Con Law IFederalism and State Sovereignty

The Tenth Amendment as a Limit

National League of Cities v. Usery (1976) barred federal wage rules for state employees in "traditional governmental functions"; Garcia v. San Antonio Metropolitan Transit Authority (1985) overruled it, leaving states' protection mostly to the political process.

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The Tenth Amendment says: "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." In Darby (1941) the Court called it "but a truism." Anti-commandeering showed one structural limit on Congress. This lesson asks a different question: when Congress regulates everyone, private employers and states alike, may it apply that law to the states themselves?

Tap the marked phrases.

Why it works

The core question is who enforces federalism. One view: the courts must, because Congress has every incentive to expand its own power. The Garcia view: the Constitution protects states mainly through structure, since senators and representatives are elected from the states and answer to them, and courts are poorly placed to decide which state functions are "traditional." Later cases took a middle path: they did not revive National League, but they protected states through other doctrines: anti-commandeering, sovereign immunity and clear-statement rules.

Key idea

National League of Cities v. Usery (1976) barred federal wage rules for state employees in "traditional governmental functions"; Garcia v. San Antonio Metropolitan Transit Authority (1985) overruled it, leaving states' protection mostly to the political process. Laws that apply generally to states and private parties alike are usually valid.

Worked example: Generally applicable law or command?

Congress requires all employers, public and private, to keep records of overtime hours. A state objects. How does this differ from Printz?
  1. The law regulates the state as an employer, the same way it regulates private employers. That is a generally applicable law (Garcia).
  2. Printz involved ordering state officers to administer a federal program aimed at private parties.
  3. Under current doctrine, the generally applicable law is valid if within the commerce power.

Answer: Valid under Garcia. Commandeering concerns orders to govern; general laws that happen to include states are different.

Worked example: Reading the Tenth Amendment

A student says the Tenth Amendment lists the powers that belong to the states. What is wrong?
  1. The amendment lists nothing; it reserves whatever was "not delegated."
  2. So to know what is reserved, you must first know the scope of the delegated powers.
  3. That is why most Tenth Amendment cases are really about the reach of the commerce, taxing or spending powers.

Answer: The Tenth Amendment is a rule of construction about leftovers, not a list.

Common mistake

Thinking the Tenth Amendment by itself lists powers that belong to the states. It reserves powers not delegated; which powers those are depends on the scope of the grants to Congress. Check: start with the federal power; the Tenth Amendment question follows.

The "political safeguards" argument echoes Madison in Federalist No. 45 and Federalist No. 46, which argue that the states, closer to the people, would be well able to defend themselves within the political system. The Federal Farmer doubted it, fearing consolidation. See the ratification debate page.

This is an educational course, not legal advice.

Practice

Pass with 3 right answers, the last 2 in a row. Each right answer earns 3 XP.

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