10th amendment
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
What Does It Mean?
The Tenth Amendment plays a significant role in the United States' federal system of government and the relationship between the federal government and the states. It addresses the division of powers and authority between the federal government and state governments.
Key points regarding the Tenth Amendment and its jurisprudence include:
Enumerated and Reserved Powers: The Tenth Amendment states that any powers not delegated to the federal government by the Constitution, nor prohibited by it to the states, are reserved to the states respectively or to the people. In essence, it reinforces the principle of federalism by emphasizing that the federal government possesses only those powers explicitly granted to it by the Constitution, while the states retain all other powers not explicitly denied to them.
Limits on Federal Power: The Tenth Amendment is often invoked in cases exploring the limits of Congress's enumerated powers, particularly in disputes over whether federal legislation intrudes upon areas traditionally reserved to the states. It raises questions about whether the Tenth Amendment itself imposes restrictions on federal authority beyond those inherent in the Constitution's enumerated powers.
Evolution of Tenth Amendment Jurisprudence: The Supreme Court's interpretation of the Tenth Amendment has evolved over time. In the early 20th century, the Court used the Tenth Amendment to strike down federal economic regulations, arguing that they encroached on states' police powers. However, during the New Deal era, this approach was curtailed as the Court adopted a broader interpretation of Congress's Commerce Clause powers.
National League of Cities and Garcia: In the 1970s, the Supreme Court, in National League of Cities v. Usery, used the Tenth Amendment to limit the extent to which Congress could regulate state activities under its commerce powers. However, in Garcia v. San Antonio Metropolitan Transit Authority, the Court reversed this position and suggested that the Tenth Amendment did not provide judicially enforceable protections for state sovereignty.
Anti-Commandeering Doctrine: In the 1990s, the Court shifted again, establishing the "anti-commandeering" doctrine in New York v. United States. This doctrine holds that Congress cannot compel states to enact or enforce federal regulatory programs. It reasserted the Tenth Amendment as a limitation on federal authority, emphasizing the importance of state sovereignty.
Overall, the Tenth Amendment's role in constitutional jurisprudence has evolved, with periods of expansion and contraction of federal authority in relation to the states. The Tenth Amendment continues to be a pivotal element in discussions about the balance of powers in the federal system.
Historical Background on Tenth Amendment:
The Tenth Amendment to the United States Constitution plays a crucial role in the framework of American federalism and the division of powers between the federal government and state governments. Here are some key points about the Tenth Amendment:
Text and Purpose: The Tenth Amendment states, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Its purpose is to emphasize that the federal government possesses only those powers explicitly granted to it by the Constitution, while all other powers not explicitly denied to the states are retained by the states or the people.
Declaratory Nature: The Tenth Amendment is often described as declaratory or a truism. It affirms the principle that all powers not expressly given to the federal government are reserved to the states or the people. In other words, it reiterates the concept that the federal government's authority is limited to what is specifically granted by the Constitution.
Historical Context: The Tenth Amendment should be understood in the context of the larger debate surrounding the Bill of Rights. When the Constitution was first drafted, it did not include a bill of rights. Some Federalists argued that such a list was unnecessary because the federal government's powers were already limited and defined. Anti-Federalists and many state ratifying conventions, however, insisted on the inclusion of a bill of rights as a safeguard against potential federal encroachments on individual liberties and state powers.
Rejection of "Expressly": Notably, the Tenth Amendment does not include the word "expressly" before "delegated." This means that it does not require that the powers not delegated to the federal government be expressly stated as denied to it. Instead, it reinforces the idea that any powers not specifically granted to the federal government are reserved to the states or the people.
James Madison's Views: James Madison, often referred to as the "Father of the Constitution," played a significant role in the drafting and ratification of the Bill of Rights. He clarified during the congressional debates on the Tenth Amendment that interference with state powers was not the criterion for assessing congressional authority. If a power was not granted to Congress, it could not be exercised, but if granted, it could be exercised even if it intruded on state laws or constitutions.
In summary, the Tenth Amendment underscores the principle of federalism and the limited nature of the federal government's powers. It reflects the Founders' intent to address concerns about potential federal overreach by explicitly stating that any powers not delegated to the federal government are reserved for the states or the people, with no requirement for express denial.
Early Tenth Amendment Jurisprudence:
In the case of McCulloch v. Maryland, Chief Justice John Marshall made significant legal interpretations:
He broadly interpreted the Necessary and Proper Clause to support the federal government's authority to establish a national bank, countering arguments that this power was lacking.
The case also involved a Tenth Amendment argument by Luther Martin, who represented the State of Maryland. He contended that the power to create corporations was reserved for the states under the Tenth Amendment. This amendment was included to address concerns that the Constitution might infringe on states' rights.
Chief Justice Marshall highlighted a difference between the Tenth Amendment and the Articles of Confederation. Unlike the Articles, the Tenth Amendment did not use the word "expressly" as a qualifier for granted powers. Marshall's conclusion was that the Constitution did not exclude powers that were incidental or implied.
Instead of a strict reading, the Tenth Amendment made it necessary to evaluate whether a particular power in question had been delegated to the federal government or prohibited to the states, based on a fair interpretation of the entire Constitution.
Beyond a few cases involving tax immunity and a notable mention in the Civil Rights Cases, the Tenth Amendment was not frequently invoked by the Supreme Court until the early 20th century.
State Police Power and Tenth Amendment Jurisprudence:
In the early decades of the twentieth century, the Supreme Court used the Tenth Amendment, alongside a relatively narrow interpretation of the Interstate Commerce Clause, to invalidate certain federal laws related to economic activities. These rulings were based on the idea that such laws encroached upon the states' reserved powers to regulate matters concerning public welfare and morality. Here are key points from this period:
Hammer v. Dagenhart: This case serves as an example. It involved a federal law that prohibited the transportation of goods produced through child labor in interstate commerce. The Court, using the Tenth Amendment, concluded that this law was an undue intrusion into the states' reserved powers. The reasoning was that the Constitution entrusted local government powers to the states, and anything not explicitly granted to the federal government was reserved for the states. Enforcing this statute, according to the Court, would amount to federal overreach into a purely local matter.
1920s and 1930s: During this period, the Court relied on the Tenth Amendment to invalidate various congressional economic regulations, including taxes on grain futures sales, profits of factories employing child labor, regulations and taxes on coal production, state building and loan associations, and agricultural production. In A.L.A. Schechter Poultry Corp. v. United States, the Court used the Tenth Amendment to reject the argument that the economic emergency of the Great Depression justified legislation that exceeded the scope of the commerce power.
Notable Exceptions: Despite these rulings, not all federal statutes concerning traditional state responsibilities were invalidated. In Hamilton v. Kentucky Distilleries Co., the Court upheld a wartime prohibition on distilled spirits, emphasizing that when the United States exercised its powers under the Constitution, objections could not be based solely on the fact that they resembled the exercise of a state's police power.
Apparent Tension: The Court's decisions during this era sometimes appeared inconsistent. While Hammer v. Dagenhart and similar cases invalidated certain federal laws, the Court upheld federal laws penalizing the interstate transportation of lottery tickets, women for immoral purposes, stolen automobiles, and tick-infected cattle. Additionally, in a case upholding a federal law prohibiting the killing or selling of migratory birds, the Court rejected the argument that the Tenth Amendment invalidated the statute.
These rulings reflect a complex interplay between the Tenth Amendment, the Commerce Clause, and the Court's interpretation of federalism during this period. The Court was not consistently applying the Tenth Amendment to invalidate federal laws but rather made distinctions based on the specific legal and constitutional context of each case.
Tenth Amendment and Darby:
Starting in 1937, the Supreme Court underwent a significant shift in its approach to the Tenth Amendment, moving away from the interpretation seen in Hammer v. Dagenhart. This transformation, often referred to as the "switch in time that saved nine," led to a more permissive stance on federal economic regulation. Here are the key developments:
Social Security Act and National Labor Relations Act: In decisions upholding the Social Security Act and the National Labor Relations Act, the Court departed from the Tenth Amendment perspective held in Hammer v. Dagenhart. Instead, it began to generally support federal economic regulation based on the Commerce Clause, without considering whether the legislation intruded on traditional state authority.
United States v. Darby: A landmark case in this shift was United States v. Darby, which effectively overruled Hammer v. Dagenhart. Chief Justice Harlan Stone, writing for a unanimous Court, upheld Congress's authority to pass the Fair Labor Standards Act. Stone emphasized that the exercise of federal power to regulate interstate commerce, even when it resembled a state's police power, was not objectionable. He also stated that the Tenth Amendment merely restated the relationship between the national and state governments as defined by the Constitution.
Tenth Amendment as a Truism: The Court's view solidified in subsequent years when it directly declared that "the Tenth Amendment 'does not operate as a limitation upon the powers, express or implied, delegated to the national government.'"
1940s to 1970s: During this period, the Court consistently followed the principles set forth in Darby and related cases, essentially dismissing Tenth Amendment challenges that claimed valid federal laws infringed upon state police powers over local matters reserved to the states through the Tenth Amendment.
This shift in the Court's interpretation of the Tenth Amendment marked a significant change in its approach to federalism, allowing for a broader scope of federal economic regulation under the Commerce Clause. It resulted in the Court upholding a wide range of federal laws that might have been challenged on Tenth Amendment grounds in earlier decades.
State Sovereignty and Tenth Amendment:
In the mid-1970s, the Supreme Court began using the Tenth Amendment to assess congressional laws that were seen as encroaching on state sovereignty, particularly those applying general economic regulations to states and state entities. Here's a summary of key developments during this period:
National League of Cities v. Usery (1976): In this case, the Court resurrected the Tenth Amendment as an independent constitutional constraint. The Court acknowledged that the Fair Labor Standards Act, which imposed minimum wage and maximum hour requirements on state and local government employees, fell within the scope of the Commerce Clause. However, it found that certain aspects of state sovereignty were inviolable, and Congress could not infringe upon them. The Court concluded that determining the wages of state employees engaged in governmental functions was a matter of state sovereignty, and the law, as applied to certain state employees, exceeded Congress's authority.
Scope of State Sovereignty: National League of Cities implied that the Tenth Amendment was the basis for protecting state sovereignty, distinguishing it from the earlier view in Darby, which had dismissed the Tenth Amendment as a mere truism.
Subsequent Cases: Following National League of Cities, the Court issued a series of opinions, often closely divided, over approximately a decade. These decisions extended and refined the application of the Tenth Amendment in cases involving state sovereignty. Not all of these rulings survived the later overturning of National League of Cities, but some of the principles established may still have relevance.
Garcia v. San Antonio Metropolitan Transit Authority (1985): In Garcia, the Court overruled National League of Cities. Justice Harry Blackmun's opinion concluded that the National League of Cities test, which focused on state authority over traditional governmental functions, had proved impractical and doctrinally unworkable. The Court essentially reverted to the view expressed in Darby, emphasizing that states retained sovereignty only to the extent that the Constitution had not transferred those powers to the federal government.
Limits on Federal Power: Garcia emphasized that the principal limits on congressional exercise of the commerce power against states were not judicial but found in the structure of the federal government and the political process. It acknowledged that there might be some affirmative limits imposed by the constitutional structure on federal actions affecting states but did not specify them.
In essence, the shift from National League of Cities to Garcia represented a return to a more limited role for the Tenth Amendment in constraining federal authority over states, with a greater emphasis on the federal system's inherent checks and balances and the political process as the primary means of resolving disputes between the federal government and the states.
Federal Power to Tax and Tenth Amendment:
In a distinct line of cases dating back to the nineteenth century, the Supreme Court used the Tenth Amendment to establish that states and related entities were immune from certain federal taxes. This doctrine, known as intergovernmental tax immunity, had significant implications for the relationship between the federal government and the states. Here are the key points:
Collector v. Day (1870s): In Collector v. Day, the Supreme Court ruled that, in accordance with the Tenth Amendment, a federal income tax could not be imposed on the official salaries of state officers. This decision was based on the idea that such taxation would infringe on the sovereign powers of the states.
Twentieth-Century Changes: In the twentieth century, the Supreme Court overturned Collector v. Day and significantly limited the application of this doctrine. Many of the principles established in earlier cases were no longer upheld. However, it's worth noting that some elements of this doctrine may still have relevance, particularly when it comes to federal taxes directly imposed on states.
Current Status: The doctrine of intergovernmental tax immunity is discussed within the Constitution Annotated's explanation of Congress's taxing power. While much of this doctrine has been modified or discarded by later Supreme Court decisions, it could still apply to specific situations involving federal taxes directly imposed on state governments or related entities.
In summary, the Supreme Court's use of the Tenth Amendment to establish intergovernmental tax immunity had a historical impact on the relationship between the federal government and the states, but its scope and application have evolved over time, with significant changes in the twentieth century. Some aspects of this doctrine may still be relevant in limited contexts today.
Modern Tenth Amendment Jurisprudence Generally:
After a period of decreased significance in Garcia v. San Antonio Metropolitan Transit Authority, the Tenth Amendment regained importance as a source of constitutional limitations on congressional power during the 1990s. These contemporary cases focus less on the exact wording of the Amendment itself and more on the constitutional system of federalism it represents and upholds.
In the following essays, we will examine three lines of case law. First, there is the "anti-commandeering" principle established in New York v. United States. This principle dictates that the federal government cannot directly compel states to implement and enforce federal regulatory programs. Second, recent voting rights cases have invoked the "fundamental principle of equal sovereignty." While the precise textual foundation for this doctrine is not entirely clear, it can be argued that it is rooted in Tenth Amendment principles. Finally, although the Court's contemporary Commerce Clause doctrine is mainly discussed elsewhere in Constitution Annotated, this section briefly explores how these cases make references to the Tenth Amendment.
Anti-Commandeering Doctrine:
In the case of Garcia v. San Antonio Metropolitan Transit Authority, the Supreme Court interpreted the Tenth Amendment's reserved powers of states narrowly. Following this decision, the Court established a "clear statement" rule, as first outlined in Gregory v. Ashcroft. This rule required a clear and unambiguous statement of congressional intent to override state authority. Gregory argued that because Garcia had limited the consideration of the state-federal balance on Congress's powers, a plain statement rule became essential. The Court emphasized the need for absolute certainty in cases where Congress intended to exercise power that might encroach upon states' rights.
In 1992, the Supreme Court's ruling in New York v. United States signaled a shift away from the narrow interpretation of state power established in Garcia and marked the beginning of the "anti-commandeering" doctrine. In New York, the Court held that Congress couldn't "commandeer" state regulatory processes by requiring states to enact or administer federal regulatory programs, thereby limiting Congress's previously acknowledged power in this area.
The language used in New York appeared to align more with the principles in National League of Cities v. Usery than with the later Garcia decision. Justice Sandra Day O'Connor's opinion stressed that federalism constraints, whether from the Tenth Amendment or a lack of power delegated to Congress under Article I, should be considered based on their impact on state sovereignty. The Court also rejected Garcia's "structural" approach, which required states to rely primarily on political processes for protection. Instead, New York emphasized that the Constitution aimed to protect individuals, not state governments. It clarified that state officials couldn't consent to expanding Congress's powers beyond the Constitution's enumeration.
Extending the principle established in New York, the Court's decision in Printz v. United States ruled that Congress couldn't "circumvent" the prohibition on commandeering state regulatory processes by directly involving state officers. Printz invalidated provisions of the Brady Handgun Violence Protection Act, which required state and local law enforcement officers to conduct background checks on prospective handgun purchasers. The Court held that federal directives directly to states were incompatible with the constitutional system of dual sovereignty.
In Reno v. Condon, the Court distinguished New York and Printz while upholding the Driver's Privacy Protection Act of 1994. It clarified that laws regulating state activities directly were distinct from those improperly controlling how states regulate private parties.
The Supreme Court's anti-commandeering cases acknowledged both parallels and distinctions between commandeering state legislatures and requiring states to implement policies as a condition of federal funding. The Court recognized that Congress could attach conditions to federal funds under the Spending Clause power to avoid anti-commandeering issues. However, in National Federation of Independent Business v. Sebelius (NFIB), the Court explored the limits of this power, ruling that a federal spending condition unconstitutionally coerced state legislatures into adopting a federal regulatory program.
The Court's most recent consideration of the anti-commandeering principle occurred in 2018 in Murphy v. NCAA, where the Court invalidated a provision in the Professional and Amateur Sports Protection Act (PASPA) on anti-commandeering grounds. It clarified that Congress couldn't directly control state legislatures, whether through affirmative commands or prohibitions, as this violated state sovereign interests.
In a more recent decision, Haaland v. Brackeen (June 15, 2023), the Supreme Court upheld the Indian Child Welfare Act (ICWA) as a valid exercise of Congress's authority to legislate regarding Indian tribes under the Indian Commerce Clause. The Court rejected arguments that ICWA commandeered state courts and officials to enforce federal Indian policy in violation of the Tenth Amendment, asserting that legislation that applies equally to state and private actors typically does not implicate the Tenth Amendment. The Court found that ICWA's requirements did not infringe on the anti-commandeering doctrine as they applied evenhandedly to state agencies, private parties, and state courts, which could be required to enforce federal law.
Equal Sovereignty Doctrine:
In two recent voting rights cases, the Supreme Court has cited "the fundamental principle of equal sovereignty" as a constraint on congressional authority. This principle stems from the idea that all states in the United States share equal power, dignity, and authority, limiting Congress's ability to pass legislation that imposes unequal burdens on different states without a valid justification.
The basis of the equal sovereignty principle in the Constitution is not entirely clear from the Court's decisions. While the Constitution explicitly mandates equal treatment of states in specific situations, there is no explicit constitutional provision requiring Congress to treat states equally as a general rule. In cases related to the admission of new states, the "equal footing" doctrine was established in the nineteenth century. This doctrine generally requires that Congress admit new states on equal terms with the original states, preventing Congress from imposing restrictions on new states that would deprive them of equality with existing states. Until recently, the applicability of this doctrine beyond state admissions was uncertain, as South Carolina v. Katzenbach stated that the "doctrine of the equality of States" applied solely to the terms of state admission to the Union.
However, in Northwest Austin Municipal Utility District Number One v. Holder and Shelby County v. Holder, the Supreme Court extended the application of the equal sovereignty principle. These cases focused on the constitutionality of Sections 4 and 5 of the Voting Rights Act of 1965 (VRA). Section 4 of the VRA contained a "coverage formula" that identified jurisdictions with a history of racial discrimination in voting, while Section 5 required these jurisdictions to obtain "preclearance" before changing their voting procedures. Consequently, states covered by Section 4 faced more stringent requirements for changing their voting laws compared to other states.
Although the Court had previously upheld this arrangement in Katzenbach, Northwest Austin highlighted the "substantial federalism costs" imposed by the VRA's preclearance requirements and coverage formula, which had become harder to justify given improvements in voting conditions since 1965. The Court noted that the coverage formula, by treating states differently, contradicted the "fundamental principle of equal sovereignty" and raised constitutional concerns. However, the Court ultimately decided Northwest Austin based on statutory grounds.
Four years later, in Shelby County, the Court addressed the constitutional question left open in Northwest Austin, using the equal sovereignty principle to invalidate the VRA's coverage formula as unconstitutional. Under the test applied in Shelby County, a departure from the principle of equal sovereignty necessitates a demonstration that a statute's uneven geographic coverage is closely related to the problem it targets. The Court pointed out significant changes in voting conditions since Katzenbach and concluded that current circumstances did not warrant applying the preclearance formula exclusively to certain states and counties, as exceptional conditions no longer existed.
Since the Shelby County decision, the Court has not ruled on an equal sovereignty challenge, leaving the application of this doctrine outside the realm of voting rights uncertain.
Commerce Clause and Tenth Amendment:
In 1995, the Supreme Court made a significant ruling in United States v. Lopez, where it struck down a federal law that prohibited possessing a gun at or near a school. The Court rejected the argument that the law was justified under the Commerce Clause due to its supposed economic impact. The Court asserted that such reasoning would blur the line between national and local matters, transform Congress's commerce power into a broad police power reserved for the states, and undermine the fundamental principle that the federal government possesses only enumerated and limited powers.
This same principle guided the Court's decision in United States v. Morrison five years later. In that case, the Court invalidated a provision of the Violence Against Women Act (VAWA) that established a federal cause of action for victims of gender-motivated violence. The Court concluded that Congress could not regulate non-economic, violent criminal conduct solely based on its cumulative effect on interstate commerce. The Court emphasized that the suppression of violent crime and the protection of its victims were classic examples of police powers reserved for the states by the Founders.
However, in contrast to Lopez and Morrison, the Court's decision in Gonzales v. Raich upheld Congress's authority under the Commerce Clause to prohibit intrastate cultivation and use of medical marijuana, citing its cumulative effect on interstate commerce. Raich distinguished Lopez and Morrison as regulations of non-economic activity and relied on earlier Commerce Clause precedents. While the majority opinion in Raich made only indirect reference to the Tenth Amendment by citing United States v. Darby, the dissenting justices referenced it more directly, arguing that this application of federal law unconstitutionally encroached on state police powers.
In the 2012 case National Federation of Independent Business v. Sebelius, the Court ruled that Congress could not use its Commerce Clause power to compel individuals to engage in commercial activity. Consequently, the "individual mandate" of the Patient Protection and Affordable Care Act, which required most uninsured individuals to purchase health insurance or pay a penalty, exceeded Congress's Commerce Clause authority. Along the way to this decision, the Court stressed the need to interpret Congress's enumerated powers carefully to avoid granting it a general federal authority resembling a police power, invoking the Tenth Amendment and related federalism principles.
