Reserved Powers ........................................................................................................................
Scope and Purpose ..............................................................................................................
Effect of Provision on Federal Powers ..............................................................................
Federal Taxing Powers ...............................................................................................
Federal Police Power ...................................................................................................
Federal Regulations Affecting State Activities and Instrumentalities ...................
The powers not delegated to the United States by the Con-
stitution, nor prohibited by it to the States, are reserved to the
States respectively, or to the people.
Scope and Purpose
‘‘The Tenth Amendment was intended to confirm the under-
standing of the people at the time the Constitution was adopted,
that powers not granted to the United States were reserved to the
States or to the people. It added nothing to the instrument as origi-
nally ratified.’’ 1 ‘‘The amendment states but a truism that all is re-
tained which has not been surrendered. There is nothing in the his-
tory 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 na-
tional government might seek to exercise powers not granted, and
that the states might not be able to exercise fully their reserved
powers.’’ 2 That this provision was not conceived to be a yardstick
for measuring the powers granted to the Federal Government or re-
served to the States was firmly settled by the refusal of both
Houses of Congress to insert the word ‘‘expressly’’ before the word
‘‘delegated,’’ 3 and was confirmed by Madison’s remarks in the
course of the debate which took place while the proposed amend-
ment was pending concerning Hamilton’s plan to establish a na-
tional bank. ‘‘Interference with the power of the States was no con-
stitutional criterion of the power of Congress. If the power was not
1 United States v. Sprague, 282 U.S. 716, 733 (1931).
2 United States v. Darby, 312 U.S. 100, 124 (1941). ‘‘While the Tenth Amend-
ment has been characterized as a ‘truism,’’ stating merely that ‘all is retained which
has not been surrendered,’ [citing Darby], it is not without significance. The Amend-
ment expressly declares the constitutional policy that Congress may not exercise
power in a fashion that impairs the States’ integrity or their ability to function ef-
fectively in a federal system.’’ Fry v. United States, 421 U.S. 542, 547 n.7 (1975).
This policy was effectuated, at least for a time, in National League of Cities v.
Usery, 426 U.S. 833 (1976).
3 ANNALS OF CONGRESS 767–68 (1789) (defeated in House 17 to 32); 2 B.
SCHWARTZ, THE BILL OF RIGHTS: A DOCUMENTARY HISTORY 1150–51 (1971) (de-
feated in Senate by unrecorded vote).
AMENDMENT 10—RESERVED STATE POWERS
given, Congress could not exercise it; if given, they might exercise
it, although it should interfere with the laws, or even the Constitu-
tions of the States.’’ 4 Nevertheless, for approximately a century,
from the death of Marshall until 1937, the Tenth Amendment was
frequently invoked to curtail powers expressly granted to Congress,
notably the powers to regulate commerce, to enforce the Fourteenth
Amendment, and to lay and collect taxes.
In McCulloch v. Maryland, 5 Marshall rejected the proffer of a
Tenth Amendment objection and offered instead an expansive in-
terpretation of the necessary and proper clause 6 to counter the ar-
gument. The counsel for the State of Maryland cited fears of oppo-
nents of ratification of the Constitution about the possible swallow-
ing up of states’ rights and referred to the Tenth Amendment to
allay these apprehensions, all in support of his claim that the
power to create corporations was reserved by that Amendment to
the States. 7 Stressing the fact that the Amendment, unlike the
cognate section of the Articles of Confederation, omitted the word
‘‘expressly’’ as a qualification of granted powers, Marshall declared
that its effect was to leave the question ‘‘whether the particular
power which may become the subject of contest has been delegated
to the one government, or prohibited to the other, to depend upon
a fair construction of the whole instrument.’’ 8
Effect of Provision on Federal Powers
Federal Taxing Power.—Not until after the Civil War was
the idea that the reserved powers of the States comprise an inde-
pendent qualification of otherwise constitutional acts of the Federal
Government actually applied to nullify, in part, an act of Congress.
This result was first reached in a tax case—Collector v. Day. 9
Holding that a national income tax, in itself valid, could not be con-
stitutionally levied upon the official salaries of state officers, Jus-
tice Nelson made the sweeping statement that ‘‘the States within
the limits of their powers not granted, or, in the language of the
Tenth Amendment, ‘reserved,’ are as independent of the general
government as that government within its sphere is independent of
4 2 ANNALS OF CONGRESS 1897 (1791).
5 17 U.S. (4 Wheat.) 316 (1819).
6 Supra, pp. 339–44.
7 McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 372 (1819) (argument of coun-
8 Id. at 406. ‘‘From the beginning and for many years the amendment has been
construed as not depriving the national government of authority to resort to all
means for the exercise of a granted power which are appropriate and plainly adapt-
ed to the permitted end.’’ United States v. Darby, 312 U.S. 100, 124 (1941).
9 78 U.S. (11 Wall.) 113 (1871).
AMENDMENT 10—RESERVED STATE POWERS
the States.’’ 10 In 1939, Collector v. Day was expressly overruled. 11
Nevertheless, the problem of reconciling state and national interest
still confronts the Court occasionally, and was elaborately consid-
ered in New York v. United States, 12 where, by a vote of six-to-two,
the Court upheld the right of the United States to tax the sale of
mineral waters taken from property owned by a State. Speaking for
four members of the Court, Chief Justice Stone justified the tax on
the ground that ‘‘[t]he national taxing power would be unduly cur-
tailed if the State, by extending its activities, could withdraw from
it subjects of taxation traditionally within it.’’ 13 Justices Frank-
furter and Rutledge found in the Tenth Amendment ‘‘no restriction
upon Congress to include the States in levying a tax exacted equal-
ly from private persons upon the same subject matter.’’ 14 Justices
Douglas and Black dissented, saying: ‘‘If the power of the federal
government to tax the States is conceded, the reserved power of the
States guaranteed by the Tenth Amendment does not give them
the independence which they have always been assumed to
Federal Police Power.—A year before Collector v. Day was
decided, the Court held invalid, except as applied in the District of
Columbia and other areas over which Congress has exclusive au-
thority, a federal statute penalizing the sale of dangerous illu-
minating oils. 16 The Court did not refer to the Tenth Amendment.
Instead, it asserted that the ‘‘express grant of power to regulate
commerce among the States has always been understood as limited
by its terms; and as a virtual denial of any power to interfere with
the internal trade and business of the separate States; except, in-
deed, as a necessary and proper means for carrying into execution
some other power expressly granted or vested.’’ 17 Similarly, in the
Employers’ Liability Cases, 18 an act of Congress making every car-
rier engaged in interstate commerce liable to ‘‘any’’ employee, in-
cluding those whose activities related solely to intrastate activities,
for injuries caused by negligence, was held unconstitutional by a
10 Id. at 124.
11 Graves v. New York ex rel. O’Keefe, 306 U.S 466 (1939). The Internal Reve-
nue Service is authorized to sue a state auditor personally and recover from him
an amount equal to the accrued salaries which, after having been served with notice
of levy, he paid to state employees delinquent in their federal income tax. Sims v.
United States, 359 U.S. 108 (1959).
12 326 U.S. 572 (1946).
13 Id. at 589.
14 Id. at 584.
15 Id. at 595. Most recently, the issue was canvassed, but inconclusively, in Mas-
sachusetts v. United States, 435 U.S. 444 (1978).
16 United States v. Dewitt, 76 U.S. (9 Wall.) 41 (1870).
17 Id. at 44.
18 207 U.S. 463 (1908). See also Keller v. United States, 213 U.S. 138 (1909).
AMENDMENT 10—RESERVED STATE POWERS
closely divided Court, without explicit reliance on the Tenth
Amendment. Not until it was confronted with the Child Labor Law,
which prohibited the transportation in interstate commerce of
goods produced in establishments in which child labor was em-
ployed, did the Court hold that the state police power was an ob-
stacle to adoption of a measure which operated directly and imme-
diately upon interstate commerce. In Hammer v. Dagenhart, 19 five
members of the Court found in the Tenth Amendment a mandate
to nullify this law as an unwarranted invasion of the reserved pow-
ers of the States. This decision was expressly overruled in United
States v. Darby. 20
During the twenty years following Hammer v. Dagenhart, a va-
riety of measures designed to regulate economic activities, directly
or indirectly, were held void on similar grounds. Excise taxes on
the profits of factories in which child labor was employed, 21 on the
sale of grain futures on markets which failed to comply with fed-
eral regulations, 22 on the sale of coal produced by nonmembers of
a coal code established as a part of a federal regulatory scheme, 23
and a tax on the processing of agricultural products, the proceeds
of which were paid to farmers who complied with production limi-
tations imposed by the Federal Government, 24 were all found to in-
vade the reserved powers of the States. In Schechter Corp. v. Unit-
ed States, 25 the Court, after holding that the commerce power did
not extend to local sales of poultry, cited the Tenth Amendment to
refute the argument that the existence of an economic emergency
justified the exercise of what Chief Justice Hughes called
‘‘extraconstitutional authority.’’ 26
In 1941, the Court came full circle in its exposition of this
Amendment. Having returned four years earlier to the position of
John Marshall when it sustained the Social Security Act 27 and Na-
tional Labor Relations Act, 28 it explicitly restated Marshall’s thesis
in upholding the Fair Labor Standards Act in United States v.
Darby. 29 Speaking for a unanimous Court, Chief Justice Stone
19 247 U.S. 251 (1918).
20 312 U.S. 100 (1941).
21 Child Labor Tax Case, 259 U.S. 20, 26, 38 (1922).
22 Hill v. Wallace, 259 U.S. 44 (1922). See also Trusler v. Crooks, 269 U.S. 475
23 Carter v. Carter Coal Co., 298 U.S. 238 (1936).
24 United States v. Butler, 297 U.S. 1 (1936).
25 295 U.S. 495 (1935).
26 Id. at 529.
27 Steward Machine Co. v. Davis, 301 U.S. 548 (1937); Helvering v. Davis, 301
U.S. 619 (1937).
28 NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937).
29 312 U.S. 100 (1941). See also United States v. Carolene Products Co., 304
U.S. 144, 147 (1938); Case v. Bowles, 327 U.S. 92, 101 (1946).
AMENDMENT 10—RESERVED STATE POWERS
wrote: ‘‘The power of Congress over interstate commerce ‘is com-
plete in itself, may be exercised to its utmost extent, and acknowl-
edges no limitations other than are prescribed in the Constitution.’
. . . That power can neither be enlarged nor diminished by the ex-
ercise or non-exercise of state power. . . . It is no objection to the
assertion of the power to regulate interstate commerce that its ex-
ercise is attended by the same incidents which attended the exer-
cise of the police power of the states. . . . Our conclusion is unaf-
fected by the Tenth Amendment which . . . states but a truism
that all is retained which has not been surrendered.’’ 30
But even prior to 1937 not all measures taken to promote ob-
jectives which had traditionally been regarded as the responsibil-
ities of the States had been held invalid. In Hamilton v. Kentucky
Distilleries Co., 31 a unanimous Court, speaking by Justice Bran-
deis, upheld ‘‘War Prohibition,’’ saying: ‘‘That the United States
lacks the police power, and that this was reserved to the States by
the Tenth Amendment, is true. But it is nonetheless true that
when the United States exerts any of the powers conferred upon
it by the Constitution, no valid objection can be based upon the fact
that such exercise may be attended by the same incidents which
attend the exercise by a State of its police power.’’ 32 And in a se-
ries of cases, which today seem irreconcilable with Hammer v.
Dagenhart, it sustained federal laws penalizing the interstate
transportation of lottery tickets, 33 of women for immoral pur-
poses, 34 of stolen automobiles, 35 and of tick-infected cattle, 36 as
well as a statute prohibiting the mailing of obscene matter. 37 It af-
firmed the power of Congress to punish the forgery of bills of lading
purporting to cover interstate shipments of merchandise, 38 to sub-
ject prison-made goods moved from one State to another to the
laws of the receiving State, 39 to regulate prescriptions for the me-
dicinal use of liquor as an appropriate measure for the enforcement
of the Eighteenth Amendment, 40 and to control extortionate means
of collecting and attempting to collect payments on loans, even
when all aspects of the credit transaction took place within one
30 312 U.S. 100, 114, 123, 124 (1941). See also Fernandez v. Wiener, 326 U.S.
340, 362 (1945).
31 251 U.S. 146 (1919).
32 Id. at 156.
33 Lottery Case (Champion v. Ames), 188 U.S. 321 (1903).
34 Hoke v. United States, 227 U.S. 308 (1913).
35 Brooks v. United States, 267 U.S. 432 (1925).
36 Thornton v. United States, 271 U.S. 414 (1926).
37 Roth v. United States, 354 U.S. 476 (1957).
38 United States v. Ferger, 250 U.S. 199 (1919).
39 Kentucky Whip & Collar Co. v. Illinois C. R.R., 299 U.S. 334 (1937).
40 Everard’s Breweries v. Day, 265 U.S. 545 (1924).
AMENDMENT 10—RESERVED STATE POWERS
State’s boundaries. 41 More recently, the Court upheld provisions of
federal surface mining law that could be characterized as ‘‘land use
regulation’’ traditionally subject to state police power regulation. 42
Notwithstanding these federal inroads into powers otherwise
reserved to the States, the Court has held that Congress could not
itself undertake to punish a violation of state law; in United States
v. Constantine, 43 a grossly disproportionate excise tax imposed on
retail liquor dealers carrying on business in violation of local law
was held unconstitutional. However, Congress does not contravene
reserved state police powers when it levies an occupation tax on all
persons engaged in the business of accepting wagers regardless of
whether those persons are violating state law, and imposes severe
penalties for failure to register and pay the tax. 44
Federal Regulations Affecting State Activities and In-
strumentalities.—Since the mid-1970s, the Court has been closely
divided over whether the Tenth Amendment or related constitu-
tional doctrine constrains congressional authority to subject state
activities and instrumentalities to generally applicable require-
ments enacted pursuant to the commerce power. 45 Under Garcia
v. San Antonio Metropolitan Transit Authority, 46 the Court’s most
recent ruling directly on point, 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, 47
the case it overruled, was a 5–4 decision, and there are recent indi-
cations that the Court may be ready to resurrect some form of
Tenth Amendment constraint on Congress.
In National League of Cities v. Usery, the Court conceded that
the legislation under attack, which regulated the wages and hours
41 Perez v. United States, 402 U.S. 146 (1971).
42 Hodel v. Virginia Surface Mining & Recl. Ass’n, 452 U.S. 264 (1981).
43 296 U.S. 287 (1935). The Civil Rights Act of 1875, which made it a crime for
one person to deprive another of equal accommodations at inns, theaters or public
conveyances was found to exceed the powers conferred on Congress by the Thir-
teenth and Fourteenth Amendments and hence to be an unlawful invasion of the
powers reserved to the States by the Tenth Amendment. Civil Rights Cases, 109
U.S. 3, 15 (1883). Congress has now accomplished this end under its commerce pow-
ers, Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964); Katzenbach v.
McClung, 379 U.S. 294 (1964), but it is clear that the rationale of the Civil Rights
Cases has been greatly modified if not severely impaired. Cf. Jones v. Alfred H.
Mayer Co., 392 U.S. 409 (1968) (13th Amendment); Griffin v. Breckenridge, 403
U.S. 88 (1971) (13th Amendment); United States v. Guest, 383 U.S. 745 (1966) (14th
44 United States v. Kahriger, 345 U.S. 22, 25–26 (1953); Lewis v. United States,
348 U.S. 419 (1955).
45 The matter is discussed more fully supra, pp. 922–30.
46 469 U.S. 528 (1985).
47 426 U.S. 833 (1976).
AMENDMENT 10—RESERVED STATE POWERS
of certain state and local governmental employees, was ‘‘undoubt-
edly within the scope of the Commerce Clause,’’ 48 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 ex-
ercising the authority in that manner.’’ 49 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 im-
plicitly embodied a policy against impairing the States’ integrity or
ability to function. 50 But, in the end, the Court held that the legis-
lation 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.’’ 51 In subsequent cases ap-
plying or distinguishing National League of Cities, the Court and
dissenters wrote as if the Tenth Amendment was the prohibition. 52
Whatever the source of the constraint, it was held not to limit the
exercise of power under the Reconstruction Amendments. 53
The Court overruled National League of Cities in Garcia v. San
Antonio Metropolitan Transit Auth. 54 Justice Blackmun’s opinion
for the Court in Garcia concluded that the National League of
Cities test for ‘‘integral operations in areas of traditional govern-
mental functions’’ had proven ‘‘both impractical and doctrinally
barren,’’ and that the Court in 1976 had ‘‘tried to repair what did
not need repair.’’ 55 With only passing reference to the Tenth
Amendment the Court nonetheless clearly reverted to the
Madisonian view of the Amendment reflected in Unites States v.
Darby. 56 States retain a significant amount of sovereign authority
48 Id. at 841.
49 Id. at 845.
50 Id. at 843.
51 Id. at 852.
52 E.g., FERC v. Mississippi, 456 U.S. 742, 771 (1982) (Justice Powell dissent-
ing); 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 appli-
cation 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.
53 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 opin-
ion of Chief Justice Burger).
54 469 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.
55 Id. at 557.
56 312 U.S. 100, 124 (1941), supra p. 1509; Madison’s views were quoted by the
Court in Garcia, 469 U.S. at 549.
AMENDMENT 10—RESERVED STATE POWERS
‘‘only to the extent that the Constitution has not divested them of
their original powers and transferred those powers to the Federal
Government.’’ 57 The principal restraints on congressional exercise
of the Commerce power are to be found not in the Tenth Amend-
ment or in the Commerce Clause itself, but in the structure of the
Federal Government and in the political processes. 58 ‘‘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 fa-
vors and which ones it dislikes.’’ 59 While continuing to recognize
that ‘‘Congress’ authority under the Commerce Clause must reflect
[the] position . . . that the States occupy a special and specific posi-
tion in our constitutional system,’’ the Court held that application
of Fair Labor Standards Act minimum wage and overtime provi-
sions to state employment does not require identification of these
‘‘affirmative limits.’’ 60 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 inter-
preted 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. 61 A claim that Congress acted on incom-
plete 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.’’ 62 Thus,
the general rule was that ‘‘limits on Congress’ authority to regulate
57 469 U.S. at 549.
58 ‘‘Apart from the limitation on federal authority inherent in the delegated na-
ture of Congress’ 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 Fed-
eral Government itself.’’ 469 U.S. at 550. The Court cited the role of states in select-
ing the President, and the equal representation of states in the Senate. Id. at 551.
59 469 U.S. at 550, 546.
60 469 U.S. at 556.
61 485 U.S. 505, 512 (1988). Justice Scalia, in a separate concurring opinion, ob-
jected 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.
62 Id. at 513.