                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                                       PUBLISH
                                                                               DEC 3 1998
                      UNITED STATES COURT OF APPEALS
                                                                          PATRICK FISHER
                                                                                   Clerk
                                  TENTH CIRCUIT


 STATE OF OKLAHOMA, ex rel
 Oklahoma Department of Public Safety,

        Plaintiff-Appellee,
 v.                                                         No. 97-6389
 UNITED STATES OF AMERICA,

        Defendant-Appellant.


             APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE WESTERN DISTRICT OF OKLAHOMA
                         (D.C. No. CIV-97-1423-R)


James Robert Johnson, Assistant Attorney General (Douglas F. Price, Assistant Attorney
General, and John K. Lindsey, General Counsel, Oklahoma Department of Public Safety,
with him on the brief), Oklahoma City, Oklahoma, for Plaintiff-Appellee.

Mark B. Stern (Alisa B. Klein and Daniel Kaplan with him on the brief), Appellate Staff,
Civil Division, Department of Justice, Washington, D.C. for Defendant-Appellant.

Robin L. Rivett, Anne M. Hawkins, and Deborah J. La Fetra, Of Counsel, Pacific Legal
Foundation, Sacramento, California, filed an Amicus Curiae Brief in Support of Plaintiff-
Appellee.

Thomas H. Odom, Gregory S. Feder, and Marc R. Baluda of Arter & Hadden LLP,
Washington, D.C., Bill Pryor, Attorney General, Billington M. Garrett, Assistant Attorney
General, and Jack Curtis, Assistant Attorney General, Montgomery, Alabama, and
William U. Hill, Attorney General, Cheyenne, Wyoming, filed an Amicus Curiae Brief in
Support of Plaintiff-Appellee.
Before ANDERSON, HOLLOWAY, and BALDOCK, Circuit Judges.


BALDOCK, Circuit Judge.


       In this case, Oklahoma’s open record laws and federal legislation preventing

disclosure of information contained in motor vehicle records are in conflict. The

Oklahoma Highway Safety Code, Okla. Stat. tit. 47, § 6-117(h), and the Oklahoma Open

Records Act, Okla. Stat. tit. 51, § 24A.5, require that information about any individual

identified in the records of Oklahoma’s motor vehicle department be available for public

inspection for a small fee. Any public official who willfully violates the state’s open

records policy is subject to both criminal and civil liability. Id. § 24A.17. In contrast,

subject to certain enumerated exceptions, the Driver’s Privacy Protection Act of 1994

(DPPA), Pub. L. No. 103-322, 108 Stat. 2099-2102 (effective Sept. 13, 1997) (codified at

18 U.S.C. §§ 2721-2725), prohibits a state motor vehicle department from knowingly

disclosing “personal information” about any individual obtained “in connection with a

motor vehicle record.” 18 U.S.C. § 2721(a). The DPPA authorizes the Attorney General

to assess a civil fine of up to $5,000 a day against any state motor vehicle department that

“has a policy or practice of substantial noncompliance” with the DPPA. Id. § 2723(b).

The DPPA also provides for criminal fines and civil damages against any person who

knowingly violates its provisions. Id. §§ 2723(a) & 2724.

       The state of Oklahoma filed suit challenging the DPPA on its face as an


                                              2
unconstitutional infringement upon state sovereignty. The question presented is whether

the DPPA is a valid exercise of congressional power to which contrary state law must

yield consistent with constitutional principals of federalism and the Tenth Amendment’s

reservation to the States of all “powers not delegated to the United States by the

Constitution, nor prohibited by it to the States.” U.S. Const. amend. X.

                                             I.

       To protect the personal privacy and safety of licensed drivers, see 138 Cong. Rec.

H1785-01, Congress enacted the DPPA which restricts the ability of third parties to

obtain personal information about individuals identified in the records of state motor

vehicle departments. The first section of the DPPA provides:

         (a) In general.–Except as provided in subsection (b), a State department
       of motor vehicles, and any officer, employee, or contractor, thereof, shall
       not knowingly disclose or otherwise make available to any person or entity
       personal information about any individual obtained by the department in
       connection with a motor vehicle record.

18 U.S.C. § 2721(a).1 Subsection (b) of § 2721 requires a state to disclose personal

information in limited situations to carry out the purposes of federal and state laws



       1
         The DPPA defines “motor vehicle record” as “any record that pertains to a motor
vehicle operator’s permit, motor vehicle title, motor vehicle registration, or identification
card issued by a department of motor vehicles.” The DPPA defines “personal
information” as that which “identifies an individual, including an individual’s
photograph, social security number, driver identification number, name, address (but not
the 5-digit zip code), telephone number, and medical or disability information, but does
not include information on vehicular accidents, driving violations, and driver’s status.” 18
U.S.C. § 2725(1) & (3).

                                             3
affecting motor vehicles. Subsection (b) also sets forth fourteen exceptions to subsection

(a)’s general prohibition, each of which allow a state motor vehicle department, in its

discretion, to disclose personal information in certain instances. Id. § 2721(b). Perhaps

the most notable of these is exception eleven, which is an opt-out provision allowing a

state to disclose an individual’s motor vehicle record–

       if the motor vehicle department has provided in a clear and conspicuous
       manner on forms for issuance or renewal of operator’s permits, titles,
       registrations, or identification cards, notice that personal information
       collected by the department may be disclosed to any business or person, and
       has provided in a clear and conspicuous manner on such forms an
       opportunity to prohibit such disclosures.

Id. § 2721(b)(11).2

       In its complaint, the state of Oklahoma sought declaratory and injunctive relief,

asking the district court to declare the DPPA unconstitutional and enjoin its enforcement.

According to the state, the DPPA impairs the state’s ability to manage its motor vehicle

records by directing the state to regulate the disclosure of motor vehicle information in a

specific manner. The state contends the DPPA unconstitutionally “commandeers” the

functioning of its motor vehicle department by requiring the state to regulate a federal

program. The United States defends the DPPA on the basis that it does not direct the

state to regulate a federal program; rather the DPPA directly regulates the disclosure of



       2
          The DPPA also places restrictions on the manner in which third parties may use,
sell, or otherwise re-disclose personal information obtained pursuant to the DPPA’s
exceptions. 18 U.S.C. § 2721(c).

                                             4
state motor vehicle information consistent with constitutional principles of federalism and

the Tenth Amendment.

       The district court granted the state’s requested relief and permanently enjoined the

United States from enforcing the DPPA in Oklahoma. The district court held that the

DPPA constituted an unconstitutional “command to state governments to implement

legislation enacted by Congress.” Oklahoma v. United States, 994 F. Supp. 1358, 1363

(W.D. Okla. 1997). The court reasoned:

       The State of Oklahoma processes approximately 1 million requests for
       motor vehicle information annually . . . . The system set forth in the DPPA
       would require Oklahoma to train . . . [Oklahoma Department of Public
       Safety] employees and the employees in approximately 270 tag agencies
       across the State on when and how records may be released. Additionally,
       the State would be required to monitor the tag agents to ensure their
       compliance with the federal standards.

Id. at 1362. According to the district court, the DPPA unlawfully required the state of

Oklahoma to create and maintain a system to enforce an unfunded federal mandate. Id. at

1363. Our jurisdiction to review the district court’s judgment arises under 28 U.S.C.

§ 1291. We review de novo the district court’s determination of the DPPA’s

constitutionality, United States v. Bolton, 68 F.3d 396, 398 (10th Cir. 1995), and reverse.

                                            II.

       In determining whether an Act of Congress is constitutional on its face, we afford

the legislation great deference. Rostker v. Goldberg, 453 U.S. 57, 64 (1981). We begin

with the presumption that the challenged statute is constitutional. INS v. Chadha, 462


                                             5
U.S. 919, 944 (1983). We do not question the wisdom of the statute. Id. “Once the

meaning of an enactment is discerned and its constitutionality determined, the judicial

process comes to an end.” TVA v. Hill, 437 U.S. 153, 194 (1978).

       Ascertaining the constitutional line between federal and state power is among the

most difficult judicial tasks. The Constitution confers certain enumerated powers upon

Congress. U.S. Const. Art. I. To the extent the Constitution does not divest the states of

certain powers, they retain them. Thus, the Tenth Amendment “states but a truism that all

is retained which has not been surrendered.” United States v. Darby, 312 U.S. 100 124

(1941). To be sure, states retain a significant amount of sovereign authority. See Garcia

v. San Antonio Metropolitan Transit Auth., 469 U.S. 528, 549 (1985). How much

remains uncertain. We therefore look to existing Supreme Court precedent for guidance

as to the proper division between federal and state authority.

                                             A.

       To support its argument that the DPPA is unconstitutional, the state of Oklahoma

relies principally on New York v. United States, 505 U.S. 144 (1992), and Printz v.

United States, 521 U.S. 98 (1997). Both New York and Printz set aside Acts of Congress

on Tenth Amendment grounds. The state argues that New York and Printz establish a

broad prohibition against federal restrictions aimed exclusively at state activity–a

prohibition which, according to the state of Oklahoma, sounds the death knell of the

DPPA.


                                              6
       In New York, the Court addressed the constitutionality of the “take title” provision

of the Low-Level Radioactive Waste Policy Amendments Act of 1985. That provision

directed state legislatures either to enact laws regulating the disposal of low level nuclear

waste produced within their borders, or to take title to and possession of such waste with

all its accompanying liability and problems. A state’s failure to “choose” either

alternative would result in the state becoming liable for all damages waste generators

suffered as a result of the state’s inaction. The Court held that the provision was

inconsistent with the division of authority between state and federal governments because

it commandeered the states’ legislative process by compelling them to enact or administer

a federal regulatory program. Id. at 174-177. In other words, the law effectively required

states either to legislate pursuant to Congress’ direction, or to implement an

administrative solution. The Court emphasized that a state could not decline to

administer the program. No matter which alternative the state chose, it was compelled to

follow Congress’ mandate. Id. at 176-77. The Court concluded:

       No matter how powerful the federal interest involved, the Constitution
       simply does not give Congress the authority to require the States to regulate.
       The Constitution instead gives Congress the authority to regulate matters
       directly and to pre-empt contrary state regulation. Where a federal interest
       is sufficiently strong to cause Congress to legislate, it must do so directly; it
       may not conscript state governments as its agents.

Id. at 178 (emphasis added).

       Subsequent to New York, the Court again addressed the proper division between

state and federal authority in Printz. Printz involved the constitutionality of certain

                                              7
interim provisions of the Brady Handgun Violence Prevention Act. Those provisions

directed state and local law enforcement officials to conduct background checks and

perform other tasks related to prospective handgun purchasers. Relying on historical

practice, the structure of the Constitution, and its prior decisions, a sharply divided Court

held that the forced participation of a state’s executive officers in the actual

administration of a federal program, albeit only temporarily, was unconstitutional. Printz,

521 U.S. at       . The Court concluded:

           We held in New York that Congress cannot compel the States to enact or
         enforce a federal regulatory program. Today we hold that Congress cannot
         circumvent that prohibition by conscripting the State’s officers directly. The
         Federal Government may neither issue directives requiring the States to
         address particular problems, nor command the States’ officers, or those of
         their political subdivisions, to administer or enforce a federal regulatory
         program. . . . [S]uch commands are fundamentally incompatible with our
         constitutional system of dual sovereignty.

Id. at     .

                                              B.

         The United States asserts that New York and Printz do not prohibit Congress from

imposing restrictions directly on state activity; rather they only prohibit Congress from

requiring states to enact or administer a federal regulatory program designed to address

problems created by third parties. The United States argues that the DPPA is

constitutional because it regulates state motor vehicle departments by directing them to

comply with federal law. The DPPA does not require states or their agents to regulate

third parties by directing states to enforce federal law. Citing South Carolina v. Baker,

                                               8
485 U.S. 505 (1988), the United States suggests the Tenth Amendment poses no bar to

federal legislation which regulates state activity directly.

       Baker addressed the constitutionality of § 310(b)(1) of the Tax Equity and Fiscal

Responsibility Act of 1982 (TEFRA), which removed from federal income tax exemption

interest earned on bearer bonds issued by state and local governments. The question was

whether § 310(b)(1) violated the Tenth Amendment by compelling states to issue bonds

in registered form. Baker, 485 U.S. at 507-08. Treating § 310(b)(1) as if it directly

regulated the states by prohibiting the issuance of bearer bonds, the Court rejected South

Carolina’s argument that the law was invalid because it commandeered the state

legislative and administrative process by requiring states to enact legislation authorizing

and administering bond registration. Id. at 513. The Court reasoned:

       Such ‘commandeering’ is . . . an inevitable consequence of regulating a
       state activity. Any federal regulation demands compliance. That a State
       wishing to engage in certain activity must take administrative and
       sometimes legislative action to comply with federal standards regulating
       that activity is a commonplace that presents no constitutional defect.

Id. at 514-15. With this background in mind, we turn to a discussion of the DPPA.

                                              III.

       Relying on New York and Printz, a divided panel of the Fourth Circuit recently

held that because the DPPA was not a “generally applicable law,” “Congress did not have

authority under our system of dual sovereignty to enact it.” Condon v. Reno, 155 F.3d




                                               9
453, 463 (4th Cir. 1998), petition for rehearing filed October 16, 1998.3 In Condon, the

Fourth Circuit read Garcia v. San Antonio Metropolitan Transit Auth., 469 U.S. 528

(1985), and its progeny (including Baker) to stand for the proposition, purportedly

endorsed in New York and Printz, that Congress may only regulate the conduct of state

governments through laws of general applicability. Condon, 155 F.3d at 461-62 & n.5.4

According to the Fourth Circuit, Congress may not regulate “States as States.” Rather,

“Congress may only subject states to legislation that is also applicable to private parties.”

Id. at 461 (citing New York, 505 U.S. at 160). Because the DPPA regulated only the

disclosure of information contained in state motor vehicle records and did not regulate the

disclosure of personal information contained in private databases, the DPPA, like the

laws in New York and Printz, could not withstand Tenth Amendment scrutiny. Condon

155 F.3d at 460-63.5

       3
          On October 22, 1998, the Fourth Circuit ordered Plaintiffs Condon and South
Carolina to respond to the United States’ petition for rehearing with suggestion for
rehearing en banc. Plaintiffs filed their response on November 3, 1998. As of today’s
date, the United States’ petition remains pending.
       4
         In Garcia, the Court overruled the “traditional governmental functions” test
established in National League of Cities v. Usery, 426 U.S. 833 (1976), and held that
application of the Fair Labor Standards Act to state and local governments did not
unconstitutionally infringe upon state sovereignty. The Court declined, however, “to
identify or define what affirmative limits the constitutional structure might impose on
federal action affecting States under the Commerce Clause.” Garcia, 469 U.S. at 556. See
also EEOC v. Wyoming, 460 U.S. 226 (1983) (upholding application of the ADEA to the
States).
       5
           The question of the DPPA’s constitutionality currently is pending in the Seventh
                                                                               (continued...)

                                              10
       In his dissent, Judge Phillips rejected the majority’s conclusion that Congress lacks

any authority to regulate the “States as States.” Id. at 469 (Phillips, J., dissenting).

According to Judge Phillips, the legislation at issue in Garcia and subsequent cases relied

on by the court “was immune to Tenth Amendment challenge not so much–if at

all–because it applied equally to state and private actors as because it directly regulated

state activities rather than using the ‘States as implements of regulation’ of third parties.”

Id. at 468 (quoting New York, 505 U.S. at 160). In regulating states that choose to

release motor vehicle information to the public, Congress simply exercised its power of

preemption by requiring states to release such information into the stream of commerce in

a manner Congress deemed appropriate.

       Like Judge Phillips, we do not read Supreme Court precedent as establishing a

blanket rule that “Congress may only subject state governments to generally applicable

law.” Condon, 155 F.3d at 461 (internal quotations omitted). The Supreme Court has

never suggested that the Tenth Amendment bars Congress from regulating state conduct

merely because states are the only actors engaged in certain activity.

       Surely it is no basis for invalidating [the DPPA] . . . that no private
       equivalent could be found in the particular area of regulation. Would the
       requirements of the DPPA really be any less intrusive on state sovereignty


       5
        (...continued)
and Eleventh Circuits. Travis v. Reno, 12 F. Supp. 2d 921 (W.D. Wis.) (holding the
DPPA unconstitutional), appeal docketed, No. 98-2881 (7th Cir., filed July 27, 1998);
Pryor v. Reno, 998 F. Supp.1317 (M.D. Ala.) (holding the DPPA constitutional), appeal
docketed, No. 98-6261 (11th Cir., filed April 2, 1998).

                                              11
       interests if they were part of broad privacy protections involving private as
       well as public holders of sensitive information?

Id. at 469 (Phillips, J., dissenting).

       To be sure, the Supreme Court has noted a logical distinction between generally

applicable laws, which incidentally apply to states, and laws compelling States to legislate

or regulate in accordance with federal law. Printz, 521 U.S. at      ; New York, 505 U.S.

at 160. Oppressive federal regulation that “commandeers” a state’s sovereign functions is

less likely to arise where the law is aimed at both private and public entities. This is so

because generally applicable laws are not aimed at uniquely governmental functions.

Moreover, laws affecting both private and public interests are subject to stricter political

monitoring by the private sector. See Vicki C. Jackson, Federalism and the Uses and

Limits of Law: Printz and Principle?, 111 Harv. L. Rev. 2180, 2207 (1998).

       The Supreme Court’s “anticommandeering” approach in New York and Printz

reflects a legitimate concern about federal government interference with state government

functions. But the arguments against the DPPA are much less compelling than the

arguments against the statutes at issue in New York and Printz. Unlike the federal statute

in New York, the DPPA does not commandeer the state legislative process by requiring

states to enact legislation regulating the disclosure of personal information from motor

vehicle records. Rather, the DPPA directly regulates the disclosure of such information

and preempts contrary state law. See New York, 505 U.S. at 178. If states do not wish to

comply with those regulations, they may stop disseminating information in their motor

                                             12
vehicle records to the public. In contrast, the statute in New York offered no such

alternative to the states.

       Unlike the federal statute in Printz, the DPPA does not conscript state officials to

enforce federal law. Under the DPPA, enforcement is the job of federal officials. Unlike

New York and Printz, the DPPA does not affect any unique government function, such as

the state legislative process or state law enforcement activities. The dissemination of

personal information into the stream of commerce can in no sense be considered uniquely

governmental. See e.g., Fair Credit Reporting Act, 15 U.S.C. § 1681b; Video Privacy

Protection Act, 18 U.S.C. § 2710. The DPPA neither limits a state’s ability to regulate in

the field of automobile licensing and registration, an exercise traditionally left to the

states, nor restricts a state’s ability to use motor vehicle information in its own regulatory

activities.

       Our conclusion that the DPPA differs from the statutes at issue in New York and

Printz is buttressed by the Supreme Court’s decision in Baker. The only provision of

TEFRA at issue in Baker was § 310(b)(1), which removed the federal tax exempt status

for bearer bonds issued by state and local entities. Consequently, the provision imposed a

burden only on state and local governments. In upholding § 310(b)(1), Baker rejected the

notion that the federal government may never force a state wishing to engage in certain

activity to take administrative or legislative actions to comply with federal standards. 485

U.S. at 514-15. In fact, the Court referred to federal regulation of state activity as “a


                                              13
commonplace that presents no constitutional defect.” Id. at 515.

       In enacting the DPPA, Congress obviously curtailed states’ prerogative to make

choices respecting the release of motor vehicle information. No one claims that Congress

exceeded the scope of its power under the Commerce Clause in so doing. Nor has the

Supreme Court ever suggested that Congress impermissibly invades areas reserved to the

states under the Tenth Amendment because it exercises its preemptive authority under the

Commerce Clause in a manner that displaces state law and policy to some extent. The

DPPA simply requires states to make a choice, i.e. stop releasing personal information

from state motor vehicle records to the public, or release such information consistent with

the dictates of the DPPA. See FERC v. Mississippi, 456 U.S. 742, 767-68 n.30 (1982)

(upholding federal legislation that gave States “a choice between regulating in conformity

with federal requirements, or abandoning regulation in a given field”).

       While we are cognizant of the Supreme Court’s trend established by New York

and Printz of striking down federal legislation which “commandeers” state legislative and

administrative processes, the Court has yet to hold that a federal law, which directly

regulates state activity and necessitates some state legislative or administrative action to

achieve compliance, amounts to unconstitutional “commandeering.” If a precedent of the

Supreme Court (in this case Baker) “has direct application in a case, yet appears to rest on

reasons rejected in some other line of decisions, the Court of Appeals should follow the

case that directly controls, leaving to . . . [the Supreme Court] the prerogative of


                                              14
overruling its own decisions.” Rodriguez de Quijas v. Shearson/American Express, Inc.,

490 U.S. 477, 484 (1989). Finding the logic in Baker controlling, we believe that any

expansion of Tenth Amendment jurisprudence to invalidate the DPPA is best left to the

Supreme Court. At this stage in Tenth Amendment jurisprudence, we find nothing that

requires us to invalidate the DPPA. We hold that the DPPA constitutes a valid exercise

of congressional power.6 The judgment of the district court is

      REVERSED.




      6
         Because we conclude that the DPPA does not violate the Tenth Amendment, we
need not address the United States’ alternative argument that the DPPA may also be
upheld as a legitimate exercise of congressional power under § 5 of the Fourteenth
Amendment.

                                           15
