Delegation of EPA's CERCLA Enforcement Authorities to Qualified States Would Not Violate the U.S. Constitution

Victoria L. Peters

Editors' Summary: During congressional debate on CERCLA reauthorization, attention has focused on the role of states in executing the Act. Some observers of these debates have questioned the constitutionality of delegating EPA cleanup and enforcement authorities to states. In contrast, this Article argues that such delegation is permissible under the U.S. Constitution and constitutional jurisprudence. The author asserts that under the Appointments Clause, the delegation of CERCLA authorities to states would not usurp Executive Branch functions. Delegated states would not be considered federal officers and, therefore, could exercise significant authority pursuant to federal law. Similarly, delegation of CERCLA authorities to states would not violate the Take Care Clause by impermissibly interfering with the President's execution of the laws because EPA would retain sufficient authorities to ensure faithful execution. In addition, the author claims that contrary to the unitary executive theory, delegation of CERCLA authorities to states would not impermissibly diminish the power of the Executive Branch and, therefore, would not violate the separation-of-powers doctrine. The Executive Branch would retain audit power over the states, and actual implementation of CERCLA would be pursuant to federal policy and regulations. Likewise, delegation to states would not violate the principles of federalism because states would not be compelled to implement CERCLA. Rather, the decision to assume CERCLA authorities would be left to the state. Last, the author argues that as evidenced by state implementation of certain provisions of the CAA, Congress routinely delegates federal enforcement authorities to nonfederal officers.

Victoria Peters is a Senior Assistant Attorney General in the CERCLA Litigation Unit of the Colorado Attorney General's Office. She is the attorney for the Yak Tunnel — California Gulch Superfund Site, at which the state filed a natural resource damage claim in 1983. Ms. Peters also served as the Colorado attorney charged with review and oversight of remedial activities at the Rocky Mountain Arsenal, Colorado's other unresolved natural resource damage case. Ms. Peters was joint counsel on the eight-state appeal of the national contingency plan. Since 1983, she has been an active member of the National Association of Attorneys General's CERCLA Reauthorization Workgroup and Chairperson of the Federal Facilities Subcommittee of that workgroup. Ms. Peters is a Phi Beta Kappa graduate of George Washington University and attended the University of Denver College of Law. The author would like to thank her legal assistant. Thomas Bouec, and her former law clerk, Ashley Westbrook, for their help in preparing this Article.

[29 ELR 10018]

This Article analyzes the constitutionality of delegating the U.S. Environmental Protection Agency's (EPA's) Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)¹ cleanup and enforcement authorities to states. The question of the constitutionality of delegation has arisen in the context of CERCLA reauthorization because of claims by Administration representatives that such delegation would violate the U.S. Constitution. Although the Administration has not fully articulated the basis of its objections, U.S. Department of Justice (DOJ) employees have cited the Take Care Clause,² the Appointments Clause,³ and the U.S. Supreme Court case Buckley v. Valeo⁴ as authority for their position. This Article will review jurisprudence concerning the two constitutional clauses and construing Buckley. In addition, the Article will discuss whether delegation would contravene the doctrines of separation of powers or federalism.

Many different bills, which contain significantly different state role provisions, are currently pending on Capitol Hill. Rather than addressing each bill, this Article will merely discuss the general approach that has been advocated by state associations and apply the legal analysis to that approach. The author concludes that neither the Appointments Clause nor the Take Care Clause and neither Buckley nor the multitude of cases before and after that Supreme Court decision would preclude the delegation of authorities long sought by states. In addition, delegation would not violate the principle of separation of powers or the fundamental tenets of federalism.

Background

For at least the past six years, interested parties, including the Administration, industry representatives, environmentalists, insurance companies, community activists, and [29 ELR 10019] states have, at varying levels of intensity, met together and with congressional staff regarding reauthorization and reform of CERCLA. Throughout this process, states have advocated the adoption of amendments which would require EPA to delegate its CERCLA authorities to willing and qualified states. Although the existing law allows state delegation, EPA has resisted utilizing state resources and expertise to the degree deemed appropriate by states.⁵ To various degrees, most of the reauthorization bills introduced since 1993 would delegate EPA authorities to qualified states.

Under the delegation approach suggested by states, EPA would make an initial determination that a state is qualified to assume the responsibilities for which it applied. EPA would base its determination upon prescribed criteria, such as the availability of sufficient resources and expertise. One of these criteria would be whether the state had the legal authority to enter into a cooperative agreement transferring CERCLA authorities to the state. Such an agreement would identify, among other things, the sites that would be addressed by the states, the authorities that would be delegated, and how much funding would be provided. In the event that a state violated the cooperative agreement — for example, by failing to select remedies protective of human health and the environment — EPA could withdraw the delegation.⁶ For the reasons discussed below, this proposal would not violate the Appointments Clause or the Take Care Clause of the Constitution, and it would not contravene the principles of separation of powers or federalism.

Appointments Clause

The Appointments Clause, which is contained in Article II of the Constitution, provides that:

[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.⁷

This Clause establishes the mechanisms by which officers of the United States can legally be appointed. However, the significance of the Appointments Clause in analyzing delegation issues is its relationship to the broader principle of separation of powers because "[t]he principle of separation of powers is embedded in the Appointments Clause."⁸

"[T]he debates of the Constitutional Convention, and the Federalist Papers, are replete with expressions of fear that the Legislative Branch of the National Government will aggrandize itself at the expense of the other two branches."⁹ The Appointments Clause is seen as one mechanism established by the founding fathers to prevent Congress from arrogating to itself executive authority through congressional appointment of ministers. As Justice Scalia declaimed in his dissent in Morrison v. Olson,¹⁰ "the basic separation-of-powers principles … are what give life and content to our jurisprudence concerning the President's power to appoint and remove officers."¹¹ Thus, the case law construing purported violations of the Appointments Clause focuses primarily on whether, and to what extent, the principle of separation of powers is compromised.

Buckley, one of the leading Supreme Court decisions regarding the Appointments Clause, highlights the interface between the Appointments Clause and the separation-of-powers principle. In Buckley, the case cited by DOJ representatives as support for their position that state delegation would be unconstitutional, Congress created a Federal Election Commission composed of eight members, some of whom were appointed by the legislature and not by the executive.¹² Among other powers established under the Federal Election Campaign Act, the commission was allowed to bring civil actions, conduct rulemaking, and perform adjudicative functions. The Supreme Court held that the delegated powers under the Act were executive powers, the commissioners were "officers of the United States," and, therefore, the commissioners must be appointed by the President. Because Congress and not the President appointed some of the members of the commission, the Court stripped the commission of all but its investigative and informative functions. In its frequently quoted holding, the Court stated:

We think that the term "Officers of the United States" as used in Art. II, defined to include "all persons who can be said to hold an office under the government" in United States v. Germaine, … is a term intended to have substantive meaning. We think its fair import is that any appointee exercising significant authority pursuant to the laws of the United States is an "Officer of the United States," and must, therefore, be appointed in the manner prescribed by § 2, cl. 2, of that Article (emphasis added).¹³

This statement has been relied on by some as support for the assertion that anyone exercising significant authority pursuant to federal law must be a federal officer appointed in accordance [29 ELR 10020] with the Appointments Clause of the Constitution.¹⁴ However, that is not what Buckley says, and numerous courts have interpreted the Buckley holding differently.¹⁵ Literally, Buckley merely states that an "appointee" exercising significant federal authority must be appointed in compliance with the Appointments Clause. Thus, unless delegated states are appointees, this prescription does not apply.

Delegated States Are Not Appointees or Officers of the United States

In determining whether an individual is an officer for purposes of the Appointments Clause, the Court in Buckley cited with approval two seminal cases on the subject: United States v. Germaine¹⁶ and Auffmordt v. Hedden.¹⁷ In Germaine, the defendant was a physician appointed by the Commissioner of Pensions to make periodic examinations of pensioners. The physician would receive compensation for his services from the "agent for paying pensions" in the district in which the pensioner resides. Instead, Dr. Germaine extorted fees from the pensioners themselves and, consequently, was indicted under a statute that provided that "[e]very officer of the United States who is guilty of extortion under color of his office shall be punished by a fine of not more than $ 500, or by imprisonment not more than one year … (emphasis added)."¹⁸ The defendant argued that he was not an officer of the United States and, therefore, was not subject to the Act, and the Court agreed. The fact that the doctor was carrying out the provisions of the federal act did not automatically make him an officer.

The Court in Auffmordt faced a similar question and, citing Germaine, similarly found that a merchant appraiser selected pursuant to statute and treasury regulations to carry out provisions of federal law was not an officer. "His position is without tenure, duration, continuing emolument, or continuous duties, and he acts only occasionally and temporarily. Therefore, he is not an 'officer,' within the meaning of the clause of the constitution referred to."¹⁹ Nevertheless, he was not precluded from exercising the functions prescribed in the Act.

Both of these cases relied upon United States v. Hartwell,²⁰ which set forth the test for deciding whether an individual has been appointed to an office. In Hartwell, the court found that a clerk in the office of the Assistant Treasurer of the United States was an officer and, therefore, subject to the Subtreasury Act of 1846, which defined and proscribed the embezzlement of public funds by officers. In finding that the clerkship was an office, the court stated:

An office is a public station, or employment, conferred by the appointment of government. The term embraces the ideas of tenure, duration, emolument, and duties.

The employment of the defendant was in the public service of the United States. He was appointed pursuant to law, and his compensation was fixed by law. Vacating the office of his superior would not have affected the tenure of his place. His duties were continuing and permanent, not occasional or temporary. They were to be such as his superior in office should prescribe.

A government office is different from a government contract. The latter from its nature is necessarily limited in its duration and specific in its objects. The terms agreed upon define the rights and obligations of both parties, and neither may depart from them without the assent of the other.²¹

Applying these precedents to the issue of state delegation, it is clear that under the proposed legislation, delegated states would not be "officers of the United States" any more than the physician or the merchant appraiser. States would not be "appointed" or "employed" by the federal government, and they would not receive compensation from the federal government. They would merely enter into cooperative agreements and obtain grants in exchange for carrying out functions prescribed by Congress and by EPA in its regulations implementing CERCLA. States would not be answerable to EPA as an officer would be to his/her superior. States and state officials would not have tenure, emoluments, or duties established by the federal government. State officials carrying out CERCLA responsibilities would remain state employees. As distinguished in Hartwell, state officials with delegated authorities would be under government contract and would not be federal officers.

Neither the Express Language of the Appointments Clause Nor the Holding in Buckley Requires Any Person Exercising Significant Authority Under Federal Law to Be Appointed Pursuant to the Appointments Clause

As one DOJ representative has noted, "[n]ot everyone who performs duties for the federal government is an officer within the meaning of the Appointments Clause. The requirements of the Appointments Clause apply only where an individual is appointed to an 'office' within the federal government."²² "[T]he Appointments Clause simply is not implicated when significant authority is devolved upon nonfederal actors."²³ "This means that the delegation of federal authority to state officials can present no Appointments Clause difficulties, because the individuals serve as state officials rather than as federal officials. [T]he federal statute simply adds federal authority to a pre-existing state office."²⁴ To rely on one sentence out of 250 pages of the Buckley opinion as support for the position that nonfederal [29 ELR 10021] officers cannot exercise authorities pursuant to federal law is to grossly misunderstand and misrepresent the express language and the general context of that ruling. As numerous federal courts have held, Buckley contains no such proscription.²⁵

In Seattle Master Builders Ass'n v. Pacific Northwest Electric Power & Conservation Planning Council,²⁶ the Ninth Circuit upheld Congress' establishment of the Pacific Northwest Electric Power Conservation Planning Council even though some members of the council were appointed by states. The court distinguished Buckley, explaining: "Buckley is about maintaining the separation of powers within the federal government. This concern is not implicated here. In this case, unlike Buckley, Congress has not arrogated to itself a power that would otherwise be exercised by the President."²⁷

Challenges to parens patriae cases on Appointments Clause grounds have been similarly dismissed. "Parens patriae, literally 'parent of the country,' refers traditionally to the role of the state as sovereign and guardian of persons under legal disability …."²⁸ "At a fairly early date, American courts recognized this common-law concept, but now in the form of a legislative prerogative …."²⁹ Several courts have upheld parens patriae claims under the Clayton Act prior to and since Buckley.³⁰ This Act provides:

Any attorney general of a State may bring a civil action in the name of such State, as parens patriae on behalf of natural persons residing in such State, … to secure monetary relief as provided in this section for injury sustained by such natural persons to their property by reason of any violation of [the federal antitrust Act].³¹

In New Mexico v. Scott & Fetzer Co.,³² an unpublished case, the Court heard a claim brought by the state "pursuant to 15 U.S.C.A. § 15C (1981 Supp.), which authorizes suits by State Attorneys General against alleged violators of the antitrust statutes found at 15 U.S.C. § 1 et seq. (1976)."³³ In dismissing the defendants' attack on the constitutionality of the federal statute under Article II of the U.S. Constitution, the court distinguished Buckley because the statute at issue:

gives Congress no role in the selection of State attorneys general and therefore is not controlled by Buckley …. All congress has done is to grant state attorneys general standing to litigate in situations where certain federal laws are implicated … to suggest that this is an unconstitutional act could upset a broad range of laws which allow state enforcement of federal law, and for no sound constitutional reason. Therefore, the court finds the defendants' constitutional objections to be without merit.³⁴

The conclusion that neither the Appointments Clause nor the Buckley decision precludes state delegation is further supported by the numerous other federal court cases that have construed the Appointments Clause in light of the Buckley holding. These courts have consistently rejected claims that the Appointments Clause and the Buckley decision preclude anyone other than officers of the United States from exercising "significant authority pursuant to the laws of the United States."³⁵ Rather, these cases uniformly interpret Buckley to stand for the proposition that "the Legislative Branch may not exercise executive authority."³⁶

In Chesapeake Bay Foundation, Inc. v. Bethlehem Steel Corp.,³⁷ for example, the court upheld the citizen suit provision in the Federal Water Pollution Control Act, commonly called the Clean Water Act, explaining:

Buckley v. Valeo concerned Congress aggrandizing itself at the expense of the Executive Branch. The opinion does not stand for the proposition, as defendant would have this Court believe, that private persons may not enforce any federal laws simply because they are not Officers of the United States appointed in accordance with Article II of the Constitution.³⁸

[29 ELR 10022]

Congress has included citizen suit provisions in a wide variety of statutes. None of them has been successfully challenged as violative of the Appointments Clause.³⁹

Courts reviewing challenges to qui tam provisions, such as the provision in the False Claims Act,⁴⁰ have reached an identical conclusion. A qui tam action is a lawsuit brought under a statute authorizing private citizens to recover penalties on behalf of themselves and the state. Such actions have a long history,⁴¹ and in United States ex rel. Stillwell v. Hughes Helicopters, Inc.,⁴² a district court vigorously up-held the qui tam provision of the False Claims Act against a constitutional challenge:

The broad reading of Buckley v. Valeo that the defendants propose would result in the implicit overruling of all qui tam and private attorneys general statutes. It is beyond dispute that the Supreme Court would not engage in such a sweeping revision of federal legislation without expressly stating so. This Court believes that Buckley v. Valeo is more reasonably interpreted as preventing Congress from attempting to enforce federal law.⁴³

The court, in accordance with a long line of cases before and after the Buckley decision, concluded that "the Appointments Clause does not raise a constitutional infirmity in the amended qui tam provisions of the False Claims Act."⁴⁴

As these cases make clear, Buckley cannot reasonably be interpreted to stand for the proposition that no one, other than an officer of the United States, can exercise significant authority pursuant to the laws of the United States. Rather, it merely provides that Congress cannot usurp executive functions. Since the delegation of CERCLA authorities to qualified states would not transfer authority from the Executive Branch to the Legislative Branch, it does not contravene the Appointments Clause or the holding in Buckley. The position that the Appointments Clause prohibits states from enforcing federal law "rests on a negative inference drawn from the Appointments Clause — specifically, that only officers of the United States appointed pursuant to the Appointments Clause may exercise significant federal authority … (citation omitted). This negative inference lacks textual support and is contrary to the consistent interpretations of the clause by the Supreme Court."⁴⁵

Take Care Clause

DOJ representatives have vaguely referenced the Take Care Clause as further support for their position that states could not constitutionally implement CERCLA. Like the Appointments Clause, the Take Care Clause cannot be construed so restrictively. The Constitution provides that "[the President] shall take Care that the Laws be faithfully executed …."⁴⁶ These DOJ representatives apparently interpret this phrase to mean the President, and no one else, shall faithfully execute the laws. The Constitution, however, does not say this, rather:

[T]hough the [unitary executivists] are not in complete agreement, the better and predominant view is that the duty imposed by the Take Care Clause precludes the President from ignoring or otherwise subverting statutory objectives (citations omitted). While the President … ultimately is responsible for all discretionary decisions concerning the implementation of federal law, the scope of that discretion, if any, turns on Congress' definition of the statutory duty.⁴⁷

[29 ELR 10023]

As the Tenth Circuit explained, "the President is not required to execute the laws; he is required to take care that they be executed faithfully."⁴⁸

The meaning of the Take Care Clause was explored by the Supreme Court in Kendall v. United States ex rel. Stokes.⁴⁹ In this case, Congress passed a law delegating to the solicitor of the treasury the responsibility to determine the appropriate remuneration to be provided to the plaintiffs. The postmaster general, appointed by the President, refused to implement the findings of the solicitor claiming that the delegation violated the Take Care Clause because it deprived him of his decisionmaking authority and because he was "alone subject to the direction and control of the President, with respect to the execution of the duty imposed upon him by this law…."⁵⁰ The Supreme Court rejected that argument; instead, it construed the Take Care Clause as imposing a duty on the President to enforce the laws "faith-fully" as enacted by Congress, thus preserving the independent authority of the Legislative Branch to make the laws. Because Congress had determined how the matter was to be addressed, the President and his appointees were obligated to carry out the prescriptions in that law.

Congress has passed many laws assigning enforcement authorities to officers and entities other than the President or the Executive Branch, and these laws have withstood constitutional challenge.⁵¹ The test for determining whether the Take Care Clause has been violated was set forth by the Supreme Court in Morrison v. Olson.⁵² There, the Court asked whether a provision, which precluded removal by the President of an independent counsel without a showing of good cause, is "of such a nature that [it] impede[s] the President's ability to perform his constitutional duty …."⁵³ The Court held that limiting the President's ability to remove the independent counsel did not sufficiently deprive the President of control over the independent counsel and did not "interfere impermissibly with his constitutional obligation to ensure the faithful execution of the laws."⁵⁴

Under the delegation scheme proposed by the states, EPA would likewise have sufficient authorities to ensure faithful execution of the laws. Namely, it could withdraw the grant of authorities if it found that a state was implementing the program contrary to law. In addition, EPA would have the authority to determine whether a state was capable of adequately implementing the law, and EPA would establish policy by promulgating regulations that delegated states would be required to implement. Under current case law, it is clear that these safeguards would provide adequate means by which the Executive Branch could ensure faithful execution of the laws. As the Supreme Court has held, "the content of the Act [of Congress] determines the nature of the executive duty" to take care that the laws be faithfully executed.⁵⁵ If Congress declares that the President's duty shall be limited to approving, auditing, and withdrawing state delegations, fulfilling that duty will satisfy the Take Care Clause of the Constitution.⁵⁶

Separation-of-Powers Doctrine

Where the legislature aggrandizes its own power at the expense of powers constitutionally granted to the Executive Branch, as was the case in Buckley, the law clearly raises separation-of-powers issues. Not so clear are the cases where congressional action does not increase Congress' role, but does in some way weaken the authority of the Executive Branch. "Even when a branch does not arrogate power to itself … the separation-of-powers doctrine requires that a branch not impair another in the performance of its constitutional duties."⁵⁷ The question, as framed by the Supreme Court in Nixon v. Administrator of General Services,⁵⁸ is whether the challenged law "impermissibly undermines the powers of the Executive Branch," or whether the law "disrupts the proper balance between the coordinate branches [by] prevent[ing] the Executive Branch from accomplishing its constitutionally assigned functions."⁵⁹ Although the DOJ has not expressly asserted separation of powers as grounds for invalidating state delegation, this Article will address this issue in the interest of completeness. Supreme Court decisions support the conclusion that the delegation of CERCLA enforcement authorities to states would not violate general separation-of-powers principles.

In both Morrison and Nixon, the Court upheld statutes challenged on separation-of-powers grounds.⁶⁰ In Morrison, the Court found that the independent counsel law did not "impermissibly burden the President's power to control or supervise the independent counsel, as an executive official, [29 ELR 10024] in the execution of his or her duties under the Act."⁶¹ Under the Act, the Attorney General retained the power to remove the independent counsel for good cause. The Attorney General also could find that there were "no reasonable grounds to believe that further investigation is warranted"⁶² and, thus, decline to request an appointment of an independent counsel. In addition, the Attorney General could define the jurisdiction of the independent counsel through its choice of facts submitted for consideration. Once appointed, the counsel was required to conform to DOJ policy unless it was not possible to do so.⁶³ The Court reasoned that, although the Act significantly reduces the control that the President could exercise over the investigation and prosecution of criminal activity subject to the Act, "these features of the Act give the Executive Branch sufficient control over the independent counsel to ensure that the President is able to perform his constitutional duties."⁶⁴ Therefore, the Ethics in Government Act did not violate the separation-of-powers doctrine.⁶⁵

In Nixon, the Court reviewed the Presidential Recordings and Materials Preservation Act and noted that:

The Act directs the Administrator of [the U.S. General Services Administration] to take custody of appellant's Presidential materials and have them screened by Government archivists in order to return to appellant those personal and private in nature and to preserve those having historical value and to make the materials available for use in judicial proceedings subject to "any rights, defenses or privileges which the Federal Government or any person may invoke." The Administrator is also directed to promulgate regulations to govern eventual public access to some of the materials.⁶⁶

The Act established custody of the materials with the Executive Branch, and required Executive Branch employees to perform the screening and to promulgate the regulations. These facts convinced the Court that "nothing contained in the Act renders it unduly disruptive of the Executive Branch and, therefore, unconstitutional on its face."⁶⁷

In contradistinction to these cases, it should be noted that a recent Supreme Court opinion, Printz v. United States,⁶⁸ expresses a decidedly different view of separation-of-powers issues. In Printz, a county sheriff sought to enjoin enforcement of provisions of the Brady Act that imposed certain administrative requirements on state enforcement officers, including the performance of background checks on prospective handgun purchasers. In the opinion of the Court, Justice Scalia wrote that federal control of state officers would affect the separation of powers of the federal government.

The Constitution does not leave to speculation who is to administer the laws enacted by Congress; the President, it says, "shall take Care that the Laws be faithfully executed" (citation omitted) … personally and through officers whom he appoints. The Brady Act effectively transfers this responsibility to thousands of [chief law enforcement officers] in the 50 States, who are left to implement the program without meaningful Presidential control (if indeed meaningful Presidential control is possible without the power to appoint and remove. The insistence of the Framers upon unity in the Federal Executive — to insure both vigor and accountability — is well known (citations omitted). That unity would be shattered, and the power of the President would be subject to reduction, if Congress could act as effectively without the President as with him, by simply requiring State officers to execute its laws.⁶⁹

This language, however, should not by any means be considered dispositive. First, unlike the CERCLA delegation situation, the Brady Act established no role for the Executive Branch to supervise or control the law enforcement officers charged with carrying out the challenged provisions of the Act. Second, Justice Rehnquist, who along with Justice O'Connor joined in the Printz opinion, actually penned the Court's majority opinion in Morrison, which was also joined by Justice O'Connor, and was reviled by Justice Scalia for violating the same unitary executive theory posited in the Printz opinion. Third, the language is wholly gratuitous because the holding of the Court and the thrust of the concurring and dissenting opinions centered around issues of federalism, not separation of powers or the unitary executive theory embraced by Justice Scalia.⁷⁰

Justice Stevens' dissent in Printz,⁷¹ joined by Justices Souter, Ginsburg, and Breyer, did address the argument briefly by pointing out that Justice Scalia's stated position was inconsistent with the Supreme Court's previous pronouncement [29 ELR 10025] in New York v. United States.⁷² "That decision squarely approved of cooperative federalism programs, designed at the national level but implemented principally by state governments. New York disapproved of a particular method of putting such programs into place, not the existence of federal programs implemented locally."⁷³ The dissenters could also have pointed out that Justice Scalia's position has previously and repeatedly been dismissed in majority opinions of the Supreme Court. "[I]n both [Nixon and Mistretta v. United States⁷⁴] the Court rejected the argument that Article II's Vesting Clause prohibits Congress from delegating traditional executive powers outside of the executive branch."⁷⁵ Furthermore, adoption of the unitary executive theory, or the negative inference theory as discussed above, would essentially overrule centuries of case law, including Supreme Court precedent, which has expressly and implicitly upheld statutes that delegate enforcement powers to entities not appointed pursuant to the Appointments Clause, and not serving within the Executive Branch. Surely, such a momentous decision would not be adopted without some acknowledgment and discussion.

Justice Scalia previously articulated his views regarding the unitary executive theory in his dissent in Morrison. These views were soundly rejected by the majority. In his dissent, Justice Scalia protested that when Article II, § 1, cl. 1 of the U.S. Constitution provides, "[t]he executive Power shall be vested in a President of the United States, this does not mean some of the power, but all of the executive power."⁷⁶ Justice Scalia would have invalidated the Ethics and Government Act because "the statute vests some purely executive power in a person who is not the President of the United States…."⁷⁷ The Court, however, upheld the statute on a seven to one vote, with Justice Kennedy abstaining. No other Supreme Court decision endorses the "negative inference theory" that only the executive branch of the federal government can enforce federal law.

Contrary to the simple unitary executive test proposed by Justice Scalia, the Supreme Court, in Nixon and Morrison, makes it clear that an act of Congress is not unconstitutional when it allows entities outside the Executive Branch to implement federal law and thereby results in some degree of diminished executive authority, as long as the Executive Branch can in some manner ensure that its constitutional duties are carried out.⁷⁸ As discussed above, in the case of state delegation, the executive would have the authority to determine whether the state is qualified to assume the CERCLA authorities. It would also have the responsibility of auditing the state's performance and withdrawing the delegation if the state violated the cooperative agreement. The actual implementation of the law would be pursuant to policy adopted in the statute itself and in the regulations adopted by the EPA. Therefore, under the guidelines provided by the Supreme Court, the delegation of CERCLA authorities to states would not impermissibly diminish the power of the Executive Branch and, therefore, would not violate the separation-of-powers doctrine.

In Kentucky Division, Horsemen's Benevolent & Protective Ass'n v. Turfway Park Racing Ass'n,⁷⁹ the Sixth Circuit squarely rejected claims that delegation to states violated the separation-of-powers doctrine and held:

When Congress affords the States the option of regulating a particular activity, … there is no danger that the federal legislative power will be exercised by the executive or judicial Branches of the federal government; instead, if the State accepts the invitation extended to it by Congress, the federal legislative power is not exercised at all. Thus, the separation of powers principle and, a fortiori, the nondelegation doctrine, simply are not implicated by Congress' "delegation" of power to the States. Rather than violate the separation of powers principle, such a delegation in fact furthers another core constitutional value — that of federalism.⁸⁰

A similar analysis and conclusion can be applied to the proposed CERCLA delegation scheme.

Federalism

Unlike the Sixth Circuit, some individuals involved in the CERCLA reauthorization debate, but not the DOJ, have suggested that the delegation of EPA enforcement authorities violates rather than furthers the principles of federalism. Although a detailed discussion of these principles is well beyond the scope of this Article, suffice it to say that this criticism has even less support in the case law and literature than have the arguments presented above. In fact, the CERCLA delegation process suggested by the states represents the kind of cooperative federalism that has been lauded by the federal courts.

Although once thought to be moribund (especially after the confusing Supreme Court decision in Garcia v. San Antonio Metro Transit Authority),⁸¹ the Supreme Court has resurrected Tenth Amendment⁸² and federalism jurisprudence in two recent, high profile cases dealing with state delegation questions, New York v. United States⁸³ and Printz.⁸⁴ Neither of these cases would invalidate the state delegation provisions proposed by states.

[29 ELR 10026]

The Court issued its decision in New York v. United States in 1992. In Justice O'Connor's opinion, she reaffirmed the holding in Hodel v. Virginia Surface Mining & Reclamation Ass'n⁸⁵ by stating:

Congress may not simply "commandee[r] the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program" (citations omitted). In Hodel, the Court upheld the Surface Mining Controland Reclamation Act of 1977 precisely because it did not "commandeer" the States into regulating mining. The Court found that "the States are not compelled to enforce the steep-slope standards, to expend any state funds, or to participate in the federal regulatory program in any manner whatsoever. If a State does not wish to submit a proposed permanent program that complies with the Act and implementing regulations, the full regulatory burden will be borne by the Federal Government."⁸⁶

Such was not the case in New York v. United States. The statute at issue in New York v. United States was the Low-Level Radioactive Waste Policy Act. It included several provisions to encourage and coerce states to deal effectively with the problem of low-level radioactive waste disposal. Most of the provisions were upheld; however, the final provision was not. That provision required states to choose between regulating pursuant to Congress' direction, or accepting title to and liability for low-level waste generated within their boundaries. The Court held that:

Because an instruction to state governments to take title to waste, standing alone, would be beyond the authority of Congress, and because a direct order to regulate, standing alone, would also be beyond the authority of Congress, it follows that Congress lacks the power to offer the States a choice between the two…. A choice between two unconstitutionally coercive regulatory techniques is no choice at all.⁸⁷

Unlike the provisions in Hodel, those presented in New York v. United States, did "commandeer the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program (citations omitted), an outcome that has never been understood to lie within the authority conferred upon Congress by the Constitution."⁸⁸ "While Congress has substantial powers to govern the Nation directly, including in areas of intimate concern to the States, the U.S. Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress' instructions."⁸⁹

In the more recent case, Printz v. United States, the Court, with six justices either concurring or dissenting, said: "[w]e held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition byconscripting the State's officers directly"⁹⁰ — even where the imposition is minor and the object served is noble and good.

Both of these cases, however, are easily and obviously distinguishable from the situation posed by CERCLA delegation. Under the states' proposal, the federal government would not compel states to implement CERCLA. The decision to assume such responsibility would be left completely to each individual state, which could not accept delegation without demonstrating sufficient authorization from their respective state legislatures. In fact, this arrangement is considerably less coercive than numerous other statutory schemes which have been expressly blessed by the Supreme Court, most notably the conditioning of federal funding on state performance of enumerated federally imposed requirements,⁹¹ or compliance with federal requirements as a precondition to continued state regulation of an otherwise preempted field.⁹²

As evidenced by recent decisions, the principles of federalism appear to be of heightened concern among many of the current Supreme Court Justices. These justices are determined to infuse new meaning and significance into the Tenth Amendment of the Constitution, and restrict the broad application of the Commerce Clause. However, the recent decisions give no indication that the Court would be inclined to overturn decades, if not centuries, of established precedent that allow states to voluntarily implement otherwise constitutional federal law. Consequently, there is no reason to believe the Court would find the states' proposed CERCLA delegation provisions in violation of the federalist underpinnings of the Constitution.

Congress Routinely Delegates Federal Enforcement Authorities to Nonfederal Officers

The interpretation urged by proponents of the unitary executive theory would overrule more than qui tam, private attorney general statutes, and parens patriae claims. It would also invalidate numerous other federal schemes which rely on nonfederal officers to enforce federal law, many of which have been upheld in the courts.

In the environmental realm, at least two provisions under the Clean Air Act (CAA)⁹³ would be invalidated. Pursuant to CAA § 111,⁹⁴ the Administrator may delegate to a state EPA's authority to implement and enforce performance standards for new sources. In addition, the CAA regulations provide as follows:

The Administrator may delegate, in whole or in part, with or without signature authority, the authority to administer a part 71 operating permits program to a State, eligible Tribe, local, or other non-State agency in accordance [29 ELR 10027] with the provisions of this section. In order to be delegated authority to administer a part 71 program, the delegate agency must submit a legal opinion from the Attorney General from the State, or the attorney for the State, local, interstate, or eligible Tribal agency that has independent legal counsel, stating that the laws of the State, locality, interstate compact or Indian Tribe provide adequate authority to carry out all aspects of the delegated program.⁹⁵

This provision is virtually identical to the proposals made by states in the context of CERCLA delegation, and it has never been challenged on constitutional grounds.⁹⁶ In addition, within 40 C.F.R. § 52.21(c) (1975), Congress provided that an Indian Tribe could redesignate its reservation from Class II to either Class I or III, thereby affecting the amount of deterioration that would be allowed under the CAA program. Despite a constitutional challenge alleging unlawful delegation, the Ninth Circuit upheld these provisions in Nance v. U.S. Environmental Protection Agency.⁹⁷

Many other laws similarly delegate environmental enforcement authorities to states, for example: the Emergency Planning and Community Right-To-Know Act;⁹⁸ the Hazardous and Solid Waste Amendments of 1984, Subtitle I, Regulation of Underground Storage Tanks,⁹⁹ the Federal Insecticide, Fungicide, and Rodenticide Act,¹⁰⁰ and the Solid Waste Disposal Act, Subchapter X, Demonstration Medical Waste Tracking Program.¹⁰¹

Delegations to various commissions and associations would also be invalid were nonfederal officers precluded from exercising any authority under federal law. Congress has in many instances delegated certain regulatory functions to boards or associations made up of nonfederal officers. These legislative schemes have consistently been upheld by the federal courts. For example, courts have upheld the Securities and Exchange Commission (SEC),¹⁰² a private securities association registered with the SEC pursuant to the Maloney Act and tasked with self-regulation of the over-the-counter securities market;¹⁰³ the National Bituminous Coal Commission;¹⁰⁴ and the Federal Open Market Committee of the Federal Reserve Board.¹⁰⁵ There are, of course, many more such agencies, most of which have never been challenged on constitutional grounds.

Conclusion

Neither the Appointments Clause nor the Take Care Clause of the Constitution would prohibit EPA from delegating its enforcement authority pursuant to a reauthorization of CERCLA. Such a reading misconstrues the Supreme Court's holding in Buckley v. Valeo. Cases construing the Appointments Clause have uniformly held that its purpose was to prevent Congress from usurping the executive's authority to implement executive functions. Similarly, cases construing the Take Care Clause have found that its purpose was to ensure that the Executive Branch does not misuse its power by subverting the designs of Congress expressed through legitimate legislation, not to prevent any-one other than the President from enforcing federal law. Barring a violation of an express constitutional duty or doctrine, federal courts have held that "[s]tatutory rights and obligations are established by Congress, and it is entirely appropriate for Congress, in creating these rights and obligations, to determine in addition who may enforce them and in what manner."¹⁰⁶ Thus, Congress could not delegate to legislative or judicial officers the responsibility for implementing environmental laws, but it can clearly delegate such authority to states. Such delegation would violate neither the Appointments nor Take Care Clause of the Constitution. Nor would it compromise the general, but equally important, principles of separation of powers or federalism.

1. 42 U.S.C. §§ 9601-9675, ELR STAT. CERCLA §§ 101-405.

2. U.S. CONST. art. II, § 3.

3. Id. § 2, cl. 2.

4. Buckley v. Valeo, 424 U.S. 1 (1976).

5. In Ohio v. EPA, 997 F.2d 1520, 23 ELR 21157 (D.C. Cir. 1993), several states, including Colorado, challenged the EPA's national contingency plan in which EPA refused to delegate its remedy selection and enforcement authorities to qualified states. The court upheld the states' challenge finding that EPA had not substantiated its blanket refusal to allow such delegation. It is interesting to note that nowhere in its brief disputing the states' challenge did the DOJ assert that the delegation of EPA's authorities would be unconstitutional.

6. States also recommend that they be allowed to operate their own cleanup programs in lieu of the federal law, as is the case for other environmental programs. The constitutionality of such provisions has not been challenged and will not be discussed in this Article.

7. U.S. CONST. art. II, § 2, cl. 2.

8. Freytag v. Commissioner of Internal Revenue, 501 U.S. 868, 882 (1991). See also Seattle Master Builders Ass'n v. Pacific Northwest Elec. Power & Conservation Planning Council, 786 F.2d 1359, 1364-65 (9th Cir. 1986) ("The appointments clause is addressed to the separation of powers between the President and Congress."), cert. denied, 479 U.S. 1359 (1987).

9. Buckley, 424 U.S. at 129.

10. 487 U.S. 654 (1988).

11. Id. at 715.

12. Federal Election Campaign Act Amendments of 1974, Pub. L. No. 93-443, § 5208, 88 Stat. 1263.

13. Buckley, 424 U.S. at 126 (quoting United States v. Germaine, 99 U.S. 508, 509-10 (1878)).

14. Memorandum from Walter Dellinger, Assistant U.S. Attorney General, to John Schmidt, Associate U.S. Attorney General, on Constitutional Limitations on Federal Government Participation in Binding Arbitration 13-17 (Sept. 7, 1995) [hereinafter Dellinger Memorandum]; see also John Yoo. TheNew Sovereignty and the Old Limitation: The Chemical Weapons Convention and the Appointments Clause, 15 Const. Commentary 87, 101 (1998) (quoting Buckley and concluding: "If Congress attempts to vest federal authority in someone who is not an officer of the United States, the delegation of authority will be invalid.").

15. See infra notes 25-45 and accompanying text.

16. 99 U.S. 508 (1878).

17. 137 U.S. 310 (1890).

18. Germaine, 99 U.S. at 509.

19. Auffmordt, 137 U.S. at 327.

20. 73 U.S. 385 (1867).

21. Id. at 393; see also United States v. Maurice, 26 F. Cas. 1211 (C.C.D. Va. 1823) (No. 15747).

22. Dellinger Memorandum, supra note 14, at 4.

23. Id. at 5.

24. Id. at 6; see also Saikrishna Prakish, Field Office Federalism, 79 VA. L. REV. 1957, 1991 (1993) ("[S]tate executives commandeered into enforcing federal law are also probably not be [sic] subject to the Appointments Clause").

25. Most scholars examining this issue interpret Buckley to be consistent with previous and subsequent cases upholding the concept that others beside the Executive Branch can enforce federal law. See Dellinger Memorandum, supra note 14, at 15 n.27.

26. 786 F.2d 1359 (9th Cir. 1986).

27. Id. at 1365.

28. BLACK'S LAW DICTIONARY 1003 (6th ed. 1990).

29. Alfred L. Snapp & Son. Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 600 (1982) (citing Mormon Church v. United States, 136 U.S. 1, 57 (1890)).

30. See, e.g., In re Montgomery County Real Estate Antitrust Litig., 452 F. Supp. 54 (D. Md. 1978). See also Hawaii v. Standard Oil Co. of Cal., 405 U.S. 251, 261, 2 ELR 20133, 20135 (1972) (concluding that a state "plainly qualifies as a person under [antitrust statutes] whether it sues in a proprietary capacity or as parens patriae"); Georgia v. Pennsylvania R.R., 324 U.S. 439 (1945) ("Suits by a State, parens patrie, have long been recognized. There is no apparent reason why those suits should be excluded from the purview of the anti-trust acts"). For an example of a recent statute allowing state attorneys generals to enforce federal law, please see the Federal Telemarketing Consumer Protection Act, which reads:

Whenever an attorney general of any State has reason to believe that the interests of the residents of that State have been or are being threatened or adversely affected because any person has engaged or is engaging in a pattern or practice of telemarketing which violates any rule of the Commission under section 6102 of this title, the State, as parens patriae, may bring a civil action on behalf of its residents in an appropriate district court of the United States to enjoin such telemarketing, to enforce compliance with such rule of the Commission, to obtain damages, restitution, or other compensation on behalf of residents of such State, or to obtain such further and other relief as the court may deem appropriate.

15 U.S.C. § 6103.

31. 15 U.S.C. § 15c(1).

32. No. 81-054-JB, 1981 WL 2167 (D.N.M. 1981).

33. Id.

34. Id. at *3.

35. Buckley v. Valeo, 424 U.S. 1, 126 (1976).

36. Id. at 119.

37. 652 F. Supp. 620, 17 ELR 20623 (D. Md. 1987).

38. Id. at 624; see also Natural Resources Defense Council v. Outboard Marine Corp., 692 F. Supp. 801, 816, 19 ELR 20279, 20285 (N.D. Ill. 1988) ("[d]espite the potentially far-reaching language employed in cases such as Buckley, the role of private actors was simply not an issue the Court was called upon to address."); Middlesex County Sewerage Auth. v. National Sea Clammers Ass'n, 453 U.S. 1, 11 ELR 20684 (1981) (rejecting plaintiff's claim that the Federal Water Pollution Control Act and the Marine Protection, Research, and Sanctuaries Act allowed private remedies in addition to express citizen suit provisions, thus, providing implicit approval of the citizen suit provisions in those Acts); Student Pub. Int. Research Group of N.J. v. Monsanto Co., 600 F. Supp. 1474, 1478, 15 ELR 20294, 20296 (D.N.J. 1985) ("[the defendant's argument] that Congress may only assign enforcement powers to the executive branch, exclusive of any other entity, … is untenable."); Delaware Valley Toxics Coalition v. Kurz-Hastings, Inc., 813 F. Supp. 1132, 1138, 23 ELR 20915, 20917 (E.D. Pa. 1993) ("[C]itizen suits are not an unlawful delegation of executive power, since Congress in enacting the [Emergency Planning and Community Right-To-Know Act] did not grant to a person or persons under its control executive power.") (internal footnote omitted).

39. See, e.g., Clean Air Act § 304, 42 U.S.C. § 7604, ELR STAT. CAA § 304; Marine Protection, Research, and Sanctuaries Act § 105(g), 33 U.S.C. § 1415(g); Noise Control Act § 12, 42 U.S.C. § 4911(a); Endangered Species Act § 11(g), 16 U.S.C. § 1540(g), ELR STAT. ESA § 11(g); Deepwater Port Act § 16, 33 U.S.C. § 1515; Resource Conservation and Recovery Act § 7002, 42 U.S.C. § 6972, ELR STAT. RCRA § 7002; Toxic Substances Control Act § 20, 15 U.S.C. § 2619, ELR STAT. TSCA § 20; Safe Drinking Water Act § 1449, 42 U.S.C. § 300j-8, ELR STAT. SDWA § 1449; Surface Mining Control and Reclamation Act § 520, 30 U.S.C. § 1270, ELR STAT. SMCRA § 520; Outer Continental Shelf Lands Act § 23, 43 U.S.C. § 1349(a); Columbia River Gorge National Scenic Area Act, 16 U.S.C. § 544m(b)(2); Energy Policy and Conservation Act, 42 U.S.C. § 6305(a); CERCLA, 42 U.S.C. § 9659(a), ELR STAT. CERCLA § 310; Submerged Lands Act, 43 U.S.C. § 1349(a); and the Hazardous Liquid Pipeline Safety Act, 49 U.S.C. § 6012(a).

40. 31 U.S.C. §§ 3628-3633. Under the False Claims Act, a private citizen may recover penalties from parties who defraud the government with false claims for payment.

41. See Marvin v. Trout, 199 U.S. 212 (1905), stating:

Statutes providing for actions by a common informer, who himself had no interest whatever in the controversy other than that given by statute, have been in existence for hundreds of years in England, and in this country ever since the foundation of our government. The right to recover the penalty or forfeiture granted by statute is frequently given to the first common informer who brings the action, although he has no interest in the matter whatever except as such informer (cites omitted).

Id. at 225.

42. 714 F. Supp. 1084 (C.D. Cal. 1989).

43. Id. at 1095-96.

44. Id. See also Burch v. Piqua Eng'g, Inc., 803 F. Supp. 115 (S.D. Ohio 1992) ("In sum, because qui tam plaintiffs are not officers of the United States, the False Claims Act does not violate the Appointments Clause."); Truong v. Northrop Corp., 728 F. Supp. 615, 624 (C.D. Cal. 1989) ("In sum, as long as private participation is not a subterfuge for Congressional control, the executive branch's Article II responsibility to execute the laws faithfully is not threatened. Accordingly, defendant's challenge based on the Appointments Clause cannot survive here."); United States ex rel. Givler v. Smith, 775 F. Supp. 172, 179 (E.D. Pa. 1991) ("[t]his court agrees with the [sic] Truong court, which reasoned that, 'the underlying rationale of Buckley v. Valeo is simply not apposite here. Accordingly, the Appointments Clause challenge lacks merit."); United States ex rel. Newsham v. Lockhead Missiles & Space Co., 722 F. Supp. 607, 613 (N.D. Cal. 1989) ("Unlike the appointed commissioners in Buckley v. Valeo, qui tam relators are not appointed by Congress, but have statutory authority to come forward, motivated by patriotic duty, money, or revenge to pursue a civil suit upon information of fraud within their possession."); United States v. Hess, 317 U.S. 537 (1942) (although the Appointments Clause was not identified as an issue in the case, the Court rejected the U.S. Attorney General's policy arguments against qui tam actions). Even devoted unitary executivists cannot rationalize this long line of cases. "[S]uffice it to say that qui tam actions are rather problematic." Steven G. Calabresi & Saikrishna B. Prakish. The President's Power to Execute the Laws, 104 YALE L.J. 541, 661 (1994).

45. Dellinger Memorandum, supra note 14, at 13; see also Melcher v. Federal Open Mkt. Comm., 644 F. Supp. 510, 521 (D.C. Cir. 1986) (distinguishing Buckley and Bowsher v. Synar, 748 U.S. 714 (1986), because those cases were concerned with separation of powers, and holding that delegation to nonfederal officers is constitutional). "The Appointments Clause governs the selection of public officers — it says nothing about the exercise of public power by private persons." Id. But see Morrison v. Olson, 487 U.S. 654 (1986) (Scalia, J., dissenting) discussed infra at notes 76-78 and accompanying text.

46. U.S. CONST. art. II, § 3.

47. Evan Caminker, The Unitary Executive and State Administration of Laws, 45 U. KAN. L. REV. 1075, 1081 n.36 (1997).

48. Securities & Exch. Comm'n v. Blinder, Robinson & Co., 855 F.2d 677, 682 (10th Cir. 1988). In this case, the court found that the President's right to choose the chairman of the Securities and Exchange Commission (SEC), and remove him at will, along with the power to remove a commissioner for inefficiency, neglect of duty, or malfeasance in office, gave the President "sufficient control over the commission to insure the security laws are faithfully executed …." Id. The civil enforcement power given to the SEC was therefore constitutional. See also Lawrence Lessig & Cass R. Sunstein. The President and the Administration, 94 COLUM. L. REV. 1, 62 (1994) ("Unlike the other power clauses of article II, the Take Care Clause is expressed as a duty rather than a power."). But see Printz v. United States discussed infra note 68 and accompanying text.

49. 37 U.S. 524 (1838).

50. Id. at 612.

51. See, e.g., Burch v. Piqua Eng'g, Inc., 803 F. Supp. 115 (S.D. Ohio 1992), in which the court upheld False Claims Act qui tam provisions finding that the Executive Branch retained sufficient control over the litigation and, thus, could ensure that the laws would be faithfully executed.

52. 487 U.S. 654 (1988).

53. Id. at 691 "Most importantly, the Attorney General retains the power to remove the counsel for 'good cause,' a power that we have already concluded provides the Executive with substantial ability to ensure that the laws are 'faithfully executed' by an independent counsel." Id. at 695.

54. Id. at 693.

55. Bowsher v. Synar. 478 U.S. 714, 733 (1986).

56. See also Ameron, Inc. v. U.S. Army Corps of Eng'rs. 809 F.2d 979, 993 (3d Cir. 1986) ("The scope of [the executive] power depends on the amount of discretion that law leaves to the executive: in a sense, the power to execute the laws commences where Congress's exercise of the power to legislate leaves off.").

57. Loving v. United States, 517 U.S. 748, 757 (1996).

58. 433 U.S. 425 (1977).

59. Id. at 443.

60. Although some journalists reported that the Supreme Court overturned the Line Item Veto Act because it violated the separation-of-powers doctrine, these reports were inaccurate. Rather, the Court said: "[T]hus, because we conclude that the Act's cancellation provisions violate Article I, § 7 [the Presentment Clause] of the Constitution, we find it unnecessary to consider the District Court's alternative holding that the Act impermissibly disrupts the balance of powers among the three branches of government." Clinton v. New York, 1998 WL 33013, at *3 (U.S.) (1998).

61. Morrison v. Olson, 487 U.S. 654, 692 (1988). But see infra notes 76-77 and accompanying text for discussions of Justice Scalia's dissent.

62. Morrison, 487 U.S. at 696 (citing 28 U.S.C. § 592(b)(1)).

63. Id. at 695-96.

64. Id. at 696.

65. The Court distinguished Bowsher v. Synar, holding that "[u]nlike some of our previous cases, most recently Bowsher v. Synar, this case simply does not pose a 'danger[] of congressional usurpation of Executive Branch functions." Id. In Bowsher, the Court invalidated the Balanced Budget and Emergency Deficit Control Act because it vested executive budgetary authority in the Comptroller General of the General Services Administration, who served at the pleasure of the Congress. The Court held that Congress violated the separation-of-powers doctrine by redistributing this executive authority to the legislative branch. Bowsher v. Synar, 478 U.S. 714 (1986).

66. Nixon v. Administrator of General Services, 433 U.S. 425 (1977).

67. Id. at 445. Had the Court found such disruption, it would have gone on to "determine whether that impact [was] justified by an overriding need to promote objectives within the constitutional authority of Congress." Id. at 443.

68. 117 S. Ct. 2365 (1997).

69. Id. at 2378.

70. The view that assignment of any authority to implement federal law to anyone other than the President violates the Constitution has been embraced by Justice Scalia and certain commentators. Such adherents are imprecisely described as "unitary executivists." See, e.g., Calabresi & Prakish, supra note 44, at 593 ("[T]he text of the constitution confers on the President the exclusive power to superintend the execution of all federal laws, and Congress can neither add nor diminish the scope of this power."); Saikrishna Prakish, Hail to the Chief Administrator: The Framers and the President's Administrative Power; 102 YALE L.J. 991 (1992). However, although these authors count themselves among the most ardent unitary executivists, even they do not reject state implementation and enforcement of federal law. "If Congress exercised [the power to refuse to fund an executive function], the states presumably would have the background authority and responsibility to execute federal law, just as state courts have the background authority and responsibility to adjudicate federal cases when no federal court can do so." Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive Plural Judiciary, 105 HARV. L. REV. 1153, 1174 n.108 (1992). Of course, rejection of the unitary executivist view has also been frequently expressed. See, e.g., Lessig & Sunstein, supra note 48, at 4 ("Any faithful reader of history must conclude that the unitary executive … is just myth.").

71. Printz, 117 S. Ct. at 2386.

72. 505 U.S. 144, 166, 22 ELR 21082 (1992).

73. Printz, 117 S. Ct. at 2396.

74. 488 U.S. 361 (1989).

75. Joseph P. Verdon. The Vesting Clauses, the Nixon Test, and the Pharaoh's Dreams, 78 VA. L. REV. 1253, 1264 (1992).

76. Morrison v. Olson, 487 U.S. 654, 705 (1988) (Scalia, J., dissenting).

77. Id.

78. See also Humphrey's Executor v. United States, 295 U.S. 602 (1935), where the Court found that Congress could condition the power of the President to remove Federal Trade commissioners for "inefficiency, neglect of duty, or malfeasance in office." Id. at 622.

79. 20 F.3d 1406 (6th Cir. 1994).

80. Id. at 1417.

81. 469 U.S. 528 (1985). In this case the Court overruled National League of Cities v. Usery, 426 U.S. 833 (1976), and held that the Fair Labor Act was applicable to state and local government employees. In doing so, the Court rejected the tests enunciated in National League of Ciries and followed in numerous subsequent cases for determining whether the federal intrusion at issue was such as would violate the Tenth Amendment and principles of federalism. Instead, the Court held that such concerns would be addressed through the political process, not judicial decisionmaking.

82. The Tenth Amendment provides that "[t]he 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." U.S. CONST. amend. X.

83. New York v. United States, 505 U.S. 144, 22 ELR 21082 (1992).

84. Printz v. United States, 117 S. Ct. 2315 (1997); see also ACORN v. Edwards, 81 F.3d 1387, 1394, 26 ELR 21257, 21261 (5th Cir. 1996) (Congress' requirement that states regulate "non-lead free" drinking water coolers was an "unconstitutional intrusion upon the States' sovereign prerogative to legislate as it sees fit.").

85. 452 U.S. 264, 11 ELR 20569 (1981).

86. New York v. United States, 505 U.S. at 161, 22 ELR at 21085-86.

87. Id. at 176, 22 ELR at 21085-86.

88. Id. at 161, 22 ELR 21085-86. But see dissent by Justice Stevens, "I see no reason why Congress may not also command the States to enforce federal water and air quality standards or federal standards for the disposition of low-level radioactive wastes." Id. at 211, 22 ELR at 21099; see also Prakish, supra note 24, at 1960 ("Justice Stevens has the better historical argument in insisting that the federal government may compel states to enforce federal law.").

89. New York v. United States, 505 U.S. at 163, 22 ELR at 21086.

90. Printz v. United States, 117 S. Ct. 2365, 2384 (1997).

91. See, e.g., South Dakota v. Dole, 483 U.S. 203, 206 (1987). ("[O]bjectives not thought to be within Article I's enumerated legislative fields,' (citations omitted) may nevertheless be attained through the use of spending power and the conditional grant of federal funds.") See also Fullilove v. Klutznick, 448 U.S. 448 (1980) (upholding "minority business enterprise" provision of Public Works Employment Act of 1977).

92. Federal Energy Regulatory Comm'n v. Mississippi, 456 U.S. 742, 764-65 (1982); and Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 11 ELR 20569 (1981).

93. 42 U.S.C. §§ 7401-7671q, ELR STAT. CAA §§ 101-618.

94. Id. § 7411, ELR STAT. CAA § 111.

95. 40 C.F.R. § 71.10 (1998).

96. For numerous additional examples of congressional delegations of federal programs to states, see Harold Krent. Fragmenting the Unitary Executive: Congressional Delegations of Administrative Authority Outside the Federal Government, 85 NW. U. L. REV. 62 nn.55-57 (1990).

97. 645 F.2d 701, 11 ELR 20526 (9th Cir. 1981).

98. 42 U.S.C. § 11001-11050, ELR STAT. EPCRA §§ 301-330. States "may commence a civil action against an owner or operator of a facility for failure to [comply with notification, information sharing and record-keeping provisions of the Act]." Id. at § 11046(a)(2), ELR STAT. EPCRA § 326.

99. 42 U.S.C. § 6991b(h)(7).

A State may exercise the authorities in paragraphs (1) and (2) of this subsection, [regarding the ordering of corrective action] if —

(i) the Administrator determines that the State has the capabilities to carry out effective corrective actions and enforcement activities; and

(ii) the Administrator enters into a cooperative agreement with the State setting out the actions to be undertaken by the State.

Id.

Such an arrangement is virtually identical to that proposed by States for a reauthorized CERCLA.

100. 7 U.S.C. §§ 136-136y, ELR STAT. FIFRA §§ 2-34. "[A]ny State that enters into a cooperative agreement with the Administrator under section 136u of this title for the enforcement of pesticide use restrictions shall have the primary enforcement responsibility for pesticide use violations." Id. at § 136w-1(b), ELR STAT. FIFRA § 26.

101. 42 U.S.C. §§ 6901-6992k. ELR STAT. RCRA §§ 1001-11012. "A State may conduct inspections under § 6992c of this title … and take enforcement action under § 6992d of this title against any person …." Id. at § 6992f(a), ELR STAT. RCRA § 11007. It should be noted that although President Reagan referenced potential "constitutional problems" in his signing statement accompanying this law, no one has challenged the statute on constitutional grounds. Hubert Humphrey & LeRoy Paddock. The Federal and State Roles in Environmental Enforcement: A Proposal for a More Effective and More Efficient Relationship, 14 HARV. ENVTL. L. REV. 7 (1990).

102. Securities & Exch. Comm'n v. Blinder, Robinson & Co. 855 F.2d 677 (10th Cir. 1988).

103. First Jersey Sec., Inc. v. Bergen, 605 F.2d 690 (3d Cir. 1979).

104. Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381 (1940). The coal commission was subsequently abolished in 5 U.S.C. App. I (referring to Reorganization Plan 11).

105. Melcher v. Federal Open Mkt. Comm., 644 F. Supp. 510 (D.C. Cir. 1986).

106. Davis v. Passman, 442 U.S. 223, 241 (1979). See also Berman v. Parker, 348 U.S. 26 (1954); Crain v. First Nat'l Bank of Or., 324 F.2d 532, 537 (9th Cir. 1963) ("While Congress cannot delegate to private corporations or anyone else the power to enact laws, it may employ them in an administrative capacity to carry them into effect …. The first cannot be done; to the latter no valid objection can be made."); and Chesapeake Bay Found., Inc. v. Bethlehem Steel Corp., 652 F. Supp. 620, 623, 17 ELR 20623, 20624.