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

1509

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
1510 AMENDMENT 10—RESERVED STATE POWERS

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

6Supra, pp. 339–44. 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
AMENDMENT 10—RESERVED STATE POWERS 1511

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).

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

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
1512 AMENDMENT 10—RESERVED STATE 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 STATE POWERS 1513

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
1514 AMENDMENT 10—RESERVED STATE POWERS

41Perez v. United States, 402 U.S. 146 (1971). 42 Hodel v. Virginia Surface Mining & Recl. Ass’n, 452 U.S. 264 (1981). 43 296 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). 45The matter is discussed more fully supra, pp. 922–30. 46 469 U.S. 528 (1985). 47 426 U.S. 833 (1976).

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

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

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.

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

the legislation under attack, which regulated the wages and hours
AMENDMENT 10—RESERVED STATE POWERS 1515

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. 53Fitzpatrick 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). 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.

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

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
1516 AMENDMENT 10—RESERVED STATE POWERS

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. 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.

‘‘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.

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
AMENDMENT 10—RESERVED STATE POWERS 1517

63 Id. at 512. 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). 65 112 S. Ct. 2408 (1992). 66See, 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.

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

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.’’

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
1518 AMENDMENT 10—RESERVED STATE POWERS

68 Id. at 2431–32.

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 federalismbased challenges to legislation enacted pursuant to the commerce

power.