Remedial Commandeering
Vol. 54
April 2021
Page 1999
Protecting the right to vote and ensuring the integrity of elections. Safeguarding reproductive rights. Reducing and redressing racialized police misconduct. Threaded through some of the most ambitious and controversial reform proposals currently vying for attention in political and scholarly spheres is a common structural element, one that has distinct constitutional significance: the issuance of direct commands to state officials. Scholars of the Court’s federalism doctrines will readily understand why, at first blush, this seems to raise constitutional concerns — after all, the Court has now repeatedly warned Congress that it may not commandeer state officials in this manner. As this Article shows, however, these anti-commandeering principles do not restrain Congress in the exercise of its powers under the Reconstruction Amendments. When Congress is engaged in what this Article terms “remedial commandeering,” it is free to conscript unwilling state officials in a manner that would be impermissible were it legislating pursuant to other sources of power. With the scope of the commandeering constraint having expanded dramatically over the past three years, it is more urgent than ever to clarify that its reach does not encompass legislation enacted to enforce the substantive provisions of the Fourteenth and Fifteenth Amendments.
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