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Tenth Amendment of the U.S. Constitution

The text of the Tenth Amendment to the United States Constitution is relatively simple. It reads: “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.” It was originally drafted to quell fears that the federal government, through Congress, would grow beyond its delegated powers and interfere with the governing powers of the states and the natural rights of the people.

Due to its limited scope, (and the limited size of the federal government in the early years of our republic) the Tenth Amendment remained mostly dormant for years. During that time, the Tenth Amendment was primarily seen as a truism or an interpretive tool for the rest of the Constitution, not an independent right to be pursued in the courts. As Justice Joseph Story famously remarked in 1833, ” This amendment is a mere affirmation of what, upon any just reasoning, is a necessary rule of interpreting the constitution. Being an instrument of limited and enumerated powers, it follows irresistibly, that what is not conferred, is withheld, and belongs to the state authorities”

However, as the federal government began to expand rapidly in the Twentieth Century, and thus began regulating in numerous areas traditionally reserved to the states, Tenth Amendment litigation began popping up on a regular basis. These cases were usually brought by state and local governments who felt that their sovereignty had been limited by federal expansion. As a result, the Tenth Amendment quickly became associated with the doctrine of “States Rights” — a doctrine that carries negative connotations today due to its associations with segregationists in the South during the civil rights era. This has prompted some to complain that the Tenth Amendment is really just an excuse for majorities to trample minority rights.

Yet, as the Supreme Court recently explained, the Tenth Amendment (like the rest of the Bill of Rights) is designed primarily to protect individuals from overreaching government power– not to protect government overreach by the states. As Justice Roberts noted, the Tenth Amendment “rests on what might at first seem a counter-intuitive insight, that ‘freedom is enhanced by the creation of two governments, not one.’” National Federation of Independent Business v. Sebelius, 132 S.Ct. 2566, 2602 (2012) (quoting Alden v. Maine, 527 U.S. 706, 758 (1999)). According to Roberts, the drafters of the Tenth Amendment were concerned that a system with all the power consolidated in one central government, as opposed to a system that divided power between federal and state governments, would be less responsive to the people and more dangerous to freedom. Id. at 2602-3. In other words, the Tenth Amendment was designed as a practical method for protecting individual rights.

In accord with this reasoning, the Court held in Bond v. United States, 131 S. Ct. 2355, 2366-2367 (U.S. 2011), that individuals, as well as states, may bring suit when they are injured by a federal program that exceeds the powers delegated to the federal government under the Constitution. This renewed insight into the purpose and scope of the Tenth Amendment has opened a whole new battleground for civil rights litigants seeking to challenge violations of their rights by the federal government.

To pursue an action under the Tenth Amendment, an individual must prove two things. First, she must show that a federal law, administrative regulation, or agency action exceeds the powers delegated to the federal government under the Constitution. Second, she must prove that she was injured or will almost certainly be injured by that Federal overreach in a real and tangible way.

As with most civil rights claims, proving these elements can be difficult. The courts have been historically lenient in determining the scope of the federal government’s powers under the Constitution. For example, the Supreme Court held in Wickard v. Filburn, 317 U.S. 111 (1942), that the federal government’s authority to regulate commerce across state lines was sufficient to justify a regulation restricting the amount of wheat a farmer could grow for personal consumption. In that case, the Court essentially argued that by growing wheat for personal consumption , Mr. Filburn was reducing the demand for wheat traveling across state lines and thus generating an effect on interstate wheat prices. The Court found this tangential effect on interstate commerce to be sufficient to justify federal regulations.

That said, the courts have recently been more receptive to claims of federal overreach. Indeed, some Supreme Court Justices, like Clarence Thomas, have openly questioned the continued validity of the Court’s ruling in Wickard. Others, while not ready to overturn Wickard directly, certainly seem more willing than the Justices of the New Deal era to take the Tenth Amendment’s restrictions of federal overreach seriously.

A prime example of this seriousness on the topic can be seen in the Courts opinion in U.S. v. Lopez, 514 U.S. 549 (1995). In that case, the Court struck down a federal law regulating the possession of firearms at public schools The government claimed that it had authority to pass the law under its authority to regulate interstate commerce. Its principal argument was that the possession of a firearm in an educational environment would most likely lead to a violent crime, which in turn would affect the general economic condition of the country. The Court rejected this argument outright. The Court explained that to uphold the Government’s contentions “we have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States.”

Since Lopez, courts have been more strict in their interpretations of federal authority. Some examples of federal actions that courts have subsequently mentioned may give rise to an individual claim under the Tenth Amendment include, but are not limited to:

1) Federal programs that require state or local government officers to enforce federal regulations;

2) Federal regulations affecting matters of traditional state, individual, or local concern (e.g., education, diet, alcohol consumption ,wages for local government employees, business activities not substantially affecting interstate commerce, etc.); or

3) Conditions placed on the receipt of federal funding that are unduly coercive to state recipients.

Now that the door for lawyers to litigate these claims has been opened to individuals as well as states, the court may finally be an adequate vehicle to reign in this sort of federal overreach.