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 1937, in its decisions sustaining the Social Security Act1 and the National Labor Relations Act,2 the Supreme Court retreated from the conception of the Tenth Amendment embraced in Hammer v. Dagenhart. Following this so-called “switch in time that saved nine,” 3 the Court generally upheld federal economic regulation as supported by the Commerce Clause, without regard to whether the object of the legislation might be said to intrude upon traditional state authority.
United States v. Darby,4 which overruled Hammer v. Dagenhart, is perhaps the clearest expression of this view of the Tenth Amendment. In upholding Congress’s power to enact the Fair Labor Standards Act, Chief Justice Harlan Stone wrote for a unanimous court:
It is no objection to the assertion of the power to regulate interstate commerce that its exercise is attended by the same incidents which attended the exercise of the police power of the states. . . . Our conclusion is unaffected by the Tenth Amendment which . . . 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.5
A few years after Darby, the Court stated directly that “the Tenth Amendment ‘does not operate as a limitation upon the powers, express or implied, delegated to the national government.’” 6 From the 1940s through the 1970s, the Court followed Darby and its progeny to summarily dismiss Tenth Amendment challenges based on the argument that otherwise valid federal laws intruded upon state police power over local matters reserved to the states through the Tenth Amendment.7
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Footnotes
- 1
- Steward Mach. Co. v. Davis, 301 U.S. 548 (1937); Helvering v. Davis, 301 U.S. 619 (1937).
- 2
- NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937); see ArtI.S8.C3.5.8 National Labor Relations Act of 1935.
- 3
- See John R. Vile, Truism, Tautology or Vital Principle? The Tenth Amendment Since United States v. Darby, 27 Cumb. L. Rev. 445, 457–58 (1997) (reviewing this history with respect to the Tenth Amendment).
- 4
- 312 U.S. 100 (1941); accord United States v. Carolene Prods. Co., 304 U.S. 144, 147 (1938).
- 5
- Darby, 312 U.S. at 114, 123–24. For cases anticipating Darby's holding, see Wright v. Union Cent. Life Ins. Co., 304 U.S. 502, 516–17 (1938); Tenn. Elec. Power Co. v. TVA, 306 U.S. 118, 143–44 (1939); United States v. Appalachian Elec. Power Co., 311 U.S. 377 (1940) ( “So long as the things done within the states by the United States are valid under [Commerce Clause power], there can be no interference with the sovereignty of the state.” ).
- 6
- Case v. Bowles, 327 U.S. 92, 102 (1946) (quoting Fernandez v. Wiener, 326 U.S. 340, 362 (1945)).
- 7
- See, e.g., Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U.S. 508, 534 (1941); Nw. Elec. Co. v. Fed. Power Comm’n, 321 U.S. 119, 125 (1944); Oklahoma v. U.S. Civil Serv. Comm’n, 330 U.S. 127, 143 (1947); United Pub. Workers of Am. (C.I.O.) v. Mitchell, 330 U.S. 75, 95–96 (1947); Granville-Smith v. Granville-Smith, 349 U.S. 1, 27 (1955); Roth v. United States, 354 U.S. 476, 492–93 (1957); Reina v. United States, 364 U.S. 507, 511 (1960); United States v. Oregon, 366 U.S. 643, 649 (1961); Sperry v. Florida ex rel. Fla. Bar, 373 U.S. 379, 403 (1963); Perez v. United States, 402 U.S. 146, 151 (1971); Fry v. United States, 421 U.S. 542, 547 n.7 (1975).