Tenth Amendment to the United States Constitution
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Tenth Amendment to the United States Constitution

Tenth Amendment to the United States Constitution
The Tenth Amendment to the United States Constitution, which is part of the Bill of Rights, was ratified
on December 15, 1791. The Tenth Amendment states the Constitution’s principle of federalism
by providing that powers not granted to the federal government by the Constitution, nor
prohibited to the States, are reserved to the States or the people.
Drafting and adoption The Tenth Amendment is similar to an earlier
provision of the Articles of Confederation: “Each state retains its sovereignty, freedom,
and independence, and every power, jurisdiction, and right, which is not by this Confederation
expressly delegated to the United States, in Congress assembled.” After the Constitution
was ratified, some wanted to add a similar amendment limiting the federal government
to powers “expressly” delegated, which would have denied implied powers. However, the word
“expressly” ultimately did not appear in the Tenth Amendment as ratified, and therefore
the Tenth Amendment did not reject the powers implied by the Necessary and Proper Clause.
When he introduced the Tenth Amendment in Congress, James Madison explained that many
states were eager to ratify this amendment, despite critics who deemed the amendment superfluous
or unnecessary: The states decided to ratify the Tenth Amendment,
and thus declined to signal that there are unenumerated powers in addition to unenumerated
rights. The amendment rendered unambiguous what had previously been at most a mere suggestion
or implication. The phrase “…, or to the people.” was appended
in handwriting by the clerk of the Senate as the Bill of Rights circulated between the
two Houses of Congress. Judicial interpretation
The Tenth Amendment, which makes explicit the idea that the federal government is limited
to only the powers granted in the Constitution, has been declared to be truism by the Supreme
Court. In United States v. Sprague (1931) the Supreme Court asserted that the amendment
“added nothing to the as originally ratified.” States and local governments have occasionally
attempted to assert exemption from various federal regulations, especially in the areas
of labor and environmental controls, using the Tenth Amendment as a basis for their claim.
An often-repeated quote, from United States v. Darby Lumber, 312 U.S. 100, 124 (1941),
reads as follows: Forced participation or commandeering
The Supreme Court rarely declares laws unconstitutional for violating the Tenth Amendment. In the
modern era, the Court has only done so where the federal government compels the states
to enforce federal statutes. In 1992, in New York v. United States, 505 U.S. 144 (1992),
for only the second time in 55 years, the Supreme Court invalidated a portion of a federal
law for violating the Tenth Amendment. The case challenged a portion of the Low-Level
Radioactive Waste Policy Amendments Act of 1985. The act provided three incentives for
states to comply with statutory obligations to provide for the disposal of low-level radioactive
waste. The first two incentives were monetary. The third, which was challenged in the case,
obliged states to take title to any waste within their borders that was not disposed
of prior to January 1, 1996, and made each state liable for all damages directly related
to the waste. The Court, in a 6–3 decision, ruled that the imposition of that obligation
on the states violated the Tenth Amendment. Justice Sandra Day O’Connor wrote that the
federal government can encourage the states to adopt certain regulations through the spending
power (e.g. by attaching conditions to the receipt of federal funds, see South Dakota
v. Dole), or through the commerce power (by directly pre-empting state law). However,
Congress cannot directly compel states to enforce federal regulations.
In 1998, the Court again ruled that the Brady Handgun Violence Prevention Act violated the
Tenth Amendment (Printz v. United States, 521 U.S. 898 (1997)). The act required state
and local law enforcement officials to conduct background checks on persons attempting to
purchase handguns. Justice Antonin Scalia, writing for the majority, applied New York
v. United States to show that the law violated the Tenth Amendment. Since the act “forced
participation of the State’s executive in the actual administration of a federal program”,
it was unconstitutional. Commerce clause
In modern times, the Commerce Clause has become one of the most frequently-used sources of
Congress’s power, and thus its interpretation is very important in determining the allowable
scope of federal government. In the 20th century, complex economic challenges
arising from the Great Depression triggered a reevaluation in both Congress and the Supreme
Court of the use of Commerce Clause powers to maintain a strong national economy.
In Wickard v. Filburn (1942), in the context of World War II, the Court ruled that federal
regulations of wheat production could constitutionally be applied to wheat grown for “home consumption”
on a farm – that is, wheat grown to be fed to farm animals or otherwise consumed
on the farm. The rationale was that a farmer’s growing “his own wheat” can have a substantial
cumulative effect on interstate commerce, because if all farmers were to exceed their
production quotas, a significant amount of wheat would either not be sold on the market
or would be bought from other producers. Hence, in the aggregate, if farmers were allowed
to consume their own wheat, it would affect the interstate market in wheat.
In Garcia v. San Antonio Metropolitan Transit Authority (1985), the Court changed the analytic
framework to be applied in Tenth Amendment cases. Prior to the Garcia decision, the determination
of whether there was state immunity from federal regulation turned on whether the state activity
was “traditional” for or “integral” to the state government. The Court noted that this
analysis was “unsound in principle and unworkable in practice”, and rejected it without providing
a replacement. The Court’s holding declined to set any formula to provide guidance in
future cases. Instead, it simply held “…we need go no further than to state that we perceive
nothing in the overtime and minimum-wage requirements of the FLSA… that is destructive of state
sovereignty or violative of any constitutional provision.” It left to future courts how best
to determine when a particular federal regulation may be “destructive of state sovereignty or
violative of any constitutional provision.” In United States v. Lopez 514 U.S. 549 (1995),
a federal law mandating a “gun-free zone” on and around public school campuses was struck
down because, the Supreme Court ruled, there was no clause in the Constitution authorizing
it. This was the first modern Supreme Court opinion to limit the government’s power under
the Commerce Clause. The opinion did not mention the Tenth Amendment, and the Court’s 1985
Garcia opinion remains the controlling authority on that subject.
Most recently, the Commerce Clause was cited in the 2005 decision Gonzales v. Raich. In
this case, a California woman sued the Drug Enforcement Administration after her medical
marijuana crop was seized and destroyed by federal agents. Medical marijuana was explicitly
made legal under California state law by Proposition 215; however, marijuana is prohibited at the
federal level by the Controlled Substances Act. Even though the woman grew the marijuana
strictly for her own consumption and never sold any, the Supreme Court stated that growing
one’s own marijuana affects the interstate market of marijuana. The theory was that the
marijuana could enter the stream of interstate commerce, even if it clearly wasn’t grown
for that purpose and that was unlikely ever to happen (the same reasoning as in the Wickard
v. Filburn decision). It therefore ruled that this practice may be regulated by the federal
government under the authority of the Commerce Clause.
Federal funding The federal system limits the ability of the
federal government to use state governments as an instrument of the national government,
as held in Printz v. United States, 521 U.S. 898 (1997). However, where Congress or the
Executive has the power to implement programs, or otherwise regulate, there are, arguably,
certain incentives in the national government encouraging States to become the instruments
of such national policy, rather than to implement the program directly. One incentive is that
state implementation of national programs places implementation in the hands of local
officials who are closer to local circumstances. Another incentive is that implementation of
federal programs at the state level would in principle limit the growth of the national
bureaucracy. For this reason, Congress often seeks to exercise
its powers by offering or encouraging States to implement national programs consistent
with national minimum standards; a system known as cooperative federalism. One example
of the exercise of this device was to condition allocation of federal funding where certain
state laws do not conform to federal guidelines. For example, federal educational funds may
not be accepted without implementation of special education programs in compliance with
IDEA. Similarly, the nationwide state 55 mph (90 km/h) speed limit,.08 legal blood alcohol
limit, and the nationwide state 21-year drinking age were imposed through this method; the
states would lose highway funding if they refused to pass such laws (though the national
speed limit has since been repealed). See e.g. South Dakota v. Dole, 483 U.S. 203 (1987).
State legislative actions in protest of federal actions
Several states have introduced various resolutions and legislation in protest to federal actions.
Despite this, the Supreme Court has explicitly rejected the idea that the states can nullify
federal law. In Cooper v. Aaron (1958), the Supreme Court of the United States held that
federal law prevails over state law due to the operation of the Supremacy Clause, and
that federal law “can neither be nullified openly and directly by state legislators or
state executive or judicial officers nor nullified indirectly by them through evasive schemes…”
Thus, state laws purporting to nullify federal statutes or to exempt states and their citizens
from federal statutes have only symbolic impact. State sovereignty resolutions (10th Amendment
resolutions) These resolutions attempt to reassert state
sovereignty over any area not listed among the “enumerated powers” (i.e., any law based
on an “expansive reading” of the Commerce Clause, the Necessary and Proper Clause, or
the Supremacy Clause would, according to this resolution, be invalid).
During 2009, “state sovereignty resolutions” or “10th Amendment Resolutions” were introduced
in the legislatures of 37 states; in seven states the resolutions passed (Alaska, Idaho,
North Dakota, South Dakota, Oklahoma, Louisiana, and Tennessee).
During 2010, resolutions were introduced or reintroduced into the legislatures of 21 states;
the resolution passed in seven states (Alabama, Arizona, Kansas, Nebraska, South Carolina,
Utah, and Wyoming). A state sovereignty resolution has been prefiled
for the upcoming 2011 session of the Texas Legislature (a prior 2009 resolution did not
pass). State sovereignty bills (10th Amendment Bills)
A “State Sovereignty Bill” is one step beyond a State Sovereignty Resolution. The bill would
mandate action against what the state legislature perceives as unconstitutional federal legislation.
During 2010, such legislation was introduced in six states (Florida, Georgia, Michigan,
Missouri, New Hampshire, and Oklahoma); however, none made it past the introductory stage.
Firearms freedom legislation and federal gun laws nullification
Starting in 2012, in response to a threat of law made through executive orders by President
Obama, more than a dozen states around the US began proposing legislation that would
“…declare that any firearms made and retained in-state are beyond the authority of Congress
under its constitutional power to regulate commerce among the states”. The legislation
would require that the firearm be prominently marked as being “Made in {name of state}”
and further prohibit federal regulation solely on the basis that “basic materials” and “generic
and insignificant parts” of the firearm may have their origins from outside the state.
Through 2010, resolutions have been introduced in the legislatures of 27 states that would
nullify federal authority over such local firearms. The legislation passed in Montana
and Tennessee in 2009 and in Alaska, Arizona, Idaho, South Dakota, Utah, and Wyoming the
following year. South Carolina has taken the issue one step further: in 2010 a bill was
introduced which would effectively nullify all gun registration laws within the state.
Texas has prefiled and West Virginia has filed similar legislation for the current 2011 legislative
session. In 2013, one of the most strongly worded Second
Amendment protection acts in the nation was signed into law in Kansas.
Marijuana laws As of December 2012, 14 states (Alaska, Arizona,
California, Colorado, Hawaii, Massachusetts, Maine, Michigan, Montana, Nevada, New Jersey,
New Mexico, Oregon, Rhode Island, Vermont, and Washington) and the District of Columbia
have passed legislation which permit the use of medical marijuana. California Proposition
19 would have gone one step further, and legalized marijuana use by persons over age 21 for any
purpose whatsoever; however, the state constitutional amendment did not pass.
In 2012, both Washington and Colorado legalized the recreational use of marijuana. Both states
previously legalized the use of medical marijuana. The ballot measure allows for anyone over
21 to possess up to an ounce from licensed vendors. Colorado also allows you to grow
up to 6 plants. The Obama administration announced in October 2009 that it advised federal prosecutors
not to target legally-operating medicinal marijuana users, or their suppliers, in states
that have passed such laws. However, in the same year, the DEA conducted a record number
of medical marijuana raids. The DEA has continued to raid federally prohibited
medical facilities in several states, and the DOJ has gone so far as to prevent such
cases from being well publicized. The IRS has also attempted to prevent the
sale of medical marijuana in California by refusing to treat normally-deductible business
expenses as such for dispensaries, notably for the Harborside Health Center in Oakland.
REAL ID Act As of March 2010, 25 states (beginning with
Maine in 2007) have passed legislation and/or resolutions which opposed the REAL ID Act.
Though the legislation is still on the books, its implementation has been delayed on several
occasions and is currently not being enforced. National health care nullification
As of March 2010, legislators in 30 states had introduced legislation which would declare
certain provisions of any proposed national health care bill to be null and void within
the state; the legislation passed in Arizona, Idaho, Utah, and Virginia. Such provisions
include mandatory participation in such a system as well as preserving the right of
a patient to pay a health care professional for treatment (and for the professional to
accept it) outside of a single-payer system. Arizona’s legislation passed as a proposed
constitutional amendment, approved by voters in 2010. On February 1, 2010, the Virginia
Senate took a stand against a key provision of a proposed federal health care overhaul,
passing legislation declaring that Virginia residents cannot be forced to buy health insurance.
On March 17, 2010, Idaho Governor C.L. “Butch” Otter signed a bill requiring the Attorney
General to sue the federal government if Idaho residents are required to buy health insurance.
Bring the Guard home As of March 2010, legislators in seven states
had introduced legislation which would permit the governor of the state to recall any National
Guard troops from overseas deployments (such as in Iraq and Afghanistan); the bills failed
in Maryland and New Mexico. Legal tender
As of March 2010, legislators in seven states have introduced legislation which would seek
to nullify federal legal tender laws in the state by authorizing payment in gold and silver
or a paper note backed 100% by gold or silver; the legislation failed in Colorado and Montana.
Cap-and-trade nullification As of March 2010, legislators in four states
have introduced legislation which would nullify any proposed federal emissions regulation
under the “cap-and-trade” model; none have advanced beyond the introductory stage.
State sovereignty and federal tax funds acts As of March 2010, legislators in three states
have introduced legislation which would require businesses (and in some cases, individuals)
to remit their federal tax payments to the state treasurer (or equivalent body) for deposit
into an escrow fund. If the state legislature determined that a portion of the federal budget
was not constitutional, or if the federal government imposed penalties or sanctions
upon the state for creating the fund, then the money would be withheld. None have advanced
beyond the introductory stage. Sheriffs first legislation
As of March 2010, legislators in three states had introduced legislation which would make
it a crime for any federal agent to make an arrest, search or seizure within the state
without getting the advance, written permission of the sheriff of the county in which the
event would take place. The bills would provide for the following exceptions:
Actions on federal property A federal employee witnesses a crime requiring
an immediate arrest Actions under either hot pursuit or involving
immigration The person to be apprehended is either an
elected county or state officer, an employee of the sheriff’s office, or has such close
connection with the sheriff that the person is likely to be notified by the sheriff of
any impending action. None have advanced beyond the introductory
stage. Federal land legislation
As of February 2010, legislators in Utah have introduced legislation to allow the use of
eminent domain on federal land. Rep. Christopher Herrod has introduced the bill in a state
where the federal government controls over 60% of the land. The effort has the full support
of Republican Attorney General Mark Shurtleff, who would have to defend the law. The proposal
includes setting aside $3 million for legal defense.
Nullification of federal intrastate commerce regulation
As of March 2010, legislators in four states had introduced legislation which would nullify
federal regulation of trade and activities which are solely within the boundaries of
a state and which do not cross state lines; that is activities that are by definition
NOT COMMERCE, under the Constitution. The Virginia legislation has passed one house.
Sanctuary city Another form of protest against enforcement
of immigration laws, several United States cities have declared themselves sanctuary
cities, whereby they have ordered the local police department to specifically not work
with United States Customs and Border Protection officials to arrest persons illegally residing
within the boundaries of the city, and not to inquire as to a person’s immigration status,
even if the person was arrested. Intrastate Coal and Use Act
In protest of the Environmental Protection Agency allegedly overstepping its authority
by interfering with intrastate commerce, the West Virginia Intrastate Coal and Use Act
(H.B. 2554) was being introduced into the West Virginia House of Delegates by Delegate
Gary Howell. The bill states that coal sold and used within the borders of West Virginia
is not subject to EPA authority because no interstate commerce exists and the state retains
the rights to control its own intrastate commerce under the 10th Amendment. The American Legislative
Exchange Council recommends the Intrastate Coal and Use Act for model legislation in
other states.

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