishes a dual system of government … The Commonwealth cannot
exercise its powers so as to control the States as governmental polities. It is necessarily
inconsistent with the independence of the States for the Commonwealth to have power
unilaterally to direct the State or its employees to perform Commonwealth duties.9
The joint judgment of Gaudron, Gummow and Hayne JJ, noting South Australia's
reference to certain 'narrowly divided decisions of the United States Supreme Court'10
and citing Printz, resolved Austin without deciding the issue. In doing so, the High
Court left open the intriguing prospect of an anti-commandeering doctrine tailored to
Australian federalism:
In the end, the complaint here is that consistently with, and perhaps in development of,
the reasoning in Australian Education Union, it is critical to the constitutional integrity of
the States that they alone have the capacity to give directions to their officials and
determine what duties they perform. That is a large proposition and best left for another
day.11
The High Court has an opportunity to consider the issue again, after hearing the
appeals of O'Donoghue v Ireland and Zentai v Republic of Hungary together with the
special leave application of Williams v United States.12 The two appeals and the
application challenged the validity of ss 19 and 46 of the Extradition Act 1988 (Cth)
('Extradition Act'). At first instance in the case of Zentai v Republic of Hungary,13 having
noted the applicants' reliance on Printz, Siopis J dismissed the anti-commandeering
argument before noting that a commandeering situation did not, in fact, arise on the
facts.14 The Full Court agreed that the facts of the case did not support the appellants'
anti-commandeering argument.15 With regard to the validity of such an argument
generally, Tamberlin J (with whom Moore and Gyles JJ agreed),16 was of the opinion
that:
This submission for the appellants raises difficult and complex questions of constitutional
law. However, it is not necessary for the Court to determine these issues in order to
resolve the present dispute, and we will not do so. As Gaudron, Gummow and Hayne JJ
said in Austin, the submission raises 'a large proposition' that, in their Honours' view,
was not necessary to determine in that case and therefore 'best left for another day'.17
This article attempts to conceptualise and critique this large proposition. The
question to be addressed is whether it is in fact 'critical to the constitutional integrity of
the States' that the Commonwealth be prohibited from conscripting State officers for
federal functions. To phrase the question negatively, in the words of Scalia J: are 'such
commands … fundamentally incompatible with our constitutional system?'18
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8 (2003) 215 CLR 185.
9 Ibid 196 (citations omitted).
10 Ibid 268.
11 Ibid 269.
12 5 and 6 December 2007, [2007] HCATrans 723 and 744.
13 (2006) 153 FCR 104.
14 Ibid 109–14.
15 Zentai v Republic of Hungary (2007) 157 FCR 585 ('Zentai'), 586 (Moore J), 589 (Tamberlin J).
16 Ibid 586, 591.
17 Ibid 589.
18 Printz, 521 US 898, 935 (1997).
2007 An American Future for the State Immunity Doctrine? 401
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Part I presents Printz and analyses the reasoning of the majority. Part II searches the
text of the Constitution for a Printz rule before considering whether, using the High
Court's preferred manner of assessing implications from the structure of the
Constitution, a categorical anti-commandeering rule is logically or practically necessary
to preserve the federal structure of the Constitution. It does so by evaluating whether a
bright-line anti-commandeering rule is necessary to prevent the impairment of the
States' capacity to function as independent governments, or whether the case-by-case
approach in Austin is more appropriate in commandeering cases. The presentation of
the proposed anti-commandeering doctrine in both Austin and Zentai is considered in
more detail. In Part III it is argued that the text and structure reasoning in Part II
cannot conclusively resolve the question, and the normative arguments for adopting a
Printz rule are considered.
I UNDERSTANDING THE ANTI-COMMANDEERING DOCTRINE
AND ITS AMERICAN CONTEXT
A New York v United States:19 Birth of the anti-commandeering doctrine
In 1992 the Supreme Court of the United States expounded a new anti-commandeering
doctrine: 'The Federal Government may not compel the States to enact or administer a
federal regulatory program.'20 For the first time since 1976 21 the Supreme Court
invalidated a federal law for violating the Tenth Amendment.22
With O'Connor J writing for the majority, the Court held that Congress could not
'commandeer' State legislative procedures by coercing States to regulate any particular
field. The case concerned several provisions of the Low-Level Radioactive Waste Policy
Amendments Act of 1985,23 which provided for the participation of States in the disposal
of nuclear waste. The so-called 'take title' provisions 'offer[ed] state governments a
"choice" of either accepting ownership of waste or regulating according to the
instructions of Congress.'24 The provision, although 'well within Congress' authority
under the Commerce Clause',25 violated the Tenth Amendment. Requiring States to
accept one of two options, both of which required an act of lawmaking by the State —
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19 505 US 144 (1992) ('New York').
20 Ibid 188.
21 In National League of Cities v Usery, 426 US 833 (1976) the Supreme Court invalidated a
provision of the Fair Labor Standards Act of 1938, 29 USC §§ 201–19 (1994). The provision
imposed minimum wage and maximum hour requirements upon State and local
governments. Although the provision was within the scope of the commerce power, a
majority of the Court held that it violated the Tenth Amendment because it impermissibly
interfered with the governmental functions of the States and their political subdivisions.
National League of Cities v Usery was distinguished in subsequent decisions, and was
overruled by the Supreme Court in Garcia v San Antonio Metropolitan Transit Authority, 469
US 528 (1985).
22 The Tenth Amendment provides: 'The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to
the people.'
23 Pub L No 99–240, 99 Stat 1842.
24 New York, 505 US 144, 175 (1992).
25 Ibid 160.
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