Amendment X to the U.S. Constitution

Ratified in 1791 as part of the Bill of Rights, the Tenth Amendment specifies that “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.” Of all the amendments demanded by anti‐Federalists in the state conventions that ratified the Constitution, one calling for a reserved powers clause was the most common. A number of Federalist spokesmen, including Alexander Hamilton, James Madison, and James Wilson, argued that no such clause was necessary. But fear of central authority was widespread and support for an explicit guarantee that the states should retain control over their internal affairs reached irresistible proportions. In response to these fears, James Madison, in The Federalist No. 45, maintained that the powers of a federal government are “few and defined” and extend “principally on external objects, as war, peace, negotiation, and foreign commerce,” whereas the powers reserved to the states are “numerous and indefinite” and “extend to all objects which, in the ordinary course of affairs concern the lives, liberties, and properties of the people, and internal order, improvement, and prosperity of the State.” In The Federalist No. 46, Madison reiterated the separation of powers doctrine by stating that the “Federal and State Governments are in fact but different agents and trustees of the people, instituted with different powers, and designated for different purposes.” Few Federalists thought the amendment would be harmful, and thus it came as no surprise when Madison included a reserved powers clause among the amendments he proposed in 1789.

Thomas Jefferson described the Tenth Amendment as “the foundation of the Constitution” and added, “to take a single step beyond the boundaries thus specially drawn … is to take possession of a boundless field of power, no longer susceptible of any definition.” Jefferson's formulation of this doctrine of “strict construction” was echoed by champions of state sovereignty for many decades.

The opposite, “loose construction” point of view, formulated by Secretary of the Treasury Hamilton, became the model for advocates of extended congressional power; but Hamilton's opinion did not conflict with the substance of the Tenth Amendment. Indeed, to him the Reserved Powers Clause was tautological, expressing a principle that inheres in any republican government. Since Hamilton specifically rejected any claim that Congress could interfere in the internal affairs of a state—such concerns as the governance of the health, morality, education, and welfare of the people—his stand was not an argument against the Tenth Amendment, but against its necessity.

Early pronouncements on the subject by the Supreme Court adhered to the proposition that the police power had been reserved exclusively to the states. Even Chief Justice John Marshall, whose decision upholding the constitutionality of the Second Bank of the United States in McCulloch v. Maryland (1819) closely reflected the reasoning in Hamilton's 1791 opinion, vehemently denied afterward that he had thereby contributed to “any extension by construction of the powers of Congress” and insisted that he had ruled upon the legitimacy of the “means” of carrying out a power that had been constitutionally delegated.

Thus, from the presidency of Jefferson to that of Abraham Lincoln, the consensus was that Jefferson had been right in calling the Tenth Amendment the foundation of the constitutional union. Indeed, at one time or another, state governments in all parts of the country defied the authority of the national government. New Englanders threatened secession after the Louisiana Purchase (1803) and again during the War of 1812 and blocked federal action during the Mexican War (1846–1848). Illinois, Ohio, and Wisconsin thwarted federal laws on several occasions. Southern states attempted to prevent the enforcement of federal laws in 1799 and the 1830s, and then in 1860–1861 eleven of them seceded.

Everything changed—temporarily—during the Civil War and the Reconstruction that followed. The powers of the federal government were enormously increased during the war, and though there was considerable shrinkage afterward, the government never returned to its minuscule prewar proportions. Accordingly, the Tenth Amendment was virtually suspended for several years after the war, as far as the defeated and discredited southern states were concerned. Through armies of occupation, Congress governed those states directly, and the congressionally created Freedmen's Bureaus exercised the full range of police powers in regard to the former slaves. Of greater long‐range significance, the Fourteenth Amendment opened the door for congressional action in areas that would earlier have been regarded as reserved to the states.

Nonetheless, the constitutional revolution was transitory. In 1883, the Supreme Court, having already limited the Fourteenth Amendment's protections of the rights of freedmen, declared the Civil Rights Act of 1875 unconstitutional on the ground that it was “repugnant to the Tenth Amendment” (Civil Rights Cases, p. 15). During the next generation, the Court struck down a number of state exercises of the police power—in keeping with the Tenth Amendment's “prohibited by it to the states” clause—yet it never once allowed Congress to exercise a police power itself.

Erosion of the Tenth Amendment began early in the twentieth century. In 1895 Congress passed an act forbidding the shipment of lottery tickets in interstate commerce. The purpose was only nominally a regulation of commerce: its real purpose was to restrict gambling, a matter that had always been the exclusive domain of the states. In Champion v. Ames (1903), the Supreme Court upheld the act. The next year, the Court in McCray v. United States upheld a congressional act imposing a prohibitive excise tax on oleomargarine, which amounted to an exercise of a police power to protect the health of the citizenry, under the guise of a constitutional exercise of the power to levy taxes for the “general welfare.”

The Supreme Court was not, however, consistent in its rulings, and the justices were sorely, even angrily, divided during the next three decades. The tension, throughout the period, was between the Tenth Amendment on one side and the powers of Congress to regulate interstate commerce and to levy taxes on the other. The most important police power actions justified under the Commerce Clause were the Pure Food and Drug Act (1906), the Meat Inspection Acts (1906 and 1907), and the White Slave Traffic Act (1910); the Supreme Court upheld all of these, even though it had ruled in Keller v. United States (1909) that an act protecting women from immoral trafficking was an unconstitutional violation of the Tenth Amendment. The most important police power actions justified under the taxing power were the Phosphorous Match Act (1912) and the Harrison Anti‐Narcotics Act (1914), both of which were approved by the Supreme Court despite arguments that they violated the Tenth Amendment.

Then in 1918, the Court dropped a bombshell. Congress, in keeping with the reform spirit of the times, had in 1916 passed an act prohibiting the shipment in interstate commerce of the products of mines or factories that employed children under the age of fourteen. Two years later, in Hammer v. Dagenhart, the Court ruled that the act was unconstitutional. In the majority opinion, Justice William R. Day inserted the word “expressly” into the Tenth: “It must never be forgotten that the nation is made up of states, to which are entrusted the powers of local government. And to them and to the people the powers that are not expressly delegated to the national government are reserved” (p. 275). The next year the Court upheld a prohibitive tax on the use of narcotics, but in Bailey v. Drexel Furniture Company (1922) it held unconstitutional a second child labor law based upon the government's taxing power. In sum, the Supreme Court was sending mixed and confused signals to the Congress.

A new complication soon arose. Congress began to vote grants‐in‐aid to the states for various purposes, ranging from the prevention of forest fires to providing medical care for expectant mothers. In 1923 one such grant was challenged on the ground that it undermined the Tenth Amendment. In Massachusetts v. Mellon (1923) the Court rejected the argument, declaring that “the statute imposes no obligation, but simply extends an option which the state is free to accept or reject” (p. 480). Ultimately, and especially from the 1950s onward, grants‐in‐aid or “revenue sharing” would grow so large as to make the states, in many ways, mere appendages of federal administrative agencies.

In the meantime, the whole subject had come to a head—and the Tenth Amendment was becoming a nullity—in the wake of the Great Depression and World War II. Between 1934 and 1935, the Supreme Court declared unconstitutional a number of emergency economic recovery measures that formed part of Franklin Roosevelt's New Deal program. Among the most far‐reaching was the National Industrial Recovery Act, which had authorized the president to negotiate with industry to draw up “codes of fair practices” that would have the force of law. Writing for a unanimous Court in Schechter Poultry Corp. v. United States (1935), Chief Justice Charles Evans Hughes gave three reasons for striking down the law, the first being that it flew directly in the face of the Tenth Amendment. However, the Court underwent drastic changes when a majority of the justices became Roosevelt appointees, thus sparking a constitutional revolution in 1937. It came as no surprise, then, that the Court in Mulford v. Smith (1939) completely rejected the Tenth Amendment opinions it had laid down in the child labor cases. In United States v. Darby Lumber Co. (1941), Chief Justice Harlan Fiske Stone reduced the amendment to nothing more than a truism, describing it as merely declaratory of intergovernmental relationships and as having no substantive meaning.

If the Tenth Amendment was ever a truism, that changed commencing with Justice William H. Rehnquist's sole dissent in Fry v. United States (1975). Only a year later, in National League of Cities v. Usery, the Court held that application of the Fair Labor Standards Act to state and local government employees was a violation of the amendment. That decision opened so many problems, however, that the Court found it expedient to reverse itself explicitly in Garcia v. San Antonio Metropolitan Transit Authority (1985) when Justice Harry A. Blackmun unexpectedly switched his vote. In New York v. United States (1992), the Court reasoned that monetary and access incentives offered to the states to comply with the Low‐Level Radioactive Waste Policy Amendments Act of 1985 was a valid exercise of Congress's power; the third incentive offered state governments a choice to accept ownership of waste or to follow the regulations of the 1985 act. According to the Court, by enacting this last provision, also known as “take‐title” provision, Congress crossed the line that distinguishes encouragement from coercion. Similarly, in Printz v. United States (1997), the Court held that Congress may not issue “directives requiring the States to address particular problems, nor command the States' officers … to administer or enforce a federal regulatory program.” More recently, in Reno v. Condon (2000), the Court held that Driver's Privacy Protection Act (1994) did not violate federalism principles as specified in New York v. United States and Printz v. United States; since unauthorized disclosure of a driver's personal information is a “thin[g] in interstate commerce,” it constitutes a proper subject of congressional regulation.

The conflict surrounding interpretation of the Tenth Amendment will inevitably continue to be a hot topic before the Supreme Court justices, for inasmuch as the states continue to exist as distinct political and legal entities and the Tenth Amendment remains a part of the Constitution, the tensions arising from dual and divided sovereignty remain.

See also Dual Federalism; Federalism; State Sovereignty and States' Rights.

Bibliography

• Raoul Berger, Federalism: The Founders' Design (1987).
• E. S. Corwin, The Commerce Power Versus States Rights (1936).
• William E. Leuchtenburg, The Tenth Amendment over Two Centuries: More than a Truism in The Tenth Amendment and State Sovereignty: Constitutional History and Contemporary Issues, edited by Mark R. Killenbeck (2002).
• Charles A. Lofgren, The Origins of the Tenth Amendment: History, Sovereignty, and the Problem of Constitutional Intention, in Constitutional Government in America, edited by Ronald K. L. Collins (1980), pp. 331–357.
• Ruth Locke Roettinger, The Supreme Court and State Police Power (1957)

— Forrest McDonald; revised by Robert M. Hardaway and Adisa Hubjer

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The Tenth Amendment to the U.S. Constitution reads:

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.

Ratified in 1791, the Tenth Amendment to the Constitution embodies the general principles of federalism in a republican form of government. The Constitution specifies the parameters of authority that may be exercised by the three branches of the federal government: executive, legislative, and judicial. The Tenth Amendment reserves to the states all powers that are not granted to the federal government by the Constitution, except for those powers that states are constitutionally forbidden from exercising.

For example, nowhere in the federal Constitution is Congress given authority to regulate local matters concerning the health, safety, and morality of state residents. Known as police powers, such authority is reserved to the states under the Tenth Amendment. Conversely, no state may enter into a treaty with a foreign government because such agreements are prohibited by the plain language of Article I to the Constitution.

At the time the states adopted the Tenth Amendment, two primary conceptions of government were under consideration. Many federalists supported a centralized national authority, with power concentrated in a single entity. This type of government was exemplified by the English constitutional system, which vested absolute authority in the monarchy during the seventeenth century and in Parliament during the eighteenth century.

On the other hand, many anti-federalists supported a more republican form of government consisting of a loose confederation of sovereign states that would form an alliance only for the purpose of mutual defense. The Articles of Confederation, which governed the thirteen states in national matters until 1787, when the Constitution was ratified, epitomized this form of government. Under the Articles of Confederation, the national government was unable to levy and collect taxes on its own behalf.

Many federalists, such as James Madison, argued that the Tenth Amendment was unnecessary because the powers of the federal government are carefully enumerated and limited in the Constitution. Because the Constitution does not give Congress, the president, or the federal judiciary the prerogative to regulate wholly local matters, Madison concluded that no such power existed and no such power would ever be exercised. However, British oppression had made the Founding Fathers fearful of unchecked centralized power. The Tenth Amendment was enacted to limit federal power. Although it appears clear on its face, the Tenth Amendment has not been consistently applied.

Before the Civil War, nearly every state urged a broad reading of the Tenth Amendment. Although no state wanted a federal government that was impotent against internal enemies or foreign aggressors, many state politicians challenged the authority of the federal government to regulate any matter that could otherwise be handled by local authorities. For example, immediately after the U.S. Revolution, all thirteen states resisted federal efforts to force local governments to return the property of British loyalists taken during the war. During the first half of the nineteenth century, southern states objected to federal legislation that attempted to limit slavery. State sovereignty reached its height when eleven states seceded from the Union to form the Confederacy.

Following the Civil War, the Tenth Amendment was virtually suspended. For a number of years during the Reconstruction era, the federal government occupied the former Confederate states with military troops and required each occupied state to ratify the Civil War Amendments, which outlawed slavery, gave blacks the right vote, and declared the equality of all races. To a large extent the federal government ran local matters in southern states during this period.

In 1883 the Tenth Amendment regained some of its force. In that year the Supreme Court invalidated the federal Civil Rights Act of 1875 (18 Stat. 335), which criminalized racial discrimination in public accommodations, such as hotels and restaurants, because it violated state sovereignty under the Tenth Amendment (Civil Rights Cases, 109 U.S. 3, 3 S. Ct. 18, 27 L. Ed. 835 [1883]). In 1909 the Supreme Court struck down the White Slave Traffic Act (34 Stat. 898), which Congress had passed to prohibit the harboring of alien women for the purposes of prostitution, because it violated the Tenth Amendment (Keller v. United States, 213 U.S. 138, 29 S. Ct. 470, 53 L. Ed. 737 [1909]).

Nine years later the Court struck down another congressional law prohibiting the interstate shipment of products that had been manufactured by certain businesses that employed children under the age of fourteen (Hammer v. Dagenhart, 247 U.S. 251, 38 S. Ct. 529, 62 L. Ed. 1101 [1918]). "In interpreting the Constitution," the Court said in Hammer, "it must never be forgotten that the nation is made up of states to which are entrusted the powers of local government. And to them the powers not expressly delegated to the national government are reserved."

During the depth of the Great Depression, the Tenth Amendment returned to a dormant condition. President Franklin Roosevelt worked with Congress to pass the New Deal, a series of programs designed to stimulate the troubled economy. After the Supreme Court upheld a provision of the National Labor Relations Act (mandatory collective bargaining) in N.L.R.B. v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S. Ct. 615, 81 L. Ed. 893 (1937), Congress began exercising unprecedented lawmaking power over state and local matters. For the next forty years, the Supreme Court upheld congressional authority to regulate a variety of matters that had been traditionally addressed by state legislatures. For example, in one case the Supreme Court upheld the Agricultural Adjustment Act of 1938 (7 U.S.C.A. § 1281 et seq.) over objections that it allowed Congress to regulate individuals who produced and consumed their own foodstuffs entirely within the confines of a family farm (Wickard v. Filburn, 317 U.S. 111, 63 S. Ct. 82, 87 L. Ed. 122 [1942]).

The Tenth Amendment enjoyed a brief resurgence in 1976 when the Supreme Court held that the application of the Fair Labor Standards Act of 1938 (29 U.S.C.A. § 201 et seq.) to state and local governments was unconstitutional. In National League of Cities v. Usery, 426 U.S. 833, 96 S. Ct. 2465, 49 L. Ed. 2d 245 (1976), the Court said that the minimum wage and maximum hour provisions of this act significantly altered and displaced the states' abilities to structure employment relationships in such areas as fire prevention, police protection, sanitation, public health, and parks and recreation. These services, the Court emphasized, are historically reserved to state and local governments. If Congress may withdraw from the states the authority to make such fundamental employment decisions, the Court concluded, "there would be little left of the states' separate and independent existence," or of the Tenth Amendment.

National League of Cities proved to be an unworkable constitutional precedent. It cast doubt on congressional authority to regulate many aspects of local affairs that most of society had come to rely upon. It was unclear, for example, whether the Occupational Safety and Health Administration, a federal agency established by Congress to regulate workplace safety, retained any constitutional authority after the Supreme Court announced its decision in National League of Cities.

The Supreme Court eliminated these concerns by overturning National League of Cities in Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 105 S. Ct. 1005, 83 L. Ed. 2d 1016 (1985). In Garcia the Court upheld the minimum wage and maximum hour provisions of the Fair Labor Standards Act as it applied to a city-owned public transportation system. In reaching this decision, the Court said that if certain states are worried about the extent of federal authority over a particular local matter, the residents of such states should contact their senators and representatives who are constitutionally authorized to narrow federal regulatory power through appropriate legislation. Judicial review of federal regulations under the Tenth Amendment, the Supreme Court suggested, is not the proper vehicle to achieve this end.

The ebb and flow of Tenth Amendment jurisprudence reflects the delicate constitutional balance created by the Founding Fathers. The states ratified the Constitution because the Articles of Confederation created a national government that was too weak to defend itself and could not raise or collect revenue. Although the federal Constitution created a much stronger centralized government, the Founders did not want the states to lose all of their power to the federal government, as the colonies had lost their powers to Parliament. The Tenth Amendment continues to be defined as courts and legislatures address the balance of federal and state power.

See: Civil Rights Cases; Constitution of the United States; Federalist Papers; Labor Union; States' Rights.

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.

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The Tenth Amendment (Amendment X) to the United States Constitution, which is part of the Bill of Rights, was ratified on December 15, 1791.^[1] The Tenth Amendment states the Constitution's principle of federalism by providing that powers not granted to the federal government nor prohibited to the States by the Constitution are reserved to the States or the people.

Contents 1 Text 2 Drafting and adoption 3 Judicial interpretation 3.1 Forced participation or commandeering 3.2 Commerce clause 3.3 Federal funding 4 State legislative actions in protest of federal actions 4.1 State sovereignty resolutions ("10th Amendment resolutions") 4.2 State sovereignty bills ("10th Amendment Bills") 4.3 Firearms freedom legislation and federal gun laws nullification 4.4 Medical marijuana laws 4.5 REAL ID Act 4.6 National health care nullification 4.7 "Bring the Guard home" 4.8 Constitutional tender 4.9 "Cap-and-trade" nullification 4.10 State sovereignty and federal tax funds acts 4.11 "Sheriffs first" legislation 4.12 "Federal land" legislation 4.13 "Nullification of federal intrastate commerce regulation" 4.14 "Sanctuary city" 4.15 Intrastate Coal and Use Act 5 See also 6 References 7 External links

Text

The Bill of Rights in the National Archives

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.

Drafting and adoption

The Tenth Amendment is similar to an earlier provision of the Articles of Confederation: "Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled."^[2] After the Constitution was ratified, some wanted to add a similar amendment limiting the federal government to powers "expressly" delegated, which would have denied implied powers.^[3] However, the word "expressly" ultimately did not appear in the Tenth Amendment as ratified, and therefore the Tenth Amendment did not reject the powers implied by the Necessary and Proper Clause.

When he introduced the Tenth Amendment in Congress, James Madison explained that many states were anxious to ratify this amendment, despite critics who deemed the amendment superfluous or unnecessary:

I find, from looking into the amendments proposed by the State conventions, that several are particularly anxious that it should be declared in the Constitution, that the powers not therein delegated should be reserved to the several States. Perhaps words which may define this more precisely than the whole of the instrument now does, may be considered as superfluous. I admit they may be deemed unnecessary: but there can be no harm in making such a declaration, if gentlemen will allow that the fact is as stated. I am sure I understand it so, and do therefore propose it.^[4]

The states decided to ratify the Tenth Amendment, and thus declined to signal that there are unenumerated powers in addition to unenumerated rights.^[5][6] The amendment rendered unambiguous what had previously been at most a mere suggestion or implication.

The phrase "..., or to the people." was appended in handwriting as the Bill of Rights circulated between the two Houses of Congress.^[7]

Judicial interpretation

The Tenth Amendment, which makes explicit the idea that the federal government is limited only to the powers granted in the Constitution, is often considered to be a truism. In United States v. Sprague (1931) the Supreme Court asserted that the amendment "added nothing to the [Constitution] as originally ratified."

States and local governments have occasionally attempted to assert exemption from various federal regulations, especially in the areas of labor and environmental controls, using the Tenth Amendment as a basis for their claim. An often-repeated quote, from United States v. Darby, 312 U.S. 100, 124 (1941), reads as follows:

The amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers.....

Forced participation or commandeering

This section needs additional citations for verification. Please help improve this article by adding citations to reliable sources. Unsourced material may be challenged and removed. (November 2010)

The Supreme Court rarely declares laws unconstitutional for violating the Tenth Amendment. In the modern era, the Court has only done so where the federal government compels the states to enforce federal statutes. In 1992, in New York v. United States, 505 U.S. 144 (1992), for only the second time in 55 years, the Supreme Court invalidated a portion of a federal law for violating the Tenth Amendment. The case challenged a portion of the Low-Level Radioactive Waste Policy Amendments Act of 1985. The act provided three incentives for states to comply with statutory obligations to provide for the disposal of low-level radioactive waste. The first two incentives were monetary. The third, which was challenged in the case, obliged states to take title to any waste within their borders that was not disposed of prior to January 1, 1996, and made each state liable for all damages directly related to the waste. The Court, in a 6–3 decision, ruled that the imposition of that obligation on the states violated the Tenth Amendment. Justice Sandra Day O'Connor wrote that the federal government can encourage the states to adopt certain regulations through the spending power (e.g. by attaching conditions to the receipt of federal funds, see South Dakota v. Dole), or through the commerce power (by directly pre-empting state law). However, Congress cannot directly compel states to enforce federal regulations.

In 1997, the Court again ruled that the Brady Handgun Violence Prevention Act violated the Tenth Amendment (Printz v. United States, 521 U.S. 898 (1997)). The act required state and local law enforcement officials to conduct background checks on persons attempting to purchase handguns. Justice Antonin Scalia, writing for the majority, applied New York v. United States to show that the law violated the Tenth Amendment. Since the act "forced participation of the State's executive in the actual administration of a federal program", it was unconstitutional.

Commerce clause

In modern times, the Commerce Clause has become one of the most frequently-used sources of Congress' power, and thus its interpretation is very important in determining the allowable scope of federal government.

In the 20th century, complex economic challenges arising from the Great Depression triggered a reevaluation in both Congress and the Supreme Court of the use of Commerce Clause powers to maintain a strong national economy.

In Wickard v. Filburn (1942), in the context of World War II, the Court ruled that federal regulations of wheat production could constitutionally be applied to wheat grown for "home consumption" on a farm – that is, wheat grown to be fed to farm animals or otherwise consumed on the farm. The rationale was that a farmer's growing "his own wheat" can have a substantial cumulative effect on interstate commerce, because if all farmers were to exceed their production quotas, a significant amount of wheat would either not be sold on the market or would be bought from other producers. Hence, in the aggregate, if farmers were allowed to consume their own wheat, it would affect the interstate market in wheat.

In Garcia v. San Antonio Metropolitan Transit Authority (1985), the Court changed the analytic framework to be applied in Tenth Amendment cases. Prior to the Garcia decision, the determination of whether there was state immunity from federal regulation turned on whether the state activity was "traditional" for or "integral" to the state government. The Court noted that this analysis was "unsound in principle and unworkable in practice", and rejected it without providing a replacement. The Court's holding declined to set any formula to provide guidance in future cases. Instead, it simply held "...we need go no further than to state that we perceive nothing in the overtime and minimum-wage requirements of the FLSA ... that is destructive of state sovereignty or violative of any constitutional provision." It left to future courts how best to determine when a particular federal regulation may be "destructive of state sovereignty or violative of any constitutional provision."

In United States v. Lopez 514 U.S. 549 (1995), a federal law mandating a "gun-free zone" on and around public school campuses was struck down because, the Supreme Court ruled, there was no clause in the Constitution authorizing it. This was the first modern Supreme Court opinion to limit the government's power under the Commerce Clause. The opinion did not mention the Tenth Amendment, and the Court's 1985 Garcia opinion remains the controlling authority on that subject.

Most recently, the Commerce Clause was cited in the 2005 decision Gonzales v. Raich. In this case, a California woman sued the Drug Enforcement Administration after her medical marijuana crop was seized and destroyed by federal agents. Medical marijuana was explicitly made legal under California state law by Proposition 215; however, marijuana is prohibited at the federal level by the Controlled Substances Act. Even though the woman grew the marijuana strictly for her own consumption and never sold any, the Supreme Court stated that growing one's own marijuana affects the interstate market of marijuana. The theory was that the marijuana could enter the stream of interstate commerce, even if it clearly wasn't grown for that purpose and that was unlikely ever to happen (the same reasoning as in the Wickard v. Filburn decision). It therefore ruled that this practice may be regulated by the federal government under the authority of the Commerce Clause.

Federal funding

The federal system limits the ability of the federal government to use state governments as an instrument of the national government, as held in Printz v. United States, 521 U.S. 898 (1997). However, where Congress or the Executive has the power to implement programs, or otherwise regulate, there are, arguably, certain incentives in the national government encouraging States to become the instruments of such national policy, rather than to implement the program directly. One incentive is that state implementation of national programs places implementation in the hands of local officials who are closer to local circumstances. Another incentive is that implementation of federal programs at the state level would in principle limit the growth of the national bureaucracy.

For this reason, Congress often seeks to exercise its powers by offering or encouraging States to implement national programs consistent with national minimum standards; a system known as cooperative federalism. One example of the exercise of this device was to condition allocation of federal funding where certain state laws do not conform to federal guidelines. For example, federal educational funds may not be accepted without implementation of special education programs in compliance with IDEA. Similarly, the nationwide state 55 mph (90 km/h) speed limit, .08 legal blood alcohol limit, and the nationwide state 21-year drinking age were imposed through this method; the states would lose highway funding if they refused to pass such laws. See e.g. South Dakota v. Dole, 483 U.S. 203 (1987).

State legislative actions in protest of federal actions

Several states have introduced various resolutions and legislation in protest to federal actions.^[8] Despite this, the Supreme Court has explicitly rejected the idea that the states can nullify federal law. In Cooper v. Aaron (1958), the Supreme Court of the United States held that federal law prevails over state law due to the operation of the Supremacy Clause, and that federal law "can neither be nullified openly and directly by state legislators or state executive or judicial officers nor nullified indirectly by them through evasive schemes . . . ." Thus, state laws purporting to nullify federal statutes or to exempt states and their citizens from federal statutes have only symbolic impact.

State sovereignty resolutions ("10th Amendment resolutions")

These resolutions attempt to reassert state sovereignty over any area not listed among the "enumerated powers" (i.e., any law based on an "expansive reading" of the Commerce Clause, the Necessary and Proper Clause, or the Supremacy Clause would, according to this resolution, be invalid).

• During 2009, "state sovereignty resolutions" or "10th Amendment Resolutions" were introduced in the legislatures of 37 states; in seven states the resolutions passed (Alaska, Idaho, North Dakota, South Dakota, Oklahoma, Louisiana, and Tennessee).
• During 2010, resolutions were introduced or reintroduced into the legislatures of 21 states; the resolution passed in seven states (Alabama, Arizona, Kansas, Nebraska, South Carolina, Utah, and Wyoming).^[9][10]
• A state sovereignty resolution has been prefiled for the upcoming 2011 session of the Texas Legislature (a prior 2009 resolution did not pass).

State sovereignty bills ("10th Amendment Bills")

A "State Sovereignty Bill" is one step beyond a State Sovereignty Resolution. The bill would mandate action against what the state legislature perceives as unconstitutional federal legislation.

• During 2010 such legislation was introduced in six states (Florida, Georgia, Michigan, Missouri, New Hampshire, and Oklahoma); however, none made it past the introductory stage.^[11]

Firearms freedom legislation and federal gun laws nullification

This proposed legislation would "...declare that any firearms made and retained in-state are beyond the authority of Congress under its constitutional power to regulate commerce among the states". The legislation would require that the firearm be prominently marked as being "Made in {name of state}" and further prohibit federal regulation solely on the basis that "basic materials" and "generic and insignificant parts" of the firearm may have their origins from outside the state.

• Through 2010 resolutions have been introduced in the legislatures of 27 states that would nullify federal authority over such local firearms. The legislation passed in Montana and Tennessee in 2009 and in Alaska, Arizona, Idaho, South Dakota, Utah, and Wyoming the following year.^[12] South Carolina has taken the issue one step further: in 2010 a bill was introduced which would effectively nullify all gun registration laws within the state.^[13]
• Texas has prefiled^[14] and West Virginia has filed^[15] similar legislation for the current 2011 legislative session.

Medical marijuana laws

As of November 2010^[update], 15 states (Alaska, Arizona, California, Colorado, Hawaii, Maine, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington) and the District of Columbia have passed legislation which permit the use of medical marijuana.^[16] California Proposition 19 would have gone one step further, and legalized marijuana use by persons over age 21 for any purpose whatsoever;^[17] however, the state constitutional amendment did not pass.

The Obama administration announced in October 2009 that it advised federal prosecutors not to target medicinal marijuana users, or their suppliers, in states that have passed such laws.^[18][19]

Despite this promise, the DEA has continued to raid medical facilities in several states,^[20][21][22] and the DOJ has gone so far as to prevent such cases from being well publicized.^[23]

REAL ID Act

As of March 2010^[update], 25 states (beginning with Maine in 2007) have passed legislation and/or resolutions which opposed the REAL ID Act. Though the legislation is still on the books, its implementation has been delayed on several occasions and is currently not being enforced.^[24]

National health care nullification

As of March 2010^[update], legislators in 30 states had introduced legislation which would declare certain provisions of any proposed national health care bill to be null and void within the state; the legislation passed in Arizona, Idaho, Utah, and Virginia.^[25] Such provisions include mandatory participation in such a system as well as preserving the right of a patient to pay a health care professional for treatment (and for the professional to accept it) outside of a single-payer system. Arizona's legislation passed as a proposed constitutional amendment, approved by voters in 2010.^[26] On February 1, 2010, the Virginia Senate took a stand against a key provision of a proposed federal health care overhaul, passing legislation declaring that Virginia residents cannot be forced to buy health insurance. On March 17, 2010, Idaho Governor C.L. "Butch" Otter signed a bill requiring the Attorney General to sue the federal government if Idaho residents are required to buy health insurance.^[27]

"Bring the Guard home"

As of March 2010^[update], legislators in seven states had introduced legislation which would permit the governor of the state to recall any National Guard troops from overseas deployments (such as in Iraq and Afghanistan); the bills failed in Maryland and New Mexico.^[28]

Constitutional tender

As of March 2010^[update], legislators in seven states have introduced legislation which would seek to nullify federal legal tender laws in the state by authorizing payment in gold and silver or a paper note backed 100% by gold or silver; the legislation failed in Colorado and Montana.^[29]

"Cap-and-trade" nullification

As of March 2010^[update], legislators in four states have introduced legislation which would nullify any proposed federal emissions regulation under the "cap-and-trade" model; none have advanced beyond the introductory stage.^[30]

State sovereignty and federal tax funds acts

As of March 2010^[update], legislators in three states have introduced legislation which would require businesses (and in some cases, individuals) to remit their federal tax payments to the state treasurer (or equivalent body) for deposit into an escrow fund. If the state legislature determined that a portion of the federal budget was not constitutional, or if the federal government imposed penalties or sanctions upon the state for creating the fund, then the money would be withheld. None have advanced beyond the introductory stage.^[31]

"Sheriffs first" legislation

As of March 2010^[update], legislators in three states had introduced legislation which would make it a crime for any federal agent to make an arrest, search or seizure within the state without getting the advance, written permission of the sheriff of the county in which the event would take place. The bills would provide for the following exceptions:

• Actions on federal property
• A federal employee witnesses a crime requiring an immediate arrest
• Actions under either close pursuit or involving immigration
• The person to be apprehended is either an elected county or state officer, an employee of the sheriff's office, or has such close connection with the sheriff that the person is likely to be notified by the sheriff of any impending action.^[32]

None have advanced beyond the introductory stage.^[33]

"Federal land" legislation

As of February 2010^[update], legislators in Utah have introduced legislation to allow the use of eminent domain on federal land. Rep. Christopher Herrod has introduced the bill in a state where the federal government controls over 60% of the land. The effort has the full support of Republican Attorney General Mark Shurtleff, who would have to defend the law. The proposal includes setting aside $3 million for legal defense.^[34][35]

"Nullification of federal intrastate commerce regulation"

As of March 2010^[update], legislators in four states had introduced legislation which would nullify federal regulation of commerce and activities which are solely within the boundaries of a state and which do not cross state lines. The Virginia legislation has passed one house.^[36]

"Sanctuary city"

Another form of protest against enforcement of immigration laws, several United States cities have declared themselves sanctuary cities, whereby they have ordered the local police department to specifically not work with United States Customs and Border Protection officials to arrest persons illegally residing within the boundaries of the city, and to not inquire as to a person's immigration status, even if the person was arrested.^[37]

Intrastate Coal and Use Act

In protest of the Environmental Protection Agency allegedly overstepping its authority by interfering with intrastate commerce, the West Virginia Intrastate Coal and Use Act (H.B. 2554)^[38] was being introduced into the West Virginia House of Delegates by Delegate Gary Howell. The bill states that coal sold and used within the borders of West Virginia is not subject to EPA authority because no interstate commerce exists and the state retains the rights to control its own intrastate commerce under the 10th Amendment.^[39][40][41] The American Legislative Exchange Council recommends the Intrastate Coal and Use Act for model legislation in other states. ^[42]

See also

• Tenther movement
• States' rights

References

1. ^ "The Bill of Rights: A Transcription". United States National Archives and Records Administration. http://www.archives.gov/exhibits/charters/bill_of_rights_transcript.html. Retrieved 20 September 2010. 
2. ^ Yale Law School Avalon Project. "Articles of Confederation from Yale University". http://www.yale.edu/lawweb/avalon/artconf.htm#art2. Retrieved 2008-12-16. 
3. ^ University of Chicago. "House of Representatives, Amendments to the Constitution". http://press-pubs.uchicago.edu/founders/documents/amendXs6.html. Retrieved 2007-12-16. 
4. ^ The Founders Constitution.
5. ^ Gibson v. Matthews, 926 F.2d 532, 537 (6th Cir. 1991): "The ninth amendment was added to the Bill of Rights to ensure that the maxim expressio unius est exclusio alterius would not be used at a later time...."
6. ^ Calabresi, Steven and Prakash, Saikrishna. "The President's Power to Execute the Laws", Yale Law Journal, Vol. 104 (1994): "The message of the Tenth Amendment is that expressio unius est exclusio alterius applies to lists of governmental powers."
7. ^ Henry Lawrence Rollins. "Henry Speaks On His Consciousness-Expanding Trip to the Library of Congress With Ian MacKaye". http://blogs.laweekly.com/westcoastsound/2011/09/henry_rollins_the_column_heave.php. Retrieved 2011-11-16. 
8. ^ Johnston, Kirk. "States’ Rights Is Rallying Cry for Lawmakers" New York Times March 16, 2010
9. ^ "10th Amendment Resolutions – Tenth Amendment Center". Tenthamendmentcenter.com. http://www.tenthamendmentcenter.com/nullification/10th-amendment-resolutions/. Retrieved 2010-11-03. 
10. ^ Not all states require gubernatorial assent of resolutions; in some states a resolution is deemed passed if both houses concur as to the language.
11. ^ "10th Amendment Bills – Tenth Amendment Center". Tenthamendmentcenter.com. 2009-11-16. http://www.tenthamendmentcenter.com/nullification/10th-amendment-bills/. Retrieved 2010-11-03. 
12. ^ "Firearms Freedom Act Legislation – Tenth Amendment Center". Tenthamendmentcenter.com. http://www.tenthamendmentcenter.com/nullification/firearms-freedom-act/. Retrieved 2010-11-03. 
13. ^ "Raising the bar for Nullification – Tenth Amendment Center". Tenthamendmentcenter.com. 2010-02-05. http://www.tenthamendmentcenter.com/2010/02/05/raising-the-bar-for-nullification/. Retrieved 2010-11-03. 
14. ^ "Firearms Freedom Act Introduced in Texas – Tenth Amendment Center Blog". Blog.tenthamendmentcenter.com. 2010-11-16. http://blog.tenthamendmentcenter.com/2010/11/firearms-freedom-act-introduced-in-texas/. Retrieved 2011-01-28. 
15. ^ "House Bill 2705 Text". Legis.state.wv.us. 2011-01-21. http://www.legis.state.wv.us/Bill_Status/bills_text.cfm?billdoc=hb2705%20intr.htm&yr=2011&sesstype=RS&i=2705. Retrieved 2011-01-28. 
16. ^ "State Marijuana Legislation – Tenth Amendment Center". Tenthamendmentcenter.com. http://www.tenthamendmentcenter.com/nullification/marijuana/. Retrieved 2010-11-03. 
17. ^ "Nullification: Ballot Drive for Legal Pot in CA – Tenth Amendment Center Blog". Blog.tenthamendmentcenter.com. 2009-09-23. http://blog.tenthamendmentcenter.com/2009/09/nullification-ballot-drive-for-legal-pot-in-ca/#. Retrieved 2010-11-03. 
18. ^ David W. Ogden (19 October 2009). "Memorandum for Selected United States Attorneys - Investigations and Prosecutions in States Authorizing the Medical Use of Marijuana" (PDF). United States Department of Justice. http://www.justice.gov/opa/documents/medical-marijuana.pdf. Retrieved 20 September 2010. 
19. ^ "Obama Won't Seek to Arrest Medical Pot Users". Fox News. October 19, 2009. http://www.foxnews.com/politics/2009/10/19/obama-wont-seek-arrest-medical-pot-users. 
20. ^ "Feds Raid Medical Marijuana Dispensaries In Michigan". Toke of the Town. April 12, 2011. http://www.tokeofthetown.com/2011/04/feds_raid_medical_marijuana_dispensaries_in_michig.php. 
21. ^ "Montana Medical Marijuana Federal Raid Protests". Montana Norml. March 15, 2011. http://blog.montananorml.org/2011/03/15/montana-medical-marijuana-federal-raid-protests/. 
22. ^ "Weho Medical Marijuana Collectives Closed After DEA Raid". West Hollywood Patch. March 16, 2011. http://westhollywood.patch.com/articles/weho-medical-cannabis-collectives-closed-after-dea-raid. 
23. ^ "Speak no evil: DEA, DOJ stay mum on medical marijuana raids". The Daily Caller. February 10, 2011. http://dailycaller.com/2010/09/13/speak-no-evil-dea-doj-stay-mum-on-medical-marijuana-raids/. 
24. ^ "Real ID Nullification Legislation – Tenth Amendment Center". Tenthamendmentcenter.com. http://www.tenthamendmentcenter.com/nullification/real-id/. Retrieved 2010-11-03. 
25. ^ "Health Care Freedom Act – Tenth Amendment Center". Tenthamendmentcenter.com. http://www.tenthamendmentcenter.com/nullification/health-care/. Retrieved 2010-11-03. 
26. ^ "Arizona HCR2014: National Health Care Nullification – Tenth Amendment Center". Tenthamendmentcenter.com. 2009-06-26. http://www.tenthamendmentcenter.com/2009/06/26/arizona-hcr2014-national-health-care-nullification/. Retrieved 2010-11-03. 
27. ^ Miller, John, AP (March 18, 2010). Idaho First to Sign Law against Health Care Reform. ABC News.
28. ^ "Bring the Guard Home Legislation – Tenth Amendment Center". Tenthamendmentcenter.com. http://www.tenthamendmentcenter.com/nullification/bring-the-guard-home/. Retrieved 2010-11-03. 
29. ^ "Constitutional Tender Legislation – Tenth Amendment Center". Tenthamendmentcenter.com. http://www.tenthamendmentcenter.com/nullification/constitutional-tender/. Retrieved 2010-11-03. 
30. ^ "Cap and Trade Nullification Legislation – Tenth Amendment Center". Tenthamendmentcenter.com. http://www.tenthamendmentcenter.com/nullification/cap-and-trade/. Retrieved 2010-11-03. 
31. ^ "State Sovereignty and Federal Tax Funds Act – Tenth Amendment Center". Tenthamendmentcenter.com. http://www.tenthamendmentcenter.com/nullification/federal-tax-funds-act/. Retrieved 2010-11-03. 
32. ^ "Sheriffs First". Sheriffs First. http://sheriffsfirst.com/. Retrieved 2011-01-28. 
33. ^ "Sheriffs First Legislation – Tenth Amendment Center". Tenthamendmentcenter.com. http://www.tenthamendmentcenter.com/nullification/sheriffs-first-legislation/. Retrieved 2010-11-03. 
34. ^ Vergaris, Brock, AP (February 11, 2010). Utah Lawmakers Want Federal Land Returned to State. ABC News.
35. ^ Carltom, Jim (March 30, 2010). Federal Land Seizures Urged by Utah Governor. Wall Street Journal.
36. ^ "Nullification of Federal Intrastate Commerce Regulation – Tenth Amendment Center". Tenthamendmentcenter.com. http://www.tenthamendmentcenter.com/nullification/nullification-of-intrastate-commerce-regulation/. Retrieved 2010-11-03. 
37. ^ Fimrite, Peter (2011-01-07). "Newsom says S.F. won't help with raids". SFGate.com (San Francisco Chronicle). http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2007/04/23/BAGOHPDLLT1.DTL. Retrieved 8 March 2011. 
38. ^ "House Bill 2554 Text". Legis.state.wv.us. 2011-01-19. http://www.legis.state.wv.us/Bill_Status/bills_text.cfm?billdoc=hb2554%20intr.htm&yr=2011&sesstype=RS&i=2554. Retrieved 2011-01-28. 
39. ^ "Can a State Bypass the EPA? - Jillian Bandes - Townhall Conservative". Townhall.com. http://townhall.com/columnists/column.aspx?n=JillianBandes&year=2010&month=12&day=15&title=can_a_state_bypass_the_epa&showfull=true&page=full. Retrieved 2011-01-28. 
40. ^ Emily Newman (2010-12-29). "Delegate proposes coal permit act » Local News » Cumberland Times-News". Times-news.com. http://times-news.com/local/x2131358023/Delegate-proposes-coal-permit-act. Retrieved 2011-01-28. 
41. ^ "1/18/11: House discusses coal permitting and school funding". YouTube. 1982-05-20. http://www.youtube.com/watch?v=j9vE__QfKGk. Retrieved 2011-01-28. 
42. ^ http://www.alec.org/AM/Template.cfm?Section=epatrainwreck

External links

• CRS Annotated Constitution: Tenth Amendment Cornell's Annotated Constitution.
• Tenth Amendment Center The Tenth Amendment Center works to preserve and protect Tenth Amendment freedoms through information and education. The center serves as a forum for the study and exploration of states’ rights issues, focusing primarily on the decentralization of federal government power.
• Exploring Constitutional Conflicts by Doug Lindner: This site explores some of the issues and controversies that surround the U.S. Constitution.
• Missouri Sovereignty Project "Institutionalizing" the 10th Amendment into the populace and political fabrics of Missouri.

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