Lawyerly concerns can be a little obscure. Consider this taste of a Twitter exchange on The Volokh Conspiracy:
Last week in a Dorf on Law blog post, Michael Dorf was objecting to the anti-commandeering doctrine of New York v. United States and Printz v. United States. In it he said this:
I’ll begin by saying that I don’t like the anti-commandeering doctrine in any context. It strikes me that the dissenters were right in New York and Printz. Congress had the power to “commandeer” under the Articles of Confederation; nothing in the Constitution expressly forbids that means to Congress; in general the Constitution gave Congress more, not fewer, powers than Congress enjoyed under the Articles; and therefore, in my view if Congress is regulating in the area of one of its enumerated powers, then measures that commandeer the states are (absent some other problem) necessary and proper to the exercise of that power.
Turns out commandeering refers to compelling state officers to perform duties specified in Federal legislation, or so I take from the Printz v United States link, above:
The Government cites the World War I selective draft law that authorized the President “to utilize the service of any or all departments and any or all officers or agents of the United States and of the several States, Territories, and the District of Columbia, and subdivisions thereof, in the execution of this Act,” and made any person who refused to comply with the President’s directions guilty of a misdemeanor. Act of May 18, 1917, ch. 15, §6, 40 Stat. 80-81 (emphasis added). However, it is far from clear that the authorization “to utilize the service” of state officers was an authorization to compel the service of state officers; and the misdemeanor provision surely applied only to refusal to comply with the President’s authorized directions, which might not have included directions to officers of States whose governors had not volunteered their services. It is interesting that in implementing the Act President Wilson did not commandeer the services of state officers, but instead requested the assistance of the States’ governors …
The Articles of Confederation refer to the United States of America, version 0, if I may be colloquial in the matter. It appears that Dorf (a professor at Cornell) wishes that commandeering be legal, and cites the Articles of Confederation and suggests the Constitution should then inherit the commandeering capability.
Now, I’ve not had even a scant minute of legal training, I’m just a simple minded software engineer. In other words,
I just do logic.
So, to me, once I knew commandeering wasn’t really addressed in the Constitution, the only relevant question then becomes, Is the Constitution an extension of the Articles of Confederacy, or a replacement? My understanding, given the content of the Constitution, is that it’s a replacement.
Of course, given the legal profession’s adherence to precedent, then we have to ask if some court at a sufficiently high level has authorized commandeering, and of course I don’t know and don’t even know how to do the research.
But I did find the whole subject fascinating.
