Tenth Amendment Limitations on Federal Power
The issue: To what extent does the 10th Amendment limit the power of the
federal government?
Introduction
The Court in recent decades has looked to the
Tenth Amendment as a basis for building "the
new federalism." At other times, the Court
seems to have viewed the Amendment as little
more than a truism. The meaning of the Tenth
Amendment remains controversial both within
the Court and among politicians, some of whom
see it as the most important of all the first ten
amendments.
Tenth Amendment
Amendment X
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.
Cases
Garcia v San Antonio Metro. Transit
Auth. (1985)
New York v United States (1992)
Printz v United States (1997)
Shelby County v Holder (2013)
In 1976, in National League of Cities v Usery, the
Court struck down provisions of a federal law
that extended minimum wage protection to
almost all state and municipal
employees. Although the Court recognized that
the Commerce Clause authorized minimum wage
laws covering most employees, the Court held
Sheriff Jay Printz challenged the Brady Law's background
that the Constitution's structure and the Tenth
check provisions
Amendment's recognition of the role of states in
the federal structure prohibited the federal
Questions
government from telling states what they must
pay their own employees.
1. The "new federalism" cases from National League
of Cities to the present time find little textual support
Nine years later, however, the Court overruled
National League of Cities in Garcia v San Antonio in the Constitution and are based on a controversial
Metro Transit Authority when Justice Blackmun-- reading of history. This is a criticism often made by
conservatives of the Court's substantive due process
who had provided the critical fifth vote in the
jurisprudence. Does this suggest that a judge's
earlier case--reversed himself, concluding that
the National League of Cities rule was causing so political philosophy or values will generally trump any
theory of constitutional interpretation?
much confusion in the lower courts as to be
2. Similarly, the judges who urged respect for the
"unworkable."
doctrine of stare decisis in Garcia v San Antonio
Metro Transit Authority were, for the most part, those
judges who ridiculed reliance on stare decisis (with
Justice Harry Blackmun, author of the Court's 1985 respect to Roe v Wade) in the abortion case of
decision overruling National League of Cities.
Casey v Planned Parenthood. Does this suggest
that judges should be more open about the real
The federalism debate again resurfaced in the
reason for their decisions, which often seem to be a
1992 case of New York v United States, when the concern about consequences?
Court invalidated a provision of the Radioactive 3. What is the basis for the Court's holdings in New
York v United States and Printz v United States? Is
Waste Policy Act that required states failing to
develop an adequate plan for disposing of waste it that Congress acted outside of its Commerce
generated within their own borders to, "at the
Clause power, that the laws in question violated the
request of the owner or generator of the waste,
Tenth Amendment, or that the laws in question are
take title to the waste." The Court found that the inconsistent with the federal system implicitly
so-called "take title" provision effectively
envisioned in the Constitution?
4. Do you agree with the majority in Garcia that the
"commandered the legislative processes" of
states--something that the federal government
cannot constitutionally do.
National League of Cities rule had shown itself to be
"unworkable"?
5. If a law really does violate the Constitution, is it
reason enough to allow the law to be enforced
because the Court cannot imagine a "workable" rule
In Printz v United States (1997), the Court again
that could be applied to decide the constitutionality of
found that Congress had unconstitutionally
other laws raising similar issues?
intruded upon state sovereignty. The law in
6. Is Justice Blackmun right in Garcia in his
question in Printz was a provision of the Brady
suggestion that states are adequately protected by
Act requiring chief law enforcement officers of
states to run background checks on prospective the Constitution's structural provisions and need no
additional protection from the judiciary?
hand gun purchasers. The Court rejected the
7. Is there any other area of constitutional law that
federal government's argument that it could
coercively enlist states in enforcing federal law, so clearly splits the Court along ideological lines than
these cases raising "states' rights" issues?
even though it might be unconstitutional to
8. Apart from issues of constitutional law, how
require states to make law--the problem
should power be divided between the national and
identified in New York v U. S.
state governments? The federal government is often
The Court, in both New York and Printz, was not criticized, but it was the federal government that
ended slavery, brought the country out of the great
crystal clear about the basis for its
Depression, ended the reign of the Third Reich, and
decisions. The cases could be seen either as
resting on the 10th Amendment itself or be read ended racial segregation? What great things have
been accomplished through state
as concluding that the 10th Amendment limited
governments? What areas of regulation (education,
what might otherwise have been actions within
pollution control, law enforcement, etc.) have been
the Commerce Clause power. More likely still,
better administered at the state level than at the
the cases should be viewed as concluding that
federal level?
the federal actions amounted to violations of
9. The states are often seen as "laboratories" for
federalism principles implicit in the structure of
social experiments. What are some examples of
the Constitution (including, of course, the 10th
successful experiments that have been carried from
Amendment).
one state to the several states? What are some
examples of experiments that are now ongoing in a
The Tenth Amendment was cited for support by single state or small number of states?
the Court in its 2013 decision invalidating a key
10. Where in the Constitution does Shelby's "equal
portion of the Voting Rights Act, Shelby County v sovereignty principle" come from? What types of
Holder. In its 5 to 4 decision invalidating the
distinctions with respect to the states can the federal
Act's coverage formula, which required a group
government make after Shelby? How extensive of a
of mostly southern states to seek preclearance
record must the federal government develop before it
from the federal government for changes in their can impose significant burdens on some states but
voting laws, the Court noted that the Tenth
not others?
Amendment was intended to give states "broad
autonomy in pursuing legislative
objectives." Mostly, however, the decision
rested on the principle that states under our
Constitution enjoy "equal sovereignty." The
Court used the phrase repeatedly, including in
the first paragraph of the opinion, and stressed
that equal sovereignty was a "historic tradition"
and "essential to the scheme upon which the
Republic was organized." The takeaway from the
case is that differential treatment of the states by
the federal government, at least with respect to
matters relating to its ability to pursue its
legislative objectives, will be subject to
heightened judicial scrutiny--burdens will have to
be justified by a substantial federal interest and
there must be a substantial link between the
states singled out for less favorable treatment
and the problem addressed. If, for example, the
Congress were to use its Commerce Clause
power to require 15 states to have their laws
imposing taxes on Internet sales to residents be
precleared by the Commerce Department, but left
the other 35 free to enact such legislation
without federal approval, such a law would
almost certainly be struck down under Shelby's
"equal sovereignty principle."