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Tenth Amendment Back to the Future Feb. 28, 2006

Tenth Amendment Back to the Future Feb. 28, 2006. Overview of the 10 th 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.” Original (1 st ) Use of 10 th Amendment

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Tenth Amendment Back to the Future Feb. 28, 2006

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  1. Tenth Amendment Back to the Future Feb. 28, 2006

  2. Overview of the 10th 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.” • Original (1st) Use of 10th Amendment • Reinforces notion of enumerated powers • Within delegated powers, congress has plenary authority, but no new powers can be assumed • As such, 10th Amd states but a truism • New (2nd) Use of 10th Amendment • Even where Congress has substantive power, • Congress cannot use that power against states Con Law I - Manheim

  3. 2 intrusions into State Sovereignty • Congress passes a law regulating people in the states. Because of supremacy, that law displaces inconsistent state law. • Congress passes a law that regulates the states directly. Con Law I - Manheim

  4. 2 intrusions into State Sovereignty • Congress passes a law regulating people in the states. Because of supremacy, that law displaces inconsistent state law. • Congress passes a law that regulates the states directly. Federal State 10th Amd (ver 2) Can congress use its enumerated powers to regulate states themselves? 10th Amd (ver 1) Doctrine of enumerated powers People Con Law I - Manheim

  5. 10th Amd as State Immunity • Version 1 focuses on powers • Congress may regulate only where it has enumerated power • Version 2 focuses on limits • Congress may not use its enumerated powers to transgress constitutional limits • E.g., taxing of exports; establishment of religion • In this version, the 10th isn’t merely a truism • It is a specific limit on federal power • Query: what method of interpretation leads to this? Con Law I - Manheim

  6. Early Caselaw • States enjoyed no special immunity from federal regulation • so long as regulation was within federal power • U.S. v. California(1936) • states no different than individuals when engaged in commercial activity • Maryland v. Wirtz(1968); Fry v. US(1975) • even state activity of a sovereign government’l character was subject to fed regulatory power Con Law I - Manheim

  7. National League of Cities(1976) • Overrules Wirtz; Fry • 10th not limited to its text (enum. powers doctrine); fully guarantees state sovereignty • Fed’l reg’n of states abrogates their sovereignty • Even where cong. has enumerated power • And can regulate private activity • State activity may be immune from regulation • 10th creates state right to be free from regulation, similar to BoR • Limited to direct regulation of states Con Law I - Manheim

  8. NLC test: 1. Does Congress regulate the States qua states • are the states regulated, or just their residents? 2. Involving an indisputable area of state sovereignty • e.g., treasury, gov’t structure or employees 3. Affecting traditional governmental functions • e.g., education, police, municipal services 4. Where state interest outweighs federal interest • subjective value test • E.g., federal interest in environment may outweigh states • added by Blackmun’s concurrence (see Hodel v. VSMRA) • Least common denominator for 5 votes (narrowest holding) Con Law I - Manheim

  9. National League of Cities • Brennan dissent: • How does the 10th Amd become a rights conferring amd, protecting states from regulation? • If not the 10th Amd, what source of state sovereignty? • Stevens dissent: • Is state right to pay substandard wages stronger than federal interest in a healthy economy? Con Law I - Manheim

  10. Garcia v. SAMTA(1985) • Reconsideration of Usery • Stewart replaced by O’Connor • no effect • Blackmun switched his vote. Why? • Difficulty in applying Usery test • No agreement on traditional state functions • No agreement on which attributes of state sovereignty need judicial protection • Especially in light of the non-textual nature of state sovereignty Con Law I - Manheim

  11. Garcia v. SAMTA(1985) • Garcia political postulate • structure of congress provides adequate political protection for states • states able to protect themselves in Congress • Is Powell right that this is illusory? • Notwithstanding changes in structure • 14th and 17th Amendments • Process safeguard • clear statement rule (Gregory v. Ashcroft) • See also SWANCC v. Corps of Engineers Con Law I - Manheim

  12. Garcia v. SAMTA(1985) • Role of stare decisis • Should S.Ct. reexamine its precedents • Is Powell right to criticize abrupt change? • Is Rehnquist right to threaten another abrupt change (via new justices)? • O’Connor Dissent: • judicial protection of states needed to balance expansion of commerce power • Do dissents reveal the source of state immunity from federal regulation? Con Law I - Manheim

  13. Tenth Amendment, version 3 • Congress can act only w/in enum. Power • Even when acting w/in enum. power, congress can regulate states themselves only if it clearly says it is doing so • More restrictive test of NLC overruled • Even when acting w/in enumerated power, congress cannot require states to enforce federal law Con Law I - Manheim

  14. New York v. United States(1992) • Low-Level Radioactive Waste Policy Act-1985 • Federal gov’t exclusive power over nuclear issues starting with Atomic Energy Act (1954) • Transfers some power to states (coop. fed’ism) • States fail to develop disposal sites Con Law I - Manheim

  15. Con Law I - Manheim

  16. Con Law I - Manheim

  17. Tragedy of the commons Con Law I - Manheim

  18. New York v. United States(1992) • Low-Level Radioactive Waste Policy Act-1985 • Nat’l Gov’s' Ass’n & Nat’l Conf. of State Legis. develop LLWRPA and ask Congress to enact • Passes both houses of Congress - unanimously Con Law I - Manheim

  19. Con Law I - Manheim

  20. New York v. United States(1992) • What LLRWPA does • Requires states take responsibility for disposal of waste created within the state • Incentives • Monetary assistance • Discriminatory access • “Take Title” • States must either regulate per Act, or • Assume ownership of waste Con Law I - Manheim

  21. Commandeering • Rule: congress can’t “comman- deer” states into federal service • Treat them as instruments of federal regulation • Require them to legislate per fed’l standards, or • Require them to enforce fed’l law (against 3d parties) • Impose liabilities on them • For failure to act • Extend to other laws? • Even if states consent? • Federalism protects liberty • Not states ? Con Law I - Manheim

  22. Commandeering • Evils of Commandeering • Avoids accountability • State citizens won’t know who’s responsible • Federalizes matters of local concern • Deprives states of discretion on how to respond • Treats states as instru-ments of federal gov’t Con Law I - Manheim

  23. Commandeering • Source of anti-commandeering rule • 10th Amendment? • NB: congress has plenary power over nuclear issues • Art. I, Section 9? • Par. 4 limits cong’ power over states, but not here • Original intent (const as whole) • Constitution never understood to allow this • Lively debate during convention: would fed gov’t operate on the states or directly on the people ? Con Law I - Manheim

  24. Alternatives to Commandeering • What options available to congress that better respect state sovereignty? • Suspend block grants to non-complying states? • Prohibit export of nuclear waste? • Reassert exclusive jdx? • Preempt state laws? • Directly regulate waste generation and disposal? all of these would be constitutional Con Law I - Manheim

  25. Printz v. US(1997) • Brady Act • Passed under commerce power • meets Lopez - commercial transaction • Administration of law • federal implementation • AG to develop instant background check system • state implementation (interim provisions) • “reasonable effort” to determine lawfulness of sale Con Law I - Manheim

  26. Printz v. US • Constitutional objection • state enforcement of federal law violates state sovereignty • Interpretivist Methods • Originalism • “Because there is no const’l text speaking to this pre-cise question, the answer to the challenge must be sought in historical understanding and practice” • Textualism • and in the structure of the constitution • Dynamic/organic • and in the jurisprudence of this Court” [common law] Con Law I - Manheim

  27. Finding State Sovereignty • 10th Amendment • nothing explicit (textualism) • “no const'l text speaking to this precise question” • implied from history (originalism) • lack of contemporaneous or early examples (federal imposition of duties on state executive officers) “suggests an assumed absence of such power” • Exception: extradition clause (specific const’l duty on states) • early congress “recommended” rather than “com-manded” state assistance • “absence of executive-commandeering statutes” in later congressional enactments as well • funding measures don’t count (conditional spending) Con Law I - Manheim

  28. History continued Can conclusive decisions about const’l power be made based on The Federalist? • Federalist Papers • As interpretive guide • Dueling federalists • No. 27 (Hamilton) - states “will be • “incorporated into the operations of the nat’l gov’t” • “rendered auxiliary to the enforcement of [federal laws]” • No. 36 (H) - state officers will collect federal taxes • No. 44 (Madison) - states “will have an essential agency in giving effect to the federal const” • Scalia’s example of state conduct of federal elections is off point; it involves a special provision Art, I, § 4 • No. 45 (M) - state collection of federal taxes Con Law I - Manheim

  29. Immunity in Const. Structure • Textual recognition of state sovereignty • Scalia’s examples • integrity of state’s territory • state residents as “citizens” (Art. III, § 2; Art. IV, § 2) • state role in ratification and amendment • 10th amendment • How persuasive • Do any of these establish immunity from fed reg-ulation (beyond specific provisions mentioned)? • Separation of Powers • congress’ ability to delegate execution of laws diminishes President’s power / undermines SoP • also true for voluntary compliance by states Con Law I - Manheim

  30. State Enforcement of Fed Law • Commandeering of state legislatures • Forbidden by NY v. US • reduces accountability • Commandeering of state executive officers • Forbidden by Printz v. US • Commandeering of state judiciary • State courts must enforce federal law and apply substantive federal standards • Testa v. Katt • Reverse Erie Con Law I - Manheim

  31. Practice Questions • What is the difference between the 1st, 2nd and 3rd uses of the Tenth Amendment? • Can congress require state police cars to be equipped with catalytic converters - • During the era of Dual-Federalism? • During the post-New Deal era? • Under NLC? • Under Garcia? • Under Printz? • Can congress require that states enforce pollution controls against private vehicles? Con Law I - Manheim

  32. Practice Questions • Is the Drug-Free School Zones Act const'l? • After Lopez, are Heart of Atlanta Motel and Katzenbach still good law? • Who won the Civil War? more practice questions Con Law I - Manheim

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