Tenth Amendment--Reserved Powers

[[Page 1507]]


                             TENTH AMENDMENT

                               __________

                             RESERVED POWERS

                               __________


                                CONTENTS

                                                                    Page
        Reserved Powers...........................................  1509
        Scope and Purpose.........................................  1509
        Effect of Provision on Federal Powers.....................  1510
                Federal Taxing Powers.............................  1510
                Federal Police Power..............................  1511
                Federal Regulations Affecting State Activities and
                    Instrumentalities.............................  1514


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                             TENTH AMENDMENT

                             RESERVED POWERS

                               __________

  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.

                             RESERVED POWERS

      Scope and Purpose

        ``The Tenth Amendment was intended to confirm the understanding
of the people at the time the Constitution was adopted, that powers not
granted to the United States were reserved to the States or to the
people. It added nothing to the instrument as originally ratified.''\1\
``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.''\2\ That this provision was not conceived
to be a yardstick for measuring the powers granted to the Federal
Government or reserved to the States was firmly settled by the refusal
of both Houses of Congress to insert the word ``expressly'' before the
word ``delegated,''\3\ and was confirmed by Madison's remarks in the
course of the debate which took place while the proposed amendment was
pending concerning Hamilton's plan to establish a national bank.
``Interference with the power of the States was no constitutional
criterion of the power of Congress. If the power was not

[[Page 1510]]
given, Congress could not exercise it; if given, they might exercise it,
although it should interfere with the laws, or even the Constitutions of
the States.''\4\ Nevertheless, for approximately a century, from the
death of Marshall until 1937, the Tenth Amendment was frequently invoked
to curtail powers expressly granted to Congress, notably the powers to
regulate commerce, to enforce the Fourteenth Amendment, and to lay and
collect taxes.

        \1\United States v. Sprague, 282 U.S. 716, 733 (1931).
        \2\United States v. Darby, 312 U.S. 100, 124 (1941). ``While the
Tenth Amendment has been characterized as a `truism,'' stating merely
that `all is retained which has not been surrendered,' [citing Darby],
it is not without significance. The 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.'' Fry v. United States, 421 U.S. 542,
547 n.7 (1975). This policy was effectuated, at least for a time, in
National League of Cities v. Usery, 426 U.S. 833 (1976).
        \3\Annals of Congress 767-68 (1789) (defeated in House 17 to
32); 2 B. Schwartz, The Bill of Rights: A Documentary History 1150-51
(1971) (defeated in Senate by unrecorded vote).
        \4\2 Annals of Congress 1897 (1791).
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        In McCulloch v. Maryland,\5\ Marshall rejected the proffer of a
Tenth Amendment objection and offered instead an expansive
interpretation of the necessary and proper clause\6\ to counter the
argument. The counsel for the State of Maryland cited fears of opponents
of ratification of the Constitution about the possible swallowing up of
states' rights and referred to the Tenth Amendment to allay these
apprehensions, all in support of his claim that the power to create
corporations was reserved by that Amendment to the States.\7\ Stressing
the fact that the Amendment, unlike the cognate section of the Articles
of Confederation, omitted the word ``expressly'' as a qualification of
granted powers, Marshall declared that its effect was to leave 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 upon a fair construction of the whole instrument.''\8\

        \5\17 U.S. (4 Wheat.) 316 (1819).
        \6\Supra, pp.339-44.
        \7\McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 372 (1819)
(argument of counsel).
        \8\Id. at 406. ``From the beginning and for many years the
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.'' United
States v. Darby, 312 U.S. 100, 124 (1941).
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      Effect of Provision on Federal Powers

        Federal Taxing Power.--Not until after the Civil War was the
idea that the reserved powers of the States comprise an independent
qualification of otherwise constitutional acts of the Federal Government
actually applied to nullify, in part, an act of Congress. This result
was first reached in a tax case--Collector v. Day.\9\ Holding that a
national income tax, in itself valid, could not be constitutionally
levied upon the official salaries of state officers, Justice Nelson made
the sweeping statement that ``the States within the limits of their
powers not granted, or, in the language of the Tenth Amendment,
`reserved,' are as independent of the general government as that
government within its sphere is independent of

[[Page 1511]]
the States.''\10\ In 1939, Collector v. Day was expressly overruled.\11\
Nevertheless, the problem of reconciling state and national interest
still confronts the Court occasionally, and was elaborately considered
in New York v. United States,\12\ where, by a vote of six-to-two, the
Court upheld the right of the United States to tax the sale of mineral
waters taken from property owned by a State. Speaking for four members
of the Court, Chief Justice Stone justified the tax on the ground that
``[t]he national taxing power would be unduly curtailed if the State, by
extending its activities, could withdraw from it subjects of taxation
traditionally within it.''\13\ Justices Frankfurter and Rutledge found
in the Tenth Amendment ``no restriction upon Congress to include the
States in levying a tax exacted equally from private persons upon the
same subject matter.''\14\ Justices Douglas and Black dissented, saying:
``If the power of the federal government to tax the States is conceded,
the reserved power of the States guaranteed by the Tenth Amendment does
not give them the independence which they have always been assumed to
have.''\15\

        \9\78 U.S. (11 Wall.) 113 (1871).
        \10\Id. at 124.
        \11\Graves v. New York ex rel. O'Keefe, 306 U.S 466 (1939). The
Internal Revenue Service is authorized to sue a state auditor personally
and recover from him an amount equal to the accrued salaries which,
after having been served with notice of levy, he paid to state employees
delinquent in their federal income tax. Sims v. United States, 359 U.S.
108 (1959).
        \12\326 U.S. 572 (1946).
        \13\Id. at 589.
        \14\Id. at 584.
        \15\Id. at 595. Most recently, the issue was canvassed, but
inconclusively, in Massachusetts v. United States, 435 U.S. 444 (1978).
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        Federal Police Power.--A year before Collector v. Day was
decided, the Court held invalid, except as applied in the District of
Columbia and other areas over which Congress has exclusive authority, a
federal statute penalizing the sale of dangerous illuminating oils.\16\
The Court did not refer to the Tenth Amendment. Instead, it asserted
that the ``express grant of power to regulate commerce among the States
has always been understood as limited by its terms; and as a virtual
denial of any power to interfere with the internal trade and business of
the separate States; except, indeed, as a necessary and proper means for
carrying into execution some other power expressly granted or
vested.''\17\ Similarly, in the Employers' Liability Cases,\18\ an act
of Congress making every carrier engaged in interstate commerce liable
to ``any'' employee, including those whose activities related solely to
intrastate activities, for injuries caused by negligence, was held
unconstitutional by a

[[Page 1512]]
closely divided Court, without explicit reliance on the Tenth Amendment.
Not until it was confronted with the Child Labor Law, which prohibited
the transportation in interstate commerce of goods produced in
establishments in which child labor was employed, did the Court hold
that the state police power was an obstacle to adoption of a measure
which operated directly and immediately upon interstate commerce. In
Hammer v. Dagenhart,\19\ five members of the Court found in the Tenth
Amendment a mandate to nullify this law as an unwarranted invasion of
the reserved powers of the States. This decision was expressly overruled
in United States v. Darby.\20\

        \16\United States v. Dewitt, 76 U.S. (9 Wall.) 41 (1870).
        \17\Id. at 44.
        \18\207 U.S. 463 (1908). See also Keller v. United States, 213
U.S. 138 (1909).
        \19\247 U.S. 251 (1918).
        \20\312 U.S. 100 (1941).
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        During the twenty years following Hammer v. Dagenhart, a variety
of measures designed to regulate economic activities, directly or
indirectly, were held void on similar grounds. Excise taxes on the
profits of factories in which child labor was employed,\21\ on the sale
of grain futures on markets which failed to comply with federal
regulations,\22\ on the sale of coal produced by nonmembers of a coal
code established as a part of a federal regulatory scheme,\23\ and a tax
on the processing of agricultural products, the proceeds of which were
paid to farmers who complied with production limitations imposed by the
Federal Government,\24\ were all found to invade the reserved powers of
the States. In Schechter Corp. v. United States,\25\ the Court, after
holding that the commerce power did not extend to local sales of
poultry, cited the Tenth Amendment to refute the argument that the
existence of an economic emergency justified the exercise of what Chief
Justice Hughes called ``extraconstitutional authority.''\26\

        \21\Child Labor Tax Case, 259 U.S. 20, 26, 38 (1922).
        \22\Hill v. Wallace, 259 U.S. 44 (1922). See also Trusler v.
Crooks, 269 U.S. 475 (1926).
        \23\Carter v. Carter Coal Co., 298 U.S. 238 (1936).
        \24\United States v. Butler, 297 U.S. 1 (1936).
        \25\295 U.S. 495 (1935).
        \26\Id. at 529.
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        In 1941, the Court came full circle in its exposition of this
Amendment. Having returned four years earlier to the position of John
Marshall when it sustained the Social Security Act\27\ and National
Labor Relations Act,\28\ it explicitly restated Marshall's thesis in
upholding the Fair Labor Standards Act in United States v. Darby.\29\
Speaking for a unanimous Court, Chief Justice Stone

[[Page 1513]]
wrote: ``The power of Congress over interstate commerce `is complete in
itself, may be exercised to its utmost extent, and acknowledges no
limitations other than are prescribed in the Constitution.' . . . That
power can neither be enlarged nor diminished by the exercise or non-
exercise of state power. . . . 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.''\30\

        \27\Steward Machine Co. v. Davis, 301 U.S. 548 (1937); Helvering
v. Davis, 301 U.S. 619 (1937).
        \28\NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937).
        \29\312 U.S. 100 (1941). See also United States v. Carolene
Products Co., 304 U.S. 144, 147 (1938); Case v. Bowles, 327 U.S. 92, 101
(1946).
        \30\312 U.S. 100, 114, 123, 124 (1941). See also Fernandez v.
Wiener, 326 U.S. 340, 362 (1945).
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        But even prior to 1937 not all measures taken to promote
objectives which had traditionally been regarded as the responsibilities
of the States had been held invalid. In Hamilton v. Kentucky
Distilleries Co.,\31\ a unanimous Court, speaking by Justice Brandeis,
upheld ``War Prohibition,'' saying: ``That the United States lacks the
police power, and that this was reserved to the States by the Tenth
Amendment, is true. But it is nonetheless true that when the United
States exerts any of the powers conferred upon it by the Constitution,
no valid objection can be based upon the fact that such exercise may be
attended by the same incidents which attend the exercise by a State of
its police power.''\32\ And in a series of cases, which today seem
irreconcilable with Hammer v. Dagenhart, it sustained federal laws
penalizing the interstate transportation of lottery tickets,\33\ of
women for immoral purposes,\34\ of stolen automobiles,\35\ and of tick-
infected cattle,\36\ as well as a statute prohibiting the mailing of
obscene matter.\37\ It affirmed the power of Congress to punish the
forgery of bills of lading purporting to cover interstate shipments of
merchandise,\38\ to subject prison-made goods moved from one State to
another to the laws of the receiving State,\39\ to regulate
prescriptions for the medicinal use of liquor as an appropriate measure
for the enforcement of the Eighteenth Amendment,\40\ and to control
extortionate means of collecting and attempting to collect payments on
loans, even when all aspects of the credit transaction took place within
one

[[Page 1514]]
State's boundaries.\41\ More recently, the Court upheld provisions of
federal surface mining law that could be characterized as ``land use
regulation'' traditionally subject to state police power regulation.\42\

        \31\251 U.S. 146 (1919).
        \32\Id. at 156.
        \33\Lottery Case (Champion v. Ames), 188 U.S. 321 (1903).
        \34\Hoke v. United States, 227 U.S. 308 (1913).
        \35\Brooks v. United States, 267 U.S. 432 (1925).
        \36\Thornton v. United States, 271 U.S. 414 (1926).
        \37\Roth v. United States, 354 U.S. 476 (1957).
        \38\United States v. Ferger, 250 U.S. 199 (1919).
        \39\Kentucky Whip & Collar Co. v. Illinois C. R.R., 299 U.S. 334
(1937).
        \40\Everard's Breweries v. Day, 265 U.S. 545 (1924).
        \41\Perez v. United States, 402 U.S. 146 (1971).
        \42\Hodel v. Virginia Surface Mining & Recl. Ass'n, 452 U.S. 264
(1981).
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        Notwithstanding these federal inroads into powers otherwise
reserved to the States, the Court has held that Congress could not
itself undertake to punish a violation of state law; in United States v.
Constantine,\43\ a grossly disproportionate excise tax imposed on retail
liquor dealers carrying on business in violation of local law was held
unconstitutional. However, Congress does not contravene reserved state
police powers when it levies an occupation tax on all persons engaged in
the business of accepting wagers regardless of whether those persons are
violating state law, and imposes severe penalties for failure to
register and pay the tax.\44\

        \43\296 U.S. 287 (1935). The Civil Rights Act of 1875, which
made it a crime for one person to deprive another of equal
accommodations at inns, theaters or public conveyances was found to
exceed the powers conferred on Congress by the Thirteenth and Fourteenth
Amendments and hence to be an unlawful invasion of the powers reserved
to the States by the Tenth Amendment. Civil Rights Cases, 109 U.S. 3, 15
(1883). Congress has now accomplished this end under its commerce
powers, Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964);
Katzenbach v. McClung, 379 U.S. 294 (1964), but it is clear that the
rationale of the Civil Rights Cases has been greatly modified if not
severely impaired. Cf. Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968)
(13th Amendment); Griffin v. Breckenridge, 403 U.S. 88 (1971) (13th
Amendment); United States v. Guest, 383 U.S. 745 (1966) (14th
Amendment).
        \44\United States v. Kahriger, 345 U.S. 22, 25-26 (1953); Lewis
v. United States, 348 U.S. 419 (1955).
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        Federal Regulations Affecting State Activities and
Instrumentalities.--Since the mid-1970s, the Court has been closely
divided over whether the Tenth Amendment or related constitutional
doctrine constrains congressional authority to subject state activities
and instrumentalities to generally applicable requirements enacted
pursuant to the commerce power.\45\ Under Garcia v. San Antonio
Metropolitan Transit Authority,\46\ the Court's most recent ruling
directly on point, the Tenth Amendment imposes practically no judicially
enforceable limit on generally applicable federal legislation, and
states must look to the political process for redress. Garcia, however,
like National League of Cities v. Usery,\47\ the case it overruled, was
a 5-4 decision, and there are recent indications that the Court may be
ready to resurrect some form of Tenth Amendment constraint on Congress.

        \45\The matter is discussed more fully supra, pp.922-30.
        \46\469 U.S. 528 (1985).
        \47\426 U.S. 833 (1976).
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        In National League of Cities v. Usery, the Court conceded that
the legislation under attack, which regulated the wages and hours

[[Page 1515]]
of certain state and local governmental employees, was ``undoubtedly
within the scope of the Commerce Clause,''\48\ but it cautioned 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.''\49\ The Court approached but did not reach
the conclusion that the Tenth Amendment was the prohibition here, not
that it directly interdicted federal power because power which is
delegated is not reserved, but that it implicitly embodied a policy
against impairing the States' integrity or ability to function.\50\ But,
in the end, the Court held that the legislation was invalid, not because
it violated a prohibition found in the Tenth Amendment or elsewhere, but
because the law was ``not within the authority granted Congress.''\51\
In subsequent cases applying or distinguishing National League of
Cities, the Court and dissenters wrote as if the Tenth Amendment was the
prohibition.\52\ Whatever the source of the constraint, it was held not
to limit the exercise of power under the Reconstruction Amendments.\53\

        \48\Id. at 841.
        \49\Id. at 845.
        \50\Id. at 843.
        \51\Id. at 852.
        \52\E.g., FERC v. Mississippi, 456 U.S. 742, 771 (1982) (Justice
Powell dissenting); id. at 775 (Justice O'Connor dissenting); EEOC v.
Wyoming, 460 U.S. 226 (1983). The EEOC Court distinguished National
League of Cities, holding that application of the Age Discrimination in
Employment Act to state fish and game wardens did not directly impair
the state's ability to structure integral operations in areas of
traditional governmental function, since the state remained free to
assess each warden's fitness on an individualized basis and retire those
found unfit for the job.
        \53\Fitzpatrick v. Bitzer, 427 U.S. 445 (1976); City of Rome v.
United States, 446 U.S. 156 (1980); Fullilove v. Klutznick, 448 U.S.
448, 476-78 (1980) (plurality opinion of Chief Justice Burger).
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        The Court overruled National League of Cities in Garcia v. San
Antonio Metropolitan Transit Auth.\54\ Justice Blackmun's opinion for
the Court in Garcia concluded that the National League of Cities test
for ``integral operations in areas of traditional governmental
functions'' had proven ``both impractical and doctrinally barren,'' and
that the Court in 1976 had ``tried to repair what did not need
repair.''\55\ With only passing reference to the Tenth Amendment the
Court nonetheless clearly reverted to the Madisonian view of the
Amendment reflected in Unites States v. Darby.\56\ States retain a
significant amount of sovereign authority

[[Page 1516]]
``only to the extent that the Constitution has not divested them of
their original powers and transferred those powers to the Federal
Government.''\57\ The principal restraints on congressional exercise of
the Commerce power are to be found not in the Tenth Amendment or in the
Commerce Clause itself, but in the structure of the Federal Government
and in the political processes.\58\ ``Freestanding conceptions of state
sovereignty'' such as the National League of Cities test subvert the
federal system by ``invit[ing] an unelected federal judiciary to make
decisions about which state policies it favors and which ones it
dislikes.''\59\ While continuing to recognize that ``Congress' authority
under the Commerce Clause must reflect [the] position . . . that the
States occupy a special and specific position in our constitutional
system,'' the Court held that application of Fair Labor Standards Act
minimum wage and overtime provisions to state employment does not
require identification of these ``affirmative limits.''\60\ In sum, the
Court in Garcia seems to have said that most but not necessarily all
disputes over the effects on state sovereignty of federal commerce power
legislation are to be considered political questions. What it would take
for legislation to so threaten the ``special and specific position''
that states occupy in the constitutional system as to require judicial
rather than political resolution was not delineated.

        \54\469 U.S. 528 (1985). The issue was again decided by a 5 to 4
vote, Justice Blackmun's qualified acceptance of the National League of
Cities approach having changed to complete rejection.
        \55\Id. at 557.
        \56\312 U.S. 100, 124 (1941), supra p.1509; Madison's views were
quoted by the Court in Garcia, 469 U.S. at 549.
        \57\469 U.S. at 549.
        \58\``Apart from the limitation on federal authority inherent in
the delegated nature of Congress' Article I powers, the principal means
chosen by the Framers to ensure the role of the States in the federal
system lies in the structure of the Federal Government itself.'' 469
U.S. at 550. The Court cited the role of states in selecting the
President, and the equal representation of states in the Senate. Id. at
551.
        \59\469 U.S. at 550, 546.
        \60\469 U.S. at 556.
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        The first indication was that it would take a very unusual case
indeed. In South Carolina v. Baker the Court expansively interpreted
Garcia as meaning that there must be an allegation of ``some
extraordinary defects in the national political process'' before the
Court will apply substantive judicial review standards to claims that
Congress has regulated state activities in violation of the Tenth
Amendment.\61\ A claim that Congress acted on incomplete information
would not suffice, the Court noting that South Carolina had ``not even
alleged that it was deprived of any right to participate in the national
political process or that it was singled out in a way that left it
politically isolated and powerless.''\62\ Thus, the general rule was
that ``limits on Congress' authority to regulate

[[Page 1517]]
state activities . . . are structural, not substantive--i.e., that
States must find their protection from congressional regulation through
the national political process, not through judicially defined spheres
of unregulable state activity.''\63\

        \61\485 U.S. 505, 512 (1988). Justice Scalia, in a separate
concurring opinion, objected to this language as departing from the
Court's assertion in Garcia that the ``constitutional structure''
imposes some affirmative limits on congressional action. Id. at 528.
        \62\Id. at 513.
        \63\Id. at 512.
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        Later indications are that the Court may be looking for ways to
back off from Garcia. One device is to apply a ``clear statement'' rule
requiring unambiguous statement of congressional intent to displace
state authority. After noting the serious constitutional issues that
would be raised by interpreting the Age Discrimination in Employment Act
to apply to appointed state judges, the Court in Gregory v. Ashcroft\64\
explained that, because Garcia ``constrained'' consideration of ``the
limits that the state-federal balance places on Congress' powers,'' a
plain statement rule was all the more necessary. ``[I]nasmuch as this
Court in Garcia has left primarily to the political process the
protection of the States against intrusive exercises of Congress'
Commerce Clause powers, we must be absolutely certain that Congress
intended such an exercise.''

        \64\501 U.S. 452, 464 (1991). The Court left no doubt that it
considered the constitutional issue serious. ``[T]he authority of the
people of the States to determine the qualifications of their most
important government officials . . . is an authority that lies at `the
heart of representative government' [and] is a power reserved to the
States under the Tenth Amendment and guaranteed them by [the Guarantee
Clause].'' Id. at 463. In the latter context the Court's opinion by
Justice O'Connor cited Merritt, The Guarantee Clause and State Autonomy:
Federalism for a Third Century, 88 Colum. L. Rev. 1 (1988). See also
McConnell, Federalism: Evaluating the Founders' Design, 54 U. Chi. L.
Rev. 1484 (1987) (also cited by the Court); and Van Alystyne, The Second
Death of Federalism, 83 Mich. L. Rev. 1709 (1985).
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        The Court's 1992 decision in New York v. United States,\65\ may
portend a more direct retreat from Garcia. The holding in New York, that
Congress may not ``commandeer'' state regulatory processes by ordering
states to enact or administer a federal regulatory program, applied a
limitation on congressional power previously recognized in dictum\66\
and in no way inconsistent with the holding in Garcia. Language in the
opinion, however, sounds more reminiscent of National League of Cities
than of Garcia. First, the Court's opinion by Justice O'Connor declares
that it makes no difference whether federalism constraints derive from
limitations inherent in the Tenth Amendment, or instead from the absence
of power delegated to Congress under Article I; ``the Tenth Amendment
thus directs us to determine . . . whether an incident of state
sovereignty is protected by a limitation on an Article I power.''\67\
Second, the

[[Page 1518]]
Court, without reference to Garcia, thoroughly repudiated Garcia's
``structural'' approach requiring states to look primarily to the
political processes for protection. In rejecting arguments that New
York's sovereignty could not have been infringed because its
representatives had participated in developing the compromise
legislation and had consented to its enactment, the Court declared that
``[t]he Constitution does not protect the sovereignty of States for the
benefit of the States or State governments, [but instead] for the
protection of individuals.'' Consequently, ``State officials cannot
consent to the enlargement of the powers of Congress beyond those
enumerated in the Constitution.''\68\ The stage appears to be set,
therefore, for some relaxation of Garcia's obstacles to federalism-based
challenges to legislation enacted pursuant to the commerce power.

        \65\112 S. Ct. 2408 (1992).
        \66\See, e.g., Hodel v. Virginia Surface Mining & Recl. Ass'n,
452 U.S. 264, 288 (1981); FERC v. Mississippi, 456 U.S. 742, 765 (1982);
South Carolina v. Baker, 485 U.S. 505, 513-15 (1988).
        \67\112 S. Ct. at 2418.
        \68\Id. at 2431-32.