1609

TENTH AMENDMENT 

RESERVED POWERS 

CONTENTS

Page

Reserved Powers ........................................................................................................................ 1611 

Scope and Purpose .............................................................................................................. 1611 

Effect of Provision on Federal Powers .............................................................................. 1612 

Federal Taxing Powers ............................................................................................... 1612 

Federal Police Power ................................................................................................... 1613 

Federal Regulations Affecting State Activities and Instrumentalities ................... 1617 

1611

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). 

RESERVED POWERS 

TENTH AMENDMENT 

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 

1612 AMENDMENT 10—RESERVED POWERS 

4 2 ANNALS OF CONGRESS 1897 (1791). 5 17 U.S. (4 Wheat.) 316 (1819). 

6See discussion under ‘‘Necessary and Proper Clause,’’ supra. 7McCulloch 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). 9 78 U.S. (11 Wall.) 113 (1871). 

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. 

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

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 the 

AMENDMENT 10—RESERVED POWERS 1613

10 Id. at 124. 11Graves 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). 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). 

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

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 

1614 AMENDMENT 10—RESERVED POWERS 

19 247 U.S. 251 (1918). 20 312 U.S. 100 (1941). 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. 27Steward 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). 

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

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

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 

AMENDMENT 10—RESERVED POWERS 1615

30 312 U.S. 100, 114, 123, 124 (1941). See also Fernandez v. Wiener, 326 U.S. 

340, 362 (1945). 31 251 U.S. 146 (1919). 32 Id. at 156. 33Lottery 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). 36Thornton 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). 39Kentucky Whip & Collar Co. v. Illinois C. R.R., 299 U.S. 334 (1937). 40 Everard’s Breweries v. Day, 265 U.S. 545 (1924). 

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

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 

1616 AMENDMENT 10—RESERVED POWERS 

41Perez v. United States, 402 U.S. 146 (1971). 42 Hodel v. Virginia Surface Mining & Recl. Ass’n, 452 U.S. 264 (1981). 43 514 U.S. 549 (1995). 44 United States v. Lopez, 514 U.S. at 552, 567-68 (1995). 45 529 U.S. 598 (2000). 46 529 U.S. at 617. 47 296 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).

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

Reversing this trend, the Court in 1995 in United States v. 

Lopez 43 struck down a statute prohibiting possession of a gun at 

or near a school, rejecting an argument that possession of firearms 

in school zones can be punished under the Commerce Clause because it impairs the functioning of the national economy. Acceptance of this rationale, the Court said, would eliminate ‘‘a[ny] distinction between what is truly national and what is truly local,’’ 

would convert Congress’ commerce power into ‘‘a general police 

power of the sort retained by the States,’’ and would undermine the 

‘‘first principle’’ that the Federal Government is one of enumerated 

and limited powers. 44 Application of the same principle led five 

years later to the Court’s decision in United States v. Morrison 45

invalidating a provision of the Violence Against Women Act 

(VAWA) that created a federal cause of action for victims of gendermotivated violence. Congress may not regulate ‘‘non-economic, violent criminal conduct based solely on that conduct’s aggregate effect on interstate commerce,’’ the Court concluded. ‘‘[W]e can think 

of no better example of the police power, which the Founders denied the National Government and reposed in the States, than the 

suppression of violent crime and vindication of its victims.’’ 46

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, 47 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 

AMENDMENT 10—RESERVED POWERS 1617

48 United States v. Kahriger, 345 U.S. 22, 25-26 (1953); Lewis v. United States, 

348 U.S. 419 (1955). 49The matter is discussed more fully under ‘‘Supremacy Clause Versus the 

Tenth Amendment,’’ supra. 50 469 U.S. 528 (1985). 51 426 U.S. 833 (1976). 52 Id. at 841. 53 Id. at 845. 54 Id. at 843. 55 Id. at 852. 

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. 48

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. 49 Under Garcia v. 

San Antonio Metropolitan Transit Authority, 50 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, 51 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. 

In National League of Cities v. Usery, the Court conceded that 

the legislation under attack, which regulated the wages and hours 

of certain state and local governmental employees, was ‘‘undoubtedly within the scope of the Commerce Clause,’’ 52 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.’’ 53 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. 54 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.’’ 55 In subsequent cases applying or distinguishing National League of Cities, the Court and 

1618 AMENDMENT 10—RESERVED POWERS 

56 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. 57Fitzpatrick 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). 58 469 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. 59 Id. at 557. 60 312 U.S. 100, 124 (1941), discussed supra. Madison’s views were quoted by 

the Court in Garcia, 469 U.S. at 549. 61 469 U.S. at 549. 62 ‘‘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. 63 469 U.S. at 550, 546. 

dissenters wrote as if the Tenth Amendment was the prohibition. 56

Whatever the source of the constraint, it was held not to limit the 

exercise of power under the Reconstruction Amendments. 57

The Court overruled National League of Cities in Garcia v. San 

Antonio Metropolitan Transit Auth. 58 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.’’ 59 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. 60 States retain 

a significant amount of 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.’’ 61 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. 62 ‘‘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.’’ 63 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 

AMENDMENT 10—RESERVED POWERS 1619

64 469 U.S. at 556. 65 485 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. 66 Id. at 513. 67 Id. at 512. 68 501 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 

Act minimum wage and overtime provisions to state employment 

does not require identification of these ‘‘affirmative limits.’’ 64 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.

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. 65 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.’’ 66 Thus,

the general rule was that ‘‘limits on Congress’ authority to regulate 

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.’’ 67

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 68 explained that, because Garcia ‘‘conVerDate Apr<15>2004 13:50 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00009 Fmt 8222 Sfmt 8222 C:\CONAN\CON039.SGM PRFM99 PsN: CON039
1620 AMENDMENT 10—RESERVED POWERS 

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). 69 505 U.S. 144 (1992). 70See, 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). 71 505 U.S. at 157. 72 Id. at 2431-32. 73 521 U.S. 898 (1997). 

strained’’ 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.’’ 

The Court’s 1992 decision in New York v. United States, 69 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 70 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.’’ 71 Second, the 

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.’’ 72 The stage appears to be set, 

therefore, for some relaxation of Garcia’s obstacles to federalismbased challenges to legislation enacted pursuant to the commerce 

power.

Extending the principle applied in New York, the Court in 

Printz v. United States 73 held that Congress may not ‘‘circumvent’’ 

AMENDMENT 10—RESERVED POWERS 1621

74 521 U.S. at 935. 75 Id. 76 528 U.S. 141 (2000). 77 484 U.S. 505, 514-15 (1988). 78 528 U.S. at 151. 79 Id.

the prohibition on commandeering a state’s regulatory processes 

‘‘by conscripting the State’s officers directly.’’ 74 Struck down in 

Printz were interim provisions of the Brady Handgun Violence Protection Act that required state and local law enforcement officers 

to conduct background checks on prospective handgun purchasers. 

‘‘The Federal Government may neither issue directives requiring 

the States to address particular problems, nor command the States’ 

officers . . . to administer or enforce a federal regulatory program. 

It matters not whether policymaking is involved, and no case-bycase weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.’’ 75

In Reno v. Condon, 76 the Court distinguished New York and

Printz in upholding the Driver’s Privacy Protection Act of 1994 

(DPPA), a federal law that restricts the disclosure and resale of 

personal information contained in the records of state motor vehicles departments. The Court returned to a principle articulated in 

South Carolina v. Baker that distinguishes between laws which improperly seek to control the manner in which States regulate private parties, and those which merely regulate state activities directly. 77 Here, the Court found that the DPPA ‘‘does not require 

the States in their sovereign capacities to regulate their own citizens,’’ but rather ‘‘regulates the States as the owners of databases.’’ 78 The Court saw no need to decide whether a federal law 

may regulate the states exclusively, since the DPPA is a law of 

general applicability that regulates private resellers of information 

as well as states. 79