Last month, a federal judge in New Hampshire issued an injunction purporting to prevent the state from ending its vehicle emission inspection program. The state legislature had repealed the program, effective January 31. No matter, the Judge McCafferty concluded, the state is required to have such a program under the federal Clean Air Act, so the state was enjoined from getting rid of the program.
As I explained in this post, the judge's injunction is unconstitutional, as it forces the state to implement a regulatory program. The judge claimed this outcome was required by the Clean Air Act, but it is well-established, black-letter law that federal law may not require a state to administer or implement a regulatory program. Any such requirement is commandeering, and is unconstitutional under a line of Supreme Court decisions going back over thirty years, including New York v. U.S., Printz v. U.S., and Murphy v. NCAA.
[Indeed, the history goes back farther, as the U.S. Environmental Protection Agency had taken the position in the 1970s that states could be required to implement vehicle emission inspection programs under the Clean Air Act, only for the Solicitor General to concede the point to the Supreme Court, prompting the dismissal of EPA v. Brown. I have a paper retelling this saga, unearthing some of the anti-commandeering principle's forgotten history, that I hope to post on SSRN later this year.]
