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[Constitution of the United States of America:  Analysis, and Interpretation - 1992 Edition ]
[Amendments to the Constitution]
[Tenth Amendment - Reserved Powers]
[From the U.S. Government Printing Office, www.gpo.gov]

[[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

[[Page 1509]]

                             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).
---------------------------------------------------------------------------

        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).
---------------------------------------------------------------------------

        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).
---------------------------------------------------------------------------

        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).
---------------------------------------------------------------------------

        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).
---------------------------------------------------------------------------

        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).
---------------------------------------------------------------------------

        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).
---------------------------------------------------------------------------

        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).
---------------------------------------------------------------------------

        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.
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