Daniel Hemel on Murphy v. NCAA

Murphy’s Law and Economics

I think we’ll be talking about Murphy v. NCAA for awhile. It’s the most important federalism decision since NFIB v. Sebelius, and it will almost certainly make its way into constitutional law casebooks. Upon first read, I thought that the rule laid down by Justice Alito — that “Congress cannot issue direct orders to state legislatures” — was novel, sweeping, and misguided. Upon further reflection, I think it might be novel, sweeping, and right.

Before Murphy, a reasonable interpretation of the Supreme Court’s anticommandeering cases would have been the following: Congress cannot compel state legislatures to enact a law, nor can it compel state executive officials to enforce a law, unless (1) Congress is acting pursuant to its authority under the Reconstruction Amendments, or (2) the relevant federal statute applies equally to states and private actors (the Reno v. Condon exception). Congress can, however, prohibit state legislatures from enacting laws that Congress does not want the states to enact. See, e.g., Arizona v. United States, 567 U.S. 387, 399 (2012) (“There is no doubt that Congress may withdraw specified powers from the States ….”). And Congress can pay states to enact and enforce the laws that it wants them to enact and enforce, as long as the offer isn’t overly “coercive” (whatever exactly that means).

Read more at Whatever Source Derived