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SUPREME COURT OF THE UNITED STATES
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Nos. 91-543, 91-558 and 91-563
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NEW YORK, PETITIONER
91-543                     v.
UNITED STATES et al.

COUNTY OF ALLEGANY, NEW YORK, PETITIONER
91-558                     v.
UNITED STATES et al.

COUNTY OF CORTLAND, NEW YORK, PETITIONER
91-563                     v.
UNITED STATES et al.
on writs of certiorari to the united states court of
appeals for the second circuit
[June 19, 1992]

  Justice White, with whom Justice Blackmun and
Justice Stevens join, concurring in part and dissenting in
part.
  The Court today affirms the constitutionality of two facets
of the Low-Level Radioactive Waste Policy Amendments Act
of 1985 (1985 Act), Pub. L. 99-240, 99 Stat. 1842, 42
U. S. C. 2021b et seq.  These provisions include the
monetary incentives from surcharges collected by States
with low-level radioactive waste storage sites and rebated
by the Secretary of Energy to States in compliance with the
Act's deadlines for achieving regional or in-state disposal,
see 2021e(d)(2)(A) and 2021e(d)(2)(B)(iv), and the -access
incentives,- which deny access to disposal sites for States
that fail to meet certain deadlines for low-level radioactive
waste disposal management.  2021e(e)(2).  The Court
strikes down and severs a third component of the 1985 Act,
the -take title- provision, which requires a noncomplying
State to take title to or to assume liability for its low-level
radioactive waste if it fails to provide for the disposal of
such waste by January 1, 1996.  2021e(d)(2)(C).  The
Court deems this last provision unconstitutional under
principles of federalism.  Because I believe the Court has
mischaracterized the essential inquiry, misanalyzed the
inquiry it has chosen to undertake, and undervalued the
effect the seriousness of this public policy problem should
have on the constitutionality of the take title provision, I
can only join Parts III-A and III-B, and I respectfully
dissent from the rest of its opinion and the judgment
reversing in part the judgment of the Court of Appeals.
                            I
  My disagreement with the Court's analysis begins at the
basic descriptive level of how the legislation at issue in this
case came to be enacted.  The Court goes some way toward
setting out the bare facts, but its omissions cast the
statutory context of the take title provision in the wrong
light.  To read the Court's version of events, see ante, at
2-3, one would think that Congress was the sole proponent
of a solution to the Nation's low-level radioactive waste
problem.  Not so.  The Low-Level Radioactive Waste Policy
Act of 1980 (1980 Act), Pub. L. 96-573, 94 Stat. 3347, and
its amendatory Act of 1985, resulted from the efforts of
state leaders to achieve a state-based set of remedies to the
waste problem.  They sought not federal pre-emption or
intervention, but rather congressional sanction of interstate
compromises they had reached.
  The two signal events in 1979 that precipitated move-
ment toward legislation were the temporary closing of the
Nevada disposal site in July 1979, after several serious
transportation-related incidents, and the temporary
shutting of the Washington disposal site because of similar
transportation and packaging problems in October 1979.  At
that time the facility in Barnwell, South Carolina, received
approximately three-quarters of the Nation's low-level
radioactive waste, and the Governor ordered a 50 percent
reduction in the amount his State's plant would accept for
disposal.  National Governors' Association Task Force on
Low-Level Radioactive Waste Disposal, Low-Level Waste:
A Program for Action 3 (Nov. 1980) (hereinafter A Program
for Action).  The Governor of Washington threatened to
shut down the Hanford, Washington, facility entirely by
1982 unless -some meaningful progress occurs toward-
development of regional solutions to the waste disposal
problem.  Id., at 4, n.  Only three sites existed in the
country for the disposal of low-level radioactive waste, and
the -sited- States confronted the undesirable alternatives
either of continuing to be the dumping grounds for the
entire Nation's low-level waste or of eliminating or reduc-
ing in a constitutional manner the amount of waste
accepted for disposal.
  The imminence of a crisis in low-level radioactive waste
management cannot be overstated.  In December 1979, the
National Governors' Association convened an eight-member
task force to coordinate policy proposals on behalf of the
States.  See Status of Interstate Compacts for the Disposal
of Low-Level Radioactive Waste:  Hearing before the Senate
Committee on the Judiciary, 98th Cong., 1st Sess., 8 (1983).
In May 1980, the State Planning Council on Radioactive
Waste Management submitted the following unanimous
recommendation to President Carter:
      -The national policy of the United States on low-level
radioactive waste shall be that every State is responsi-
ble for the disposal of the low-level radioactive waste
generated by nondefense related activities within its
boundaries and that States are authorized to enter into
interstate compacts, as necessary, for the purpose of
carrying out this responsibility.''  126 Cong. Rec. 20135
(1980).

This recommendation was adopted by the National
Governors' Association a few months later.  See A Program
for Action 6-7; H.R. Rep. No. 99-314, pt. 2, p. 18 (1985).
The Governors recognized that the Federal Government
could assert its preeminence in achieving a solution to this
problem, but requested instead that Congress oversee state-
developed regional solutions.  Accordingly, the Governors'
Task Force urged that -each state should accept primary
responsibility for the safe disposal of low-level radioactive
waste generated within its borders- and that -the states
should pursue a regional approach to the low-level waste
disposal problem.-  A Program for Action 6.
  The Governors went further, however, in recommending
that -Congress should authorize the states to enter into
interstate compacts to establish regional disposal sites- and
that -[s]uch authorization should include the power to
exclude waste generated outside the region from the
regional disposal site.-  Id., at 7.  The Governors had an
obvious incentive in urging Congress not to add more
coercive measures to the legislation should the States fail
to comply, but they nevertheless anticipated that Congress
might eventually have to take stronger steps to ensure
compliance with long-range planning deadlines for low-level
radioactive waste management.  Accordingly, the Governors'
Task Force
-recommend[ed] that Congress defer consideration of
sanctions to compel the establishment of new disposal
sites until at least two years after the enactment of
compact consent legislation.  States are already con-
fronting the diminishing capacity of present sites and
an unequivocal political warning from those states'
Governors.  If at the end of the two-year period states
have not responded effectively, or if problems still exist,
stronger federal action may be necessary.  But until
that time, Congress should confine its role to removing
obstacles and allow the states a reasonable chance to
solve the problem themselves.-  Id., at 8-9.
  Such concerns would have been mooted had Congress
enacted a -federal- solution, which the Senate considered in
July 1980.  See S. 2189, 96th Cong., 2d Sess. (1980); S. Rep.
No. 96-548 (1980) (detailing legislation calling for federal
study, oversight, and management of radioactive waste).
This -federal- solution, however, was opposed by one of the
sited State's Senators, who introduced an amendment to
adopt and implement the recommendations of the State
Planning Council on Radioactive Waste Management.  See
126 Cong. Rec. 20136 (1980) (statement of Sen. Thurmond).
The -state-based- solution carried the day, and as enacted,
the 1980 Act announced the -policy of the Federal Govern-
ment that . . . each State is responsible for providing for the
availability of capacity either within or outside the State for
the disposal of low-level radioactive waste generated within
its borders.-  Pub. L. 96-573, 4(a)(1), 94 Stat. 3348.  This
Act further authorized States to -enter into such compacts
as may be necessary to provide for the establishment and
operation of regional disposal facilities for low-level radioac-
tive waste,- 4(a)(2)(A), compacts to which Congress would
have to give its consent.  4(a)(2)(B).  The 1980 Act also
provided that, beginning on January 1, 1986, an approved
compact could reserve access to its disposal facilities for
those States which had joined that particular regional
compact.  Ibid.
  As well described by one of the amici, the attempts by
States to enter into compacts and to gain congressional
approval sparked a new round of political squabbling
between elected officials from unsited States, who generally
opposed ratification of the compacts that were being formed,
and their counterparts from the sited States, who insisted
that the promises made in the 1980 Act be honored.  See
Brief for American Federation of Labor and Congress of
Industrial Organizations as Amicus Curiae 12-14.  In its
effort to keep the States at the forefront of the policy
amendment process, the National Governors' Association
organized more than a dozen meetings to achieve a state
consensus.  See H. Brown, The Low-Level Waste Handbook:
A User's Guide to the Low-Level Radioactive Waste Policy
Amendments Act of 1985, p. iv (Nov. 1986) (describing -the
states' desire to influence any revisions of the 1980 Act-).
  These discussions were not merely academic.  The sited
States grew increasingly and justifiably frustrated by the
seeming inaction of unsited States in meeting the projected
actions called for in the 1980 Act.  Thus, as the end of 1985
approached, the sited States viewed the January 1, 1986
deadline established in the 1980 Act as a -drop-dead- date,
on which the regional compacts could begin excluding the
entry of out-of-region waste.  See 131 Cong. Rec. 35203
(1985).  Since by this time the three disposal facilities
operating in 1980 were still the only such plants accepting
low-level radioactive waste, the unsited States perceived a
very serious danger if the three existing facilities actually
carried out their threat to restrict access to the waste
generated solely within their respective compact regions.
  A movement thus arose to achieve a compromise between
the sited and the unsited States, in which the sited States
agreed to continue accepting waste in exchange for the
imposition of stronger measures to guarantee compliance
with the unsited States' assurances that they would develop
alternate disposal facilities.  As Representative Derrick
explained, the compromise 1985 legislation -gives nonsited
States more time to develop disposal sites, but also estab-
lishes a very firm timetable and sanctions for failure to live
up [to] the agreement.-  Id., at 35207.  Representative
Markey added that -[t]his compromise became the basis for
our amendments to the Low-Level Radioactive Waste Policy
Act of 1980.  In the process of drafting such amendments,
various concessions have been made by all sides in an effort
to arrive at a bill which all parties could accept.-  Id., at
35205.  The bill that in large measure became the 1985 Act
-represent[ed] the diligent negotiating undertaken by- the
National Governors' Association and -embodied- the
-fundamentals of their settlement.-  Id., at 35204 (state-
ment of Rep. Udall).  In sum, the 1985 Act was very much
the product of cooperative federalism, in which the States
bargained among themselves to achieve compromises for
Congress to sanction.
  There is no need to resummarize the essentials of the
1985 legislation, which the Court does ante, at 4-6.  It does,
however, seem critical to emphasize what is accurately
described in one amicus brief as the assumption by Con-
gress of -the role of arbiter of disputes among the several
States.-  Brief for Rocky Mountain Low-Level Radioactive
Waste Compact et al. as Amici Curiae 9.  Unlike legislation
that directs action from the Federal Government to the
States, the 1980 and 1985 Acts reflected hard-fought
agreements among States as refereed by Congress.  The
distinction is key, and the Court's failure properly to
characterize this legislation ultimately affects its analysis
of the take title provision's constitutionality.
                           II
  To justify its holding that the take title provision contra-
venes the Constitution, the Court posits that -[i]n this
provision, Congress has crossed the line distinguishing
encouragement from coercion.-  Ante, at 27.  Without
attempting to understand properly the take title provision's
place in the interstate bargaining process, the Court
isolates the measure analytically and proceeds to dissect it
in a syllogistic fashion.  The Court candidly begins with an
argument respondents do not make:  -that the Constitution
would not permit Congress simply to transfer radioactive
waste from generators to state governments.-  Ante, at 28.
-Such a forced transfer,- it continues, -standing alone,
would in principle be no different than a congressionally
compelled subsidy from state governments to radioactive
waste producers.-  Ibid.  Since this is not an argument
respondents make, one naturally wonders why the Court
builds its analysis that the take title provision is unconsti-
tutional around this opening premise.  But having carefully
built its straw man, the Court proceeds impressively to
knock him down.  -As we have seen,- the Court teaches,
-the Constitution does not empower Congress to subject
state governments to this type of instruction.-  Ante, at 28.
  Curiously absent from the Court's analysis is any effort
to place the take title provision within the overall context
of the legislation.  As the discussion in Part I of this opinion
suggests, the 1980 and 1985 statutes were enacted against
a backdrop of national concern over the availability of
additional low-level radioactive waste disposal facilities.
Congress could have pre-empted the field by directly
regulating the disposal of this waste pursuant to its powers
under the Commerce and Spending Clauses, but instead it
unanimously assented to the States' request for congres-
sional ratification of agreements to which they had acceded.
See 131 Cong. Rec. 35252 (1985); id., at 38425.  As the floor
statements of Members of Congress reveal, see supra, at
___, the States wished to take the lead in achieving a
solution to this problem and agreed among themselves to
the various incentives and penalties implemented by
Congress to insure adherence to the various deadlines and
goals.  The chief executives of the States proposed this
approach, and I am unmoved by the Court's vehemence in
taking away Congress' authority to sanction a recalcitrant
unsited State now that New York has reaped the benefits
of the sited States' concessions.
                            A
  In my view, New York's actions subsequent to enactment
of the 1980 and 1985 Acts fairly indicate its approval of
the interstate agreement process embodied in those laws
within the meaning of Art. I, 10, cl. 3, of the Constitution,
which provides that -[n]o State shall, without the Consent
of Congress, . . . enter into any Agreement or Compact
with another State.-  First, the States-including New
York-worked through their Governors to petition Congress
for the 1980 and 1985 Acts.  As I have attempted to
demonstrate, these statutes are best understood as the
products of collective state action, rather than as imposi-
tions placed on States by the Federal Government.  Second,
New York acted in compliance with the requisites of both
statutes in key respects, thus signifying its assent to the
agreement achieved among the States as codified in these
laws.  After enactment of the 1980 Act and pursuant to its
provision in 4(a)(2), 94 Stat. 3348, New York entered into
compact negotiations with several other northeastern States
before withdrawing from them to -go it alone.-  Indeed, in
1985, as the January 1, 1986 deadline crisis approached
and Congress considered the 1985 legislation that is the
subject of this lawsuit, the Deputy Commissioner for Policy
and Planning of the New York State Energy Office testified
before Congress that -New York State supports the efforts
of Mr. Udall and the members of this Subcommittee to
resolve the current impasse over Congressional consent to
the proposed LLRW compacts and provide interim access
for states and regions without sites.  New York State has
been participating with the National Governors' Association
and the other large states and compact commissions in an
effort to further refine the recommended approach in HR
1083 and reach a consensus between all groups.-   See Low-
Level Waste Legislation:  Hearings on H.R. 862, H.R. 1046,
H.R. 1083, and H.R. 1267 before the Subcommittee on
Energy and the Environment of the House Committee on
Interior and Insular Affairs, 99th Cong., 1st Sess., 197
(1985) (testimony of Charles Guinn) (emphasis added).
  Based on the assumption that -other states will [not]
continue indefinitely to provide access to facilities adequate
for the permanent disposal of low-level radioactive waste
generated in New York,- 1986 N.Y. Laws, ch. 673, 2, the
State legislature enacted a law providing for a waste
disposal facility to be sited in the State.  Ibid.  This
measure comported with the 1985 Act's proviso that States
which did not join a regional compact by July 1, 1986,
would have to establish an in-state waste disposal facility.
See 42 U. S. C. 2021e(e)(1)(A).  New York also complied
with another provision of the 1985 Act, 2021e(e)(1)(B),
which provided that by January 1, 1988, each compact or
independent State would identify a facility location and
develop a siting plan, or contract with a sited compact for
access to that region's facility.  By 1988, New York had
identified five potential sites in Cortland and Allegany
Counties, but public opposition there caused the State to
reconsider where to locate its waste disposal facility.  See
Office of Environmental Restoration and Waste Manage-
ment, U. S. Dept. of Energy, Report to Congress in Re-
sponse to Public Law 99-240:  1990 Annual Report on Low-
Level Radioactive Waste Management Progress 32-35
(1991) (lodged with the Clerk of this Court).  As it was
undertaking these initial steps to honor the interstate
compromise embodied in the 1985 Act, New York continued
to take full advantage of the import concession made by the
sited States, by exporting its low-level radioactive waste for
the full 7-year extension period provided in the 1985 Act.
By gaining these benefits and complying with certain of the
1985 Act's deadlines, therefore, New York fairly evidenced
its acceptance of the federal-state arrangement-including
the take title provision.
  Although unlike the 42 States that compose the nine
existing and approved regional compacts, see Brief for
United States 10, n. 19, New York has never formalized its
assent to the 1980 and 1985 statutes, our cases support the
view that New York's actions signify assent to a constitu-
tional interstate -agreement- for purposes of Art. I, 10, cl.
3.  In Holmes v. Jennison, 14 Pet. 540 (1840), Chief Justice
Taney stated that -[t]he word `agreement,' does not neces-
sarily import any direct and express stipulation; nor is it
necessary that it should be in writing.  If there is a verbal
understanding to which both parties have assented, and
upon which both are acting, it is an `agreement.'  And the
use of all of these terms, `treaty,' `agreement,' `compact,'
show that it was the intention of the framers of the Consti-
tution to use the broadest and most comprehensive terms;
. . . and we shall fail to execute that evident intention,
unless we give to the word `agreement' its most extended
signification; and so apply it as to prohibit every agreement,
written or verbal, formal or informal, positive or implied, by
the mutual understanding of the parties.-  Id., at 572.
(emphasis added).  In my view, New York acted in a
manner to signify its assent to the 1985 Act's take title
provision as part of the elaborate compromise reached
among the States.
  The State should be estopped from asserting the unconsti-
tutionality of a provision that seeks merely to ensure that,
after deriving substantial advantages from the 1985 Act,
New York in fact must live up to its bargain by establishing
an in-state low-level radioactive waste facility or assuming
liability for its failure to act.  Cf. West Virginia ex rel. Dyer
v. Sims, 341 U. S. 22, 35-36 (1951), Jackson, J., concurring:
-West Virginia officials induced sister States to contract
with her and Congress to consent to the Compact.  She now
attempts to read herself out of this interstate Compact. . . .
Estoppel is not often to be invoked against a government.
But West Virginia assumed a contractual obligation with
equals by permission of another government that is
sovereign in the field.  After Congress and sister States had
been induced to alter their positions and bind themselves to
terms of a covenant, West Virginia should be estopped from
repudiating her act. . . .- (Emphasis added.)
                            B
  Even were New York not to be estopped from challenging
the take title provision's constitutionality, I am convinced
that, seen as a term of an agreement entered into between
the several States, this measure proves to be less constitu-
tionally odious than the Court opines.  First, the practical
effect of New York's position is that because it is unwilling
to honor its obligations to provide in-state storage facilities
for its low-level radioactive waste, other States with such
plants must accept New York's waste, whether they wish to
or not.  Otherwise, the many economically and socially-
beneficial producers of such waste in the State would have
to cease their operations.  The Court's refusal to force New
York to accept responsibility for its own problem inevitably
means that some other State's sovereignty will be impinged
by it being forced, for public health reasons, to accept New
York's low-level radioactive waste.  I do not understand the
principle of federalism to impede the National Government
from acting as referee among the States to prohibit one
from bullying another.
  Moreover, it is utterly reasonable that, in crafting a
delicate compromise between the three overburdened States
that provided low-level radioactive waste disposal facilities
and the rest of the States, Congress would have to ratify
some punitive measure as the ultimate sanction for non-
compliance.  The take title provision, though surely oner-
ous, does not take effect if the generator of the waste does
not request such action, or if the State lives up to its
bargain of providing a waste disposal facility either within
the State or in another State pursuant to a regional
compact arrangement or a separate contract.  See 42
U. S. C. 2021e(d)(2)(C).
  Finally, to say, as the Court does, that the incursion on
state sovereignty -cannot be ratified by the `consent' of state
officials,- ante, at 34, is flatly wrong.  In a case involving a
congressional ratification statute to an interstate compact,
the Court upheld a provision that Tennessee and Missouri
had waived their immunity from suit.  Over their objection,
the Court held that -[t]he States who are parties to the
compact by accepting it and acting under it assume the
conditions that Congress under the Constitution attached.-
Petty v. Tennessee-Missouri Bridge Comm'n, 359 U. S. 275,
281-282 (1959) (emphasis added).  In so holding, the Court
determined that a State may be found to have waived a
fundamental aspect of its sovereignty-the right to be
immune from suit-in the formation of an interstate
compact even when in subsequent litigation it expressly
denied its waiver.  I fail to understand the reasoning behind
the Court's selective distinctions among the various aspects
of sovereignty that may and may not be waived and do not
believe these distinctions will survive close analysis in
future cases.  Hard public policy choices sometimes require
strong measures, and the Court's holding, while not
irremediable, essentially misunderstands that the 1985 take
title provision was part of a complex interstate agreement
about which New York should not now be permitted to
complain.
                           III
  The Court announces that it has no occasion to revisit
such decisions as Gregory v. Ashcroft, 501 U. S. ___ (1991);
South Carolina v. Baker, 485 U. S. 505 (1988); Garcia v.
San Antonio Metropolitan Transit Authority, 469 U. S. 528
(1985); EEOC v. Wyoming, 460 U. S. 226 (1983); and
National League of Cities v. Usery, 426 U. S. 833 (1976); see
ante, at 13, because -this is not a case in which Congress
has subjected a State to the same legislation applicable to
private parties.-  Ibid.  Although this statement sends the
welcome signal that the Court does not intend to cut a wide
swath through our recent Tenth Amendment precedents, it
nevertheless is unpersuasive.  I have several difficulties
with the Court's analysis in this respect:  it builds its rule
around an insupportable and illogical distinction in the
types of alleged incursions on state sovereignty; it derives
its rule from cases that do not support its analysis; it fails
to apply the appropriate tests from the cases on which it
purports to base its rule; and it omits any discussion of the
most recent and pertinent test for determining the take
title provision's constitutionality.
  The Court's distinction between a federal statute's
regulation of States and private parties for general purpos-
es, as opposed to a regulation solely on the activities of
States, is unsupported by our recent Tenth Amendment
cases.  In no case has the Court rested its holding on such
a distinction.  Moreover, the Court makes no effort to
explain why this purported distinction should affect the
analysis of Congress' power under general principles of
federalism and the Tenth Amendment.  The distinction,
facilely thrown out, is not based on any defensible theory.
Certainly one would be hard-pressed to read the spirited
exchanges between the Court and dissenting Justices in
National League of Cities, supra, and in Garcia v. San
Antonio Metropolitan Transit Authority, supra, as having
been based on the distinction now drawn by the Court.  An
incursion on state sovereignty hardly seems more constitu-
tionally acceptable if the federal statute that -commands-
specific action also applies to private parties.  The alleged
diminution in state authority over its own affairs is not any
less because the federal mandate restricts the activities of
private parties.
  Even were such a distinction to be logically sound, the
Court's -anti-commandeering- principle cannot persuasively
be read as springing from the two cases cited for the
proposition, Hodel v. Virginia Surface Mining & Reclama-
tion Assn., Inc., 452 U. S. 264, 288 (1981), and FERC v.
Mississippi, 456 U. S. 742, 761-762 (1982).  The Court
purports to draw support for its rule against Congress
-commandeer[ing]- state legislative processes from a
solitary statement in dictum in Hodel.  See ante, at 13:  -As
an initial matter, Congress may not simply `commandee[r]
the legislative processes of the States by directly compelling
them to enact and enforce a federal regulatory program.'-
(quoting Hodel, supra, at 288).  That statement was not
necessary to the decision in Hodel, which involved the
question whether the Tenth Amendment interfered with
Congress' authority to pre-empt a field of activity that could
also be subject to state regulation and not whether a federal
statute could dictate certain actions by States; the language
about -commandeer[ing]- States was classic dicta.  In
holding that a federal statute regulating the activities of
private coal mine operators was constitutional, the Court
observed that -[i]t would . . . be a radical departure from
long-established precedent for this Court to hold that the
Tenth Amendment prohibits Congress from displacing state
police power laws regulating private activity.-  452 U. S., at
292.
  The Court also claims support for its rule from our
decision in FERC, and quotes a passage from that case in
which we stated that ```this Court never has sanctioned
explicitly a federal command to the States to promulgate
and enforce laws and regulations.'''  Ante, at 14 (quoting
456 U. S., at 761-762).  In so reciting, the Court extracts
from the relevant passage in a manner that subtly alters
the Court's meaning.  In full, the passage reads:  -While
this Court never has sanctioned explicitly a federal com-
mand to the States to promulgate and enforce laws and
regulations, cf. EPA v. Brown, 431 U. S. 99 (1977), there are
instances where the Court has upheld federal statutory
structures that in effect directed state decisionmakers to take
or to refrain from taking certain actions.-  Ibid. (citing Fry
v. United States, 421 U. S. 542 (1975) (emphasis added).
The phrase highlighted by the Court merely means that we
have not had the occasion to address whether Congress may
-command- the States to enact a certain law, and as I have
argued in Parts I and II of this opinion, this case does not
raise that issue.  Moreover, it should go without saying that
the absence of any on-point precedent from this Court has
no bearing on the question whether Congress has properly
exercised its constitutional authority under Article I.
Silence by this Court on a subject is not authority for
anything.
  The Court can scarcely rest on a distinction between
federal laws of general applicability and those ostensibly
directed solely at the activities of States, therefore, when
the decisions from which it derives the rule not only made
no such distinction, but validated federal statutes that
constricted state sovereignty in ways greater than or
similar to the take title provision at issue in this case.  As
Fry, Hodel, and FERC make clear, our precedents prior to
Garcia upheld provisions in federal statutes that directed
States to undertake certain actions.  -[I]t cannot be consti-
tutionally determinative that the federal regulation is likely
to move the States to act in a given way,- we stated in
FERC, -or even to `coerc[e] the States' into assuming a
regulatory role by affecting their `freedom to make decisions
in areas of -integral governmental functions.-'-  456 U. S.,
at 766.  I thus am unconvinced that either Hodel or FERC
supports the rule announced by the Court.
  And if those cases do stand for the proposition that in
certain circumstances Congress may not dictate that the
States take specific actions, it would seem appropriate to
apply the test stated in FERC for determining those
circumstances.  The crucial threshold inquiry in that case
was whether the subject matter was pre-emptible by
Congress.  See 456 U. S., at 765.  -If Congress can require
a state administrative body to consider proposed regulations
as a condition to its continued involvement in a pre-
emptible field-and we hold today that it can-there is
nothing unconstitutional about Congress' requiring certain
procedural minima as that body goes about undertaking its
tasks.-  Id., at 771 (emphasis added).  The FERC Court
went on to explain that if Congress is legislating in a pre-
emptible field-as the Court concedes it was doing here, see
ante, at 25-26--the proper test before our decision in Garcia
was to assess whether the alleged intrusions on state
sovereignty -do not threaten the States' `separate and
independent existence,' Lane County v. Oregon, 7 Wall. 71,
76 (1869); Coyle v. Oklahoma, 221 U. S. 559, 580 (1911),
and do not impair the ability of the States `to function
effectively in a federal system.'  Fry v. United States, 421
U. S., at 547, n. 7; National League of Cities v. Usery, 426
U. S., at 852.-  FERC, supra, at 765-766.  On neither score
does the take title provision raise constitutional problems.
It certainly does not threaten New York's independent
existence nor impair its ability to function effectively in the
system, all the more so since the provision was enacted
pursuant to compromises reached among state leaders and
then ratified by Congress.
  It is clear, therefore, that even under the precedents
selectively chosen by the Court, its analysis of the take title
provision's constitutionality in this case falls far short of
being persuasive.  I would also submit, in this connection,
that the Court's attempt to carve out a doctrinal distinction
for statutes that purport solely to regulate State activities
is especially unpersuasive after Garcia.  It is true that in
that case we considered whether a federal statute of general
applicability-the Fair Labor Standards Act-applied to
state transportation entities but our most recent statements
have explained the appropriate analysis in a more general
manner.  Just last Term, for instance, Justice O'Connor
wrote for the Court that -[w]e are constrained in our ability
to consider the limits that the state-federal balance places
on Congress' powers under the Commerce Clause.  See
Garcia v. San Antonio Metropolitan Transit Authority, 469
U. S. 528 (1985) (declining to review limitations placed on
Congress' Commerce Clause powers by our federal system).-
Gregory v. Ashcroft, 501 U. S. ___, ___ (1991) (slip op., at
10).  Indeed, her opinion went on to state that -this Court
in Garcia has left primarily to the political process the
protection of the States against intrusive exercises of
Congress' Commerce Clause powers.-  Ibid. (emphasis
added).
  Rather than seek guidance from FERC and Hodel,
therefore, the more appropriate analysis should flow from
Garcia, even if this case does not involve a congressional
law generally applicable to both States and private parties.
In Garcia, we stated the proper inquiry:  -[W]e are con-
vinced that the fundamental limitation that the constitu-
tional scheme imposes on the Commerce Clause to protect
the `States as States' is one of process rather than one of
result.  Any substantive restraint on the exercise of
Commerce Clause powers must find its justification in the
procedural nature of this basic limitation, and it must be
tailored to compensate for possible failings in the national
political process rather than to dictate a `sacred province of
state autonomy.'-  469 U. S., at 554 (quoting EEOC v.
Wyoming, 460 U. S., at 236).  Where it addresses this
aspect of respondents' argument, see ante, at 33-35, the
Court tacitly concedes that a failing of the political process
cannot be shown in this case because it refuses to rebut the
unassailable arguments that the States were well able to
look after themselves in the legislative process that culmi-
nated in the 1985 Act's passage.  Indeed, New York
acknowledges that its -congressional delegation participated
in the drafting and enactment of both the 1980 and the
1985 Acts.-  Pet. for Cert. in No. 91-543, p. 7.  The Court
rejects this process-based argument by resorting to generali-
ties and platitudes about the purpose of federalism being to
protect individual rights.
  Ultimately, I suppose, the entire structure of our federal
constitutional government can be traced to an interest in
establishing checks and balances to prevent the exercise of
tyranny against individuals.  But these fears seem extreme-
ly far distant to me in a situation such as this.  We face a
crisis of national proportions in the disposal of low-level
radioactive waste, and Congress has acceded to the wishes
of the States by permitting local decisionmaking rather
than imposing a solution from Washington.  New York itself
participated and supported passage of this legislation at
both the gubernatorial and federal representative levels,
and then enacted state laws specifically to comply with the
deadlines and timetables agreed upon by the States in the
1985 Act.  For me, the Court's civics lecture has a decidedly
hollow ring at a time when action, rather than rhetoric, is
needed to solve a national problem.
                           IV
  Though I disagree with the Court's conclusion that the
take title provision is unconstitutional, I do not read its
opinion to preclude Congress from adopting a similar
measure through its powers under the Spending or Com-
merce Clauses.  The Court makes clear that its objection is
to the alleged -commandeer[ing]- quality of the take title
provision.  See ante, at 27.  As its discussion of the sur-
charge and rebate incentives reveals, see ante, at 23-24, the
spending power offers a means of enacting a take title
provision under the Court's standards.  Congress could, in
other words, condition the payment of funds on the State's
willingness to take title if it has not already provided a
waste disposal facility.  Under the scheme upheld in this
case, for example, monies collected in the surcharge
provision might be withheld or disbursed depending on a
State's willingness to take title to or otherwise accept
responsibility for the low-level radioactive waste generated
in state after the statutory deadline for establishing its own
waste disposal facility has passed.  See ante, at 24; South
Dakota v. Dole, 483 U. S. 203, 208-209 (1987); Massachu-
setts v. United States, 435 U. S. 444, 461 (1978).
  Similarly, should a State fail to establish a waste disposal
facility by the appointed deadline (under the statute as
presently drafted, January 1, 1996, 2021e(d)(2)(C)), Con-
gress has the power pursuant to the Commerce Clause to
regulate directly the producers of the waste.  See ante, at
25-26.  Thus, as I read it, Congress could amend the
statute to say that if a State fails to meet the January 1,
1996 deadline for achieving a means of waste disposal, and
has not taken title to the waste, no low-level radioactive
waste may be shipped out of the State of New York.  See,
e.g., Hodel, 452 U. S., at 288.  As the legislative history of
the 1980 and 1985 Acts indicates, faced with the choice of
federal pre-emptive regulation and self-regulation pursuant
to interstate agreement with congressional consent and
ratification, the States decisively chose the latter.  This
background suggests that the threat of federal pre-emption
may suffice to induce States to accept responsibility for
failing to meet critical time deadlines for solving their low-
level radioactive waste disposal problems, especially if that
federal intervention also would strip state and local
authorities of any input in locating sites for low-level
radioactive waste disposal facilities.  And of course, should
Congress amend the statute to meet the Court's objection
and a State refuse to act, the National Legislature will have
ensured at least a federal solution to the waste manage-
ment problem.
  Finally, our precedents leave open the possibility that
Congress may create federal rights of action in the genera-
tors of low-level radioactive waste against persons acting
under color of state law for their failure to meet certain
functions designated in federal-state programs.  Thus, we
have upheld 1983 suits to enforce certain rights created by
statutes enacted pursuant to the Spending Clause, see, e.g.,
Wilder v. Virginia Hospital Assn,, 496 U. S. 498 (1990);
Wright v. Roanoke Redevelopment and Housing Authority,
479 U. S. 418 (1987), although Congress must be cautious
in spelling out the federal right clearly and distinctly, see,
e.g., Suter v. Artist M, 503 U. S. ___ (1992) (not permitting
a 1983 suit under a Spending Clause statute when the
ostensible federal right created was too vague and amor-
phous).  In addition to compensating injured parties for the
State's failure to act, the exposure to liability established by
such suits also potentially serves as an inducement to
compliance with the program mandate.
                            V
  The ultimate irony of the decision today is that in its
formalistically rigid obeisance to -federalism,- the Court
gives Congress fewer incentives to defer to the wishes of
state officials in achieving local solutions to local problems.
This legislation was a classic example of Congress acting as
arbiter among the States in their attempts to accept
responsibility for managing a problem of grave import.  The
States urged the National Legislature not to impose from
Washington a solution to the country's low-level radioactive
waste management problems.  Instead, they sought a
reasonable level of local and regional autonomy consistent
with Art. I, 10, cl. 3, of the Constitution.  By invalidating
the measure designed to ensure compliance for recalcitrant
States, such as New York, the Court upsets the delicate
compromise achieved among the States and forces Congress
to erect several additional formalistic hurdles to clear before
achieving exactly the same objective.  Because the Court's
justifications for undertaking this step are unpersuasive to
me, I respectfully dissent.