Federal Regulation of State Employment Under the Commerce Clause and "National Defense" Powers: Constitutional Issues Presented by the Public Safety Employer-Employee Cooperation Act

Abstract

Pending before Congress is the Public Safety Employer-Employee Cooperation Act, which would require states and their localities to engage in collective bargaining with unions representing their public safety officers (i.e., police officers, firefighters, and emergency medical services workers). As constitutional authority for the Act, the legislation invokes the Commerce Clause and congressional "national defense" powers. This Note examines Congress's ability to regulate the states' employment of public safety officers. It concludes that the Commerce Clause does not enable such regulation because public safety employment does not substantially affect interstate commerce and that state sovereignty acts as an independent bar to the regulation. This Note further concludes that Congress's "national defense" powers do not enable the regulation of public safety employment because, under both the current statutory regime of domestic emergency- response efforts and the constitutional anticommandeering doctrine, the states' public safety officers are beyond the reach of federal control. Thus, this Note posits that if the Public Safety Employer-Employee Cooperation Act is enacted, the Supreme Court would—and should—strike it down.