July 17, 2018 | Supreme Court Avoids Partisan Gerrymandering in Gill v Whitford
|The 10th Amendment, written into the Constitution with the other amendments of the Bill of Rights, can at first blush appear to add something fundamental, namely, that any power a state has not given up through some textual provision in the Constitution, that state retains. However, this is not quite the sweeping restraint on federal power that many today desire it to be.Indeed, during the ratification process, James Madison himself referred to this amendment as “superfluous” and “unnecessary.” In other words, this amendment added nothing that was not already in place through the rest of the Constitution. It simply made a provision out of an already extant principle. This idea was all but codified in the Supreme Court’s decision in United States v. Darby Lumber Co. (1941), where the Court echoed this sentiment and declared the 10th Amendment, “but a truism.”|
To be sure, there were those in Congress that wanted to make the 10th Amendment more than a gratuitous assurance to the states that the rest of the Constitution would be adhered to. The 10th Amendment, as it was written, states as follows: “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.” However, during the original debates on this amendment, there were those that wanted to add the word “expressly.” According to this approach, the amendment would have read, “The powers not expressly delegated to the United States…” This would indeed have rendered the 10th Amendment something incredibly significant. This would have prevented any implied powers of the federal government as the Court may infer from applying to the states. The federal government would then be powerless to act on and against the states unless that power stemmed from an express provision of the Constitution. This suggestion, however, only garnered support from one fifth of the members of Congress present at the time it was up for a vote.
|United States v. Darby Lumber Co. (1941)|
|Modern Scope||Important Cases|
|The 10th Amendment, as mentioned, is generally considered to be nothing more than a stamp of approval on the system of government set up by the other provisions of the Constitution. However, it does stand for one particular principle: that the federal government, while it may preempt state action or encourage and incentivize state action, can’t force a state to use its own resources to comply with a federal regulation, statute, or program.The quintessential modern cases that illustrate this idea are New York v. United States (1992) and Printz v. United States (1997). In New York, the Court reviewed a Congressional program that used several different approaches to realize the goal of New York State complying with federal standards for radioactive waste. The Court held that certain pieces of that program, such as the federal monetary incentives for compliance, were constitutional. However, another piece, forcing N.Y. to take N.J.’s radioactive waste if certain deadlines were not met, was unconstitutional. This was so drastic a step that it was essentially the federal government compelling a state to comply with a federal mandate.|
Similarly, in Printz, a federal program was put into place requiring certain background checks before guns could be purchased. But the federal government, instead of placing the responsibility and expense of this program with itself, mandated states to do the background checks. This was challenged in court, and like in New York, it was held unconstitutional.
|Steward Machine Co. v. Davis (1937)|
New York v. United States (1992)
Printz v. United States (1997)
Reno v. Condon (2000)
Bond v. United States (2014)
|The Treaty Exception||Important Cases|
|Though it is only applicable under a narrow set of circumstances, an exception does exist to the 10th Amendment’s restriction on the federal government’s ability to compel a state to act in compliance with a federal act. In 1918, a treaty was signed with Great Britain, the Migratory Bird Treaty Act, to cooperatively protect certain endangered migratory bird species. However, this treaty did not simply place responsibility for compliance with the new regulations on the federal government, it forced states to act as well.The treaty, then, was challenged in Missouri v. Holland (1920). But here, the Court held that such compulsion was constitutional. As explicitly stated in the text of the 10th Amendment, what is reserved to the states are “powers not delegated to the United States by the Constitution.” However, states had delegated the treaty-making power to the federal government. The Supremacy Clause in Article IV of the Constitution, states as follows: “all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land.”|
The Court interpreted this to mean that at the ratification of the original Constitution in 1789, the states had not only given up their right to make international treaties, but states had given away their rights to object to being compelled to act in compliance with a treaty. Therefore, when the 10th Amendment was ratified, it did not apply to federal acts made pursuant to a treaty.
|Missouri v. Holland (1920)|