State Sovereignty and Tenth Amendment

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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.

Beginning in the mid-1970s, the Supreme Court relied on the Tenth Amendment to analyze congressional enactments alleged to intrude not upon state police power, but upon state sovereignty—such as whether Congress may apply general economic regulations to states and state instrumentalities.

In 1976, the Court revived the Tenth Amendment as an independent constitutional constraint in National League of Cities v. Usery.1 The Court conceded that the legislation at issue—the Fair Labor Standards Act’s minimum wages and maximum hours requirements (the same law upheld in Darby, but applied to state and local governmental employees)—was “undoubtedly within the scope of the Commerce Clause.” 2 But the Court found that “there are attributes of sovereignty attaching to every state government which may not be impaired by Congress, not because Congress may lack an affirmative grant of legislative authority to reach the matter, but because the Constitution prohibits it from exercising the authority in that manner.” 3 The Court concluded that the “power to determine the wages which shall be paid to those whom [states] employ in order to carry out their governmental functions” was such an area of inviolable state sovereignty.4 As a result, as applied to certain state employees, the law was “not within the authority granted Congress.” 5 National League of Cities implied that the Tenth Amendment was the source of its protections for state sovereignty,6 distinguishing Darby's dismissal of the Tenth Amendment as a “truism.” 7

Following National League of Cities (itself a 5-4 decision), the Court applied the doctrine in a series of opinions, many closely divided, over roughly a decade.8 Although much of this law does not survive the subsequent overturning of National League of Cities, some of the Court’s holdings in these cases may have continuing application. In Hodel v. Virginia Surface Mining & Reclamation Ass’n, for instance, the Court clarified that Tenth Amendment protections apply only when Congress regulates “States as States,” and not merely the activities of private individuals or business.9 In Bell v. New Jersey, the Court held that state sovereignty protections under the Tenth Amendment did not apply to “obligations voluntarily assumed as a condition of federal funding.” 10 Several decisions also held that National League of Cities did not apply to congressional power under the Reconstruction Amendments.11

In 1985, the Court overruled National League of Cities in Garcia v. San Antonio Metropolitan Transit Authority.12 Justice Harry Blackmun’s opinion for the Court concluded that National League of Cities’ test, focusing on state authority over its “traditional governmental functions,” had proven “both impractical and doctrinally barren.” 13 With only passing reference to the Tenth Amendment, the Court in effect reverted to the Madisonian view of the Amendment reflected in United States v. Darby.14

Under Garcia, states retain their sovereign authority “only to the extent that the Constitution has not divested them of their original powers and transferred those powers to the Federal Government.” 15 Garcia therefore held that application of the Fair Labor Standards Act’s minimum wage and overtime provisions to state employees was within Congress’s power under the Commerce Clause.

Taking a restrained view of judicial authority to invalidate federal laws, Garcia stated that the principal limits on congressional exercise of the commerce power against states are not judicial, but instead found in the federal government’s structure and the political process.16 Garcia did allow that there might be some “affirmative limits the constitutional structure might impose on federal action affecting the States,” but concluded that “[t]hese cases do not require us to identify or define” them.17

1: 426 U.S. 833 (1976), overruled by Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985).
2: Id. at 841.
3: Id. at 845.
4: Id.
5: Id. at 832.
6: Id. at 843 ( “The [Tenth] Amendment expressly declares the constitutional policy that Congress may not exercise power in a fashion that impairs the States’ integrity or their ability to function effectively in a federal system.” (quoting Fry v. United States, 421 U.S. 542, 547 n. 7 (1975)).
Although National League of Cities is not entirely clear that the Tenth Amendment is the basis for its doctrine, the dissent in that case, as well as subsequent Court decisions, treat the opinion as based on the Tenth Amendment. Id. at 862 (Justice William Brennan, dissenting); FERC v. Mississippi, 456 U.S. 742, 776 (1982) (Justice Sandra Day O’Connor, dissenting); EEOC v. Wyoming, 460 U.S. 226, 235 (1983) (referring to “the doctrine of Tenth Amendment immunity articulated in National League of Cities v. Usery” ).
7: Nat’l League of Cities, 426 at 842–43 ( “[The Tenth Amendment] is not without significance.” (quoting Fry, 421 U.S. at 547 n.7)).
8: See, e.g., FERC, 456 U.S. 742; EEOC, 460 U.S. 226; see also United Transp. Union v. LIRR, 455 U.S. 678 (1982).
9: 452 U.S. 264, 287 (1981); accord Hodel v. Indiana, 452 U.S. 314, 330 (1981).
10: 461 U.S. 773, 790 (1983). Cf. Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 577–82 (2012) (plurality opinion).
11: Fitzpatrick v. Bitzer, 427 U.S. 445, 452–56 (1976); Milliken v. Bradley, 433 U.S. 267, 291 (1977); Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 690 n.54 (1978); City of Rome v. United States, 446 U.S. 156, 178–79 (1980); Fullilove v. Klutznick, 448 U.S. 448, 476–78 (1980) (plurality opinion of Burger, C.J.). Cf. Shelby Cnty. v. Holder, 570 U.S. 529, 543–45 (2013).
12: 469 U.S. 528 (1985). The issue was again decided by a 5-4 vote, with Justice Harry Blackmun’s qualified acceptance of the National League of Cities approach having changed to a rejection.
13: Id. at 557.
14: 312 U.S. 100, 124 (1941); see Amdt10.3.3 Tenth Amendment and Darby. Madison’s views were quoted by the Court in Garcia, 469 U.S. at 549.
15: 469 U.S. at 549.
16: Id. at 550–51.
17: Id. at 556. Beginning in the 1990s, the Court began to identify and define these affirmative limitations. See Amdt10.4.2 Anti-Commandeering Doctrine.