New York v. United States, 505 U.S. 144, 61 (1992)

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204

NEW YORK v. UNITED STATES

Opinion of White, J.

the take title provision at issue in these cases. 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 constitutionally 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 173-174—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. Smith, 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

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