Amdt10.1.2.3 Federal Regulations Affecting State Activities and Instrumentalities

Tenth Amendment:

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.

Since the mid-1970s, the Court has been closely divided over whether the Tenth Amendment or related constitutional doctrine constrains congressional authority to subject state activities and instrumentalities to generally applicable requirements enacted pursuant to the commerce power. 1 According to Garcia v. San Antonio Metropolitan Transit Authority, 2 the Tenth Amendment imposes practically no judicially enforceable limit on generally applicable federal legislation, and states must look to the political process for redress. Garcia, however, like National League of Cities v. Usery, 3 the case it overruled, was a 5-4 decision, and there are later indications that the Court may be ready to resurrect some form of Tenth Amendment constraint on Congress. 4

In National League of Cities v. Usery, the Court conceded that the legislation under attack, which regulated the wages and hours of certain state and local governmental employees, was undoubtedly within the scope of the Commerce Clause,5 but it cautioned that there 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.6 The Court approached but did not reach the conclusion that the Tenth Amendment was the prohibition here, not that it directly interdicted federal power because power which is delegated is not reserved, but that it implicitly embodied a policy against impairing the states’ integrity or ability to function. 7 But, in the end, the Court held that the legislation was invalid, not because it violated a prohibition found in the Tenth Amendment or elsewhere, but because the law was not within the authority granted Congress.8 In subsequent cases applying or distinguishing National League of Cities, the Court and dissenters wrote as if the Tenth Amendment was the prohibition. 9 Whatever the source of the constraint, it was held not to limit the exercise of power under the Reconstruction Amendments. 10

The Court overruled National League of Cities in Garcia v. San Antonio Metropolitan Transit Authority. 11 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, and that the Court in 1976 had tried to repair what did not need repair.12 With only passing reference to the Tenth Amendment, the Court nonetheless clearly reverted to the Madisonian view of the Amendment reflected in United States v. Darby. 13 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.14 The principal restraints on congressional exercise of the commerce power are to be found not in the Tenth Amendment or in the Commerce Clause itself, but in the structure of the Federal Government and in the political processes. 15 Freestanding conceptions of state sovereignty such as the National League of Cities test subvert the federal system by invit[ing] an unelected federal judiciary to make decisions about which state policies it favors and which ones it dislikes.16 Although 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.17 In sum, the Court in Garcia seems to have said that most but not necessarily all disputes over the effects on state sovereignty of federal commerce power legislation are to be considered political questions. What it would take for legislation to so threaten the special and specific position that states occupy in the constitutional system as to require judicial rather than political resolution was not delineated.

The first indication was that it would take a very unusual case indeed. In South Carolina v. Baker, 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 apply substantive judicial review standards to claims that Congress has regulated state activities in violation of the Tenth Amendment. 18 A claim that Congress acted on incomplete information would 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.19 Thus, the general rule was 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.20

Later indications were that the Court may have been looking for ways to back off from Garcia. One device was to apply a clear statement rule requiring unambiguous statement of congressional intent to displace state authority. After noting the serious constitutional issues that would be raised by interpreting the Age Discrimination in Employment Act to apply to appointed state judges, the Court in Gregory v. Ashcroft21 explained that, because Garcia constrained consideration of the limits that the state-federal balance places on Congress’s powers, a plain statement rule was all the more necessary. [I]nasmuch as this Court in Garcia has left primarily to the political process the protection of the States against intrusive exercises of Congress’s Commerce Clause powers, we must be absolutely certain that Congress intended such an exercise.22

The Court’s 1992 decision in New York v. United States23 may portend a more direct retreat from Garcia. The holding in New York, that Congress may not commandeer state regulatory processes by ordering states to enact or administer a federal regulatory program, applied a limitation on congressional power previously recognized in dictum 24 and in no way inconsistent with the holding in Garcia. Language in the opinion, however, seems more reminiscent of National League of Cities than of Garcia. First, the Court’s opinion by Justice O’Connor declares that it makes no difference whether federalism constraints derive from limitations inherent in the Tenth Amendment, or instead from the absence of power delegated to Congress under Article I; the Tenth Amendment thus directs us to determine . . . whether an incident of state sovereignty is protected by a limitation on an Article I power.25 Second, the Court, without reference to Garcia, thoroughly repudiated Garcia’s structural approach requiring states to look primarily to the political processes for protection. In rejecting arguments that New York’s sovereignty could not have been infringed because its representatives had participated in developing the compromise legislation and had consented to its enactment, the Court declared that [t]he Constitution does not protect the sovereignty of States for the benefit of the States or State governments, [but instead] for the protection of individuals. Consequently, State officials cannot consent to the enlargement of the powers of Congress beyond those enumerated in the Constitution.26 The stage appears to be set, therefore, for some relaxation of Garcia’s obstacles to federalism-based challenges to legislation enacted pursuant to the commerce power.

Extending the principle applied in New York, the Court in Printz v. United States27 held that Congress may not circumvent the prohibition on commandeering a state’s regulatory processes by conscripting the State’s officers directly.28 Printz struck down interim provisions of the Brady Handgun Violence Protection Act that required state and local law enforcement officers to conduct background checks on prospective handgun purchasers. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers . . . to administer or enforce a federal regulatory program. It matters not whether policymaking is involved, and no case-by-case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.29

In Reno v. Condon, 30 the Court distinguished New York and Printz in upholding the Driver’s Privacy Protection Act of 1994 (DPPA), a federal law that restricts the disclosure and resale of personal information contained in the records of state motor vehicles departments. The Court returned to a principle articulated in South Carolina v. Baker that distinguishes between laws that improperly seek to control the manner in which states regulate private parties, and those that merely regulate state activities directly. 31 Here, the Court found that the DPPA does not require the States in their sovereign capacities to regulate their own citizens, but rather regulates the States as the owners of databases.32 The Court saw no need to decide whether a federal law may regulate the states exclusively, because the DPPA is a law of general applicability that regulates private resellers of information as well as states. 33

The Court's most recent consideration of the anti-commandeering principle occurred in 2018 in Murphy v. NCAA.  34 In Murphy, Justice Alito, writing on behalf of the Court, invalidated on anti-commandeering grounds a provision in the Professional and Amateur Sports Protection Act (PASPA) that prohibited states from authorizing sports gambling schemes.  35 Noting the rule from New York and Printz that Congress lacks "the power to issue orders directly to the States,"  36 the Court concluded that PASPA's prohibition of state authorization of sports gambling violated the anti-commandeering rule by putting state legislatures under the "direct control of Congress."  37 In so concluding, Justice Alito rejected the argument that the anti-commandeering doctrine only applies to "affirmative" congressional commands, as opposed to when Congress prohibits certain state action.  38 Finding the distinction between affirmative requirements and prohibitions "empty," the Court held that both types of commands equally intrude on state sovereign interests.  39

In holding that Congress cannot command a state legislature to refrain from enacting a law, the Murphy Court reconciled its holding with two related doctrines.  40 First, the Court noted that while cases like Garcia, Baker, and Condon establish that the anti-commandeering doctrine "does not apply when Congress evenhandedly regulates activity in which both States and private actors engage,"  41 PASPA's anti-authorization provision was, in contrast, solely directed at the activities of state legislatures.  42 Second, the Court rejected the argument that PASPA constituted a "valid preemption provision" under the Supremacy Clause.  43 While acknowledging that the "language used by Congress and this Court" with respect to preemption is sometimes imprecise,  44 Justice Alito viewed "every form of preemption" to be based on a federal law that regulates the conduct of private actors—either by directly regulating private entities or by conferring a federal right to be free from state regulation.  45 In contrast, PASPA's anti-authorization provision did not "confer any federal rights on private actors interested in conducting sports gambling operations" or "impose any federal restrictions on private actors."  46 As a result, the Murphy Court viewed the challenged provision to be a direct command to the states in violation of the anti-commandeering rule.  47


  1.  The matter is discussed more fully under Supremacy Clause Versus the Tenth Amendment, supra.
  2.  469 U.S. 528 (1985).
  3.  426 U.S. 833 (1976).
  4.  [W]e need not address the question whether general applicability [i.e., applicability to individuals as well as to the states] is a constitutional requirement for federal regulation of the States . . . . Reno v. Condon, 528 U.S. 141 (2000), discussed infra.
  5.  426 U.S. at 841.
  6.  426 U.S. at 845.
  7.  426 U.S. at 843.
  8.  426 U.S. at 832.
  9.  E.g., FERC v. Mississippi, 456 U.S. 742, 771 (1982) (Justice Powell dissenting); id. at 775 (Justice O’Connor dissenting); EEOC v. Wyoming, 460 U.S. 226 (1983). The EEOC Court distinguished National League of Cities, holding that application of the Age Discrimination in Employment Act to state fish and game wardens did not directly impair the state’s ability to structure integral operations in areas of traditional governmental function, since the state remained free to assess each warden’s fitness on an individualized basis and retire those found unfit for the job.
  10.  Fitzpatrick v. Bitzer, 427 U.S. 445 (1976); City of Rome v. United States, 446 U.S. 156 (1980); Fullilove v. Klutznick, 448 U.S. 448, 476-78 (1980) (plurality opinion of Chief Justice Burger).
  11.  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.
  12.  469 U.S. at 557.
  13.  312 U.S. 100, 124 (1941), discussed supra. Madison’s views were quoted by the Court in Garcia, 469 U.S. at 549.
  14.  469 U.S. at 549.
  15.  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 the role of states in selecting the President, and the equal representation of states in the Senate. Id. at 551.
  16.  469 U.S. at 550, 546.
  17.  469 U.S. at 556.
  18.  485 U.S. 505, 512 (1988). Justice Scalia, in a concurring opinion, objected to this language as departing from the Court’s assertion in Garcia that the constitutional structure imposes some affirmative limits on congressional action. Id. at 528.
  19.  485 U.S. at 513.
  20.  485 U.S. at 512.
  21.  501 U.S. 452 (1991). The Court left no doubt that it considered the constitutional issue serious. [T]he authority of the people of the States to determine the qualifications of their most important government officials . . . is an authority that lies at ‘the heart of representative government’ [and] is a power reserved to the States under the Tenth Amendment and guaranteed them by [the Guarantee Clause]. Id. at 463. In the latter context the Court’s opinion by Justice O’Connor cited Merritt, The Guarantee Clause and State Autonomy: Federalism for a Third Century, 88 Colum. L. Rev. 1 (1988). See also McConnell, Federalism: Evaluating the Founders’ Design, 54 U. Chi. L. Rev. 1484 (1987) (also cited by the Court); and Van Alystyne, The Second Death of Federalism, 83 Mich. L. Rev. 1709 (1985).
  22.  501 U.S. at 464.
  23.  505 U.S. 144 (1992).
  24.  See, e.g., Hodel v. Virginia Surface Mining & Recl. Ass’n, 452 U.S. 264, 288 (1981); FERC v. Mississippi, 456 U.S. 742, 765 (1982); South Carolina v. Baker, 485 U.S. 505, 513-15 (1988).
  25.  505 U.S. at 157. If a power is delegated to Congress in the Constitution, the Tenth Amendment expressly disclaims any reservation of that power to the States. . . . Id. at 156 (quoted with approval in Watters v. Wachovia Bank, N.A., 550 U.S. 1, 22 (2007), which held that a national bank's state-chartered subsidiary real estate lending business is subject to federal, not state, law).
  26.  505 U.S. at 181, 182.
  27.  521 U.S. 898 (1997).
  28.  521 U.S. at 935.
  29.  521 U.S. at 935.
  30.  528 U.S. 141 (2000).
  31.  485 U.S. 505, 514-15 (1988).
  32.  528 U.S. at 151.
  33.  528 U.S. at 151.
  34.  138 S. Ct. 1461, 1475-81 (2018).
  35.  See Pub. L. No. 102-559, § 2(a), 106 Stat. 4227, 4228 (1992) (codified at 28 U.S.C. § 3702).
  36.  See Murphy, 138 S. Ct. at 1475-76. Murphy offered three justifications for the anti-commandeering rule: (1) to protect liberty by ensuring a "healthy balance of power" between the states and the federal government; (2) to promote political accountability by avoiding the blurring of which government is to credit or blame for a particular policy; (3) to prevent Congress from shifting the costs of regulation to the states. Id. at 1477.
  37.  Id. at 1478.
  38.  Id. at 1478.
  39.  Id. at 1478.
  40.  Id. at 1478-81.
  41.  Id. at 1478.
  42.  Id. at 1479. The Court also distinguished two other cases in which the Court rejected anti-commandeering challenges to federal statutes. First, the Murphy Court found PASPA to be distinct from the "cooperative federalism" of the law at issue in Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264 (1981), in which, unlike PASPA, Congress provided the states with the choice of either implementing a federal program or allowing the federal program to preempt contrary state laws. See Murphy, 138 S. Ct. at 1479. Likewise, the Murphy Court found FERC v. Mississippi, 456 U.S. 742 (1982) inapplicable, as the law at issue in FERC did not, like PASPA, issue a command to a state legislature. See Murphy, 138 S. Ct. at 1479. Instead, the Murphy Court viewed the law in FERC as imposing the "modest requirement" that states "consider, but not necessarily" adopt federal regulations pertaining to the consumption of oil and natural gas. Id.
  43.  See Murphy, 138 S. Ct. at 1479. Murphy identified two requirements for a preemption provision to be deemed valid: (1) the provision must represent an exercise of power conferred on Congress by the Constitution; (2) the provision must regulate private actors and not the states. Id. In so concluding, the Court noted that the Supremacy Clause was not an independent grant of legislative power and that "pointing to the Supremacy Clause" as the basis for Congress's authority "will not do." Id. (citing Armstrong v. Exceptional Child Ctr., Inc., 135 S. Ct. 1378, 1383 (2015)).
  44.  Id. at 1480-81. In particular, the Court noted that while express preemption clauses in federal statutes often appear to operate directly on the states, it would be a "mistake to be confused by the way in which a preemption provision is phrased" because Congress is not required to "employ a particular linguistic formulation when preempting state law." Id. at 1480 (quoting Coventry Health Care of Missouri, Inc. v. Nevils, 137 S. Ct. 1190, 1198-1200 (2017)).
  45.  Id. at 1481.
  46.  Id. at 1481 (noting that if a private actor started a sports gambling operation, either with or without state authorization, PASPA's anti-authorization provision would not be violated).
  47.  Id. The Court ultimately invalidated PASPA in its entirety, holding that other provisions of the law that did regulate private conduct were not severable from the anti-authorization provision and therefore could exist independently from the unconstitutional provision. See id. at 1481-84.