Supremacy Clause Versus the Tenth Amendment

The logic of the Supremacy Clause would seem to require that the powers of Congress be determined by the fair reading of the express and implied grants contained in the Constitution itself, without reference to the powers of the states. For a century after Marshall’s death, however, the Court proceeded on the theory that the Tenth Amendment had the effect of withdrawing various matters of internal police from the reach of power expressly committed to Congress. This point of view was originally put forward in New York City v. Miln,29 which was first argued but not decided before Marshall’s death. Miln involved a New York statute that required captains of vessels entering New York Harbor with aliens aboard to make a report in writing to the Mayor of the City, giving certain prescribed information. It might have been distinguished from Gibbons v. Ogden on the ground that the statute involved in the earlier case conflicted with an act of Congress, whereas the Court found that no such conflict existed in this case. But the Court was unwilling to rest its decision on that distinction.

Speaking for the majority, Justice Barbour seized the opportunity to proclaim a new doctrine. “But we do not place our opinion on this ground. We choose rather to plant ourselves on what we consider impregnable positions. They are these: That a state has the same undeniable and unlimited jurisdiction over all persons and things, within its territorial limits, as any foreign nation, where that jurisdiction is not surrendered or restrained by the constitution of the United States. That, by virtue of this, it is not only the right, but the bounden and solemn duty of a state, to advance the safety, happiness and prosperity of its people, and to provide for its general welfare, by any and every act of legislation, which it may deem to be conducive to these ends; where the power over the particular subject, or the manner of its exercise is not surrendered or restrained, in the manner just stated. That all those powers which relate to merely municipal legislation, or what may, perhaps, more properly be called internal police, are not thus surrendered or restrained; and that, consequently, in relation to these, the authority of a state is complete, unqualified, and exclusive.”30 Justice Story, in dissent, stated that Marshall had heard the previous argument and reached the conclusion that the New York statute was unconstitutional.31

The conception of a “complete, unqualified and exclusive” police power residing in the states and limiting the powers of the national government was endorsed by Chief Justice Taney ten years later in the License Cases.32 In upholding state laws requiring licenses for the sale of alcoholic beverages, including those imported from other states or from foreign countries, he set up the Supreme Court as the final arbiter in drawing the line between the mutually exclusive, reciprocally limiting fields of power occupied by the national and state governments.33

Until recently, it appeared that in fact and in theory the Court had repudiated this doctrine,34 but, in National League of Cities v. Usery,35 it revived part of this state police power limitation upon the exercise of delegated federal power. However, the decision was by a closely divided Court and subsequent interpretations closely cabined the development and then overruled the case.

Following the demise of the “doctrine of dual federalism” in the 1930s, the Court confronted the question whether Congress had the power to regulate state conduct and activities to the same extent, primarily under the Commerce Clause, as it did to regulate private conduct and activities to the exclusion of state law.36 In United States v. California,37 upholding the validity of the application of a federal safety law to a state-owned railroad being operated as a non-profit entity, the Court, speaking through Justice Stone, denied the existence of an implied limitation upon Congress’s plenary power to regulate commerce when a state instrumentality was involved. “The state can no more deny the power if its exercise has been authorized by Congress than can an individual.”38 Although the state in operating the railroad was acting as a sovereign and within the powers reserved to the states, the Court said, its exercise was “in subordination to the power to regulate interstate commerce, which has been granted specifically to the national government. The sovereign power of the states is necessarily diminished to the extent of the grants of power to the Federal Government in the Constitution.”39

A series of cases followed in which the Court refused to construct any state immunity from regulation when Congress acted pursuant to a delegated power.40 The culmination of this series had been thought to be Maryland v. Wirtz,41 in which the Court upheld the constitutionality of applying the federal wage and hour law to nonprofessional employees of state-operated schools and hospitals. In an opinion by Justice Harlan, the Court saw a clear connection between working conditions in these institutions and interstate commerce. Labor conditions in schools and hospitals affect commerce; strikes and work stoppages involving such employees interrupt and burden the flow across state lines of goods purchased by state agencies, and the wages paid have a substantial effect. The Commerce Clause being thus applicable, the Justice wrote, Congress was not constitutionally required to “yield to state sovereignty in the performance of governmental functions. This argument simply is not tenable. There is no general doctrine implied in the Federal Constitution that the two governments, national and state, are each to exercise its powers so as not to interfere with the free and full exercise of the powers of the other. . . . [I]t is clear that the Federal Government, when acting within a delegated power, may override countervailing state interests whether these be described as ‘governmental’ or ‘proprietary’ in character. . . . [V]alid general regulations of commerce do not cease to be regulations of commerce because a State is involved. If a State is engaging in economic activities that are validly regulated by the Federal Government when engaged in by private persons, the State too may be forced to conform its activities to federal regulation.”42

Wirtz was specifically reaffirmed in Fry v. United States,43 in which the Court upheld the constitutionality of presidentially imposed wage and salary controls, pursuant to congressional statute, on all state governmental employees. In dissent, however, Justice Rehnquist propounded a doctrine that was to obtain majority approval in League of Cities,44 in which he wrote for the Court: “[T]here 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.”45 The standard, apparently, in judging between permissible and impermissible federal regulation, is whether there is federal interference with “functions essential to separate and independent existence.”46 In the context of this case, state decisions with respect to the pay of their employees and the hours to be worked were essential aspects of their “freedom to structure integral operations in areas of traditional governmental functions.”47 The line of cases exemplified by United States v. California was distinguished and preserved on the basis that the state activities there regulated were so unlike the traditional activities of a state that Congress could reach them;48 Case v. Bowles was held distinguishable on the basis that Congress had acted pursuant to its war powers and to have rejected the power would have impaired national defense;49 Fry was distinguished on the bases that it upheld emergency legislation tailored to combat a serious national emergency, the means were limited in time and effect, the freeze did not displace state discretion in structuring operations or force a restructuring, and the federal action “operated to reduce the pressure upon state budgets rather than increase them.”50 Wirtz was overruled; it permitted Congress to intrude into the conduct of integral and traditional state governmental functions and could not therefore stand.51

League of Cities did not prove to be much of a restriction upon congressional power in subsequent decisions. First, its principle was held not to reach to state regulation of private conduct that affects interstate commerce, even as to such matters as state jurisdiction over land within its borders.52 Second, it was held not to immunize state conduct of a business operation, that is, proprietary activity not like “traditional governmental activities.”53 Third, it was held not to preclude Congress from regulating the way states regulate private activities within the state—even though such state activity is certainly traditional governmental action—on the theory that, because Congress could displace or preempt state regulation, it may require the states to regulate in a certain way if they wish to continue to act in this field.54 Fourth, it was held not to limit Congress when it acts in an emergency or pursuant to its war powers, so that Congress may indeed reach even traditional governmental activity.55 Fifth, it was held not to apply at all to Congress’s enforcement powers under the Thirteenth, Fourteenth, and Fifteenth Amendments.56 Sixth, it apparently was to have no application to the exercise of Congress’s spending power with conditions attached.57 Seventh, not because of the way the Court framed the statement of its doctrinal position, which is absolutist, but because of the way it accommodated precedent and because of Justice Blackmun’s concurrence, it was always open to interpretation that Congress was enabled to reach traditional governmental activities not involving employer-employee relations or is enabled to reach even these relations if the effect is “to reduce the pressures upon state budgets rather than increase them.”58 In his concurrence, Justice Blackmun suggested his lack of agreement with “certain possible implications” of the opinion and recast it as a “balancing approach” that “does not outlaw federal power in areas such as environmental protection, where the federal interest is demonstrably greater and where state facility compliance with imposed federal standards would be essential.”59

The Court overruled National League of Cities in Garcia v. San Antonio Metropolitan Transit Authority,60 and seemingly returned to the conception of federal supremacy embodied in Wirtz and Fry. For the most part, the Court indicated, states must seek protection from the impact of federal regulation in the political processes, and not in any limitations imposed on the commerce power or found in the Tenth Amendment. 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.”61 State autonomy is both limited and protected by the terms of the Constitution itself, hence—ordinarily, at least—exercise of Congress’s enumerated powers is not to be limited by “a priori definitions of state sovereignty.”62 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.”63 There are direct limitations in Art. I, § 10; and “Section 8 . . . works an equally sharp contraction of state sovereignty by authorizing Congress to exercise a wide range of legislative powers and (in conjunction with the Supremacy Clause of Article VI) to displace contrary state legislation.”64 On the other hand, the principal restraints on congressional exercise of the commerce power are to be found not in the Tenth Amendment, in the Commerce Clause itself, or in “judicially created limitations on federal power,” but in the structure of the Federal Government and in the political processes.65 “[T]he fundamental limitation that the constitutional scheme imposes on the Commerce Clause to protect the ‘States as States’ is one of process rather than one of result.”66 While 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.”67 Thus, arguably, the Court has not totally abandoned the National League of Cities premise that there are limits on the extent to which federal regulation may burden states as states. Rather, it has stipulated that any such limits on exercise of federal power must be premised on a failure of the political processes to protect state interests, and “must be tailored to compensate for [such] failings . . . rather than to dictate a ‘sacred province of state autonomy.’ ”68

Further indication of what must be alleged in order to establish affirmative limits to commerce power regulation was provided in South Carolina v. Baker.69 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 intervene.70 A claim that Congress acted on incomplete information will 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.”71 Thus, the general rule is 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.”72

Dissenting in Garcia, Justice Rehnquist predicted that the doctrine propounded by the dissenters and by those Justices in National League of Cities “will . . . in time again command the support of a majority of the Court.”73 As the membership of the Court changed, it appeared that the prediction was proving true.74 Confronted with the opportunity in New York v. United States,75 to re-examine Garcia, the Court instead distinguished it,76 striking down a federal law on the basis that Congress could not “commandeer” the legislative and administrative processes of state government to compel the administration of federal programs.77 The line of analysis pursued by the Court makes clear, however, what the result will be when a Garcia kind of federal law is reviewed.

That is, because the dispute involved the division of authority between federal and state governments, Justice O’Connor wrote for the Court in New York, one could inquire whether Congress acted under a delegated power or one could ask whether Congress had invaded a state province protected by the Tenth Amendment. But, the Justice wrote, “the two inquiries are mirror images of each other. If a power is delegated to Congress in the Constitution, the Tenth Amendment expressly disclaims any reservation of that power to the States; if a power is an attribute of state sovereignty reserved by the Tenth Amendment, it is necessarily a power the Constitution has not conferred on Congress.”78

Powers delegated to the Nation, therefore, are subject to limitations that reserve power to the states. This limitation is not found in the text of the Tenth Amendment, which is, the Court stated, “but a truism,”79 but is a direct constraint on Article I powers when an incident of state sovereignty is invaded.80 The “take title” provision was such an invasion. Both the Federal Government and the states owe political accountability to the people. When Congress encourages states to adopt and administer a federally prescribed program, both governments maintain their accountability for their decisions. When Congress compels the states to act, state officials will bear the brunt of accountability that properly belongs at the national level.81 The “take title” provision, because it presented the states with “an unavoidable command”, transformed state governments into “regional offices” or “administrative agencies” of the Federal Government, impermissibly undermined the accountability owing the people and was void.82 Whether viewed as lying outside Congress’s enumerated powers or as infringing the core of state sovereignty reserved by the Tenth Amendment, “the provision is inconsistent with the federal structure of our Government established by the Constitution.”83

Federal laws of general applicability, therefore, are surely subject to examination under the New York test rather than under the Garcia structural standard.

Expanding upon its anti-commandeering rule, the Court in Printz v. United States84 established “categorically” the rule that “[t]he Federal Government may not compel the States to enact or administer a federal regulatory program.”85 At issue in Printz was a provision of the Brady Handgun Violence Prevention Act that required, pending the development by the Attorney General of a national system by which criminal background checks on prospective firearms purchasers could be conducted, the chief law enforcement officers of state and local governments to conduct background checks to ascertain whether applicants were ineligible to purchase handguns. Confronting the absence of any textual basis for a “categorical” rule, the Court looked to history, which in its view demonstrated a paucity of congressional efforts to impose affirmative duties upon the states.86 More important, the Court relied on the “structural Constitution” to demonstrate that the Constitution of 1787 had not taken from the states “a residuary and inviolable sovereignty,”87 that it had, in fact and theory, retained a system of “dual sovereignty”88 reflected in many things but most notably in the constitutional conferral “upon Congress of not all governmental powers, but only discrete, enumerated ones,” which was expressed in the Tenth Amendment. Thus, although it had earlier rejected the commandeering of legislative assistance, the Court now made clear that administrative officers and resources were also fenced off from federal power.

The scope of the rule thus expounded was unclear. Particularly, Justice O’Connor in concurrence observed that Congress retained the power to enlist the states through contractual arrangements and on a voluntary basis. More pointedly, she stated that “the Court appropriately refrains from deciding whether other purely ministerial reporting requirements imposed by Congress on state and local authorities pursuant to its Commerce Clause powers are similarly invalid.”89

A partial answer was provided in Reno v. Condon,90 in which the Court upheld the Driver’s Privacy Protection Act of 1994 against a charge that it offended the anti-commandeering rule of New York and Printz. The Act in general limits disclosure and resale without a driver’s consent of personal information contained in the records of state motor vehicle departments, and requires disclosure of that information for specified government record-keeping purposes. While conceding that the Act “will require time and effort on the part of state employees,” the Court found this imposition permissible because the Act regulates state activities directly rather than requiring states to regulate private activities.91


36 U.S. (11 Pet.) 102 (1837). [Back to text]
36 U.S. at 139. [Back to text]
36 U.S. at 161. [Back to text]
46 U.S. (5 How.) 504, 528 (1847). [Back to text]
46 U.S. at 573–74. [Back to text]
Representative early cases include NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937); Steward Machine Co. v. Davis, 301 U.S. 548 (1937); Helvering v. Davis, 301 U.S. 619 (1937); United States v. Darby, 312 U.S. 100 (1941). Among the cases incompatible with the theory was Maryland v. Wirtz, 392 U.S. 183 (1968). [Back to text]
426 U.S. 833 (1976). [Back to text]
On the doctrine of “dual federalism,” see the commentary by the originator of the phrase, Professor Corwin. E. CORWIN, THE TWILIGHT OF THE SUPREME COURT —A HISTORY OF OUR CONSTITUTIONAL THEORY 10–51 (1934); THE COMMERCE POWER VERSUS STATES RIGHTS 115–172 (1936); A CONSTITUTION OF POWERS IN A SECULAR STATE 1–28 (1951). [Back to text]
297 U.S. 175 (1936). [Back to text]
297 U.S. at 185. [Back to text]
297 U.S. at 184. [Back to text]
California v. United States, 320 U.S. 577 (1944) (federal regulation of shipping terminal facilities owned by state); California v. Taylor, 353 U.S. 553 (1957) (Railway Labor Act applies on state-owned railroad); Case v. Bowles, 327 U.S. 92 (1946); Hubler v. Twin Falls County, 327 U.S. 103 (1946) (federal wartime price regulations applied to state transactions; Congress’s power effectively to wage war); Board of Trustees v. United States, 289 U.S. 48 (1933) (state university required to pay federal customs duties on imported educational equipment); Oklahoma ex rel. Phillips v. Atkinson Co., 313 U.S. 508 (1941) (federal condemnation of state lands for flood control project); Sanitary Dist. v. United States, 206 U.S. 405 (1925) (prohibition of state from diverting water from Great Lakes). [Back to text]
392 U.S. 183 (1968). Justices Douglas and Stewart dissented. Id. at 201. [Back to text]
392 U.S. at 195–97 (internal quotation marks omitted). [Back to text]
421 U.S. 542 (1975). [Back to text]
421 U.S. at 549. Essentially, the Justice was required to establish an affirmative constitutional barrier to congressional action. Id. at 552–53. That is, if one asserts only the absence of congressional authority, one’s chances of success are dim because of the breadth of the commerce power. But when he asserts that, say, the First or Fifth Amendment bars congressional action concededly within its commerce power, one interposes an affirmative constitutional defense that has a chance of success. It was the Justice’s view that the state was “asserting an affirmative constitutional right, inherent in its capacity as a State, to be free from such congressionally asserted authority.” Id. at 553. But whence the affirmative barrier? “[I]t is not the Tenth Amendmentby its terms. . . .” Id. at 557 (emphasis supplied). Rather, the Amendment was an example of the Framers’ understanding that the sovereignty of the states imposed an implied affirmative barrier to the assertion of otherwise valid congressional powers. Id. at 557–59. But the difficulty with this construction is that the equivalence that Justice Rehnquist sought to establish lies not between an individual asserting a constitutional limit on delegated powers and a state asserting the same thing, but is rather between an individual asserting a lack of authority and a state asserting a lack of authority; this equivalence is evident on the face of the Tenth Amendment, which states that the powers not delegated to the United States “are reserved to the States respectively, or to the people.” (emphasis supplied). The states are thereby accorded no greater interest in restraining the exercise of nondelegated power than are the people. See Massachusetts v. Mellon, 262 U.S. 447 (1923). [Back to text]
National League of Cities v. Usery, 426 U.S. 833, 845 (1976). [Back to text]
426 U.S. at 845. [Back to text]
426 U.S. at 852. [Back to text]
426 U.S. at 854. [Back to text]
426 U.S. at 854 n.18. [Back to text]
426 U.S. at 852–53. [Back to text]
426 U.S. at 853–55. [Back to text]
Hodel v. Virginia Surface Mining & Recl. Ass’n, 452 U.S. 264 (1981). [Back to text]
United Transp. Union v. Long Island R.R., 455 U.S. 678 (1982). [Back to text]
FERC v. Mississippi, 456 U.S. 742 (1982). [Back to text]
National League of Cities v. Usery, 426 U.S. 833, 854 n.18 (1976). [Back to text]
Fitzpatrick v. Bitzer, 427 U.S. 445 (1976); City of Rome v. United States, 446 U.S. 156, 178–80 (1980). [Back to text]
In Pennhurst State School & Hosp. v. Halderman, 451 U.S. 1, 17 n.13 (1981), the Court suggested rather ambiguously that League of Cities may restrict the federal spending power, citing its reservation of the cases in League of Cities, 426 U.S. 852 n.17, but citing also spending clause cases indicating a rational basis standard of review of conditioned spending. Earlier, the Court had summarily affirmed a decision holding that the spending power was not affected by the case. North Carolina ex rel. Morrow v. Califano, 445 F. Supp. 532 (E.D.N.C. 1977) (three-judge court), aff’d, 435 U.S. 962 (1978). No hint of such a limitation is contained in more recent decisions (to be sure, in the aftermath of League of Cities’ demise). New York v. United States, 505 U.S. 144, 167, 171–72, 185 (1992); South Dakota v. Dole, 483 U.S. 203, 210–12 (1987). [Back to text]
National League of Cities v. Usery, 426 U.S. 833, 846–51 (1976). The quotation in the text is at 853 (one of the elements distinguishing the case from Fry). [Back to text]
426 U.S. at 856. [Back to text]
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 of the Court was joined by Justices Brennan, White, Marshall, and Stevens. Writing in dissent were Justices Powell (joined by Chief Justice Burger and by Justices Rehnquist and O’Connor), O’Connor (joined by Justices Powell and Rehnquist), and Rehnquist. [Back to text]
469 U.S. at 557. [Back to text]
469 U.S. at 548. [Back to text]
469 U.S. at 549. [Back to text]
469 U.S. at 548. [Back to text]
“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 as prime examples the role of states in selecting the President, and the equal representation of states in the Senate. Id. at 551. [Back to text]
469 U.S. at 554. [Back to text]
469 U.S. at 556. [Back to text]
469 U.S. at 554. [Back to text]
485 U.S. 505 (1988). [Back to text]
485 U.S. at 512. [Back to text]
485 U.S. at 513. [Back to text]
485 U.S. at 512. [Back to text]
Garcia v. San Antonio Metropolitan Transit Auth., 469 U.S. 528, 579–80 (1985). [Back to text]
The shift was pronounced in Gregory v. Ashcroft, 501 U.S. 452 (1991), in which the Court, cognizant of the constraints of Garcia, chose to apply a “plain statement” rule to construction of a statute seen to be intruding into the heart of state autonomy. Id. at 463. To do otherwise, said Justice O’Connor, was to confront “a potential constitutional problem” under the Tenth Amendment and the Guarantee Clause of Article IV, § 4. Id. at 463–64. [Back to text]
505 U.S. 144 (1992). [Back to text]
The line of cases exemplified by Garcia was said to concern the authority of Congress to subject state governments to generally applicable laws, those covering private concerns as well as the states, necessitating no revisiting of those cases. 505 U.S. at 160. [Back to text]
Struck down was a provision of law providing for the disposal of radioactive wastes generated in the United States by government and industry. Placing various responsibilities on the states, the provision sought to compel performance by requiring that any state that failed to provide for the permanent disposal of wastes generated within its borders must take title to, take possession of, and assume liability for the wastes, 505 U.S. at 161, obviously a considerable burden. [Back to text]
505 U.S. at 156. [Back to text]
505 U.S. at 156 (quoting United States v. Darby, 312 U.S. 100, 124 (1941)). [Back to text]
505 U.S. at 156. [Back to text]
505 U.S. at 168–69. [Back to text]
505 U.S. at 175–77, 188. [Back to text]
505 U.S. at 177. [Back to text]
521 U.S. 898 (1997). [Back to text]
521 U.S. at 933 (internal quotation marks omitted) (quoting New York v. United States, 505 U.S. 144, 188 (1992)). [Back to text]
521 U.S. at 904–18. Notably, the Court expressly exempted from this rule the continuing role of the state courts in the enforcement of federal law. Id. at 905–08. [Back to text]
521 U.S. at 919 (quoting THE FEDERALIST, No. 39 (Madison)). [Back to text]
521 U.S. at 918. [Back to text]
521 U.S. at 936 (citing 42 U.S.C. § 5779(a)) (requiring state and local law enforcement agencies to report cases of missing children to the Department of Justice). [Back to text]
528 U.S. 141 (2000). [Back to text]
528 U.S. at 150–51. [Back to text]