The Tenth Amendment succinctly states: “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.” This establishes the foundation of American federalism.
For approximately six decades following the New Deal, courts regarded the amendment as without practical effect. Over the past thirty years, this stance has shifted somewhat, but not significantly. The structural damage from the commerce clause era remains largely unrepaired.
In “The Federalist No. 45,” James Madison emphasized that federal powers are limited and defined, while state powers are numerous and indefinite. The Founders focused on a government with enumerated powers, informed by the pitfalls of unrestricted authority. The Tenth Amendment made their intention explicit, limiting federal authority to specific delegations in the Constitution. However, the New Deal significantly altered this balance.
The 1942 Supreme Court case of Wickard v. Filburn upheld federal regulation of wheat grown for personal use, citing its economic impact on interstate commerce. This decision blurred the lines, allowing Congress’s enumerated powers to expand without practical limits.
A shift began thirty years ago. In U.S. v. Lopez (1995), the court restricted Congress’s commerce clause powers, finding that gun possession near schools lacked substantial economic impact on interstate commerce. Similar reasoning applied in U.S. v. Morrison (2000) concerning the Violence Against Women Act.
The court’s decision in NFIB v. Sebelius (2012) further challenged commerce clause logic by rejecting it as justification for the Affordable Care Act’s insurance mandate. The 2022 case of West Virginia v. EPA introduced the major questions doctrine, requiring clear congressional intent for sweeping agency authority. Loper Bright Enterprises v. Raimondo (2024) overruled Chevron deference. This decision mandated courts to interpret agency authority independently, curtailing agencies’ self-defined limits.
While these decisions mark progress, the expansive legacy of the past remains unaddressed. The significant Tenth Amendment doctrine — anti-commandeering — exists outside commerce clause cases. In Printz v. United States (1997), Justice Scalia ruled against conscripted state administration of federal programs, affirming a federal government operating through its own agencies. The 2018 Murphy v. NCAA case expanded anti-commandeering to legislative matters, prohibiting federal control over state legislative decisions.
This doctrine is evident in sanctuary city policies, with the federal government powerless to compel local enforcement of immigration laws. Decisions in Printz and Murphy affirm this limit. However, state and local roles remain independent, with officials accountable to their constituents.
In California, where federal standards are low, state regulation is notably rigorous. This reflects a dual approach to autonomy and federal requirements across varied policies, including immigration and environment.
The Tenth Amendment’s protection of state power is not ideologically fixed. States can misuse this autonomy, just as the federal government can misuse its powers. The Founders intended to ensure government close to the people retains decision-making authority, allowing accountability and local correction without federal interference.
By expanding authority, Congress and agencies undermine this foundational balance, absorbing issues better managed by states. Recent judicial limits illustrate progress, but the broader systemic map remains unchanged.
Jay Rogers is a seasoned financial professional, with over three decades in private equity, credit, hedge funds, and wealth management sectors.
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