The Tenth Amendment: How States Keep Power from Federal Government

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A federal gun law assigned local officers a temporary job: check handgun buyers’ backgrounds until a national checking system was ready. In 1997, the Supreme Court struck down that command to local officers.

The Court reasoned that forcing those officers to administer federal law was incompatible with the states’ independence. The Tenth Amendment protects that independence and reserves powers to the states or the people, but does not let a state cancel valid federal law.

What the amendment reserves

The Tenth Amendment 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.” In plain English, the federal government needs constitutional authority for what it does, and powers left outside that authority remain elsewhere.

The Bill of Rights, the Constitution’s first ten amendments, was ratified on December 15, 1791. The Tenth Amendment confirms the original allocation of power rather than adding new powers to either government, according to the congressional constitutional analysis published by Cornell’s Legal Information Institute. It is a rule for understanding the constitutional arrangement, not a list assigning every public issue to one government.

The Constitution gives Congress powers including regulating commerce among states, coining money, and establishing post offices and post roads. It also expressly prohibits states from entering treaties or coining money. Reserved powers therefore mean powers left after accounting for both federal grants and restrictions on states.

The amendment reserves those remaining powers to the states “or to the people.” The final words matter because the text does not equate every power outside Washington’s reach with a power belonging to a state legislature. A claim of state authority still needs to fit the rest of the constitutional system.

Why leaving out one word mattered

During the Constitution’s ratification campaign, opponents objected to a powerful central government and the absence of a bill of rights; Massachusetts’s agreement to ratify first and amend later helped secure approval there and in the remaining holdouts. The demand for amendments grew out of concern about what the new national government could do, rather than a desire to spell out every task a state might undertake.

Article II of the earlier Articles of Confederation said states retained powers not “expressly delegated” to the United States. When considering the Tenth Amendment, both houses of Congress refused to put “expressly” before “delegated.” The difference leaves room between an expressly named federal power and the means needed to exercise it.

The Constitution’s Necessary and Proper Clause authorizes Congress to make laws needed to carry its constitutional powers into execution. A list of powers cannot, by itself, describe every institution or procedure needed to use them. The constitutional question includes whether a chosen means serves an authorized end.

In McCulloch v. Maryland (1819), Chief Justice Marshall described constitutional means as appropriate to a legitimate end, consistent with the Constitution and not prohibited by it. The Supreme Court’s McCulloch decision upheld Congress’s power to establish the national bank. It also held Maryland’s tax on that bank unconstitutional, while distinguishing ordinary taxes on bank real estate or citizens’ ownership interests. The bank dispute shows why a power need not appear as a separately named item to be a lawful federal means, and why a state cannot use its own authority to obstruct that means.

State authority reaches ordinary life

The legal term police power means broad authority to regulate for the public good, including health, safety and public order, rather than only the work of police officers.

Federal education law recognizes primary public responsibility for education as reserved to states and local school systems and other state institutions. The law also gives the federal Department of Education purposes including promoting equal educational opportunity and supplementing state and local educational efforts. Primary responsibility is not exclusive responsibility: a state role and a federal role can exist in the same field.

The Small Business Administration says state, county and city licensing requirements depend on a business’s activities and location, with restaurants, retail and plumbing among commonly regulated local activities. Local governments derive their powers to regulate and legislate from state constitutions, as a Congressional Research Service explanation of federalism describes. The word local describes a level of government; it does not establish an exemption from all federal authority.

In Garcia v. San Antonio Metropolitan Transit Authority, decided February 19, 1985, the Supreme Court upheld applying federal wage-and-hour protections to employees of a public transit authority and rejected immunity based on a category of traditional governmental functions. A state acting as an employer is different from a state ordered to govern other people on Congress’s behalf.

Congress cannot assign states its governing work

In New York v. United States (1992), the Supreme Court invalidated a federal requirement that a state either take title to low-level radioactive waste or regulate it according to Congress’s instructions. Congress had authority to regulate that waste directly, but could not require states to perform the regulation and bear the consequences of owning the waste if they refused. Both choices in the disputed requirement placed federal responsibility on the state, so offering those choices did not solve the constitutional problem.

The Brady Handgun Violence Prevention Act assigned local chief law enforcement officers interim background checks on prospective handgun purchasers until a national instant-check system became operative. Jay Printz, the chief law enforcement officer for Ravalli County, Montana, and Richard Mack, his counterpart in Graham County, Arizona, challenged those duties. The dispute was about who had to administer the federal requirement, rather than a state’s authority to decide what federal law meant.

In Printz v. United States, decided June 27, 1997, the Supreme Court held the command requiring local officers to conduct the interim checks unconstitutional. Congress could not turn those officers into the personnel for its own program merely by assigning them the job. Protecting that institutional independence does not make every federal rule affecting law enforcement invalid.

In Murphy v. National Collegiate Athletic Association, decided May 14, 2018, the Supreme Court rejected the federal provision barring states from authorizing sports gambling as a direct command to state legislatures. A command to keep a prohibition can constrain a legislature just as a command to enact one can. Murphy explained that valid federal preemption must exercise a constitutional congressional power and regulate private actors, whereas the sports-gambling anti-authorization provision neither granted federal rights to private actors nor imposed federal restrictions on their conduct. Preemption means federal law displaces conflicting state law; it is different from instructing the state legislature how to vote.

Murphy also explained that compelled state regulation blurs political responsibility, while direct federal regulation lets voters know whom to credit or blame.

State courts occupy a different position because the Supremacy Clause expressly binds state judges to federal law despite contrary state rules. The amendment does not reserve law enforcement exclusively to the states or authorize their courts to disregard controlling federal law.

Federal funding can encourage, but not erase choice

South Dakota v. Dole, decided June 23, 1987, upheld withholding a percentage of federal highway funds from states allowing alcohol purchase or public possession by people under 21. Congress was using an offer of money to encourage a state policy, rather than directly ordering the state legislature to adopt it.

The agreed spending-power limitations described in Dole require spending for the general welfare, clear conditions, a reasonable relationship to the expenditure’s purpose, and no violation of an independent constitutional prohibition. A condition does not become constitutional simply because it is attached to a grant.

In National Federation of Independent Business v. Sebelius, decided June 28, 2012, the Supreme Court rejected threatening states’ existing Medicaid funding to make them accept the program’s expansion. In that Medicaid expansion dispute, the threatened loss exceeded 10 percent of a state’s overall budget. The remedy barred withdrawal of existing Medicaid funds for refusing the expansion, leaving states a genuine choice about participation. The question was whether refusing the new program remained a real option, not merely whether a state could formally say no.

State power still has constitutional limits

Article VI makes the Constitution, federal laws made pursuant to it, and treaties made under United States authority the supreme law of the land, binding state judges despite contrary state law. The qualification about constitutional authority matters: federal supremacy is not permission for Congress to legislate without a source of power. But state disagreement does not cancel a federal law that validly exercises that power.

In Gonzales v. Raich, decided June 6, 2005, the Supreme Court held that Congress’s commerce power included prohibiting local cultivation and use of marijuana permitted by California’s medical-marijuana law. The Supreme Court reasoned that Congress could rationally conclude that excluding home-consumed marijuana from federal controls would affect price and market conditions. An activity can take place within one state and still fall within a broader federal regulation of an interstate market. Permission under state law and permission under federal law are separate questions.

The Fourteenth Amendment prohibits states from depriving people of life, liberty or property without due process of law or denying equal protection of the laws. Reserved authority is not authority to disregard constitutional rights. Judicial review resolves disputes over whether a law conflicts with the Constitution, with courts applying the Constitution as the higher law when a conflict exists. A constitutional objection therefore calls for a legal determination, rather than a state declaration that its own preference must prevail.

The first distinction survives all these limits: a state’s freedom to decline an assignment does not settle whether a person’s conduct is lawful. For a local official, the decisive issue may be an unconstitutional command; for a resident doing the same activity, it may be a valid federal rule. The Tenth Amendment preserves a government’s independence without giving everyone inside its borders the same exemption.