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No. 98-1464: Reno v. Condon

No. 98-1464

In the Supreme Court of the United States

JANET RENO, ATTORNEY GENERAL
OF THE UNITED STATES, ET AL., PETITIONERS

v.

CHARLIE CONDON, ATTORNEY GENERAL
FOR THE STATE OF SOUTH CAROLINA, ET AL.

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

REPLY BRIEF FOR THE PETITIONERS


SETH P. WAXMAN
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217




As we explain in our opening brief (at 39-42), the Driver's Privacy ProtectionAct of 1994 (DPPA or Act), 18 U.S.C. 2721-2725 (1994 & Supp. III 1997),is one of several statutes enacted by Congress to address concerns raisedby the dissemination of personal information. Federal statutes control thecircumstances in which specified private entities such as video stores,cable television companies, and credit bureaus may disclose personal informationwithout the consent of the individual to whom the information pertains.Other statutes govern the circumstances in which federal agencies may disclosethe personal information that they gather about private individuals. Insimilar fashion, the DPPA addresses the particular concerns posed by thedisclosure of personal information by state departments of motor vehicles(DMVs). Like the statutes that regulate disclosures by private entitiesand by the federal government, the DPPA is tailored to address concernsabout intrusions on privacy raised by the specific type of record coveredby the statute; it also permits dissemination in circumstances where Congressfound an important public interest in disclosure of the information in thatparticular kind of record.
Respondents assert that Congress's extension of federal regulation of thedissemination of personal information to state DMV records is invalid fortwo principal reasons. First, they argue that the DPPA, like the statutesinvalidated in New York v. United States, 505 U.S. 144 (1992), and Printzv. United States, 521 U.S. 898 (1997), commandeers the States into federalservice by requiring them to enact or implement a federal regulatory scheme.See Resp. Br. 12-22. Second, they urge that Congress may not impose anyregulations on state entities that engage in commerce unless Congress alsoimposes the same regulations on private persons. See id. at 24-27. Neitherargument has merit.

1. The DPPA Is Within Congress's Enumerated Powers.

As a threshold matter, as we show in our opening brief (at 21-23), therecan be no doubt that the DPPA regulates activity that is subject to Congress'spower under the Commerce Clause, U.S. Const. Art. I, § 8, Cl. 3. Respondentsdo not argue otherwise. Respondents have therefore waived any argument thatthe DPPA exceeds Congress's enumerated powers, and the Court should declineto address the argument made by amicus curiae Pacific Legal Foundation (PLF)that the DPPA exceeds Congress's commerce power. See Robertson v. SeattleAudubon Soc'y, 503 U.S. 429, 441 (1992) (declining to address an argumenturged only by amicus curiae).
In any event, PLF's arguments cast no doubt on the DPPA's firm groundingin the Commerce Clause. PLF asserts without substantiation (PLF Br. 5, 6)that States charge only "administrative fees" for motor vehiclerecords, by which it apparently means fees that cover only the cost of supplyingthe information. Respondents, however, have made no such claim on behalfof the State of South Carolina. Moreover, the State of Wisconsin, whichhas also challenged the DPPA, has acknowledged that it has done so in partto protect the $8 million it receives each year from sales of motor vehiclerecord information.1 Congress also heard testimony that New York earned$17 million in one year from individuals and businesses that used the State'scomputers to examine motor vehicle records. See 1994 WL 212813 (Feb. 3,1994) (statement of Janlori Goldman, American Civil Liberties Union).
Moreover, Congress's regulatory power under the Commerce Clause is not limitedto situations in which those subject to regulation earn a profit from theregulated activity. It is sufficient in this case that state DMVs acquirethe information at issue in connection with activities (the owning and operatingof motor vehicles) intimately tied to interstate commerce, that personalinformation in state DMV records has considerable commercial value, andthat the automobile industry and national direct marketing companies relyheavily on that information in their national marketing efforts. See Gov'tBr. 4-5. The DPPA thus regulates activities in or affecting interstate commercein the plainest way.
It is also well settled that Congress may exercise its regulatory powerto keep the channels of commerce free of "immoral and injurious uses."Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 256 (1964).Congress has done so in the DPPA by acting to ensure that commerce in personalinformation does not facilitate stalking, identity fraud, and invasionsof privacy. The Act also plainly protects interstate commerce and the channelsof commerce by ensuring that access to the Nation's highways is not conditionedupon drivers being subjected to threats to their safety and privacy.2

2. The DPPA Does Not Commandeer State Governments.

Respondents and their amici contend that this case is controlled by NewYork and Printz. See Resp. Br. 12-24; National Conference of State Legislatureset al. (NCSL) Br. 3-24; PLF Br. 11-22. Their arguments conflate compliancewith commandeering, and they ignore the fundamental distinctions betweenthe DPPA and the statutes at issue in New York and Printz.

a. The DPPA directly regulates the practices of state entities by restrictingtheir disclosure of information. The statute addresses the threats to privacyand safety posed by DMV disclosures made without a driver's consent. Insharp distinction, the statutes at issue in New York and Printz commandedthe States to implement federal schemes that regulated private persons andthat addressed problems neither created nor exacerbated by the States' ownactivities.
The statute at issue in New York required the States either to regulatethe way private entities dispose of low-level radioactive waste, or to taketitle to that waste and assume liability for the private generators' damages.See New York, 505 U.S. at 153-154. Both provisions effectively requiredthe States to adopt a regulatory solution to problems created by privateconduct. As the Court explained, imposing an affirmative obligation on theStates to take title to the private waste was "no different than acongressionally compelled subsidy from state governments to radioactivewaste producers," and requiring the States to assume liability forthe generators' damages was "indistinguishable from an Act of Congressdirecting the States to assume the liabilities of certain state residents."Id. at 175. On the other hand, the option of "regulating pursuant toCongress' direction" presented "a simple command to state governmentsto implement legislation enacted by Congress." Id. at 175-176. TheCourt concluded that, "[e]ither way, the Act commandeers the legislativeprocesses of the States by directly compelling them to enact and enforcea federal regulatory program." Id. at 176 (citation and internal quotationmarks omitted); see also Printz, 521 U.S. at 926 (explaining that both optionspresented in New York "effectively requir[ed] the States either tolegislate pursuant to Congress's directions, or to implement an administrativesolution").3
Similarly, the statute at issue in Printz required state officials to makereasonable efforts to determine whether proposed handgun sales by privatesellers to private buyers would violate federal law. See Printz, 521 U.S.at 903. As in New York, the provision was invalidated because it "dragooned"state governments into addressing problems in the private sector that werenot of their own making, and to do so by implementing a federally prescribedregulatory solution to those problems. Id. at 928.4
No such commandeering occurs when the federal government directly regulatesthe conduct of state entities. The Court did not suggest in New York, forexample, that Congress may not regulate a state entity's own productionand disposal of radioactive waste.5 Nor did the Court suggest in Printzthat Congress may not impose regulatory requirements on state entities thatthemselves engage in the sale of handguns. Such regulation of the stateentities' own conduct would not commandeer state legislatures or officialsinto enacting or enforcing a federal scheme for the regulation of privateconduct. When, as in the DPPA, Congress regulates state conduct directly,the state entities engaged in that conduct are themselves the subject ofthe federal regulation; Congress does not "impress" state officials"into its service," see Resp. Br. 17 (quoting Printz, 521 U.S.at 922), or render them agents of the federal government. The state entitiesregulated by the DPPA are no more called upon to enforce a federal schemethan are private parties who are subject to federal regulation.

b. Respondents protest (Resp. Br. 13-14), however, that compliance withthe DPPA will entail administrative burdens. But as we explain in our openingbrief (Gov't Br. 30-32), in South Carolina v. Baker, 485 U.S. 505 (1988),the Court firmly rejected the contention that a federal law directly regulatingstate activity would be invalid merely because the States, as a practicalmatter, might need to devote substantial effort to bring themselves intocompliance with the federal law, including changing their legislation andadministrative practices. The Court made clear that the need to take "administrativeand sometimes legislative action to comply with federal standards regulatingthat activity is a commonplace that presents no constitutional defect."Id. at 515. That point disposes of respondents' assertions (which are decidedlyoverstated in any event) that compliance with the DPPA will impose onerousadministrative burdens on state DMV personnel.6
In Baker, the Court also stressed that the statute upheld in that case,which imposed a prohibition on state conduct (the use of bearer bonds),"regulate[d] state activities"; it did not "seek to controlor influence the manner in which the States regulate private parties."485 U.S. at 514. The same is true here. The DPPA regulates the state activityof dissemination of information; it does not require the States to exercisetheir regulatory power over private persons. The States, for example, haveno obligation to pursue remedies against any requester who improperly obtainsor uses information from motor vehicle records.7

c. Respondents further err in arguing (Resp. Br. 20) that New York "explicitlyrecognized that Congress cannot impose duties on the States regardless ofwhether the duties imposed are mandatory or prohibitory in nature."That assertion is an incorrect statement of the law. New York did not holdthat Congress may impose no "duties" on state entities; such aholding could not be squared with many of the Court's Tenth Amendment decisions,including Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S.528 (1985), which reaffirmed that Congress may impose duties on state entities-inthat case, the duties to adhere to maxmium-hours legislation and to payovertime pay when required. The Court did state in New York, as respondentsobserve (Resp. Br. 20), that, "even where Congress has the authority* * * to pass laws requiring or prohibiting certain acts, it lacks the powerdirectly to compel the States to require or prohibit those acts." 505U.S. at 166. The DPPA, however, does not suffer from that deficiency. TheDPPA does not require state DMVs to require or prohibit anyone outside theagency to do anything.
It is particularly difficult to sustain a contention that a federal statuteimpermissibly commandeers state officials when (as with the DPPA) the statuteunder challenge imposes no affirmative obligations at all.8 If a federalstatute "commandeers" state officials, one would assume that itdoes so in order that they carry out some affirmative act, such as adoptinga regulatory program governing radioactive waste (as in New York) or performingbackground checks to determine the legality under federal law of proposedhandgun transfers (as in Printz). By contrast, when a federal statute simplyprevents state officials or agencies from taking action, it is difficultto see how they have been commandeered.9

d. Respondents also contend (Resp. Br. 14-17) that the DPPA is invalid becauseit blurs lines of "political accountability" for decisions bystate DMVs whether to release information that is covered by the Act. Respondentsmisapprehend the relevance of the issue of accountability. The Court hasmade clear that concerns about accountability underlie the prohibition againstcommandeering state and local governments into regulating private conducton behalf of the federal government. See Printz, 521 U.S. at 926-933; NewYork, 505 U.S. at 182-183. As we have shown, however (pp. 4-7, supra), theDPPA results in no such commandeering, and it therefore does not implicatethose accountability considerations.
Respondents would expand the inquiry into "accountability" tocondemn federal statutes that restrict state activity whether or not theycommandeer the State into regulating private conduct. That notion findsno support in this Court's decisions. The Court has never held that politicalaccountability is impermissibly blurred merely because a state or localofficial's options in carrying out a state program are constrained by federallaw. To the contrary, it is frequently the case that state decisionmakersmust take account of the substantive requirements of federal law in choosingamong various alternatives, yet that fact presents no constitutional difficulty.For example, in Fry v. United States, 421 U.S. 542 (1975), the Court upheldthe application to state employment of federal wage and salary controls,which limited annual salary increases for covered employees. If a stateemployee had asked his employer for a salary increase exceeding the permissiblelimit under federal law, the state employer would have had to consider,and comply with, the federal rule restricting salary increases. Under respondents'reasoning, however, Fry could not have been decided correctly, because astate agency could have been placed in the position of denying a requestedwage increase to a state employee, even though it was federal law that prohibitedthe state agency from increasing salaries above a certain limit.10

3. Congress's Power Is Not Limited To Generally Applicable Laws.

As we show in our opening brief (at 34-48), the central holding of the courtof appeals, that "Congress may only subject state governments to generallyapplicable laws," Pet. App. 15a (emphasis added; internal quotationmarks omitted), is inconsistent with the Constitution's plenary grant of"legislative Power" to Congress, U.S. Const. Art. I, which necessarilyincludes the authority possessed by legislative bodies generally to tailortheir laws with respect to the particular problems they identify (see Gov'tBr. 39-45). In addition, the court of appeals' rigid rule finds no supportin the constitutional structure of federalism (id. at 45-48) or in precedentor logic (id. at 34-39). Respondents and their amici make no attempt toanswer our arguments based on the Constitution's text and structure, andthe efforts they do make to defend the court of appeals' ruling are unavailing.

a. Respondents argue (Resp. Br. 25-26) that generally applicable laws donot present the danger of blurring of political accountability present inNew York and Printz because, "[w]hen the States are subjected to statuteswhich apply generally, such statutes apply so broadly that they are unlikelyto be mistaken for governmental policy choices by the States." We agreethat generally applicable laws do not blur political accountability, butthe same point is also true of statutes like the DPPA that directly regulateonly state activity directly and do not commandeer state officers into enforcingfederal law against private parties. As Judge Phillips observed in dissentbelow, generally applicable laws are constitutionally permissible because"they directly regulate[] state activities rather than using the Statesas implements of regulation of third parties." Pet. App. 32a (internalquotation marks omitted). It is only in the latter circumstance that animpermissible blurring of political accountability occurs under the Court'scases. See New York, 505 U.S. at 168 ("By contrast, where the FederalGovernment compels [the] States to regulate, the accountability of bothstate and federal officials is diminished.") (emphasis added); pp.6-7, supra. When the federal government itself directly regulates the activitiesof state entities in commerce, responsibility for the regulation clearlylies with the federal government.

b. Amici Alabama et al. urge the Court to reconceptualize its entire TenthAmendment jurisprudence. See Ala. Br. 9-10. They argue that the Court shouldabandon its emphasis in New York and Printz on impermissible "commandeering"of state and local governments, and instead should distinguish principallybetween laws of general applicability that include States among the regulatedentities, and laws that do not apply to private parties and States in thesame way. That emphasis on general applicability is appropriate, amici argue,because laws that "target" States for a "unique burden"should be held invalid under a "process-oriented" approach tothe Tenth Amendment that examines whether Congress has "singled out"the States. Ibid.
There is no support in this Court's jurisprudence for the proposition thatlaws that apply only to state entities, or apply to state entities differentlythan they apply to private entities, are invalid because they target theStates as politically powerless entities. Amici seek to enlist Garcia andBaker for their position (see Ala. Br. 4-16), but their argument turns thosedecisions upside down. In Garcia, the Court emphasized that the States retainconsiderable influence in the federal legislative structure establishedby the Constitution, especially through their representation in the Senate.The Court explained that "the principal means chosen by the Framersto ensure the role of the States in the federal system lies in the structureof the Federal Government itself," and that "the composition ofthe Federal Government was designed in large part to protect the Statesfrom overreaching by Congress." 469 U.S. at 550-551.11 The Court inGarcia therefore abandoned the framework of National League of Cities v.Usery, 426 U.S. 833 (1976), and instead emphasized the workings of the politicalprocess to safeguard state interests in the federal system. "Statesovereign interests * * * are more properly protected by procedural safeguardsinherent in the structure of the federal system than by judicially createdlimitations on federal power." Garcia, 469 U.S. at 552.
To be sure, the Court observed in Baker that "Garcia left open thepossibility that some extraordinary defects in the national political processmight render congressional regulation of state activities invalid underthe Tenth Amendment." 485 U.S. at 512 (emphasis added). Neither Garcianor Baker suggested, however, that the mere fact that a federal regulatorystatute might apply only to a particular kind of state activity, or mightapply to state activities differently than similar regulation applied toprivate activities, would be evidence of an "extraordinary defect[]"in the federal legislative process. When the Court in Baker adverted to"extraordinary defects," it was referring to a situation in whicha particular State might have been deprived of its opportunity to participatein the process of framing federal legislation. Thus, the Court in Bakernoted that "South Carolina ha[d] not even alleged that it was deprivedof any right to participate in the national political process or that itwas singled out in a way that left it politically isolated and powerless."Id. at 513.
It strains credulity to suggest that a federal statute's applicability toall States of the Union demonstrates that the States have been reduced toa position of political powerlessness. As the Court pointed out in Garcia,the States have substantial influence in the federal government. If SouthCarolina, or any of the other 49 States of the Union, perceived that theproposal to enact the DPPA threatened to impinge on state prerogatives,its officials were free to make their objections known to the Congress.And if many States had perceived that the DPPA was adverse to their legitimateinterests, it is doubtful that the DPPA would have been enacted. But farfrom impairing the States' governmental interests, the DPPA is particularlyrespectful of those interests; as we have explained (Gov't Br. 32-33), theDPPA poses no obstacle to the use of personal information in DMV recordsby state agencies. See 18 U.S.C. 2721(b)(1) and (4). It is therefore unsurprisingthat a representative of the American Association of Motor Vehicle Administratorsappeared before Congress in support of the DPPA. See 1994 WL 212696 (Feb.4, 1994) (statement of Marshall Rickert, Motor Vehicle Administrator forthe State of Maryland).
Amici's attempt to analogize this case to one in which the government targetsa particular member of the press or a minority religion for adverse treatment(see Ala. Br. 13-14) is therefore unpersuasive.12 Similarly, in light ofthe Court's emphasis in Garcia on the States' substantial influence in thefederal system, the 50 States of the Union cannot reasonably be likenedto a discrete and insular minority that lacks political influence. Cf. Baker,485 U.S. at 513 (citing United States v. Carolene Products Co., 304 U.S.144, 152 n.4 (1938), when referring to the possibility of an extraordinarydefect in the national political structure leaving a particular State isolatedand powerless). The 50 States of the Union are not a vulnerable politicalconstituency that needs judicial protection against discrimination.
Amici's argument is particularly implausible as applied to the DPPA, forthe DPPA is one of several federal statutes that regulate the disclosureof personal information by private and governmental entities. The statutebooks "teem with laws regulating the disclosure of information fromdatabases." Travis v. Reno, 163 F.3d 1000, 1005 (7th Cir. 1998), petitionfor cert. pending, No. 98-1811; see also Gov't Br. 20-21, 39-41. Many ofthese other federal statutes, applicable to private entities, "adoptrecord-keeping and information-disclosure criteria at least as complex,and impose a burden at least as great, as the [DPPA]." 163 F.3d at1005.13 Thus, even though the other federal statutes do not apply to privatedatabases in exactly the same way that the DPPA applies to the records ofstate agencies, nonetheless the States have not been "singled out"for burdensome treatment.
Amici Alabama et al. contend (Ala. Br. 14) that Congress may not restrictdisclosures from DMV records unless it places identical restrictions onthe disclosure of the same information by all private entities. Congress,however, permissibly concluded that the dangers posed by the disseminationof motor vehicle records differ from the dangers posed by the disseminationof video store and credit bureau records, and tailored its legislative responsesaccordingly. Disclosures of personal information in DMV records are particularlyproblematic because forgoing a driver's license is not a realistic optionfor most individuals.14 Motor vehicle records also raise unique privacyconcerns because the license plate number, which must be displayed to thepublic, can be made the key to the driver's identity and home address. Ineffect, absent the DPPA, every vehicle owner would be required to provideevery stranger with the key to his personal information. As RepresentativeMoran, one of the DPPA's sponsors, explained: "The key difference betweenDMV records and other public records comes from the license plate, throughwhich every vehicle on the public highways can be linked to a specific individual."140 Cong. Rec. H2523 (daily ed. Apr. 20, 1994).
In addition, as the American Association of Motor Vehicle Administratorsinformed Congress, "driver and motor vehicle records maintained byone state can be accessed from practically anywhere using only a computermodem." 1994 WL 212696 (Feb. 4, 1994). Other records systems (bothprivate and governmental), such as personnel files and medical records,are not necessarily so readily accessible to the public. Thus, even if informationsimilar to that held in DMV records, such as an individual's name, homeaddress, and social security number, may be kept in other records systems,the danger of disclosure from those records systems is not necessarily sogreat as the danger of disclosure from DMV records. As Rep. Moran observed,"[a]nyone with access to data linking license plates with vehicle ownershiphas the ability to ascertain the name and address of the person who ownsthat vehicle. Other public records are not vulnerable to abuse in the sameway." 140 Cong. Rec. H2523 (daily ed. Apr. 20, 1994).
Congress therefore had a legitimate basis for addressing in one tailoredstatute the privacy concerns raised by dissemination of personal informationfrom DMV records, rather than attempting to address all privacy concernsraised by all disclosures of information from all private and public databases,as Alabama apparently would require that it do. Although respondents andtheir amici disagree with that legislative judgment, "nothing in Garciaor the Tenth Amendment authorizes courts to second-guess the substantivebasis for congressional legislation." Baker, 485 U.S. at 513. Thereis no reason for the Court to depart from its usual practice of giving Congresswide latitude in setting its legislative priorities and selecting its legislativemeans. See Williamson v. Lee Optical Inc., 348 U.S. 483, 489 (1955). Tothe contrary, the special protections that the States enjoy in the politicalprocess make such deference particularly appropriate in this context.

* * * * *

For the foregoing reasons, and for those set forth in our opening brief,the judgment of the court of appeals should be reversed.

Respectfully submitted.


SETH P. WAXMAN
Solicitor General


OCTOBER 1999


1 See Affidavit of James S. Thiel, General Counsel, Wis. Dep't of Transp.,In Support Of Motion To Realign State Defendants As Plaintiffs ¶ 8(Dec. 8, 1997), Division of Motor Vehicles of Wis. Dep't of Transp. v. Reno,petition for cert. pending, No. 98-1818 (affidavit lodged with the Clerk).Wisconsin charges only three dollars per motor vehicle record. Ibid. Thus,even relatively small fees, when aggregated, can produce a substantial revenuestream for a state DMV.

2 Respondents and their amici attempt to cast doubt on the validity of theDPPA by arguing that the Act was intended to protect privacy and personalsafety, not commerce. The DPPA does regulate the commercial use of motorvehicle information, however, in significant ways. For example, the DPPAprohibits state DMVs from disclosing personal information for use in surveys,marketing, and solicitation, unless individuals are provided an opportunity,in a clear and conspicuous manner, to block such use of information pertainingto them. See 18 U.S.C. 2721(b)(12). More fundamentally, however, this Courthas repeatedly made clear that Congress may exercise its Commerce Clausepower to address any legitimate goal, whether or not the particular problembeing addressed is predominantly commercial in character. See, e.g., Heartof Atlanta Motel, 379 U.S. at 256-257; United States v. Darby, 312 U.S.100, 114-115 (1941); Caminetti v. United States, 242 U.S. 470, 491 (1917);Champion v. Ames, 188 U.S. 321, 356 (1903).

3 Amici NCSL et al. are therefore incorrect in arguing (NCSL Br. 10-11)that the Court did not understand the "take title" provision invalidatedin New York as "requir[ing] state governments or officers to regulatethe primary activities of private parties." When the Court concludedthat the "take title" provision impermissibly compelled the Stateto enact or enforce a federal regulatory program, it plainly understoodthat the State would have to do more than simply take title to the radioactivewaste; the State would also have to develop some legislative or administrativesolution for the problems presented by the waste to which it took title.Moreover, the Court analogized the "take title" provision to acoerced subsidy of waste producers by the State. 505 U.S. at 175. Such asubsidy would be a regulation of the primary, private conduct of producingradioactive waste, as would be a compelled state assumption of the privatewaste producers' liabilities (ibid.).

4 Respondents argue (Resp. Br. 19) that the DPPA does impermissibly commandeerthe States into "regulating" private individuals, because it requiresthe state DMVs in some circumstances to withhold information that individualsrequest from the state DMV. Such "prohibition of access" to therequested information, respondents maintain, is tantamount to regulationof the individuals who request access. There is no support for respondents'position that direct federal regulation of state activity is transmutedinto "commandeering" of the State's regulatory machinery merelybecause of its indirect effect on private persons, and applying respondents'position to other contexts shows that it is implausible. For example, aswe have observed (Gov't Br. 44), the federal government may issue securitydirectives to govern the operation of major airports, even if those airportshappen to be owned and operated by state and local governments. Respondentshave not disputed that point. But if respondents' understanding of "commandeering"were correct, then the federal government could not require that accessto the tarmac and baggage handling areas at such airports be restrictedto persons with valid security clearances, because such a requirement wouldimpermissibly require state and local governments that operate the airportsto "regulate" those persons barred from the sensitive areas ofthe airport because they did not have the necessary clearances. Respondents'argument cuts the concept of "commandeering" loose from its tether.

5 Under our constitutional structure of federalism, Congress could concludethat the sale of certain highly dangerous products should be undertakenonly by state entities (if at all), and not by private parties. Such a regulationwould be unobjectionable under the Commerce Clause. Under respondents' theoryof "commandeering," however, if Congress did confine the saleof such dangerous products to state entities, Congress would be barred bythe Tenth Amendment from imposing safety regulations on the state entitiespermitted to make such sales. Yet respondents cannot dispute that, if bothstate and private entities were permitted to make such sales of dangerousproducts, Congress could validly make the very same safety regulations applicableto state entities (because respondents agree that "generally applicable"legislation may be applied to state entities). Thus, under respondents'reasoning, the validity of congressional regulation as applied to stateactivity does not depend on anything of substance in the regulation; itdepends entirely on whether the regulation also applies to someone otherthan the State. That approach bears little relation to the principles offederalism that underlie the Court's decisions in New York and Printz. Seealso Gov't Br. 45-48.

6 Respondents stress the supposedly "complicated" nature of theexceptions to the general bar on disclosure in the DPPA (Resp. Br. 5), the"laborious" process of determining whether any particular requestfalls within one of the exceptions (id. at 14), and the "considerabletraining" of state personnel that will be needed to make them familiarwith the substantive requirements of the Act (id. at 7 n.8). Those complaintsabout the burden of coming into compliance with the Act are much exaggerated.The Act does not require that a state DMV adopt any particular mechanismfor ensuring that its disclosures of personal information are consistentwith the DPPA. Most of the steps necessary for compliance could probablybe satisfied by the initial development of a form for use by requesters.Moreover, the DPPA permits the Attorney General to impose civil penaltieson a state DMV only when the DMV has a policy or practice of substantialnoncompliance with the Act, 18 U.S.C. 2723(b); it provides for criminalpunishment only when an individual knowingly violates the Act's restrictions,18 U.S.C. 2723(a); and it allows recovery under a civil damages provisiononly when an individual knowingly discloses information for a purpose notpermitted under the Act, 18 U.S.C. 2724(a). Thus, despite respondents' protestationsthat the DPPA places state officials in peril (Resp. Br. 6-7), the DPPAdoes not impose strict civil or criminal liability on state officials, andsanctions are not available for mere errors in judgment as to whether particularrequests for information are permissible under the Act.
Respondents have therefore fallen far short of showing that the Act's supposedburden poses any danger to the residual sovereignty of the States protectedby the constitutional structure of federalism. "Even the more expansiveconception of the Tenth Amendment espoused in National League of Citiesv. Usery, 426 U.S. 833 (1976), recognized that only congressional actionthat 'operate[s] to directly displace the States' freedom to structure integraloperations in areas of traditional governmental functions,' runs afoul ofthe authority granted by Congress." Baker, 485 U.S. at 529 (Rehnquist,C.J., concurring in the judgment). Not only does the DPPA not pose any threatto the States' ability to structure their integral operations; it specificallyprotects the States' interests in regulating driving and in determiningwhen motor vehicle information should be used for legitimate governmentalpurposes, as we have observed (Gov't Br. 32-33). See also p. 17, infra (notingthat American Association of Motor Vehicle Administrators supported passageof the DPPA).

7 Respondents argue (Resp. Br. 23) that the Court engaged in a "balancing"analysis in Baker, and that no such balancing of federal and state interestsis appropriate in this case. We agree that balancing is not appropriatein this case, but we do not agree that Baker applied a balancing analysis.The Court concluded in Baker that the Tenth Amendment is not violated bythe application of federal regulation to state activity, even though theStates may, in response to that federal regulation, deem it necessary orconvenient to change their legislation or administrative practices. See485 U.S. at 515. That holding did not depend on a court's possible evaluationof the relative weights of the state and federal interests. Nor does Bakersuggest that a court should make its own evaluation of the onerousness ofthe administrative burden that Congress has imposed on a state entity, todetermine whether the federal regulation is consistent with constitutionalprinciples of federalism.

8 Respondents and amici NCSL et al. incorrectly argue (Resp. Br. 7; NCSLBr. 15-16) that the DPPA affirmatively requires state DMVs to make disclosuresto the federal government in certain circumstances. The distinction betweena permissible requirement of compliance with federal standards and impermissiblecommandeering does not generally turn on whether the regulation at issueimposes a restriction or an affirmative obligation on state entities. Butin any event, as we explain in our opening brief (at 28 n.12), the DPPAdoes not create any new disclosure requirements beyond those otherwise existingunder federal law. Although the DPPA provides that personal informationfrom motor vehicle records "shall" be disclosed to carry out thepurposes of other specified federal statutes, see 18 U.S.C. 2721(b) (1994& Supp. III 1997), that provision only makes clear that the DPPA doesnot relieve state agencies of reporting requirements that the other federalstatutes might impose. See also 1994 WL 212696 (Feb. 4, 1994) (statementof Marshall Rickert, American Association of Motor Vehicle Administrators)(urging Congress to amend the Senate version of the bill to clarify thatit would not "create conflicts with other current federal privacy anddisclosure requirements as they related to motor vehicle and driver records").The DPPA therefore imposes no reporting obligations independent of thosein the underlying statutes, and any consideration of the validity of suchreporting obligations should await a case in which those underlying statutesare directly placed in issue. That is especially so since the affirmativereporting requirements have not been the focus of contention in this casein the lower courts. Respondents' complaint alleged that the DPPA "commandsthe states * * * not to disclose state motor vehicle and driver's licenserecords except as provided by [the] Federal statute," J.A. 11; it didnot assert as a specific basis of invalidity that the DPPA requires theStates to disclose information. Nor did respondents challenge the DPPA onthat basis in the court of appeals. This case therefore presents no occasionfor the Court to consider the validity of federal disclosure requirementsapplicable to state entities. Cf. Printz, 521 U.S. at 918 (distinguishingthat situation); id. at 936 (O'Connor, J., concurring) (same).

9 Similarly, as we have noted (Gov't Br. 29-30), it is indisputable thatCongress may preempt state law to bar a state agency from taking regulatoryaction, even if the anti-commandeering principle would prevent Congressfrom requiring the States to regulate. Respondents and their amici objectthat this case does not involve preemption. See Resp. Br. 28; NCSL Br. 16;Ala. Br. 29. We have not argued that the DPPA is a preemption provision;rather, we have pointed out that preemption provides a useful analogy becauseseveral of respondents' arguments (such as the argument that Congress cannotlegislate with respect to the States unless it also imposes similar regulationon private entities) cannot be squared with this Court's preemption jurisprudence.See Gov't Br. 38-39. Amici Alabama et al. also argue (Ala. Br. 29) that,even though some federal preemption clauses may be phrased in terms of precludingstate legislatures and administrative bodies from taking action, preemptionactually has relevance only for the state judiciary, and has little or noreal effect on the operation of state legislatures and administrators. Thatunderstanding of preemption is incorrect. Congress has enacted several provisionsthat preempt even legislative bodies from taking action in a field governedby federal law, see, e.g., 49 U.S.C. 41713(b)(1), and the application tothe legislative bodies of the preemption clause is hardly surplusage, asamici suggest. See Golden State Transit Corp. v. City of Los Angeles, 493U.S. 103 (1989) (Machinists preemption directly prohibits city officialsfrom taking particular actions with respect to private employers, therebyconferring a right that employers may vindicate in damages actions under42 U.S.C. 1983); 493 U.S. at 119 (Kennedy, J., dissenting) (rejecting damagesremedy but agreeing that "plaintiffs may vindicate Machinists pre-emptionclaims by seeking declaratory and equitable relief in the federal districtcourts").

10 A state agency may also find that its regulatory alternatives are constrainedby a preemption provision in a federal statute. For example, the AirlineDeregulation Act of 1978, Pub. L. No. 95-504, § 4(a), 92 Stat. 1708,precludes the States from enacting or enforcing any law related to any price,route, or service of an air carrier. 49 U.S.C. 41713(b)(1). Under the AirlineDeregulation Act, a state consumer-protection agency may not take regulatoryaction against an airline for overcharging passengers, even if passengersrequest the state agency to take such action. See Morales v. Trans WorldAirlines, 504 U.S. 374 (1992). But even though the state agency must declinethe passengers' request for regulatory action against the airline, and eventhough the federal government is ultimately responsible for the fact thatthe state agency is prevented from doing so, there is no impermissible "blurring"of political accountability in such a situation. Rather, a constitutionallyvalid preemption provision is simply given its proper effect under the SupremacyClause, U.S. Const. Art. VI, Cl. 2. Similarly, in Golden State Transit Corp.,supra, the City of Los Angeles was held liable under 42 U.S.C. 1983 forthe failure of city officials to respect limitations imposed by federallaw on their licensing activities, with no suggestion of any constitutionallysignificant blurring of accountability as between the city and federal authorities.
11 The Court observed in Garcia that "Madison placed particular relianceon the equal representation of the States in the Senate, which he saw as'at once a constitutional recognition of the portion of sovereignty remainingin the individual States, and an instrument for preserving that residuarysovereignty.'" 469 U.S. at 551-552 (quoting The Federalist No. 62,at 408 (James Madison) (B. Wright ed. 1961)). The Court concluded: "Inshort, the Framers chose to rely on a federal system in which special restraintson federal power over the States inhered principally in the workings ofthe National Government itself, rather than in discrete limitations on theobjects of federal authority." 469 U.S. at 552.

12 Even on its own terms, amici's analogy to the Court's First Amendmentcases fails. In Leathers v. Medlock, 499 U.S. 439 (1991), the Court explainedthat "differential taxation of speakers, even members of the press,does not implicate the First Amendment unless the tax is directed at, orpresents the danger of suppressing, particular ideas." Id. at 453 (emphasisadded); see also id. at 446 (observing that "selective taxation ofthe press through the narrow targeting of individual members offends theFirst Amendment"). The DPPA, however, does not target or single outany particular State for unequal treatment. For the same reason, the DPPAis unlike the ordinance invalidated in Church of the Lukumi Babalu Aye,Inc. v. City of Hialeah, 508 U.S. 520 (1993), which targeted a particularunpopular minority religion for hostile treatment.

13 Indeed, Wisconsin--which has joined Alabama's amicus brief before thisCourt--"disclaimed any contention that Wisconsin's burden exceeds thetravail of banks or other entities regulated by statutory equivalents"to the DPPA. Travis, 163 F.3d at 1005.

14 See 1994 WL 212834 (Feb. 3, 1994) (statement of Prof. Mary J. Culnan,Georgetown University) ("Few people can survive without a driver[']slicense or an automobile, and a condition of having either is to registerwith the state. * * * This is in direct contrast to most of the other mailinglists based on private sector data, such as a list of subscribers to a particularmagazine."); Wooley v. Maynard, 430 U.S. 705, 715 (1977) (driving anautomobile is "a virtual necessity for most Americans").