Tenth Amendment: Post-New Deal Court

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 1941, the Court came full circle in its exposition of the Tenth Amendment. Having returned four years earlier to the position of John Marshall when it sustained the Social Security Act1 Footnote
Steward Machine Co. v. Davis, 301 U.S. 548 (1937) ; Helvering v. Davis, 301 U.S. 619 (1937) . and the National Labor Relations Act,2 Footnote
NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937) . the Court explicitly restated Marshall’s thesis in upholding the Fair Labor Standards Act in United States v. Darby .3 Footnote
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) . Speaking for a unanimous Court, Chief Justice Stone 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.” 4 Footnote
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 federal statutes promoting objectives which had traditionally been regarded as the responsibilities of the states had been held invalid. In Hamilton v. Kentucky Distilleries Co. ,5 Footnote
251 U.S. 146 (1919) . a unanimous Court, in an opinion 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.” 6 Footnote
251 U.S. at 156 . And, in a series of cases that today seems irreconcilable with Hammer v. Dagenhart , the Court sustained federal laws penalizing the interstate transportation of lottery tickets,7 Footnote
Lottery Case (Champion v. Ames), 188 U.S. 321 (1903) . of women for immoral purposes,8 Footnote
Hoke v. United States, 227 U.S. 308 (1913) . of stolen automobiles,9 Footnote
Brooks v. United States, 267 U.S. 432 (1925) . and of tick-infected cattle,10 Footnote
Thornton v. United States, 271 U.S. 414 (1926) . as well as a statute prohibiting the mailing of obscene matter.11 Footnote
Roth v. United States, 354 U.S. 476 (1957) . It affirmed the power of Congress to punish the forgery of bills of lading purporting to cover interstate shipments of merchandise,12 Footnote
United States v. Ferger, 250 U.S. 199 (1919) . to subject prison-made goods moved from one state to another to the laws of the receiving state,13 Footnote
Kentucky Whip & Collar Co. v. Ill. Cent. R.R., 299 U.S. 334 (1937) . to regulate prescriptions for the medicinal use of liquor as an appropriate measure for the enforcement of the Eighteenth Amendment,14 Footnote
Everard’s Breweries v. Day, 265 U.S. 545 (1924) . 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 state’s boundaries.15 Footnote
Perez v. United States, 402 U.S. 146 (1971) . 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.16 Footnote
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 ,17 Footnote
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 power, 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). 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.18 Footnote
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.19 Footnote
The matter is discussed more fully under “Supremacy Clause Versus the Tenth Amendment,” supra. According to Garcia v. San Antonio Metropolitan Transit Authority ,20 Footnote
469 U.S. 528 (1985) . 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 ,21 Footnote
426 U.S. 833 (1976) . the case it overruled, was a 5-4 decision, and there are later indications that the Court may be ready to resurrect some form of Tenth Amendment constraint on Congress.22 Footnote
“[W]e need not address the question whether general applicability [i.e., applicability to individuals as well as to the states] is a constitutional requirement for federal regulation of the States . . . .” Reno v. Condon, 528 U.S. 141 (2000) , discussed infra.

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,” 23 Footnote
426 U.S. at 841 . 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.” 24 Footnote
426 U.S. at 845 . 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.25 Footnote
426 U.S. at 843 . 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.” 26 Footnote
426 U.S. at 832 . In subsequent cases applying or distinguishing National League of Cities , the Court and dissenters wrote as if the Tenth Amendment was the prohibition.27 Footnote
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. Whatever the source of the constraint, it was held not to limit the exercise of power under the Reconstruction Amendments.28 Footnote
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 Authority .29 Footnote
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. 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.” 30 Footnote
469 U.S. at 557 . With only passing reference to the Tenth Amendment, the Court nonetheless clearly reverted to the Madisonian view of the Amendment reflected in United States v. Darby .31 Footnote
312 U.S. 100, 124 (1941) , discussed supra. Madison’s views were quoted by the Court in Garcia , 469 U.S. at 549 . 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.” 32 Footnote
469 U.S. at 549 . 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.33 Footnote
“Apart from the limitation on federal authority inherent in the delegated nature of Congress’s 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 . “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.” 34 Footnote
469 U.S. at 550, 546 . Although continuing to recognize that “Congress’s 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.” 35 Footnote
469 U.S. at 556 . 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.36 Footnote
485 U.S. 505, 512 (1988) . Justice Scalia, in a 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 . 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.” 37 Footnote
485 U.S. at 513 . Thus, the general rule was that “limits on Congress’s 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.” 38 Footnote
485 U.S. at 512 .

Footnotes 1 Steward Machine Co. v. Davis, 301 U.S. 548 (1937) ; Helvering v. Davis, 301 U.S. 619 (1937) . 2 NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937) . 3 312 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) . 4 312 U.S. 100, 114, 123, 124 (1941) . See also Fernandez v. Wiener, 326 U.S. 340, 362 (1945) . 5 251 U.S. 146 (1919) . 6 251 U.S. at 156 . 7 Lottery Case (Champion v. Ames), 188 U.S. 321 (1903) . 8 Hoke v. United States, 227 U.S. 308 (1913) . 9 Brooks v. United States, 267 U.S. 432 (1925) . 10 Thornton v. United States, 271 U.S. 414 (1926) . 11 Roth v. United States, 354 U.S. 476 (1957) . 12 United States v. Ferger, 250 U.S. 199 (1919) . 13 Kentucky Whip & Collar Co. v. Ill. Cent. R.R., 299 U.S. 334 (1937) . 14 Everard’s Breweries v. Day, 265 U.S. 545 (1924) . 15 Perez v. United States, 402 U.S. 146 (1971) . 16 Hodel v. Virginia Surface Mining & Recl. Ass’n, 452 U.S. 264 (1981) . 17 296 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 power, 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). 18 United States v. Kahriger, 345 U.S. 22, 25–26 (1953) ; Lewis v. United States, 348 U.S. 419 (1955) . 19 The matter is discussed more fully under “Supremacy Clause Versus the Tenth Amendment,” supra. 20 469 U.S. 528 (1985) . 21 426 U.S. 833 (1976) . 22 “[W]e need not address the question whether general applicability [i.e., applicability to individuals as well as to the states] is a constitutional requirement for federal regulation of the States . . . .” Reno v. Condon, 528 U.S. 141 (2000) , discussed infra. 23 426 U.S. at 841 . 24 426 U.S. at 845 . 25 426 U.S. at 843 . 26 426 U.S. at 832 . 27 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. 28 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). 29 469 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. 30 469 U.S. at 557 . 31 312 U.S. 100, 124 (1941) , discussed supra. Madison’s views were quoted by the Court in Garcia , 469 U.S. at 549 . 32 469 U.S. at 549 . 33 “Apart from the limitation on federal authority inherent in the delegated nature of Congress’s 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 . 34 469 U.S. at 550, 546 . 35 469 U.S. at 556 . 36 485 U.S. 505, 512 (1988) . Justice Scalia, in a 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 . 37 485 U.S. at 513 . 38 485 U.S. at 512 .

The following state regulations pages link to this page.