Thomas, J., dissenting
regulate the States or require them to implement federal programs.
“When the original States declared their independence, they claimed the powers inherent in sovereignty.” Murphy v. National Collegiate Athletic Assn., 584 U. S. ___, ___ (2018) (slip op., at 14) (citing Declaration of Independence ¶32).[1] Later, in ratifying the Constitution, the people of the original States granted carefully enumerated legislative powers to the new Federal Congress, while preserving the States’ pre-existing legislative power. 584 U. S., at ___ (slip op., at 15). “[C]onspicuously absent from” Congress’ enumerated powers was “the power to issue direct orders to the governments of the States.” Ibid.
Thus, as this Court has made clear, the Constitution “confers upon Congress the power to regulate individuals, not States.” New York v. United States, 505 U. S. 144, 166 (1992).[2] As a corollary, Congress “may not conscript state governments as its agents,” nor can it “require the States to govern according to [its] instructions.” Id., at 162, 178. And, “[w]hatever the outer limits of [state] sovereignty may be, one thing is clear: The Federal Government may not
- ↑ The Articles of Confederation granted Congress only the power to act upon States; it had no power to directly regulate individuals. The Constitution flipped this arrangement by granting the Federal Government the power to regulate individuals directly, but not States. See New York v. United States, 505 U. S. 144, 162 (1992) (“ ‘The people, through [the Constitution], 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’ ” (quoting Lane County v. Oregon, 7 Wall. 71, 76 (1869); emphasis deleted)).
- ↑ Congress possesses limited powers to directly regulate the States under the Reconstruction Amendments. See, e.g., City of Boerne v. Flores, 521 U. S. 507, 518 (1997). Due to the federalism concerns inherent in such regulation, these enforcement powers are cabined by the congruence-and-proportionality test. Id., at 518–519. The careful tailoring of this exception vividly proves the rule.
