Because the Tenth Amendment concerns the relationship between the federal government’s powers and those powers reserved to the states, it is sometimes invoked—implicitly or explicitly—in cases exploring the limits of Congress’s various enumerated powers.1 These decisions are primarily addressed elsewhere in the Constitution Annotated under the particular enumerated federal power at issue.2

The key issue in Tenth Amendment doctrine, as such, is whether the Amendment imposes affirmative limitations on federal power beyond the limits inherent in the various enumerated powers themselves. In other words, assuming that an enumerated power supports congressional action in a particular area, may the Tenth Amendment (or the federalism principles it confirms3 ) nonetheless render the legislation beyond federal power? And, if so, what are the contours of the limitations that the Tenth Amendment imposes?

The Supreme Court’s jurisprudence on these questions has not followed a straight line.4 At times, the Court has stated that the Tenth Amendment lacks substantive constitutional content and “does not operate as a limitation upon the powers, express or implied, delegated to the national government.” 5 At other times, the Court has found affirmative federalism limitations in the Amendment, invalidating federal statutes “not because Congress lacked legislative authority over the subject matter, but because those statutes violated the principles of federalism contained in the Tenth Amendment.” 6

The Supreme Court’s Tenth Amendment jurisprudence has gone through several cycles over its history. In the nineteenth century, Chief Justice John Marshall’s landmark opinion in McCulloch v. Maryland rejected the notion that the Tenth Amendment denied implied or incidental powers to the federal government, adopting an approach to assessing congressional power focused not on the Tenth Amendment itself, but the larger constitutional context.7

In the early twentieth century, the Court relied on the Tenth Amendment to strike down various economic regulations as invasive of the police power reserved to the states by the Amendment.8 Beginning in the late 1930s, many of these decisions were overruled or limited as the Court embraced a broader conception of Congress’s Commerce Clause power, along with the view that the Tenth Amendment does not bar federal action that is necessary and proper to the exercise of federal power.9

Tenth Amendment doctrine then laid largely dormant until the mid-1970s. In National League of Cities v Usery, the Court relied on the Amendment to hold that Congress may not use its commerce power to “directly displace the States’ freedom to structure integral operations in areas of traditional governmental functions.” 10 Less than a decade later in Garcia v. San Antonio Metropolitan Transit Authority, however, the Court overruled National League of Cities as “unworkable” and “inconsistent with established principles of federalism,” 11 while implying that the Tenth Amendment lacked any judicially enforceable protections for state sovereignty.12

In the 1990s, the Court changed course again, holding in New York v. United States that the Tenth Amendment prohibits Congress from “commandeering” the states—that is, directly compelling them to enact or enforce a federal regulatory program.13 The resulting “anti-commandeering” doctrine has been the subject of a line of Supreme Court cases continuing to the present.14

Footnotes

1

See, e.g., United States v. Morrison, 529 U.S. 598, 618 (2000) ( “[W]e can think of no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims.” ).

2

See, e.g., ArtI.S8.C1.1.1 Overview of Taxing Clause; ArtI.S8.C1.2.1 Overview of Spending Clause; ArtI.S8.C3.6.1 United States v. Lopez and Interstate Commerce Clause.

3

See New York v. United States, 505 U.S. 144, 156 (1992) (finding that the Tenth Amendment “restrains the power of Congress . . . but this limit is not derived from the text of the Tenth Amendment itself” ).

4

Id. at 160 ( “The Court’s [ Tenth Amendment jurisprudence] has traveled an unsteady path.” ); Morrison, 529 U.S. at 645 (Souter, J., dissenting) ( “[H]istory seems to be recycling, for the theory of traditional state concern as grounding a limiting principle [based on the Tenth Amendment] has been rejected previously, and more than once.” ).

5

Fernandez v. Wiener, 326 U.S. 340, 362 (1945); accord United States v. Darby, 312 U.S. 100, 124 (1941).

6

Reno v. Condon, 528 U.S. 141, 149 (2000); accord New York, 505 U.S. at 157, 166 ( “[E]ven where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts.” ).

7

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 406 (1819) ( “[The Tenth Amendment] thus leav[es] the question, whether the particular power which may become the subject of contest, has been delegated to the one government, or prohibited to the other, to depend on a fair construction of the whole [Constitution].” ).

8

See, e.g., Hammer v. Dagenhart, 247 U.S. 251, 274 (1918) (invalidating federal prohibition on interstate trafficking in goods produced by child labor as invading “the local power always existing and carefully reserved to the states in the Tenth Amendment to the Constitution.” ), overruled by Darby, 312 U.S. at 117; United States v. Butler, 297 U.S. 1, 68 (1936) (relying on Tenth Amendment to hold tax provision in Agricultural Adjustment Act unconstitutional because it “invades the reserved rights of the states” ).

9

See, e.g., Darby, 312 U.S. at 124 ( “From the beginning and for many years the [Tenth] amendment has been construed as not depriving the national government of authority to resort to all means for the exercise of a granted power which are appropriate and plainly adapted to the permitted end.” ) (citing McCulloch, 17 U.S. at 405–06).

10

Nat’l League of Cities v. Usery, 426 U.S. 833, 852 (1976), overruled by Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985).

11

Garcia, 469 U.S. at 531.

12

Id. at 549–52.

13

505 U.S. 144, 161 (1992) (quoting Hodel v. Va. Surface Mining & Reclamation Ass’n, 452 U.S. 264, 288 (1981)).

14

See, e.g., Murphy v. NCAA, No. 16-476 (U.S. May 14, 2018); Printz v. United States, 521 U.S. 898 (1997).