The Tenth Amendment to the United States Constitution succinctly states its purpose in 28 words: ‘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 single sentence forms the foundation of American federalism. For approximately six decades following the New Deal, the courts regarded the amendment as more symbolic than functional. This perception began to change over the past thirty years, but many challenges remain unresolved.
James Madison emphasized in The Federalist No. 45 that the federal government’s powers are ‘few and defined,’ while those of state governments are ‘numerous and indefinite.’ The Tenth Amendment underscores this by restricting federal authority only to what the Constitution explicitly delegates.
The New Deal era significantly altered this balance. In Wickard v. Filburn (1942), the Supreme Court allowed federal regulation of wheat growth for personal use, as it affected interstate commerce’s aggregate economic impact. This decision dramatically extended Congress’s reach, rendering the Tenth Amendment seemingly inert.
Thirty years ago, a judicial shift began. In U.S. v. Lopez (1995), the Supreme Court ruled that the Gun-Free School Zones Act exceeded congressional authority since having a firearm near a school was not classified as economic activity with substantial interstate commerce impact.
Similarly, U.S. v. Morrison (2000) challenged parts of the Violence Against Women Act, and NFIB v. Sebelius (2012) objected to using the commerce rationale for the Affordable Care Act’s individual insurance mandate.
West Virginia v. EPA (2022) introduced the major questions doctrine, highlighting that Congress must be explicit when granting extensive regulatory authority. Furthermore, Loper Bright Enterprises v. Raimondo (2024) ended Chevron deference, requiring courts to independently assess agency limits.
These judicial decisions mark significant progress but do not fully address the extensive expansion experienced over past decades.
One crucial Tenth Amendment principle, anti-commandeering, emerged from Printz v. United States (1997). Justice Scalia argued the federal government lacks the power to mandate state officers to execute federal programs. The Constitution expects federal actions to be carried out by federal officials, not coerced state ones.
Murphy v. NCAA (2018) extended this to legislative commandeering, stating that Congress cannot control state legislatures. A relevant example is immigration enactments where the federal government cannot obligate local agencies to enforce immigration laws, as seen in sanctuary city policies.
Nonetheless, anti-commandeering is sometimes misunderstood. It ensures states are not used as federal tools without approval, but it does not absolve state officials from their responsibilities. Local officials must still consider accountability to their constituents when making policy decisions.
If constituents find fault with such policy choices, they should apply pressure through democratic means. The Tenth Amendment does not guarantee wise decisions by states. Instead, it ensures localized governance remains accountable and responsive to the electorate.
The founding fathers aimed to retain power where it remains closest and most accountable to the people. An overreaching federal government diminishes state accountability by substituting state resolutions with federal litigation.
Madison’s succinct words in the Tenth Amendment were crafted to prevent unchecked federal expansion, yet current political incentives often favor growth. The partial reversals seen in recent years through judicial efforts are commendable steps forward. However, comprehensive correction of the federal and state power imbalance is still awaited.
Written by Jay Rogers, an experienced financial professional specializing in private equity, credit, hedge funds, and wealth management.
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