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10th Amendment

6 min read

Part of The Constitution and the courts.

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Every episode (3)

Who argued it

Joe Mathews · Carol Berkin · Elise Foley · Sophia Campos

Federalism · Welfare State · Minimum Wage · Immigration · Immigration Reform

Background

Text and original design

Bob Zadek reads the amendment aloud as a single sentence: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, and to the people.” He calls it “often forgotten” and argues it does not amend anything but reminds readers that most power resides in the states or the people, with only enumerated powers reserved to the federal government California Discovers Federalism (2018).

Carol Berkin places the amendment’s wording in the first Congress, where the Anti-Federalists fought for one word. They wanted the text to say no power not expressly given to the federal government, so that only expressly granted powers could be used. Berkin says the fight over “expressly” belongs to the 10th Amendment, and that the drafters instead wanted the ability to legislate on matters they had not anticipated, which is why they kept implied powers and the “necessary and proper” clause Carol Berkin on The Bill of Rights No One Wanted (2016).

Berkin also describes Madison’s own fear of tyranny as the tyranny of the majority over minorities — not African Americans or gays, but members of small religious sects such as Baptist congregations, Moravians and Quakers, and people who disagreed with the majority about policy. Madison, she says, wanted the federal government to be able to step in when states abused the civil rights of those minorities Carol Berkin on The Bill of Rights No One Wanted (2016).

Policing and commandeering

Bob Zadek’s earliest treatment of the amendment is an attack on “Secure Communities.” He argues the initiative conscripts every police force in the United States to do the bidding of the federal government, and that under the Constitution the police power was delegated to the states and to the states alone. In his framing, Janet Napolitano found a way around the 10th Amendment to usurp local police power Immigration Reform Is Broken (2011).

Seven years later the same clause appears in a discussion of sanctuary cities. Zadek calls anti-commandeering a little-known but important part of constitutional law: the federal government is not permitted to compel local law enforcement to enforce federal law, though it might try to do so coercively by denying other federal benefits to states and localities. He says San Francisco, New York and other major urban centers are on the right side of the Constitution in refusing to assist the feds, and calls this a very interesting aspect of the 10th Amendment Alex Nowrasteh: How Prop. 187 Turned California Blue (2016).

Alex Nowrasteh agrees the question is constitutionally tricky and adds that the Obama administration attempted it from 2009 to 2011, triggering a backlash that led it to back down on immigration enforcement. He cites the Obamacare decision, NFIB v. Sebelius, as limiting the federal government’s ability to use funds to coerce states into adopting certain activities, and says denying benefits to sanctuary cities would have to be clearly and explicitly spelled out in law — which, he says, it currently is not, so Congress would have to pass a law Alex Nowrasteh: How Prop. 187 Turned California Blue (2016).

State experimentation

In the episode with Joe Mathews, Zadek uses the amendment to frame a proposal for a California residency status that would leave otherwise undocumented immigrants lawfully in California even if not welcome legally in other states. He asks whether Mathews is simply embracing federalism on immigration and letting California set the standards, invoking Justice Brandeis’s description of states as innovators of democracy California Discovers Federalism (2018).

Mathews calls this “10th Amendment territory” and “federalist territory,” and notes the irony that liberals and progressives who were not great fans of the 10th Amendment have, in the context of President Trump, been willing to embrace its full fruits. He points to California’s history of carve-outs, including exemptions granted under President Nixon for higher standards on auto emissions and air quality, which he says are still used and are now contested by the Trump administration California Discovers Federalism (2018).

The same conversation turns the amendment against California. Zadek notes that the state, under strongly Democratic administrations, ranks 49th or 50th out of 50 on an economic freedom index, and that progressives often favor occupational licensing rules because states have the power to impose them. Mathews agrees there is good and bad to federalism depending on where one stands, citing Medi-Cal benefits extended to undocumented people as an exercise of the state’s rights under federalism California Discovers Federalism (2018).

Across episodes

The topic recurs across four episodes, and the treatment shifts in emphasis rather than in doctrine. In 2011 Zadek deploys the amendment against federal conscription of local police Immigration Reform Is Broken (2011); in 2016 Berkin supplies the founding-era fight over “expressly” and Madison’s fear of majority tyranny Carol Berkin on The Bill of Rights No One Wanted (2016); in December 2016 Zadek and Nowrasteh apply anti-commandeering to sanctuary cities Alex Nowrasteh: How Prop. 187 Turned California Blue (2016); and in 2018 Zadek and Mathews extend it to state residency policy while noting California’s poor record on economic freedom California Discovers Federalism (2018). The Bolick episode, on Grassroots Tyranny: The Limits of Federalism, turns the same set of questions toward local government and occupational licensing, though the excerpt provides no statements to attribute Local Leviathan: Clint Bolick on Grassroots Tyranny (2018).

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