While we work to fully repeal and replace this misguided policy, the legal challenge process is another opportunity to overturn the law before the most damaging provisions go into effect. However, the law itself is only part of the problem. After the legislative process ends, the threats to states' rights continue during the rule-making period, in which bureaucrats in federal agencies develop regulations for actually implementing laws.
The bill I authored provides a framework for states to protect their authority during this crucial phase. The 10th Amendment Regulatory Reform Act would provide special standing for state government officials to challenge regulations issued in conjunction with the implementation of federal laws.
Under the legislation, any rule proposed by a federal agency would be subject to constitutional challenges if state officials determine the rule infringes on powers reserved to the states under the 10th Amendment. Under the process created by the bill, federal agencies would be required to publicly post and rule on challenges filed by designated state officials. For example, in New York v. United States , the Court held that the Tenth Amendment prohibited Congress from enacting a comprehensive plan for the disposal of radioactive waste that required states to assume responsibility for the disposal of waste within their borders.
That reading runs counter to the text of the Tenth Amendment. By way of policy justification, the Court has suggested that it must draw clear lines between domains of state and federal authority. The blurring of federal and state functions, the Court asserts, would undermine the accountability of government officials. The citizens would not know to which government entity they should address policy concerns.
Scholars have questioned the empirical underpinnings of this line of argument. Are people really so easily confused? Moreover, given the extensive overlap of state and federal power in so many areas, how important is it that some area of state exclusivity be maintained? Citizens would need a fairly sharp sense of discernment to know which would be the few areas in which the federal government was immune from responsibility.
The basic problem is that the language of the Tenth Amendment appears to assume a clear demarcation of state and federal domains of authority. The areas of society subject to federal regulation have grown significantly over time.
The good news is that federalism is alive and well in the United States today. States remain vital centers of policy debate and experimentation. State and federal power intersects and overlaps in many ways that promote the well-being of the people.
Federal and state courts and legislatures engaged in a dialogue that eventually resulted in the recognition of a national right. However, this federalism does not rely on outdated notions of exclusive areas of state sovereignty. For the moment, these exclusive state domains remain relatively small, offering little resistance to the exercise of enumerated federal powers.
Should the Court expand these enclaves, however, current Tenth Amendment doctrine would become a more significant, and pernicious, force. The Tenth Amendment formally changed nothing in the Constitution. As the joint statement indicates, no law that would have been constitutional before ratification of the Tenth Amendment is unconstitutional afterwards.
The Tenth Amendment simply makes clear that institutions of the federal government exercise only limited and enumerated powers — and that principle infused the entire idea and structure of the Constitution from onwards. As a number of prominent Federalists pointed out during the ratification debates, this carefully targeted authorization to limit speech cuts strongly against any more general national power in the area.
As the Federalists argued to tedium, the whole Bill of Rights was mostly just a big exclamation point. In that respect, the Tenth Amendment is not materially different from the rest of the Bill of Rights. The numerous cases applying various provisions of the Bill of Rights to actions of state governments via the Fourteenth Amendment are a whole different story that is not relevant here.
There are two other, and more concrete, ways in which the Tenth Amendment has constitutional value. First, the reminder that powers not delegated to institutions of the national government do not belong to institutions of the national government should prevent anyone from inferring particular federal powers from the general nature of governments, rather than from specific grants of power to this specific federal government.
If the power was not given, Congress could not exercise it; if given, they might exercise it, although it should interfere with the laws, or even the Constitutions of the States. In McCulloch v. Maryland , 5 Marshall rejected the proffer of a Tenth Amendment objection and offered instead an expansive interpretation of the necessary and proper clause 6 to counter the argument.
Sprague, U. Darby, U. United States, U.
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