Anticomandeering and PaPACA

Intra vires federal statutes are the law of the land, U.S. Const., Art. VI, cl. 2, but the question of who enforces a statute is distinct from its substantive prescriptions and validity. Federal statutes may not conscript states to enforce them. See Printz v. United States, 521 U.S. 898 (1997); New York v. United States, 505 U.S. 144 (1992); NARUC v. FERC, 475 F.3d 1277 (DC Cir. 2007) ("Congress may not 'commandeer' states by compelling them either to create or administer a federal regulatory scheme"); Ann Althouse, The Vigor of the Anti-Commandeering Doctrine in Times of Terror, 69 Brook. L. Rev. 1231 (2004). I mention this because I am not as sure as Ezra Klein that Wyoming's HB 35 wouldn't survive a day in litigation. Take as a whole, the bill is clearly intended as an act of nullification, but the first provision that Klein zeroes in on, section 6-5-404(a), may be viable, because it strikes me as more akin to Printz than to nullification.

404(a) makes it a felony for any "official, agent, employee or public servant of the state of Wyoming" to "enforce[ ] or attempt[ ] to enforce an act, order, law, statute, rule or regulation of the government of the United States" pursuant to PaPACA. It seems to me that this section, standing alone, does not say that federal law may not be enforced, but that the officers and instrumentalities of Wyoming may not be conscripted to do so. (For present purposes, we can ignore the obvious question of whether PaPACA actually conscripts state officers.) That isn't on all fours with Printz, where the issue wasn't a state refusing to permits its officers to enforce a federal law but an individual state officer refusing to do so where the state was indifferent. But it's close, and the anti-commandeering doctrine rests on both Printz and the state-focussed New York. The sum and substance of the doctrine is that Congress may not compel the States, their machinery of government, or their officers individually, to enact or enforce a federally-directed regulatory program. It seems to follow that if Congress may encourage states to enforce federal law but cannot force them to do so (see Env. Def. Ctr. v. EPA, 319 F.3d 398 (9th Cir. 2003)), and if it may not bypass states by going directly to their officers (as Printz holds), symmetry demands that while a state may be encouraged to enforce PaPACA, it remains free to refuse such help, a power which surely includes the authority to withold the assistance of her officers.

To be sure, section 404(a) doesn't stand alone, and things come off the rails in the very next section. Section 404(b) criminalizes any attempt by federal officials to enforce PaPACA, which is plainly untenable. But it is also plainly severable. See Ayotte v. Planned Parenthood, 546 U.S. 320 (2006).

Being a pedant, I must also note that its authors have the same usage problem as the FCC: Section 6-5-403(a)(iii) refers to "the several states comprising [read 'composing'] the United States in 1889."