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The Tenth Amendment (Amendment X) of the United States Constitution, which is part of the Bill of Rights, was ratified on December 15, 1791. The Tenth Amendment restates the Constitution's principle of federalism by providing that powers not granted to the national government nor prohibited to the states by the constitution of the United States are reserved to the states or the people.

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History and case law

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 amend the Necessary and Proper Clause.

The Tenth Amendment, which makes explicit the idea that the federal government is limited only to the powers granted in the Constitution, is generally recognized to be a truism. In United States v. Sprague (1931) the Supreme Courtmarker noted that the amendment "added nothing to the [Constitution] as originally ratified."

From time to time states and local governments have 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, 312 U.S. 100, 124 (1941), reads as follows:

The amendment states but a truism that all is retained which has not been surrendered.
There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers.....


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 O’Connor wrote that the federal government can encourage the states to adopt certain regulations through the spending power (i.e., 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 1997, 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 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

According to the Tenth Amendment, the government of the United States has the power to regulate only matters delegated to it by the Constitution. Other powers are reserved to the states, or to the people (and even the states cannot alienate some of these). The Commerce Clause is one of the Article 1 Section 8 powers specifically delegated to Congress and thus its interpretation is very important in determining the scope of federal legislative power.

In the twentieth century, complex economic challenges of 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 the Second World War, 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 , 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 it 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. Printz v. United States, 521 U.S. 898 (1997). However, where Congress has the power to implement programs, or to regulate, there are sound reasons for the national government to encourage States to become the instruments of national policy, rather than to implement the program directly. One advantage is that state implementation of national programs places implementation in the hands of local officials who are closer to local circumstances. Another advantage is that implementation of federal programs at the state level tends to limit the growth of the national bureaucracy.

For this reason, Congress often seeks to exercise its powers by offering or encouraging the 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. See e.g. South Dakota v. Dole, 483 U.S. 203 (1987).

State Sovereignty Resolutions and Nullification Acts

The Tenth Amendment Center, an organization seeking to promote the original concept of state sovereignty, has gathered information on various actions taken by state legislatures in protest to current federal actions. The actions involve issues on both the conservative and liberal ends of the political spectrum.

  • State Sovereignty Resolutions – , "state sovereignty resolutions" or "10th Amendment Resolutions" have been introduced in the legislatures of 37 states. In seven states the resolutions passed (Alaska, Idaho, North Dakota, South Dakota, Oklahoma, Louisiana, and Tennessee).


  • Firearms Freedom Act Legislation – , resolutions have been introduced in the legislatures of 10 states 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 passed in Montana and Tennessee.


  • Medical Marijuana Laws – , 14 states (Alaska, California, Colorado, Hawai'i, Maine, Maryland, Michigan, Montana, Nevada, Oregon, Rhode Island, Vermont, and Washington) have passed legislation which would permit the use of medicinal marijuana. California has a proposed November 2010 constitutional amendment which would go one step further, and legalize marijuana use by persons over age 21 for any purpose whatsoever. The Obama Administration announced in October 2009 that it advised federal prosecutors not to target medicinal marijuana users, or their suppliers, in states that have passed such laws.


  • REAL ID Act – , 25 states (beginning with Maine in 2007) have passed legislation and/or resolutions which opposed this legislation. 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 – , five states have introduced legislation which would declare certain provisions of any proposed national health care bill to be null and void within the state. 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-payor system. Arizona's legislation passed as a proposed constitutional amendment, to be submitted to the voters in 2010.


  • "Bring the Guard Home" – , five states have 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); none have advanced beyond the introductory stage.


  • Constitutional Tender – , five 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 Montana.


Footnotes

  1. http://www.tenthamendmentcenter.com/nullification/10th-amendment-resolutions/
  2. http://www.tenthamendmentcenter.com/nullification/firearms-freedom-act/
  3. http://www.tenthamendmentcenter.com/nullification/marijuana/
  4. http://blog.tenthamendmentcenter.com/2009/09/nullification-ballot-drive-for-legal-pot-in-ca/#
  5. http://www.foxnews.com/politics/2009/10/19/obama-wont-seek-arrest-medical-pot-users
  6. http://www.tenthamendmentcenter.com/nullification/real-id/
  7. http://www.tenthamendmentcenter.com/nullification/health-care/
  8. http://www.tenthamendmentcenter.com/2009/06/26/arizona-hcr2014-national-health-care-nullification/
  9. http://www.tenthamendmentcenter.com/nullification/bring-the-guard-home/
  10. http://www.tenthamendmentcenter.com/nullification/constitutional-tender/


External links

  • CRS Annotated Constitution: Tenth Amendment Cornell's Annotated Constitution.
  • Tenth Amendment Center The Tenth Amendment Center works to preserve and protect Tenth Amendment freedoms through information and education. The center serves as a forum for the study and exploration of states’ rights issues, focusing primarily on the decentralization of federal government power.
  • Exploring Constitutional Conflicts by Doug Lindner: This site explores some of the issues and controversies that surround the U.S. Constitution.




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