Frank has some good examples on commandeering state or local officials to enforce federal laws.
Even the clause in the statute at issue regarding federal funding gets complicated fast.
On the first take, I missed the spending restriction on state and local governments in the federal statute which is my error.
For limits on congressional spending clause power, an example is,
NFIB v. Sebelius,
567 U.S. ___ (2012), where a majority of the Supreme Court held that the requirement to expand Medicaid under the PPACA (aka Obamacare) or lose all Medicaid funding for existing residents was not constitutionally permissible as it constituted an unacceptable level of coercion of the states.
This decision was based in part on the precedent from South Dakota v. Dole,
483 U.S. 203 (1987)
Under the spending clause, the Court developed a five point rule for the constitutionality of expenditure cuts:
- The spending must promote "the general welfare";
- The condition must be unambiguous;
- The condition should relate "to the federal interest in particular national projects or programs";
- The condition imposed on the States must not in itself be unconstitutional; and
- The condition must not be coercive."
Part 5 was what a majority of the justices in NFIB v. Sebelius found as unconstitutional regarding that states were required to expand Medicaid rolls to 138% of the current poverty level or lose all Medicaid funds.
In contrast, the highway funding reduction at issue in SD v. Dole was five percent.
Given the mechanism in the statute is a simple forbidding of any state or local government getting funding in a disaster or emergency, the law above appears more like Sebelius and less like Dole.
In addition,
Condition 4 in the spending test from SD v. Dole, also makes it difficult as arguably an emergency seizure of firearms by state or local official might be considered part of the Tenth Amendment reserved powers of states to regulate for the public's health, safety, and welfare (aka police powers). Part of the issue in Dole, was that both Justices O'Connor and Brennan dissented based on the 21st Amendment reserving the regulation of alcohol to the states. Justice Rehnquist recognized the issue in the majority opinion but held that the mere 5 percent reduction was not high enough to constitute coercion of the state to abrogate its constitutional powers. More or less, he held it was okay to "pressure" a state by some material inducement to toe the federal line but not to "coerce" it.
The later case of New York v. United States, 505 U.S. 144 (1992) reiterated that the federal government lacks the power to coerce the states into giving up their own sovereign rights regarding whether or not to participate in a federal regulatory action on low level nuclear wastes. The federal statute punished any state that failed to join interstate compacts to create waste dumps for these nuclear wastes by requiring the state to take ownership of the waste. This requirement was regarded as coercive punishment of the state for failure to agree with the federal law and thus not permissible under the 10th Amendment.
Agency (whether or not a contractor, a state, or local officer is acting as an agent for the federal government's actions) is an area of the law that is murky. The plaintiff would have to prove that the state or local official was acting at the behest of the federal government in a regulatory action and not using their state or local powers which are pretty extensive during emergencies.
In addition,
Note that the restriction, for example, on seizures,
"(1) temporarily or permanently seize, or authorize seizure of, any firearm the possession of which is
not prohibited under Federal,
State, or local law, other than forfeiture in compliance with Federal law
or as evidence in a criminal investigation;"
This could be interpreted by the courts to read that if the governor for example issues an executive order pursuant to emergency powers granted to her or him by existing state law to ban any carry of firearms in a place such as actually happened at the Virginia Capitol during the late firearm protests. Then, the seizure of any weapons by VA security forces on the perimeter of the firearm ban zone to enter that security zone would appear to be facially legal as acting in accordance with existing VA state laws. Depending on the state, a local government might also have considerable leeway to regulate firearm carry under state laws in emergency conditions. A lot of old caselaw interpreting public health emergency laws are amazingly broad in granting state and local government powers to regulate persons. So, a federal court being asked to apply the federal statute by a plaintiff suing would have to examine the existing local and state laws that governed the seizure that were triggered by a proclamation.
In a situation where federal courts interpret a statute for the very first time, there is a presumption of constitutionality (outside of heightened or strict scrutiny) that the plaintiff must overcome, even then, if there are two (or more) ways to interpret a federal statute: the court should chose to interpret the law in such a way that it is constitutional instead of striking it down.
