Tenth Amendment

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• Tenth Amendment
• Back to the Future
• Feb. 28, 2006

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Overview of the 10th 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.
• Original (1st) Use of 10th Amendment
• Reinforces notion of enumerated powers
• Within delegated powers, congress has plenary
  authority, but no new powers can be assumed
• As such, 10th Amd states but a truism
• New (2nd) Use of 10th Amendment
• Even where Congress has substantive power,
• Congress cannot use that power against states

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2 intrusions into State Sovereignty

1. Congress passes a law regulating people in the
   states. Because of supremacy, that law displaces
   inconsistent state law.
2. Congress passes a law that regulates the states
   directly.

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2 intrusions into State Sovereignty

1. Congress passes a law regulating people in the
   states. Because of supremacy, that law displaces
   inconsistent state law.
2. Congress passes a law that regulates the states
   directly.

Federal
State
10th Amd (ver 1) Doctrine of enumerated powers
10th Amd (ver 2) Can congress use its enumerated
powers to regulate states themselves?
People
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10th Amd as State Immunity

• Version 1 focuses on powers
• Congress may regulate only where it has
  enumerated power
• Version 2 focuses on limits
• Congress may not use its enumerated powers to
  transgress constitutional limits
• E.g., taxing of exports establishment of
  religion
• In this version, the 10th isnt merely a truism
• It is a specific limit on federal power
• Query what method of interpretation leads to
  this?

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Early Caselaw

• States enjoyed no special immunity from federal
  regulation
• so long as regulation was within federal power
• U.S. v. California (1936)
• states no different than individuals when engaged
  in commercial activity
• Maryland v. Wirtz (1968) Fry v. US (1975)
• even state activity of a sovereign governmentl
  character was subject to fed regulatory power

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National League of Cities (1976)

• Overrules Wirtz Fry
• 10th not limited to its text (enum. powers
  doctrine) fully guarantees state sovereignty
• Fedl regn of states abrogates their sovereignty
• Even where cong. has enumerated power
• And can regulate private activity
• State activity may be immune from regulation
• 10th creates state right to be free from
  regulation, similar to BoR
• Limited to direct regulation of states

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NLC test

• 1. Does Congress regulate the States qua states
• are the states regulated, or just their
  residents?
• 2. Involving an indisputable area of state
  sovereignty
• e.g., treasury, govt structure or employees
• 3. Affecting traditional governmental functions
• e.g., education, police, municipal services
• 4. Where state interest outweighs federal
  interest
• subjective value test
• E.g., federal interest in environment may
  outweigh states
• added by Blackmuns concurrence (see Hodel v.
  VSMRA)
• Least common denominator for 5 votes (narrowest
  holding)

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National League of Cities

• Brennan dissent
• How does the 10th Amd become a rights
  conferring amd, protecting states
  from regulation?
• If not the 10th Amd, what source of state
  sovereignty?
• Stevens dissent
• Is state right to pay substandard
  wages stronger than federal
  interest in a healthy economy?

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Garcia v. SAMTA (1985)

• Reconsideration of Usery
• Stewart replaced by OConnor
• no effect
• Blackmun switched his vote. Why?
• Difficulty in applying Usery test
• No agreement on traditional state functions
• No agreement on which attributes of state
  sovereignty need judicial protection
• Especially in light of the non-textual
  nature of state sovereignty

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Garcia v. SAMTA (1985)

• Garcia political postulate
• structure of congress provides adequate political
  protection for states
• states able to protect themselves in Congress
• Is Powell right that this is illusory?
• Notwithstanding changes in structure
• 14th and 17th Amendments

• Process safeguard
• clear statement rule (Gregory v. Ashcroft)
• See also SWANCC v. Corps of Engineers

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Garcia v. SAMTA (1985)

• Role of stare decisis
• Should S.Ct. reexamine its precedents
• Is Powell right to criticize abrupt change?
• Is Rehnquist right to threaten another abrupt
  change (via new justices)?
• OConnor Dissent
• judicial protection of states needed to balance
  expansion of commerce power
• Do dissents reveal the source of state immunity
  from federal regulation?

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Tenth Amendment, version 3

• Congress can act only w/in enum. Power
• Even when acting w/in enum. power, congress can
  regulate states themselves only if it clearly
  says it is doing so
• More restrictive test of NLC overruled
• Even when acting w/in enumerated power, congress
  cannot require states to enforce federal law

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New York v. United States (1992)

• Low-Level Radioactive Waste Policy Act-1985
• Federal govt exclusive power over nuclear issues
  starting with Atomic Energy Act (1954)
• Transfers some power to states (coop. fedism)
• States fail to develop disposal sites

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• Tragedy of the commons

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New York v. United States (1992)

• Low-Level Radioactive Waste Policy Act-1985
• Natl Govs' Assn Natl Conf. of State Legis.
  develop LLWRPA and ask Congress to enact
• Passes both houses of Congress - unanimously

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New York v. United States (1992)

• What LLRWPA does
• Requires states take responsibility for disposal
  of waste created within the state

• Incentives
• Monetary assistance
• Discriminatory access
• Take Title
• States must either regulate per Act, or
• Assume ownership of waste

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Commandeering

• Rule congress cant comman- deer
  states into federal service
• Treat them as instruments of federal regulation
• Require them to legislate per fedl standards, or
• Require them to enforce fedl law (against 3d
  parties)
• Impose liabilities on them
• For failure to act
• Extend to other laws?
• Even if states consent?
• Federalism protects liberty
• Not states ?

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Commandeering

• Evils of Commandeering
• Avoids accountability
• State citizens wont know whos responsible
• Federalizes matters of local concern
• Deprives states of discretion on how to respond
• Treats states as instru-ments of federal govt

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Commandeering

• Source of anti-commandeering rule
• 10th Amendment?
• NB congress has plenary power over nuclear
  issues
• Art. I, Section 9?
• Par. 4 limits cong power over states, but not
  here

• Original intent (const as whole)
• Constitution never understood to allow this
• Lively debate during convention would fed govt
  operate on the states or directly on the people ?

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Alternatives to Commandeering

• What options available to congress that better
  respect state sovereignty?
• Suspend block grants to non-complying states?
• Prohibit export of nuclear waste?
• Reassert exclusive jdx?
• Preempt state laws?
• Directly regulate waste
  generation and disposal?

all of these would be constitutional
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Printz v. US (1997)

• Brady Act
• Passed under commerce power
• meets Lopez - commercial transaction

• Administration of law
• federal implementation
• AG to develop instant background check system
• state implementation (interim provisions)
• reasonable effort to determine lawfulness of
  sale

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Printz v. US

• Constitutional objection
• state enforcement of federal law violates state
  sovereignty

• Interpretivist Methods
• Originalism
• Because there is no constl text speaking to
  this pre-cise question, the answer to the
  challenge must be sought in historical
  understanding and practice
• Textualism
• and in the structure of the constitution
• Dynamic/organic
• and in the jurisprudence of this Court common
  law

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Finding State Sovereignty

• 10th Amendment
• nothing explicit (textualism)
• no const'l text speaking to this precise
  question
• implied from history (originalism)
• lack of contemporaneous or early examples
  (federal imposition of duties on state executive
  officers) suggests an assumed absence of such
  power
• Exception extradition clause (specific constl
  duty on states)
• early congress recommended rather than
  com-manded state assistance
• absence of executive-commandeering statutes in
  later congressional enactments as well
• funding measures dont count (conditional
  spending)

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History continued
Can conclusive decisions about constl power be
made based on The Federalist?

• Federalist Papers
• As interpretive guide
• Dueling federalists
• No. 27 (Hamilton) - states will be
• incorporated into the operations of the natl
  govt
• rendered auxiliary to the enforcement of
  federal laws
• No. 36 (H) - state officers will collect federal
  taxes
• No. 44 (Madison) - states will have an essential
  agency in giving effect to the federal const
• Scalias example of state conduct of federal
  elections is off point it involves a special
  provision Art, I, 4
• No. 45 (M) - state collection of federal taxes

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Immunity in Const. Structure

• Textual recognition of state sovereignty
• Scalias examples
• integrity of states territory
• state residents as citizens (Art. III, 2
  Art. IV, 2)
• state role in ratification and amendment
• 10th amendment
• How persuasive
• Do any of these establish immunity from fed
  reg-ulation (beyond specific provisions
  mentioned)?
• Separation of Powers
• congress ability to delegate execution of laws
  diminishes Presidents power / undermines SoP
• also true for voluntary compliance by states

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State Enforcement of Fed Law

• Commandeering of state legislatures
• Forbidden by NY v. US
• reduces accountability
• Commandeering of state executive officers
• Forbidden by Printz v. US
• Commandeering of state judiciary
• State courts must enforce federal law and apply
  substantive federal standards
• Testa v. Katt
• Reverse Erie

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Practice Questions

• What is the difference between the 1st, 2nd and
  3rd uses of the Tenth Amendment?
• Can congress require state police cars to be
  equipped with catalytic converters -
• During the era of Dual-Federalism?
• During the post-New Deal era?
• Under NLC?
• Under Garcia?
• Under Printz?
• Can congress require that states enforce
  pollution controls against private vehicles?

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Practice Questions

• Is the Drug-Free School Zones Act const'l?
• After Lopez, are Heart of Atlanta Motel and
  Katzenbach still good law?
• Who won the Civil War?

more practice questions