Tenth Amendment

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• Tenth Amendment
• Back to the Future
• March 1, 2005

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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.
• 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

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

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2 intrusions into State Sovereignty

• Congress passes a law regulating people in the
  states. Because of supremacy, that law displaces
  inconsistent state law.
• 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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Case law before Usery

• States enjoy no special immunity from federal
  regulation
• so long as regulation is 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 govtl activity subject to fed power

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National League of Cities (1976)

• Does 10th create a right to be free
  from regulation, similar to BoR?
• Does the 10th do more than codify
  doctrine of enumerated power
  does it protect state sovereignty in other ways?
• Does imposition of FLSA on states abrogate or
  diminish their sovereignty?
• More so than any other federal law?
• Does regulation generally deprive states of
  ability to make policy choices?
• Is 10th a Powers amd or a Rights amd?

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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 the state interest outweighs federal
  interest
• subjective value test
• NB added by Blackmuns concurrence (See Hodel)
• 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
• prevented 6,600 unlawful sales/month

• 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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Printz v. US - Originalism

• Originalism
• Early practices - Why Important?
• 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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Printz v. US - Originalism
Can conclusive decisions about constl power be
made based on The Federalist?

• Federalist Papers
• As interpretive guide
• Dueling federalists
• No. 27 (Hamilton) - stateswill 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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Printz v. US - Originalism

• Originalism
• What level of generality/abstraction?
• Scalia notes early congresses imposed obligations
  on state judges, but doesnt imply a power of
  Congress to impress the state executive into its
  service
• But state courts performed executive functions
  then

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Printz v. US - Textualism

• 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

what level of generality to apply?
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Printz v. US Dynamic/Organic

• Precedent / Common-law development
• Is NY v. US controlling here?
• When Court extends precedent to cover new
  ground, do its decisions become constitutional
  law?

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Printz v. US

• Stevens (dissent)
• Clearly within Congress commerce power
• Not prohibited by 10th Amd, nor other text
• No historical understanding prohibiting practice
• Congress directed the states under Articles of
  Conf.
• Move to const was to augment, not diminish power
• Federalist 27 fedl govt can employ the
  ordinary magistracy of states in the execution
  of its laws
• unfunded mandates is a bogeyman

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Reno v. Condon (2000)

• Drivers Privacy Protection Act of 1994
• Regulates disclosure and resale of DMV data
• Applies to states and to private resellers
• 10th Amd Version 1
• Drivers License data is an article of commerce
• Used as for commercial transactions
• 10th Amd Version 2
• DDPA applies to states, but not uniquely
• 10th Amd Versions 3
• Compliance obligations ? commandeering
• Even if state statutes must be amended to comply

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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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SWANCC v. Corps of Engineers (2001)

• Does navigable waters in CWA include intrastate
  waters with migratory birds?
• If yes, is it constitutional (violate 10th?)
• If not, no need to reach constitutional question
  of whether congress has power to regulate

• Apply rules of statutory construction

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Rules of Statutory Construction

• 1. Dont apply fed law to states, unless clear
  intent of congress (Gregory v. Ashcroft)
• Do state agencies (e.g., SWANCC) have to comply
  with CWA (obtain Corps of Engineers permit) when
  dumping at migratory bird site?

• Although states have primary responsibility,
• Clear that states must comply with federal
  environmental laws.
• Cooperative Federalism

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Rules of Statutory Construction

• 2. Let Agency decide
• Rule (Chevron v. NRDC) defer to Administr.
  Agency interpretation of its own enabling statute
  and powers delegated by congress
• Corps interprets waters of the US to include
  non-navigable waters used by interstate migratory
  birds

• Exceptions
• Agency interpretation foreclosed by statute
• Agency interpretation upsets usual fed-state
  balance i.e., invade traditional state power

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Rules of Statutory Construction

• 3. Read statute in such manner as would avoid
  constitutional infirmity, if possible
• If statute can be interpreted in two ways
• 1 of which would render the statute constl, and
• 1 of which would render it unconstiutitonal
• Go for the constitutional intepretation
• Do Migratory Birds substantially affect IC?

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Rules of Statutory Construction

• Missouri v. Holland (1920) protection of
  migratory birds is a national and intl issue

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Rules of Statutory Construction

• 3. Read statute in such manner as would avoid
  constitutional infirmity, if possible
• If statute can be interpreted in two ways
• 1 of which would render the statute constl, and
• 1 of which would render it unconstiutitonal
• Go for the constitutional intepretation
• Do Migratory Birds substantially affect IC?

• Rehnquist regulating migratory birds on
  intra-state waters presses outer-bounds of
  com.cl.
• What happened to Gibbons, Wickard, etc.?

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Pierce County v. Guillen (2003)

• Federal grant aid for highways preempts WA
  Public Discl. Act
• What is congress regulating?
• Roads?
• well established that Congress has authority to
  "reg-ulate the use of channels of interstate
  commerce

• State Govt (state agencies, state courts)?
• If so, congress is regulating the states
  themselves
• Regulating channels includes appropriate
  incidents (e.g., state tort policy ?)
• More or less intrusive than Migratory Bird Rule?

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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