 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

          Syllabus

NEW YORK v. UNITED STATES et al.
certiorari to the united states court of appeals for
          the second circuit
No. 91-543.   Argued March 30, 1992"Decided June 19, 1992

Faced with a looming shortage of disposal sites for low level radioactive
waste in 31 States, Congress enacted the Low-Level Radioactive
Waste Policy Amendments Act of 1985, which, among other things,
imposes upon States, either alone or in ``regional compacts'' with
other States, the obligation to provide for the disposal of waste
generated within their borders, and contains three provisions setting
forth ``incentives'' to States to comply with that obligation.  The first
set of incentives"the monetary incentives"works in three steps:  (1)
States with disposal sites are authorized to impose a surcharge on
radioactive waste received from other States; (2) the Secretary of
Energy collects a portion of this surcharge and places it in an escrow
account; and (3) States achieving a series of milestones in developing
sites receive portions of this fund.  The second set of incentives"the
access incentives"authorizes sited States and regional compacts
gradually to increase the cost of access to their sites, and then to
deny access altogether, to waste generated in States that do not meet
federal deadlines.  The so-called third ``incentive''"the take title
provision"specifies that a State or regional compact that fails to
provide for the disposal of all internally generated waste by a partic-
ular date must, upon the request of the waste's generator or owner,
take title to and possession of the waste and become liable for all
damages suffered by the generator or owner as a result of the State's
failure to promptly take possession.  Petitioners, New York State and
two of its counties, filed this suit against the United States, seeking
a declaratory judgment that, inter alia, the three incentives provi-
sions are inconsistent with the Tenth Amendment"which declares
that ``powers not delegated to the United States by the Constitution,
nor prohibited by it to the States, are reserved to the States''"and
with the Guarantee Clause of Article IV, 4"which directs the
United States to ``guarantee to every State . . . a Republican Form
of Government.''  The District Court dismissed the complaint, and the
Court of Appeals affirmed.
Held:
1.The Act's monetary incentives and access incentives provisions
are consistent with the Constitution's allocation of power between the
Federal and State Governments, but the take title provision is not.
Pp.7-36.
(a)In ascertaining whether any of the challenged provisions
oversteps the boundary between federal and state power, the Court
must determine whether it is authorized by the affirmative grants to
Congress contained in Article I's Commerce and Spending Clauses or
whether it invades the province of state sovereignty reserved by the
Tenth Amendment.  Pp.7-12.
(b)Although regulation of the interstate market in the disposal
of low level radioactive waste is well within Congress' Commerce
Clause authority, cf.  Philadelphia v. New Jersey, 437 U.S. 617,
621-623, and Congress could, if it wished, pre-empt entirely state
regulation in this area, a review of this Court's decisions, see, e. g.,
Hodel v. Virginia Surface Mining & Reclamation Assn., Inc.,
452 U.S. 264, 288, and the history of the Constitutional Convention,
demonstrates that Congress may not commandeer the States' legisla-
tive processes by directly compelling them to enact and enforce a
federal regulatory program, but must exercise legislative authority
directly upon individuals.  Pp.12-19.
(c)Nevertheless, there are a variety of methods, short of outright
coercion, by which Congress may urge a State to adopt a legislative
program consistent with federal interests.  As relevant here, Congress
may, under its spending power, attach conditions on the receipt of
federal funds, so long as such conditions meet four requirements.
See, e. g., South Dakota v. Dole, 483 U.S. 203, 206-208, and n.3.
Moreover, where Congress has the authority to regulate private
activity under the Commerce Clause, it may, as part of a program of
``cooperative federalism,'' offer States the choice of regulating that
activity according to federal standards or having state law pre-
empted by federal regulation.  See, e. g., Hodel, supra, at 288, 289.
Pp.19-21.
(d)This Court declines petitioners' invitation to construe the
Act's provision obligating the States to dispose of their radioactive
wastes as a separate mandate to regulate according to Congress'
instructions.  That would upset the usual constitutional balance of
federal and state powers, whereas the constitutional problem is
avoided by construing the Act as a whole to comprise three sets of
incentives to the States.  Pp.21-23.
(e)The Act's monetary incentives are well within Congress'
Commerce and Spending Clause authority and thus are not inconsis-
tent with the Tenth Amendment.  The authorization to sited States
to impose surcharges is an unexceptionable exercise of Congress'
power to enable the States to burden interstate commerce.  The
Secretary's collection of a percentage of the surcharge is no more
than a federal tax on interstate commerce, which petitioners do not
claim to be an invalid exercise of either Congress' commerce or taxing
power.  Finally, in conditioning the States' receipt of federal funds
upon their achieving specified milestones, Congress has not exceeded
its Spending Clause authority in any of the four respects identified
by this Court in Dole, supra, at 207-208.  Petitioners' objection to the
form of the expenditures as nonfederal is unavailing, since the
Spending Clause has never been construed to deprive Congress of the
power to collect money in a segregated trust fund and spend it for a
particular purpose, and since the States' ability largely to control
whether they will pay into the escrow account or receive a share was
expressly provided by Congress as a method of encouraging them to
regulate according to the federal plan.  Pp.23-26.
(f)The Act's access incentives constitute a conditional exercise
of Congress' commerce power along the lines of that approved in
Hodel, supra, at 288, and thus do not intrude on the States' Tenth
Amendment sovereignty.  These incentives present nonsited States
with the choice either of regulating waste disposal according to
federal standards or having their waste-producing residents denied
access to disposal sites.  They are not compelled to regulate, expend
any funds, or participate in any federal program, and they may
continue to regulate waste in their own way if they do not accede to
federal direction.  Pp.26-27.
(g)Because the Act's take title provision offers the States a
``choice'' between the two unconstitutionally coercive alterna-
tives"either accepting ownership of waste or regulating according to
Congress' instructions"the provision lies outside Congress' enumerat-
ed powers and is inconsistent with the Tenth Amendment.  On the
one hand, either forcing the transfer of waste from generators to the
States or requiring the States to become liable for the generators'
damages would ``commandeer'' States into the service of federal
regulatory purposes.  On the other hand, requiring the States to
regulate pursuant to Congress' direction would present a simple
unconstitutional command to implement legislation enacted by
Congress.  Thus, the States' ``choice'' is no choice at all.  Pp.27-29.
(h)The United States' alternative arguments purporting to find
limited circumstances in which congressional compulsion of state
regulation is constitutionally permissible"that such compulsion is
justified where the federal interest is sufficiently important; that the
Constitution does, in some circumstances, permit federal directives to
state governments; and that the Constitution endows Congress with
the power to arbitrate disputes between States in interstate com-
merce"are rejected.  Pp.30-33.
(i)Also rejected is the sited state respondents' argument that the
Act cannot be ruled an unconstitutional infringement of New York
sovereignty because officials of that State lent their support, and
consented, to the Act's passage.  A departure from the Constitution's
plan for the intergovernmental allocation of authority cannot be
ratified by the ``consent'' of state officials, since the Constitution
protects state sovereignty for the benefit of individuals, not States or
their governments, and since the officials' interests may not coincide
with the Constitution's allocation.  Nor does New York's prior support
estop it from asserting the Act's unconstitutionality.  Pp.33-36.
(j)Even assuming that the Guarantee Clause provides a basis
upon which a State or its subdivisions may sue to enjoin the enforce-
ment of a federal statute, petitioners have not made out a claim that
the Act's money incentives and access incentives provisions are
inconsistent with that Clause.  Neither the threat of loss of federal
funds nor the possibility that the State's waste producers may find
themselves excluded from other States' disposal sites can reasonably
be said to deny New York a republican form of government.
Pp.36-38.
2.The take title provision is severable from the rest of the Act,
since severance will not prevent the operation of the rest of the Act
or defeat its purpose of encouraging the States to attain local or
regional self-sufficiency in low level radioactive waste disposal; since
the Act still includes two incentives to encourage States along this
road; since a State whose waste generators are unable to gain access
to out-of-state disposal sites may encounter considerable internal
pressure to provide for disposal, even without the prospect of taking
title; and since any burden caused by New York's failure to secure a
site will not be borne by other States' residents because the sited
regional compacts need not accept New York's waste after the final
transition period.  Pp.38-40.
942 F.2d 114, affirmed in part and reversed in part.
    O'Connor, J., delivered the opinion of the Court, in which Rehn-
quist, C. J., and Scalia, Kennedy, Souter, and Thomas, JJ., joined,
and in Parts III-A and III-B of which White, Blackmun, and
Stevens, JJ., joined.  White, J., filed an opinion concurring in part
and dissenting in part, in which Blackmun and Stevens, JJ., joined.
Stevens, J., filed an opinion concurring in part and dissenting in part.



NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports.  Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D.C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
            SUPREME COURT OF THE UNITED STATES--------
             Nos. 91-543, 91-558 and 91-563
                        --------
                  NEW YORK, PETITIONER
     91-543                     v.
                       UNITED STATES et al.

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

             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 O'Connor delivered the opinion of the Court.
       This case implicates one of our Nation's newest problems
of public policy and perhaps our oldest question of constitu-
tional law.  The public policy issue involves the disposal of
radioactive waste: In this case, we address the constitu-
tionality of three provisions of the Low-Level Radioactive
Waste Policy Amendments Act of 1985, Pub. L. 99-240, 99
Stat. 1842, 42 U. S. C. 2021b et seq.  The constitutional
question is as old as the Constitution: It consists of discern-
ing the proper division of authority between the Federal
Government and the States.  We conclude that while
Congress has substantial power under the Constitution to
encourage the States to provide for the disposal of the
radioactive waste generated within their borders, the
Constitution does not confer upon Congress the ability
simply to compel the States to do so.  We therefore find that
only two of the Act's three provisions at issue are consistent
with the Constitution's allocation of power to the Federal
Government.
                                 I
       We live in a world full of low level radioactive waste.
Radioactive material is present in luminous watch dials,
smoke alarms, measurement devices, medical fluids,
research materials, and the protective gear and construction
materials used by workers at nuclear power plants.  Low
level radioactive waste is generated by the Government, by
hospitals, by research institutions, and by various indus-
tries.  The waste must be isolated from humans for long
periods of time, often for hundreds of years.  Millions of
cubic feet of low level radioactive waste must be disposed of
each year.  See App. 110a-111a; Berkovitz, Waste Wars: Did
Congress  Nuke State Sovereignty in the Low-Level
Radioactive Waste Policy Amendments Act of 1985?, 11
Harv. Envtl. L. Rev. 437, 439-440 (1987).
       Our Nation's first site for the land disposal of commercial
low level radioactive waste opened in 1962 in Beatty,
Nevada.  Five more sites opened in the following decade:
Maxey Flats, Kentucky (1963), West Valley, New York
(1963), Hanford, Washington (1965), Sheffield, Illinois
(1967), and Barnwell, South Carolina (1971).  Between 1975
and 1978, the Illinois site closed because it was full, and
water management problems caused the closure of the sites
in Kentucky and New York.  As a result, since 1979 only
three disposal sites"those in Nevada, Washington, and
South Carolina"have been in operation.  Waste generated
in the rest of the country must be shipped to one of these
three sites for disposal.  See Low-Level Radioactive Waste
Regulation 39-40 (M. Burns ed. 1988).
       In 1979, both the Washington and Nevada sites were
forced to shut down temporarily, leaving South Carolina to
shoulder the responsibility of storing low level radioactive
waste produced in every part of the country.  The Governor
of South Carolina, understandably perturbed, ordered a
50% reduction in the quantity of waste accepted at the
Barnwell site.  The Governors of Washington and Nevada
announced plans to shut their sites permanently.  App.
142a, 152a.
       Faced with the possibility that the Nation would be left
with no disposal sites for low level radioactive waste,
Congress responded by enacting the Low-Level Radioactive
Waste Policy Act, Pub. L. 96-573, 94 Stat. 3347.  Relying
largely on a report submitted by the National Governors'
Association, see App. 105a-141a, Congress declared a
federal policy of holding each State  responsible for provid-
ing for the availability of capacity either within or outside
the State for the disposal of low-level radioactive waste
generated within its borders, and found that such waste
could be disposed of  most safely and efficiently . . . on a
regional basis.  4(a)(1), 94 Stat. 3348.  The 1980 Act
authorized States to enter into regional compacts that, once
ratified by Congress, would have the authority beginning in
1986 to restrict the use of their disposal facilities to waste
generated within member States.  4(a)(2)(B), 94 Stat.
3348.  The 1980 Act included no penalties for States that
failed to participate in this plan.
       By 1985, only three approved regional compacts had
operational disposal facilities; not surprisingly, these were
the the compacts formed around South Carolina, Nevada,
and Washington, the three sited States.  The following year,
the 1980 Act would have given these three compacts the
ability to exclude waste from nonmembers, and the remain-
ing 31 States would have had no assured outlet for their
low level radioactive waste.  With this prospect looming,
Congress once again took up the issue of waste disposal.
The result was the legislation challenged here, the Low-
Level Radioactive Waste Policy Amendments Act of 1985.
       The 1985 Act was again based largely on a proposal
submitted by the National Governors' Association.  In broad
outline, the Act embodies a compromise among the sited
and unsited States.  The sited States agreed to extend for
seven years the period in which they would accept low level
radioactive waste from other States.  In exchange, the
unsited States agreed to end their reliance on the sited
States by 1992.
       The mechanics of this compromise are intricate.  The Act
directs:  Each State shall be responsible for providing,
either by itself or in cooperation with other States, for the
disposal of . . . low-level radioactive waste generated within
the State,  42 U. S. C. 2021c(a)(1)(A), with the exception
of certain waste generated by the Federal Government,
2021c(a)(1)(B), 2021c(b).  The Act authorizes States to
 enter into such [interstate] compacts as may be necessary
to provide for the establishment and operation of regional
disposal facilities for low-level radioactive waste.  2021d(a)(2).
For an additional seven years beyond the period
contemplated by the 1980 Act, from the beginning of 1986
through the end of 1992, the three existing disposal sites
 shall make disposal capacity available for low-level
radioactive waste generated by any source, with certain
exceptions not relevant here.  2021e(a)(2).  But the three
States in which the disposal sites are located are permitted
to exact a graduated surcharge for waste arriving from
outside the regional compact"in 1986-1987, $10 per cubic
foot; in 1988-1989, $20 per cubic foot; and in 1990-1992,
$40 per cubic foot.  2021e(d)(1).  After the seven-year
transition period expires, approved regional compacts may
exclude radioactive waste generated outside the region.
2021d(c).
       The Act provides three types of incentives to encourage
the States to comply with their statutory obligation to
provide for the disposal of waste generated within their
borders.
       1.  Monetary incentives.  One quarter of the surcharges
collected by the sited States must be transferred to an
escrow account held by the Secretary of Energy.  2021e(d)(2)(A).
The Secretary then makes payments from this
account to each State that has complied with a series of
deadlines.  By July 1, 1986, each State was to have ratified
legislation either joining a regional compact or indicating an
intent to develop a disposal facility within the State.
2021e(e)(1)(A), 2021e(d)(2)(B)(i).  By January 1, 1988,
each unsited compact was to have identified the State in
which its facility would be located, and each compact or
stand-alone State was to have developed a siting plan and
taken other identified steps.  2021e(e)(1)(B), 2021e(d)(2)(B)(ii).
By January 1, 1990, each State or compact was to
have filed a complete application for a license to operate a
disposal facility, or the Governor of any State that had not
filed an application was to have certified that the State
would be capable of disposing of all waste generated in the
State after 1992.  2021e(e)(1)(C), 2021e(d)(2)(B)(iii).  The
rest of the account is to be paid out to those States or
compacts able to dispose of all low level radioactive waste
generated within their borders by January 1, 1993.
2021e(d)(2)(B)(iv).  Each State that has not met the 1993
deadline must either take title to the waste generated
within its borders or forfeit to the waste generators the
incentive payments it has received.  2021e(d)(2)(C).
       2.  Access incentives.  The second type of incentive
involves the denial of access to disposal sites.  States that
fail to meet the July 1986 deadline may be charged twice
the ordinary surcharge for the remainder of 1986 and
may be denied access to disposal facilities thereafter.
2021e(e)(2)(A).  States that fail to meet the 1988 deadline
may be charged double surcharges for the first half of 1988
and quadruple surcharges for the second half of 1988, and
may be denied access thereafter.  2021e(e)(2)(B).  States
that fail to meet the 1990 deadline may be denied access.
2021e(e)(2)(C).  Finally, States that have not filed com-
plete applications by January 1, 1992, for a license to
operate a disposal facility, or States belonging to compacts
that have not filed such applications, may be charged triple
surcharges.  2021e(e)(1)(D), 2021e(e)(2)(D).
       3.  The take title provision.  The third type of incentive is
the most severe.  The Act provides:
 If a State (or, where applicable, a compact region) in
which low-level radioactive waste is generated is
unable to provide for the disposal of all such waste
generated within such State or compact region by
January 1, 1996, each State in which such waste is
generated, upon the request of the generator or owner
of the waste, shall take title to the waste, be obligated
to take possession of the waste, and shall be liable for
all damages directly or indirectly incurred by such
generator or owner as a consequence of the failure of
the State to take possession of the waste as soon after
January 1, 1996, as the generator or owner notifies the
State that the waste is available for shipment.
2021e(d)(2)(C).
These three incentives are the focus of petitioners' constitu-
tional challenge.
       In the seven years since the Act took effect, Congress has
approved nine regional compacts, encompassing 42 of the
States.  All six unsited compacts and four of the unaffiliated
States have met the first three statutory milestones.  Brief
for United States 10, n. 19; id., at 13, n. 25.
       New York, a State whose residents generate a relatively
large share of the Nation's low level radioactive waste, did
not join a regional compact.  Instead, the State complied
with the Act's requirements by enacting legislation provid-
ing for the siting and financing of a disposal facility in New
York.  The State has identified five potential sites, three in
Allegany County and two in Cortland County.  Residents of
the two counties oppose the State's choice of location.  App.
29a-30a, 66a-68a.
       Petitioners"the State of New York and the two coun-
ties"filed this suit against the United States in 1990.
They sought a declaratory judgment that the Act is incon-
sistent with the Tenth and Eleventh Amendments to the
Constitution, with the Due Process Clause of the Fifth
Amendment, and with the Guarantee Clause of Article IV
of the Constitution.  The States of Washington, Nevada,
and South Carolina intervened as defendants.  The District
Court dismissed the complaint.  757 F. Supp. 10 (NDNY
1990).  The Court of Appeals affirmed.  942 F. 2d 114 (CA2
1991).  Petitioners have abandoned their Due Process and
Eleventh Amendment claims on their way up the appellate
ladder; as the case stands before us, petitioners claim only
that the Act is inconsistent with the Tenth Amendment and
the Guarantee Clause.
                                II
                                 A
       In 1788, in the course of explaining to the citizens of New
York why the recently drafted Constitution provided for
federal courts, Alexander Hamilton observed:   The erection
of a new government, whatever care or wisdom may
distinguish the work, cannot fail to originate questions of
intricacy and nicety; and these may, in a particular manner,
be expected to flow from the the establishment of a consti-
tution founded upon the total or partial incorporation of a
number of distinct sovereignties.  The Federalist No. 82, p.
491 (C. Rossiter ed. 1961).  Hamilton's prediction has
proved quite accurate.  While no one disputes the proposi-
tion that  [t]he Constitution created a Federal Government
of limited powers, Gregory v. Ashcroft, 501 U. S. ___, ___
(1991) (slip op., at 3); and while the Tenth Amendment
makes explicit 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; the task of ascertaining the constitutional line
between federal and state power has given rise to many of
the Court's most difficult and celebrated cases.  At least as
far back as Martin v. Hunter's Lessee, 1 Wheat. 304, 324
(1816), the Court has resolved questions  of great impor-
tance and delicacy in determining whether particular
sovereign powers have been granted by the Constitution to
the Federal Government or have been retained by the
States.
       These questions can be viewed in either of two ways.  In
some cases the Court has inquired whether an Act of
Congress is authorized by one of the powers delegated to
Congress in Article I of the Constitution.  See, e.g., Perez v.
United States, 402 U. S. 146 (1971); McCulloch v. Mary-
land, 4 Wheat. 316 (1819).  In other cases the Court has
sought to determine whether an Act of Congress invades
the province of state sovereignty reserved by the Tenth
Amendment.  See, e.g., Garcia v. San Antonio Metropolitan
Transit Authority, 469 U. S. 528 (1985); Lane County v.
Oregon, 7 Wall. 71 (1869).  In a case like this one, involving
the division of authority between federal and state govern-
ments, the two inquiries are mirror images of each other.
If a power is delegated to Congress in the Constitution, the
Tenth Amendment expressly disclaims any reservation of
that power to the States; if a power is an attribute of state
sovereignty reserved by the Tenth Amendment, it is
necessarily a power the Constitution has not conferred on
Congress.  See United States v. Oregon, 366 U. S. 643, 649
(1961); Case v. Bowles, 327 U. S. 92, 102 (1946); Oklahoma
ex rel. Phillips v. Guy F. Atkinson Co., 313 U. S. 508, 534
(1941).
       It is in this sense that the Tenth Amendment  states but
a truism that all is retained which has not been surren-
dered.  United States v. Darby, 312 U. S. 100, 124 (1941).
As Justice Story put it,  [t]his amendment is a mere
affirmation of what, upon any just reasoning, is a necessary
rule of interpreting the constitution.  Being an instrument
of limited and enumerated powers, it follows irresistibly,
that what is not conferred, is withheld, and belongs to the
state authorities.  3 J. Story, Commentaries on the
Constitution of the United States 752 (1833).  This has been
the Court's consistent understanding:   The States unques-
tionably do retai[n] a significant measure of sovereign
authority . . . to the extent that the Constitution has not
divested them of their original powers and transferred those
powers to the Federal Government.  Garcia v. San Antonio
Metropolitan Transit Authority, supra, at 549 (internal
quotation marks omitted).
       Congress exercises its conferred powers subject to the
limitations contained in the Constitution.  Thus, for
example, under the Commerce Clause Congress may regu-
late publishers engaged in interstate commerce, but
Congress is constrained in the exercise of that power bythe First
Amendment.  The Tenth Amendment likewise
restrains the power of Congress, but this limit is not
derived from the text of the Tenth Amendment itself,
which, as we have discussed, is essentially a tautology.
Instead, the Tenth Amendment confirms that the power of
the Federal Government is subject to limits that may, in a
given instance, reserve power to the States.  The Tenth
Amendment thus directs us to determine, as in this case,
whether an incident of state sovereignty is protected by a
limitation on an Article I power.
       The benefits of this federal structure have been extensive-
ly catalogued elsewhere, see, e.g., Gregory v. Ashcroft,
supra, at ___-___; Merritt, The Guarantee Clause and State
Autonomy: Federalism for a Third Century, 88 Colum. L.
Rev. 1, 3-10 (1988); McConnell, Federalism: Evaluating the
Founders' Design, 54 U. Chi. L. Rev. 1484, 1491-1511
(1987), but they need not concern us here.  Our task would
be the same even if one could prove that federalism secured
no advantages to anyone.  It consists not of devising our
preferred system of government, but of understanding and
applying the framework set forth in the Constitution.   The
question is not what power the Federal Government ought
to have but what powers in fact have been given by the
people.  United States v. Butler, 297 U. S. 1, 63 (1936).
       This framework has been sufficiently flexible over the
past two centuries to allow for enormous changes in the
nature of government.  The Federal Government under-
takes activities today that would have been unimaginable
to the Framers in two senses; first, because the Framers
would not have conceived that any government would
conduct such activities; and second, because the Framers
would not have believed that the Federal Government,
rather than the States, would assume such responsibilities.
Yet the powers conferred upon the Federal Government by
the Constitution were phrased in language broad enough to
allow for the expansion of the Federal Government's role.
Among the provisions of the Constitution that have been
particularly important in this regard, three concern us here.
       First, the Constitution allocates to Congress the power
 [t]o regulate Commerce . . . among the several States.
Art. I, 8, cl. 3.  Interstate commerce was an established
feature of life in the late 18th century.  See, e.g., The
Federalist No. 42, p. 267 (C. Rossiter ed. 1961) ( The defect
of power in the existing Confederacy to regulate the
commerce between its several members [has] been clearly
pointed out by experience).  The volume of interstate
commerce and the range of commonly accepted objects of
government regulation have, however, expanded consider-
ably in the last 200 years, and the regulatory authority of
Congress has expanded along with them.  As interstate
commerce has become ubiquitous, activities once considered
purely local have come to have effects on the national
economy, and have accordingly come within the scope of
Congress' commerce power.  See, e.g., Katzenbach v.
McClung, 379 U. S. 294 (1964); Wickard v. Filburn, 317
U. S. 111 (1942).
       Second, the Constitution authorizes Congress  to pay the
Debts and provide for the . . . general Welfare of the United
States.  Art. I, 8, cl. 1.  As conventional notions of the
proper objects of government spending have changed over
the years, so has the ability of Congress to  fix the terms on
which it shall disburse federal money to the States.
Pennhurst State School and Hospital v. Halderman, 451
U. S. 1, 17 (1981).  Compare, e.g., United States v. Butler,
supra, at 72-75 (spending power does not authorize
Congress to subsidize farmers), with South Dakota v. Dole,
483 U. S. 203 (1987) (spending power permits Congress to
condition highway funds on States' adoption of minimum
drinking age).  While the spending power is  subject to
several general restrictions articulated in our cases, id., at
207, these restrictions have not been so severe as to prevent
the regulatory authority of Congress from generally keeping
up with the growth of the federal budget.
       The Court's broad construction of Congress' power under
the Commerce and Spending Clauses has of course been
guided, as it has with respect to Congress' power generally,
by the Constitution's Necessary and Proper Clause, which
authorizes Congress  [t]o make all Laws which shall be
necessary and proper for carrying into Execution the
foregoing Powers.  U. S. Const., Art. I., 8, cl. 18.  See,
e.g., Legal Tender Case (Juilliard v. Greenman), 110 U. S.
421, 449-450 (1884); McCulloch v. Maryland, 4 Wheat., at
411-421.
       Finally, the Constitution provides that  the Laws of the
United States . . . shall be the supreme Law of the Land . . .
any Thing in the Constitution or Laws of any State to the
Contrary notwithstanding.  U. S. Const., Art. VI, cl. 2.  As
the Federal Government's willingness to exercise power
within the confines of the Constitution has grown, the
authority of the States has correspondingly diminished to
the extent that federal and state policies have conflicted.
See, e.g., Shaw v. Delta Air Lines, Inc., 463 U. S. 85 (1983).
We have observed that the Supremacy Clause gives the
Federal Government  a decided advantage in th[e] delicate
balance the Constitution strikes between State and
Federal power.  Gregory v. Ashcroft, 501 U. S., at ___ (slip
op., at 6).
       The actual scope of the Federal Government's authority
with respect to the States has changed over the years,
therefore, but the constitutional structure underlying and
limiting that authority has not.  In the end, just as a cup
may be half empty or half full, it makes no difference
whether one views the question at issue in this case as one
of ascertaining the limits of the power delegated to the
Federal Government under the affirmative provisions of the
Constitution or one of discerning the core of sovereignty
retained by the States under the Tenth Amendment.
Either way, we must determine whether any of the three
challenged provisions of the Low-Level Radioactive Waste
Policy Amendments Act of 1985 oversteps the boundary
between federal and state authority.
                                 B
       Petitioners do not contend that Congress lacks the power
to regulate the disposal of low level radioactive waste.
Space in radioactive waste disposal sites is frequently sold
by residents of one State to residents of another.  Regula-
tion of the resulting interstate market in waste disposal is
therefore well within Congress' authority under the
Commerce Clause.  Cf. Philadelphia v. New Jersey, 437
U. S. 617, 621-623 (1978); Fort Gratiot Sanitary Landfill,
Inc. v. Michigan Dept. of Natural Resources, 504 U. S. ___,
___ (1992) (slip op., at 5).  Petitioners likewise do not
dispute that under the Supremacy Clause Congress could,
if it wished, pre-empt state radioactive waste regulation.
Petitioners contend only that the Tenth Amendment limits
the power of Congress to regulate in the way it has chosen.
Rather than addressing the problem of waste disposal by
directly regulating the generators and disposers of waste,
petitioners argue, Congress has impermissibly directed the
States to regulate in this field.
       Most of our recent cases interpreting the Tenth Amend-
ment have concerned the authority of Congress to subject
state governments to generally applicable laws.  The
Court's jurisprudence in this area has traveled an unsteady
path.  See Maryland v. Wirtz, 392 U. S. 183 (1968) (state
schools and hospitals are subject to Fair Labor Standards
Act); National League of Cities v. Usery, 426 U. S. 833
(1976) (overruling Wirtz) (state employers are not subject to
Fair Labor Standards Act); Garcia v. San Antonio Metropol-
itan Transit Authority, 469 U. S. 528 (1985) (overruling
National League of Cities) (state employers are once again
subject to Fair Labor Standards Act).  See also New York v.
United States, 326 U. S. 572 (1946); Fry v. United States,
421 U. S. 542 (1975); Transportation Union v. Long Island
R. Co., 455 U. S. 678 (1982); EEOC v. Wyoming, 460 U. S.
226 (1983); South Carolina v. Baker, 485 U. S. 505 (1988);
Gregory v. Ashcroft, 501 U. S. ___ (1991).  This case pres-
ents no occasion to apply or revisit the holdings of any of
these cases, as this is not a case in which Congress has
subjected a State to the same legislation applicable to
private parties.  Cf. FERC v. Mississippi, 456 U. S. 742,
758-759 (1982).
       This case instead concerns the circumstances under which
Congress may use the States as implements of regulation;
that is, whether Congress may direct or otherwise motivate
the States to regulate in a particular field or a particular
way.  Our cases have established a few principles that
guide our resolution of the issue.
                           1
       As an initial matter, Congress may not simply  comman-
dee[r] the legislative processes of the States by directly
compelling them to enact and enforce a federal regulatory
program.  Hodel v. Virginia Surface Mining & Reclamation
Assn., Inc., 452 U. S. 264, 288 (1981).  In Hodel, the Court
upheld the Surface Mining Control and 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.  Ibid.
       The Court reached the same conclusion the following year
in FERC v. Mississippi, supra.  At issue in FERC was the
Public Utility Regulatory Policies Act of 1978, a federal
statute encouraging the States in various ways to develop
programs to combat the Nation's energy crisis.  We ob-
served that  this Court never has sanctioned explicitly a
federal command to the States to promulgate and enforce
laws and regulations.  Id., at 761-762.  As in Hodel, the
Court upheld the statute at issue because it did not view
the statute as such a command.  The Court emphasized:
 Titles I and III of [the Public Utility Regulatory Policies
Act of 1978 (PURPA)] require only consideration of federal
standards.  And if a State has no utilities commission, or
simply stops regulating in the field, it need not even
entertain the federal proposals.  456 U. S., at 764 (empha-
sis in original).  Because  [t]here [wa]s nothing in PURPA
`directly compelling' the States to enact a legislative
program, the statute was not inconsistent with the
Constitution's division of authority between the Federal
Government and the States.  Id., at 765 (quoting Hodel v.
Virginia Surface Mining & Reclamation Assn., Inc., supra,
at 288).  See also South Carolina v. Baker, supra, at 513
(noting  the possibility that the Tenth Amendment might
set some limits on Congress' power to compel States to
regulate on behalf of federal interests); Garcia v. San
Antonio Metropolitan Transit Authority, supra, at 556
(same).
       These statements in FERC and Hodel were not innova-
tions.  While Congress has substantial powers to govern the
Nation directly, including in areas of intimate concern to
the States, the Constitution has never been understood to
confer upon Congress the ability to require the States to
govern according to Congress' instructions.  See Coyle v.
Oklahoma, 221 U. S. 559, 565 (1911).  The Court has been
explicit about this distinction.   Both the States and the
United States existed before the Constitution.  The people,
through that instrument, established a more perfect union
by substituting a national government, acting, with ample
power, directly upon the citizens, instead of the Confederate
government, which acted with powers, greatly restricted,
only upon the States.  Lane County v. Oregon, 7 Wall., at
76 (emphasis added).  The Court has made the same point
with more rhetorical flourish, although perhaps with less
precision, on a number of occasions.  In Chief Justice
Chase's much-quoted words,  the preservation of the States,
and the maintenance of their governments, are as much
within the design and care of the Constitution as the
preservation of the Union and the maintenance of the
National government.  The Constitution, in all its provi-
sions, looks to an indestructible Union, composed of
indestructible States.  Texas v. White, 7 Wall. 700, 725
(1869).  See also Metcalf & Eddy v. Mitchell, 269 U. S. 514,
523 (1926) ( neither government may destroy the other nor
curtail in any substantial manner the exercise of its
powers); Tafflin v. Levitt, 493 U. S. 455, 458 (1990) ( under
our federal system, the States possess sovereignty concur-
rent with that of the Federal Government); Gregory v.
Ashcroft, 501 U. S., at ___ (slip op., at 7) ( the States retain
substantial sovereign powers under our constitutional
scheme, powers with which Congress does not readily
interfere).
       Indeed, the question whether the Constitution should
permit Congress to employ state governments as regulatory
agencies was a topic of lively debate among the Framers.
Under the Articles of Confederation, Congress lacked the
authority in most respects to govern the people directly.  In
practice, Congress  could not directly tax or legislate upon
individuals; it had no explicit `legislative' or `governmental'
power to make binding `law' enforceable as such.  Amar, Of
Sovereignty and Federalism, 96 Yale L. J. 1425, 1447
(1987).
      The inadequacy of this governmental structure was
responsible in part for the Constitutional Convention.
Alexander Hamilton observed:   The great and radical vice
in the construction of the existing Confederation is in the
principle of legislation for states or governments, in
their corporate or collective capacities, and as contra-
distinguished from the individuals of whom they consist.
The Federalist No. 15, p. 108 (C. Rossiter ed. 1961).  As
Hamilton saw it,  we must resolve to incorporate into our
plan those ingredients which may be considered as forming
the characteristic difference between a league and a
government; we must extend the authority of the Union to
the persons of the citizens"the only proper objects of
government.  Id., at 109.  The new National Government
 must carry its agency to the persons of the citizens.  It
must stand in need of no intermediate legislations . . . .
The government of the Union, like that of each State, must
be able to address itself immediately to the hopes and fears
of individuals.  Id., No. 16, p. 116.
       The Convention generated a great number of proposals
for the structure of the new Government, but two quickly
took center stage.  Under the Virginia Plan, as first
introduced by Edmund Randolph, Congress would exercise
legislative authority directly upon individuals, without
employing the States as intermediaries.  1 Records of the
Federal Convention of 1787, p. 21 (M. Farrand ed. 1911).
Under the New Jersey Plan, as first introduced by William
Paterson, Congress would continue to require the approval
of the States before legislating, as it has under the Articles
of Confederation.  1 id., 243-244.  These two plans under-
went various revisions as the Convention progressed, but
they remained the two primary options discussed by the
delegates.  One frequently expressed objection to the New
Jersey Plan was that it might require the Federal Govern-
ment to coerce the States into implementing legislation.  As
Randolph explained the distinction,  [t]he true question is
whether we shall adhere to the federal plan [i.e., the New
Jersey Plan], or introduce the national plan.  The insuffi-
ciency of the former has been fully displayed . . . .  There
are but two modes, by which the end of a Gen[eral] Gov-
[ernment] can be attained: the 1st is by coercion as pro-
posed by Mr. P[aterson's] plan[, the 2nd] by real legislation
as prop[osed] by the other plan.  Coercion [is] impracticable,
expensive, cruel to individuals. . . . We must resort therefore
to a national Legislation over individuals.  1 id., at
255-256 (emphasis in original).  Madison echoed this view:
 The practicability of making laws, with coercive sanctions,
for the States as political bodies, had been exploded on all
hands.  2 id., at 9.
       Under one preliminary draft of what would become the
New Jersey Plan, state governments would occupy a
position relative to Congress similar to that contemplated
by the Act at issue in this case:  [T]he laws of the United
States ought, as far as may be consistent with the common
interests of the Union, to be carried into execution by the
judiciary and executive officers of the respective states,
wherein the execution thereof is required.  3 id., at 616.
This idea apparently never even progressed so far as to be
debated by the delegates, as contemporary accounts of the
Convention do not mention any such discussion.  The
delegates' many descriptions of the Virginia and New
Jersey Plans speak only in general terms about whether
Congress was to derive its authority from the people or
from the States, and whether it was to issue directives to
individuals or to States.  See 1 id., at 260-280.
       In the end, the Convention opted for a Constitution in
which Congress would exercise its legislative authority
directly over individuals rather than over States; for a
variety of reasons, it rejected the New Jersey Plan in favor
of the Virgina Plan.  1 id., at 313.  This choice was made
clear to the subsequent state ratifying conventions.  Oliver
Ellsworth, a member of the Connecticut delegation in
Philadelphia, explained the distinction to his State's
convention:  This Constitution does not attempt to coerce
sovereign bodies, states, in their political capacity. . . . But
this legal coercion singles out the . . . individual.  2 J.
Elliot, Debates on the Federal Constitution 197 (2d ed.
1863).  Charles Pinckney, another delegate at the Constitu-
tional Convention, emphasized to the South Carolina House
of Representatives that in Philadelphia  the necessity of
having a government which should at once operate upon the
people, and not upon the states, was conceived to be
indispensable by every delegation present.  4 id., at 256.
Rufus King, one of Massachusetts' delegates, returned home
to support ratification by recalling the Commonwealth's
unhappy experience under the Articles of Confederation and
arguing:  Laws, to be effective, therefore, must not be laid
on states, but upon individuals.  2 id., at 56.  At New
York's convention, Hamilton (another delegate in Philadel-
phia) exclaimed:  But can we believe that one state will
ever suffer itself to be used as an instrument of coercion?
The thing is a dream; it is impossible.  Then we are brought
to this dilemma"either a federal standing army is to
enforce the requisitions, or the federal treasury is left
without supplies, and the government without support.
What, sir, is the cure for this great evil?  Nothing, but to
enable the national laws to operate on individuals, in the
same manner as those of the states do.  2 id., at 233.  At
North Carolina's convention, Samuel Spencer recognized
that  all the laws of the Confederation were binding on the
states in their political capacities, . . . but now the thing is
entirely different.  The laws of Congress will be binding on
individuals.  4 id., at 153.
       In providing for a stronger central government, therefore,
the Framers explicitly chose a Constitution that confers
upon Congress the power to regulate individuals, not
States.  As we have seen, the Court has consistently
respected this choice.  We have always understood that
even where Congress has the authority under the Constitu-
tion to pass laws requiring or prohibiting certain acts, it
lacks the power directly to compel the States to require or
prohibit those acts.  E.g., FERC v. Mississippi, 456 U. S.,
at 762-766; Hodel v. Virginia Surface Mining & Reclama-
tion Assn., Inc., 452 U. S., at 288-289; Lane County v.
Oregon, 7 Wall., at 76.  The allocation of power contained
in the Commerce Clause, for example, authorizes Congress
to regulate interstate commerce directly; it does not
authorize Congress to regulate state governments' regula-
tion of interstate commerce.
                                 2
       This is not to say that Congress lacks the ability to
encourage a State to regulate in a particular way, or that
Congress may not hold out incentives to the States as a
method of influencing a State's policy choices.  Our cases
have identified a variety of methods, short of outright
coercion, by which Congress may urge a State to adopt a
legislative program consistent with federal interests.  Two
of these methods are of particular relevance here.
       First, under Congress' spending power,  Congress may
attach conditions on the receipt of federal funds.  South
Dakota v. Dole, 483 U. S., at 206.  Such conditions must
(among other requirements) bear some relationship to the
purpose of the federal spending, id., at 207-208, and n. 3;
otherwise, of course, the spending power could render
academic the Constitution's other grants and limits of
federal authority.  Where the recipient of federal funds is a
State, as is not unusual today, the conditions attached to
the funds by Congress may influence a State's legislative
choices.  See Kaden, Politics, Money, and State Sovereignty:
The Judicial Role, 79 Colum. L. Rev. 847, 874-881 (1979).
Dole was one such case:  The Court found no constitutional
flaw in a federal statute directing the Secretary of Trans-
portation to withhold federal highway funds from States
failing to adopt Congress' choice of a minimum drinking
age.  Similar examples abound.  See, e.g., Fullilove v.
Klutznick, 448 U. S. 448, 478-480 (1980); Massachusetts v.
United States, 435 U. S. 444, 461-462 (1978); Lau v.
Nichols, 414 U. S. 563, 568-569 (1974); Oklahoma v. Civil
Service Comm'n, 330 U. S. 127, 142-144 (1947).
       Second, where Congress has the authority to regulate
private activity under the Commerce Clause, we have
recognized Congress' power to offer States the choice of
regulating that activity according to federal standards or
having state law pre-empted by federal regulation.  Hodel
v. Virginia Surface Mining & Reclamation Assn., Inc.,
supra, at 288.  See also FERC v. Mississippi, supra, at
764-765.  This arrangement, which has been termed  a
program of cooperative federalism, Hodel, supra, at 289, is
replicated in numerous federal statutory schemes.  These
include the Clean Water Act, 86 Stat. 816, as amended, 33
U. S. C. 1251 et seq., see Arkansas v. Oklahoma, 503 U. S.
___, ___ (1992) (slip op., at 8) (Clean Water Act Act  antici-
pates a partnership between the States and the Federal
Government, animated by a shared objective); the Occupa-
tional Safety and Health Act of 1970, 84 Stat. 1590, 29
U. S. C. 651 et seq., see Gade v. National Solid Wastes
Management Assn., ___ U. S. ___, ___ (1992) (slip op., at
___); the Resource Conservation and Recovery Act of 1976,
90 Stat. 2796, as amended, 42 U. S. C. 6901 et seq., see
United States Dept. of Energy v. Ohio, 503 U. S. ___, ___
(1992) (slip op., at 2); and the Alaska National Interest
Lands Conservation Act, 94 Stat. 2374, 16 U. S. C. 3101
et seq., see Kenaitze Indian Tribe v. Alaska, 860 F. 2d 312,
314 (CA9 1988), cert. denied, 491 U. S. 905 (1989).
       By either of these two methods, as by any other permissi-
ble method of encouraging a State to conform to federal
policy choices, the residents of the State retain the ultimate
decision as to whether or not the State will comply.  If a
State's citizens view federal policy as sufficiently contrary
to local interests, they may elect to decline a federal grant.
If state residents would prefer their government to devote
its attention and resources to problems other than those
deemed important by Congress, they may choose to have
the Federal Government rather than the State bear the
expense of a federally mandated regulatory program, and
they may continue to supplement that program to the
extent state law is not preempted.  Where Congress
encourages state regulation rather than compelling it, state
governments remain responsive to the local electorate's
preferences; state officials remain accountable to the people.
       By contrast, where the Federal Government compels
States to regulate, the accountability of both state and
federal officials is diminished.  If the citizens of New York,
for example, do not consider that making provision for the
disposal of radioactive waste is in their best interest, they
may elect state officials who share their view.  That view
can always be preempted under the Supremacy Clause if is
contrary to the national view, but in such a case it is the
Federal Government that makes the decision in full view of
the public, and it will be federal officials that suffer the
consequences if the decision turns out to be detrimental or
unpopular.  But where the Federal Government directs the
States to regulate, it may be state officials who will bear
the brunt of public disapproval, while the federal officials
who devised the regulatory program may remain insulated
from the electoral ramifications of their decision.  Account-
ability is thus diminished when, due to federal coercion,
elected state officials cannot regulate in accordance with the
views of the local electorate in matters not pre-empted by
federal regulation.  See Merritt, 88 Colum. L. Rev., at
61-62; La Pierre, Political Accountability in the National
Political Process"The Alternative to Judicial Review of
Federalism Issues, 80 Nw. U. L. Rev. 577, 639-665 (1985).
       With these principles in mind, we turn to the three
challenged provisions of the Low-Level Radioactive Waste
Policy Amendments Act of 1985.
                                III
       The parties in this case advance two quite different views
of the Act.  As petitioners see it, the Act imposes a require-
ment directly upon the States that they regulate in the field
of radioactive waste disposal in order to meet Congress'
mandate that  [e]ach State shall be responsible for provid-
ing . . . for the  disposal of . . . low-level radioactive waste.
42 U. S. C. 2021c(a)(1)(A).  Petitioners understand this
provision as a direct command from Congress, enforceable
independent of the three sets of incentives provided by the
Act.  Respondents, on the other hand, read this provision
together with the incentives, and see the Act as affording
the States three sets of choices.  According to respondents,
the Act permits a State to choose first between regulating
pursuant to federal standards and losing the right to a
share of the Secretary of Energy's escrow account; to choose
second between regulating pursuant to federal standards
and progressively losing access to disposal sites in other
States; and to choose third between regulating pursuant to
federal standards and taking title to the waste generated
within the State.  Respondents thus interpret 2021c(a)(1)(A),
despite the statute's use of the word  shall, to
provide no more than an option which a State may elect or
eschew.
       The Act could plausibly be understood either as a
mandate to regulate or as a series of incentives.  Under
petitioners' view, however, 2021c(a)(1)(A) of the Act would
clearly  commandee[r] the legislative processes of the States
by directly compelling them to enact and enforce a federal
regulatory program.  Hodel v. Virginia Surface Mining &
Reclamation Assn., Inc., 452 U. S., at 288.  We must reject
this interpretation of the provision for two reasons.  First,
such an outcome would, to say the least,  upset the usual
constitutional balance of federal and state powers.  Gregory
v. Ashcroft, 501 U. S., at ___ (slip op., at 6).   [I]t is incum-
bent upon the federal courts to be certain of Congress'
intent before finding that federal law overrides this bal-
ance, ibid. (internal quotation marks omitted), but the
Act's amenability to an equally plausible alternative
construction prevents us from possessing such certainty.
Second,  where an otherwise acceptable construction of a
statute would raise serious constitutional problems, the
Court will construe the statute to avoid such problems
unless such construction is plainly contrary to the intent of
Congress.  Edward J. DeBartolo Corp. v. Florida Gulf
Coast Building & Construction Trades Council, 485 U. S.
568, 575 (1988).  This rule of statutory construction pushes
us away from petitioners' understanding of 2021c(a)(1)(A)
of the Act, under which it compels the States to regulate
according to Congress' instructions.
       We therefore decline petitioners' invitation to construe
2021c(a)(1)(A), alone and in isolation, as a command to the
States independent of the remainder of the Act.  Construed
as a whole, the Act comprises three sets of  incentives for
the States to provide for the disposal of low level radioac-
tive waste generated within their borders.  We consider
each in turn.
                                 A
       The first set of incentives works in three steps.  First,
Congress has authorized States with disposal sites to
impose a surcharge on radioactive waste received from
other States.  Second, the Secretary of Energy collects a
portion of this surcharge and places the money in an escrow
account.  Third, States achieving a series of milestones
receive portions of this fund.
       The first of these steps is an unexceptionable exercise of
Congress' power to authorize the States to burden inter-
state commerce.  While the Commerce Clause has long been
understood to limit the States' ability to discriminate
against interstate commerce, see, e.g., Wyoming v. Oklaho-
ma, 502 U. S. ___, ___ (1992) (slip op., at 15-16); Cooley v.
Board of Wardens of Port of Philadelphia, 12 How. 299
(1851), that limit may be lifted, as it has been here, by an
expression of the  unambiguous intent of Congress.
Wyoming, supra, at ___ (slip op., at 19); Prudential Ins. Co.
v. Benjamin, 328 U. S. 408, 427-431 (1946).  Whether or
not the States would be permitted to burden the interstate
transport of low level radioactive waste in the absence of
Congress' approval, the States can clearly do so with
Congress' approval, which is what the Act gives them.
       The second step, the Secretary's collection of a percentage
of the surcharge, is no more than a federal tax on interstate
commerce, which petitioners do not claim to be an invalid
exercise of either Congress' commerce or taxing power.  Cf.
United States v. Sanchez, 340 U. S. 42, 44-45 (1950);
Steward Machine Co. v. Davis, 301 U. S. 548, 581-583
(1937).
       The third step is a conditional exercise of Congress'
authority under the Spending Clause:  Congress has placed
conditions"the achievement of the milestones"on the
receipt of federal funds.  Petitioners do not contend that
Congress has exceeded its authority in any of the four
respects our cases have identified.  See generally South
Dakota v. Dole, 483 U. S., at 207-208.  The expenditure is
for the general welfare, Helvering v. Davis, 301 U. S. 619,
640-641 (1937); the States are required to use the money
they receive for the purpose of assuring the safe disposal of
radioactive waste.  42 U. S. C. 2021e(d)(2)(E).  The
conditions imposed are unambiguous, Pennhurst State
School and Hospital v. Halderman, 451 U. S., at 17; the Act
informs the States exactly what they must do and by when
they must do it in order to obtain a share of the escrow
account.  The conditions imposed are reasonably related to
the purpose of the expenditure, Massachusetts v. United
States, 435 U. S., at 461; both the conditions and the
payments embody Congress' efforts to address the pressing
problem of radioactive waste disposal.  Finally, petitioners
do not claim that the conditions imposed by the Act violate
any independent constitutional prohibition.  Lawrence
County v. Lead-Deadwood School Dist., 469 U. S. 256,
269-270 (1985).
       Petitioners contend nevertheless that the form of these
expenditures removes them from the scope of Congress'
spending power.  Petitioners emphasize the Act's instruc-
tion to the Secretary of Energy to  deposit all funds received
in a special escrow account.  The funds so deposited shall
not be the property of the United States.  42 U. S. C.
2021e(d)(2)(A).  Petitioners argue that because the money
collected and redisbursed to the States is kept in an account
separate from the general treasury, because the Secretary
holds the funds only as a trustee, and because the States
themselves are largely able to control whether they will pay
into the escrow account or receive a share, the Act  in no
manner calls for the spending of federal funds.  Reply Brief
for Petitioner State of New York 6.
       The Constitution's grant to Congress of the authority to
 pay the Debts and provide for the . . . general Welfare has
never, however, been thought to mandate a particular form
of accounting.  A great deal of federal spending comes from
segregated trust funds collected and spent for a particular
purpose.  See, e.g., 23 U. S. C. 118 (Highway Trust Fund);
42 U. S. C. 401(a) (Federal Old-Age and Survivors Insur-
ance Trust Fund); 42 U. S. C. 401(b) (Federal Disability
Insurance Trust Fund); 42 U. S. C. 1395t (Federal Supple-
mentary Medical Insurance Trust Fund).  The Spending
Clause has never been construed to deprive Congress of
the power to structure federal spending in this manner.
Petitioners' argument regarding the States' ability to
determine the escrow account's income and disbursements
ignores the fact that Congress specifically provided the
States with this ability as a method of encouraging the
States to regulate according to the federal plan.  That the
States are able to choose whether they will receive federal
funds does not make the resulting expenditures any less
federal; indeed, the location of such choice in the States is
an inherent element in any conditional exercise of Congress'
spending power.
       The Act's first set of incentives, in which Congress has
conditioned grants to the States upon the States' attain-
ment of a series of milestones, is thus well within the
authority of Congress under the Commerce and Spending
Clauses.  Because the first set of incentives is supported by
affirmative constitutional grants of power to Congress, it is
not inconsistent with the Tenth Amendment.
                                 B
       In the second set of incentives, Congress has authorized
States and regional compacts with disposal sites gradually
to increase the cost of access to the sites, and then to deny
access altogether, to radioactive waste generated in States
that do not meet federal deadlines.  As a simple regulation,
this provision would be within the power of Congress to
authorize the States to discriminate against interstate
commerce.  See Northeast Bancorp, Inc. v. Board of Gover-
nors, Fed. Reserve System, 472 U. S. 159, 174-175 (1985).
Where federal regulation of private activity is within the
scope of the Commerce Clause, we have recognized the
ability of Congress to offer states the choice of regulating
that activity according to federal standards or having state
law pre-empted by federal regulation.  See Hodel v. Virginia
Surface Mining & Reclamation Association, 452 U. S., at
288; FERC v. Mississippi, 456 U. S., at 764-765.
       This is the choice presented to nonsited States by the
Act's second set of incentives: States may either regulate
the disposal of radioactive waste according to federal
standards by attaining local or regional self-sufficiency, or
their residents who produce radioactive waste will be
subject to federal regulation authorizing sited States and
regions to deny access to their disposal sites.  The affected
States are not compelled by Congress to regulate, because
any burden caused by a State's refusal to regulate will fall
on those who generate waste and find no outlet for its
disposal, rather than on the State as a sovereign.  A State
whose citizens do not wish it to attain the Act's milestones
may devote its attention and its resources to issues its
citizens deem more worthy; the choice remains at all times
with the residents of the State, not with Congress.  The
State need not expend any funds, or participate in any
federal program, if local residents do not view such expendi-
tures or participation as worthwhile.  Cf. Hodel, supra, at
288.  Nor must the State abandon the field if it does not
accede to federal direction; the State may continue to
regulate the generation and disposal of radioactive waste in
any manner its citizens see fit.
       The Act's second set of incentives thus represents a
conditional exercise of Congress' commerce power, along the
lines of those we have held to be within Congress' authori-
ty.  As a result, the second set of incentives does not
intrude on the sovereignty reserved to the States by the
Tenth Amendment.
                                 C
       The take title provision is of a different character.  This
third so-called  incentive offers States, as an alternative to
regulating pursuant to Congress' direction, the option of
taking title to and possession of the low level radioactive
waste generated within their borders and becoming liable
for all damages waste generators suffer as a result of the
States' failure to do so promptly.  In this provision, Con-
gress has crossed the line distinguishing encouragement
from coercion.
       We must initially reject respondents' suggestion that,
because the take title provision will not take effect until
January 1, 1996, petitioners' challenge thereto is unripe.  It
takes many years to develop a new disposal site.  All
parties agree that New York must take action now in order
to avoid the take title provision's consequences, and no
party suggests that the State's waste generators will have
ceased producing waste by 1996.  The issue is thus ripe for
review.  Cf. Pacific Gas & Elec. Co. v. State Energy Resourc-
es Conservation and Development Comm'n, 461 U. S. 190,
201 (1983); Regional Rail Reorganization Act Cases, 419
U. S. 102, 144-145 (1974).
       The take title provision offers state governments a
 choice of either accepting ownership of waste or regulating
according to the instructions of Congress.  Respondents do
not claim that the Constitution would authorize Congress
to impose either option as a freestanding requirement.  On
one hand, the Constitution would not permit Congress
simply to transfer radioactive waste from generators to
state governments.  Such a forced transfer, standing alone,
would in principle be no different than a congressionally
compelled subsidy from state governments to radioactive
waste producers.  The same is true of the provision requir-
ing the States to become liable for the generators' damages.
Standing alone, this provision would be indistinguishable
from an Act of Congress directing the States to assume the
liabilities of certain state residents.  Either type of federal
action would  commandeer state governments into the
service of federal regulatory purposes, and would for this
reason be inconsistent with the Constitution's division of
authority between federal and state governments.  On the
other hand, the second alternative held out to state govern-
ments"regulating pursuant to Congress' direction"would,
standing alone, present a simple command to state govern-
ments to implement legislation enacted by Congress.  As we
have seen, the Constitution does not empower Congress to
subject state governments to this type of instruction.
       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.  Unlike the first two sets of
incentives, the take title incentive does not represent the
conditional exercise of any congressional power enumerated
in the Constitution.  In this provision, Congress has not
held out the threat of exercising its spending power or its
commerce power; it has instead held out the threat, should
the States not regulate according to one federal instruction,
of simply forcing the States to submit to another federal
instruction.  A choice between two unconstitutionally
coercive regulatory techniques is no choice at all.  Either
way,  the Act commandeers the legislative processes of the
States by directly compelling them to enact and enforce a
federal regulatory program, Hodel v. Virginia Surface
Mining & Reclamation Assn., Inc., supra, at 288, an
outcome that has never been understood to lie within the
authority conferred upon Congress by the Constitution.
       Respondents emphasize the latitude given to the States
to implement Congress' plan.  The Act enables the States to
regulate pursuant to Congress' instructions in any number
of different ways.  States may avoid taking title by contract-
ing with sited regional compacts, by building a disposal site
alone or as part of a compact, or by permitting private
parties to build a disposal site.  States that host sites may
employ a wide range of designs and disposal methods,
subject only to broad federal regulatory limits.  This line of
reasoning, however, only underscores the critical alternative
a State lacks: A State may not decline to administer the
federal program.  No matter which path the State chooses,
it must follow the direction of Congress.
       The take title provision appears to be unique.  No other
federal statute has been cited which offers a state govern-
ment no option other than that of implementing legislation
enacted by Congress.  Whether one views the take title
provision as lying outside Congress' enumerated powers, or
as infringing upon the core of state sovereignty reserved by
the Tenth Amendment, the provision is inconsistent with
the federal structure of our Government established by the
Constitution.
                                IV
       Respondents raise a number of objections to this under-
standing of the limits of Congress' power.
                                 A
       The United States proposes three alternative views of the
constitutional line separating state and federal authority.
While each view concedes that Congress generally may not
compel state governments to regulate pursuant to federal
direction, each purports to find a limited domain in which
such coercion is permitted by the Constitution.
       First, the United States argues that the Constitution's
prohibition of congressional directives to state governments
can be overcome where the federal interest is sufficiently
important to justify state submission.  This argument
contains a kernel of truth: In determining whether the
Tenth Amendment limits the ability of Congress to subject
state governments to generally applicable laws, the Court
has in some cases stated that it will evaluate the strength
of federal interests in light of the degree to which such laws
would prevent the State from functioning as a sovereign;
that is, the extent to which such generally applicable laws
would impede a state government's responsibility to
represent and be accountable to the citizens of the State.
See, e.g., EEOC v. Wyoming, 460 U. S., at 242, n. 17;
Transportation Union v. Long Island R. Co., 455 U. S., at
684, n. 9; National League of Cities v. Usery, 426 U. S., at
853.  The Court has more recently departed from this
approach.  See, e.g., South Carolina v. Baker, 485 U. S., at
512-513; Garcia v. San Antonio Metropolitan Transit
Authority, 469 U. S., at 556-557.  But whether or not a
particularly strong federal interest enables Congress to
bring state governments within the orbit of generally
applicable federal regulation, no Member of the Court has
ever suggested that such a federal interest would enable
Congress to command a state government to enact state
regulation.  No matter how powerful the federal interest
involved, the Constitution simply does not give Congress
the authority to require the States to regulate.  The
Constitution instead gives Congress the authority to
regulate matters directly and to pre-empt contrary state
regulation.  Where a federal interest is sufficiently strong
to cause Congress to legislate, it must do so directly; it may
not conscript state governments as its agents.
      Second, the United States argues that the Constitution
does, in some circumstances, permit federal directives to
state governments.  Various cases are cited for this proposi-
tion, but none support it.  Some of these cases discuss the
well established power of Congress to pass laws enforceable
in state courts.  See Testa v. Katt, 330 U. S. 386 (1947);
Palmore v. United States, 411 U. S. 389, 402 (1973); see
also Mondou v. New York, N. H. & H. R. Co., 223 U. S. 1,
57 (1912); Claflin v. Houseman, 93 U. S. 130, 136-137
(1876).  These cases involve no more than an application of
the Supremacy Clause's provision that federal law  shall be
the supreme Law of the Land, enforceable in every State.
More to the point, all involve congressional regulation of
individuals, not congressional requirements that States
regulate.  Federal statutes enforceable in state courts do, in
a sense, direct state judges to enforce them, but this sort of
federal  direction of state judges is mandated by the text
of the Supremacy Clause.  No comparable constitutional
provision authorizes Congress to command state legisla-
tures to legislate.
       Additional cases cited by the United States discuss the
power of federal courts to order state officials to comply
with federal law.  See Puerto Rico v. Branstad, 483 U. S.
219, 228 (1987); Washington v. Washington State Commer-
cial Passenger Fishing Vessel Assn., 443 U. S. 658, 695
(1979); Illinois v. City of Milwaukee, 406 U. S. 91, 106-108
(1972); see also Cooper v. Aaron, 358 U. S. 1, 18-19 (1958);
Brown v. Board of Ed., 349 U. S. 294, 300 (1955); Ex parte
Young, 209 U. S. 123, 155-156 (1908).  Again, however, the
text of the Constitution plainly confers this authority on the
federal courts, the  judicial Power of which  shall extend
to all Cases, in Law and Equity, arising under this Consti-
tution, [and] the Laws of the United States . . . ; [and] to
Controversies between two or more States; [and] between
a State and Citizens of another State.  U. S. Const., Art.
III, 2.  The Constitution contains no analogous grant of
authority to Congress.  Moreover, the Supremacy Clause
makes federal law paramount over the contrary positions of
state officials; the power of federal courts to enforce federal
law thus presupposes some authority to order state officials
to comply.  See Puerto Rico v. Branstad, supra, at 227-228
(overruling Kentucky v. Dennison, 24 How. 66 (1861)).
       In sum, the cases relied upon by the United States hold
only that federal law is enforceable in state courts and that
federal courts may in proper circumstances order state
officials to comply with federal law, propositions that by no
means imply any authority on the part of Congress to
mandate state regulation.
       Third, the United States, supported by the three sited
regional compacts as amici, argues that the Constitution
envisions a role for Congress as an arbiter of interstate
disputes.  The United States observes that federal courts,
and this Court in particular, have frequently resolved
conflicts among States.  See, e.g., Arkansas v. Oklahoma,
503 U. S. ___ (1992); Wyoming v. Oklahoma, 502 U. S. ___
(1992).  Many of these disputes have involved the allocation
of shared resources among the States, a category perhaps
broad enough to encompass the allocation of scarce disposal
space for radioactive waste.  See, e.g., Colorado v. New
Mexico, 459 U. S. 176 (1982); Arizona v. California, 373
U. S. 546 (1963).  The United States suggests that if the
Court may resolve such interstate disputes, Congress can
surely do the same under the Commerce Clause.  The
regional compacts support this argument with a series of
quotations from The Federalist and other contemporaneous
documents, which the compacts contend demonstrate that
the Framers established a strong national legislature for
the purpose of resolving trade disputes among the States.
Brief for Rocky Mountain Low-Level Radioactive Waste
Compact et al. as Amici Curiae 17, and n. 16.
       While the Framers no doubt endowed Congress with the
power to regulate interstate commerce in order to avoid
further instances of the interstate trade disputes that were
common under the Articles of Confederation, the Framers
did not intend that Congress should exercise that power
through the mechanism of mandating state regulation.  The
Constitution established Congress as  a superintending
authority over the reciprocal trade among the States, The
Federalist No. 42, p. 268 (C. Rossiter ed. 1961), by empow-
ering Congress to regulate that trade directly, not by
authorizing Congress to issue trade-related orders to state
governments.  As Madison and Hamilton explained,  a
sovereignty over sovereigns, a government over govern-
ments, a legislation for communities, as contradistinguished
from individuals, as it is a solecism in theory, so in practice
it is subversive of the order and ends of civil polity.  Id.,
No. 20, p. 138.
                                 B
       The sited State respondents focus their attention on the
process by which the Act was formulated.  They correctly
observe that public officials representing the State of New
York lent their support to the Act's enactment.  A Deputy
Commissioner of the State's Energy Office testified in favor
of the Act.  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 Comm. on Interior and Insular Affairs, 99th Cong.,
1st Sess. 97-98, 190-199 (1985) (testimony of Charles
Guinn).  Senator Moynihan of New York spoke in support
of the Act on the floor of the Senate.  131 Cong. Rec. 38423
(1985).  Respondents note that the Act embodies a bargain
among the sited and unsited States, a compromise to which
New York was a willing participant and from which New
York has reaped much benefit.  Respondents then pose
what appears at first to be a troubling question: How can
a federal statute be found an unconstitutional infringement
of State sovereignty when state officials consented to the
statute's enactment?
       The answer follows from an understanding of the funda-
mental purpose served by our Government's federal struc-
ture.  The Constitution does not protect the sovereignty of
States for the benefit of the States or state governments as
abstract political entities, or even for the benefit of the
public officials governing the States.  To the contrary, the
Constitution divides authority between federal and state
governments for the protection of individuals.  State
sovereignty is not just an end in itself:   Rather, federalism
secures to citizens the liberties that derive from the
diffusion of sovereign power.  Coleman v. Thompson, 501
U. S. ___, ___ (1991) (slip op., at 2) (Blackmun, J., dissent-
ing).   Just as the separation and independence of the
coordinate Branches of the Federal Government serves to
prevent the accumulation of excessive power in any one
Branch, a healthy balance of power between the States and
the Federal Government will reduce the risk of tyranny and
abuse from either front.  Gregory v. Ashcroft, 501 U. S., at
___ (1991) (slip op., at 4).  See The Federalist No. 51,
p. 323.
       Where Congress exceeds its authority relative to the
States, therefore, the departure from the constitutional plan
cannot be ratified by the  consent of state officials.  An
analogy to the separation of powers among the Branches of
the Federal Government clarifies this point.  The Constitu-
tion's division of power among the three Branches is
violated where one Branch invades the territory of another,
whether or not the encroached-upon Branch approves the
encroachment.  In Buckley v. Valeo, 424 U. S. 1, 118-137
(1976), for instance, the Court held that the Congress had
infringed the President's appointment power, despite the
fact that the President himself had manifested his consent
to the statute that caused the infringement by signing it
into law.  See National League of Cities v. Usery, 426 U. S.,
at 842, n. 12.  In INS v. Chadha, 462 U. S. 919, 944-959
(1983), we held that the legislative veto violated the
constitutional requirement that legislation be presented to
the President, despite Presidents' approval of hundreds of
statutes containing a legislative veto provision.  See id., at
944-945.  The constitutional authority of Congress cannot
be expanded by the  consent of the governmental unit
whose domain is thereby narrowed, whether that unit is the
Executive Branch or the States.
       State officials thus cannot consent to the enlargement of
the powers of Congress beyond those enumerated in the
Constitution.  Indeed, the facts of this case raise the
possibility that powerful incentives might lead both federal
and state officials to view departures from the federal
structure to be in their personal interests.  Most citizens
recognize the need for radioactive waste disposal sites, but
few want sites near their homes.  As a result, while it
would be well within the authority of either federal or state
officials to choose where the disposal sites will be, it is
likely to be in the political interest of each individual
official to avoid being held accountable to the voters for the
choice of location.  If a federal official is faced with the
alternatives of choosing a location or directing the States to
do it, the official may well prefer the latter, as a means of
shifting responsibility for the eventual decision.  If a state
official is faced with the same set of alternatives"choosing
a location or having Congress direct the choice of a loca-
tion"the state official may also prefer the latter, as it may
permit the avoidance of personal responsibility.  The
interests of public officials thus may not coincide with the
Constitution's intergovernmental allocation of authority.
Where state officials purport to submit to the direction of
Congress in this manner, federalism is hardly being
advanced.
       Nor does the State's prior support for the Act estop it
from asserting the Act's unconstitutionality.  While New
York has received the benefit of the Act in the form of a few
more years of access to disposal sites in other States, New
York has never joined a regional radioactive waste compact.
Any estoppel implications that might flow from membership
in a compact, see West Virginia ex rel. Dyer v. Sims, 341
U.S. 22, 35-36 (1951) (Jackson, J., concurring), thus do not
concern us here.  The fact that the Act, like much federal
legislation, embodies a compromise among the States does
not elevate the Act (or the antecedent discussions among
representatives of the States) to the status of an interstate
agreement requiring Congress' approval under the Compact
Clause.  Cf. Holmes v. Jennison, 14 Pet. 540, 572 (1840)
(plurality opinion).  That a party collaborated with others
in seeking legislation has never been understood to estop
the party from challenging that legislation in subsequent
litigation.
                                 V
       Petitioners also contend that the Act is inconsistent with
the Constitution's Guarantee Clause, which directs the
United States to  guarantee to every State in this Union a
Republican Form of Government.  U. S. Const., Art. IV, 4.
Because we have found the take title provision of the Act
irreconcilable with the powers delegated to Congress by the
Constitution and hence with the Tenth Amendment's
reservation to the States of those powers not delegated to
the Federal Government, we need only address the applica-
bility of the Guarantee Clause to the Act's other two
challenged provisions.
       We approach the issue with some trepidation, because the
Guarantee Clause has been an infrequent basis for litiga-
tion throughout our history.  In most of the cases in which
the Court has been asked to apply the Clause, the Court
has found the claims presented to be nonjusticiable under
the  political question doctrine.  See, e.g., City of Rome v.
United States, 446 U. S. 156, 182, n. 17 (1980) (challenge to
the preclearance requirements of the Voting Rights Act);
Baker v. Carr, 369 U. S. 186, 218-229 (1962) (challenge to
apportionment of state legislative districts); Pacific States
Tel. & Tel. Co. v. Oregon, 223 U. S. 118, 140-151 (1912)
(challenge to initiative and referendum provisions of state
constitution).
        The view that the Guarantee Clause implicates only
nonjusticiable political questions has its origin in Luther v.
Borden, 7 How. 1 (1849), in which the Court was asked to
decide, in the wake of Dorr's Rebellion, which of two rival
governments was the legitimate government of Rhode
Island.  The Court held that  it rests with Congress, not
the judiciary,  to decide what government is the established
one in a State.  Id., at 42.  Over the following century, this
limited holding metamorphosed into the sweeping assertion
that  [v]iolation of the great guaranty of a republican form
of government in States cannot be challenged in the courts.
Colegrove v. Green, 328 U. S. 549, 556 (1946) (plurality
opinion).
       This view has not always been accepted.  In a group of
cases decided before the holding of Luther was elevated into
a general rule of nonjusticiability, the Court addressed the
merits of claims founded on the Guarantee Clause without
any suggestion that the claims were not justiciable.  See
Kies v. Lowrey, 199 U. S. 233, 239 (1905); Forsyth v. Ham-
mond, 166 U. S. 506, 519 (1897); In re Duncan, 139 U. S.
449, 461-462 (1891); Minor v. Happersett, 21 Wall. 162,
175-176 (1875).  See also Plessy v. Ferguson, 163 U. S. 537,
563-564 (1896) (Harlan, J., dissenting) (racial segregation
 inconsistent with the guarantee given by the Constitution
to each State of a republican form of government).
       More recently, the Court has suggested that perhaps not
all claims under the Guarantee Clause present nonjusti-
ciable political questions.  See Reynolds v. Sims, 377 U. S.
533, 582 (1964) ( some questions raised under the Guaran-
tee Clause are nonjusticiable).  Contemporary commenta-
tors have likewise suggested that courts should address the
merits of such claims, at least in some circumstances.  See,
e.g., L. Tribe, American Constitutional Law 398 (2d ed.
1988); J. Ely, Democracy and Distrust: A Theory of Judicial
Review 118, n., 122-123 (1980); W. Wiecek, The Guarantee
Clause of the U. S. Constitution 287-289, 300 (1972);
Merritt, 88 Colum. L. Rev., at 70-78; Bonfield, The Guaran-
tee Clause of Article IV, Section 4: A Study in Constitution-
al Desuetude, 46 Minn. L. Rev. 513, 560-565 (1962).
       We need not resolve this difficult question today.  Even
if we assume that petitioners' claim is justiciable, neither
the monetary incentives provided by the Act nor the
possibility that a State's waste producers may find them-
selves excluded from the disposal sites of another State can
reasonably be said to deny any State a republican form of
government.  As we have seen, these two incentives
represent permissible conditional exercises of Congress'
authority under the Spending and Commerce Clauses
respectively, in forms that have now grown commonplace.
Under each, Congress offers the States a legitimate choice
rather than issuing an unavoidable command.  The States
thereby retain the ability to set their legislative agendas;
state government officials remain accountable to the local
electorate.  The twin threats imposed by the first two
challenged provisions of the Act"that New York may miss
out on a share of federal spending or that those generating
radioactive waste within New York may lose out-of-state
disposal outlets"do not pose any realistic risk of altering
the form or the method of functioning of New York's
government.  Thus even indulging the assumption that the
Guarantee Clause provides a basis upon which a State or
its subdivisions may sue to enjoin the enforcement of a
federal statute, petitioners have not made out such a claim
in this case.
                                VI
       Having determined that the take title provision exceeds
the powers of Congress, we must consider whether it is
severable from the rest of the Act.
        The standard for determining the severability of an
unconstitutional provision is well established: Unless it is
evident that the Legislature would not have enacted those
provisions which are within its power, independently of that
which is not, the invalid part may be dropped if what is left
is fully operative as a law.  Alaska Airlines, Inc. v. Brock,
480 U. S. 678, 684 (1987) (internal quotation marks
omitted).  While the Act itself contains no statement of
whether its provisions are severable,  [i]n the absence of a
severability clause, . . . Congress' silence is just
that"silence"and does not raise a presumption against
severability.  Id., at 686.  Common sense suggests that
where Congress has enacted a statutory scheme for an
obvious purpose, and where Congress has included a series
of provisions operating as incentives to achieve that
purpose, the invalidation of one of the incentives should not
ordinarily cause Congress' overall intent to be frustrated.
As the Court has observed,  it is not to be presumed that
the legislature was legislating for the mere sake of impos-
ing penalties, but the penalties . . . were simply in aid of
the main purpose of the statute.  They may fail, and still
the great body of the statute have operative force, and the
force contemplated by the legislature in its enactment.
Reagan v. Farmers' Loan & Trust Co., 154 U. S. 362, 396
(1894).  See also United States v. Jackson, 390 U. S. 570,
585-586 (1968).
       It is apparent in light of these principles that the take
title provision may be severed without doing violence to the
rest of the Act.  The Act is still operative and it still serves
Congress' objective of encouraging the States to attain local
or regional self-sufficiency in the disposal of low level
radioactive waste.  It still includes two incentives that coax
the States along this road.  A State whose radioactive waste
generators are unable to gain access to disposal sites in
other States may encounter considerable internal pressure
to provide for the disposal of waste, even without the
prospect of taking title.  The sited regional compacts need
not accept New York's waste after the seven-year transition
period expires, so any burden caused by New York's failure
to secure a disposal site will not be borne by the residents
of other States.  The purpose of the Act is not defeated by
the invalidation of the take title provision, so we may leave
the remainder of the Act in force.
                                VII
       Some truths are so basic that, like the air around us, they
are easily overlooked.  Much of the Constitution is con-
cerned with setting forth the form of our government, and
the courts have traditionally invalidated measures deviat-
ing from that form.  The result may appear  formalistic in
a given case to partisans of the measure at issue, because
such measures are typically the product of the era's
perceived necessity.  But the Constitution protects us from
our own best intentions: It divides power among sovereigns
and among branches of government precisely so that we
may resist the temptation to concentrate power in one
location as an expedient solution to the crisis of the day.
The shortage of disposal sites for radioactive waste is a
pressing national problem, but a judiciary that licensed
extra-constitutional government with each issue of compa-
rable gravity would, in the long run, be far worse.
       States are not mere political subdivisions of the United
States.  State governments are neither regional offices nor
administrative agencies of the Federal Government.  The
positions occupied by state officials appear nowhere on the
Federal Government's most detailed organizational chart.
The Constitution instead  leaves to the several States a
residuary and inviolable sovereignty, The Federalist No.
39, p. 245 (C. Rossiter ed. 1961), reserved explicitly to the
States by the Tenth Amendment.
       Whatever the outer limits of that sovereignty may be, one
thing is clear: The Federal Government may not compel the
States to enact or administer a federal regulatory program.
The Constitution permits both the Federal Government and
the States to enact legislation regarding the disposal of low
level radioactive waste.  The Constitution enables the
Federal Government to pre-empt state regulation contrary
to federal interests, and it permits the Federal Government
to hold out incentives to the States as a means of encourag-
ing them to adopt suggested regulatory schemes.  It does
not, however, authorize Congress simply to direct the States
to provide for the disposal of the radioactive waste generat-
ed within their borders.  While there may be many constitu-
tional methods of achieving regional self-sufficiency in
radioactive waste disposal, the method Congress has chosen
is not one of them.  The judgment of the Court of Appeals
is accordingly

                      Affirmed in part and reversed in part.



         SUPREME COURT OF THE UNITED STATES--------
             Nos. 91-543, 91-558 and 91-563
                        --------
                  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 ofthe
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 Compactwith
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.



SUPREME COURT OF THE UNITED STATES--------
  Nos. 91-543, 91-558 and 91-563
             --------
       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 Stevens, concurring in part and dissenting in
part.
  Under the Articles of Confederation, the Federal Govern-
ment had the power to issue commands to the States.  See
Arts. VIII, IX.  Because that indirect exercise of federal
power proved ineffective, the Framers of the Constitution
empowered the Federal Government to exercise legislative
authority directly over individuals within the States, even
though that direct authority constituted a greater intrusion
on State sovereignty.  Nothing in that history suggests that
the Federal Government may not also impose its will upon
the several States as it did under the Articles.  The Consti-
tution enhanced, rather than diminished, the power of the
Federal Government.
  The notion that Congress does not have the power to
issue  a simple command to state governments to implement
legislation enacted by Congress, ante, at 28, is
incorrect and unsound.  There is no such limitation in the
Constitution.  The Tenth Amendment surely does not
impose any limit on Congress' exercise of the powers
delegated to it by Article I.  Nor does the structure of the
constitutional order or the values of federalism mandate
such a formal rule.  To the contrary, the Federal Govern-
ment directs state governments in many realms.  The
Government regulates state-operated railroads, state school
systems, state prisons, state elections, and a host of other
state functions.  Similarly, there can be no doubt that, in
time of war, Congress could either draft soldiers itself or
command the States to supply their quotas of troops.  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.
  The Constitution gives this Court the power to resolve
controversies between the States.  Long before Congress
enacted pollution-control legislation, this Court crafted a
body of  `interstate common law,' Illinois v. City of
Milwaukee, 406 U. S. 91, 106 (1972), to govern disputes
between States involving interstate waters.  See Arkansas
v. Oklahoma, 503 U. S. __, __-__ (1992) (slip op., at 5-6).  In
such contexts, we have not hesitated to direct States to
undertake specific actions.  For example, we have  im-
pose[d] on States an affirmative duty to take reasonable
steps to conserve and augment the water supply of an
interstate stream.  Colorado v. New Mexico, 459 U. S. 176,
185 (1982) (citing Wyoming v. Colorado, 259 U. S. 419
(1922)).  Thus, we unquestionably have the power to
command an upstate stream that is polluting the waters of
a downstream State to adopt appropriate regulations to
implement a federal statutory command.
  With respect to the problem presented by the case at
hand, if litigation should develop between States that have
joined a compact, we would surely have the power to grant
relief in the form of specific enforcement of the take title
provision.  Indeed, even if the statute had never been
passed, if one State's radioactive waste created a nuisance
that harmed its neighbors, it seems clear that we would
have had the power to command the offending State to take
remedial action.  Cf. Illinois v. City of Milwaukee.  If this
Court has such authority, surely Congress has similar
authority.
  For these reasons, as well as those set forth by Justice
White, I respectfully dissent.



