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In the Bill of Rights, the Tenth Amendment stands apart. Unlike other amendments that protect specific rights like freedom of speech or religion, it clarifies the very nature of the American system of government.
The amendment is the constitutional foundation of state power—the principle that underpins the authority of the government closest to the people.
As ratified on December 15, 1791, the text 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.”
This declaration is the source of your state’s authority to govern most aspects of your daily life. It establishes federalism, the American system of dividing and sharing power between a national government and individual state governments.
Why the Tenth Amendment Exists
The Tenth Amendment wasn’t an afterthought or minor addition to the Constitution. It was a necessary condition for the United States to even exist, born from one of the most intense political battles in the nation’s history.
It’s the direct product of a fierce clash between two competing visions for America, a compromise hammered out to prevent the new nation from fracturing before it could begin.
Federalists vs. Anti-Federalists
After the Revolutionary War, the fledgling United States operated under the Articles of Confederation, a system that created a weak central government and left the states as sovereign, independent entities. This arrangement proved unworkable, leading to the Constitutional Convention of 1787.
The document that emerged from that convention triggered a profound national debate that split the country’s founders into two camps: the Federalists and the Anti-Federalists.
The Anti-Federalists were a diverse collection of thinkers, farmers, and statesmen united by deep-seated suspicion of centralized power. They feared that the new Constitution created a national government that was too powerful, too distant, and too disconnected from the average citizen.
Having just thrown off the yoke of the British monarchy, they were wary of creating a new, potentially tyrannical government on American soil. Led by powerful voices like Patrick Henry and George Mason, the Anti-Federalists argued that true liberty could only be preserved in small, localized republics where government was close to the people.
They believed the Constitution consolidated too much authority at the national level, threatening to swallow up the states and trample on individual rights.
The Federalist Response
The Federalists, led by intellectual giants like Alexander Hamilton, James Madison, and John Jay, countered that the Articles of Confederation had been a disaster precisely because the central government was too weak to handle national crises.
They envisioned a robust national government, but one with specific, defined, and limited powers. They challenged the prevailing notion that a republic could only work on a small scale, arguing that a large, national republic would actually be a better protector of individual liberties by preventing any single state or faction from imposing its will on a minority.
Their goal was to create a “more perfect union” built on a foundation of popular sovereignty, where the government’s legitimacy flowed from “the people,” not from the states themselves.
The most potent weapon in the Anti-Federalist arsenal was the Constitution’s lack of a bill of rights. They argued that without an explicit list of protected liberties, the powerful new federal government would be free to infringe upon the rights of citizens and the authority of the states.
This argument resonated deeply across the country. In state after state, the debate over ratification was fierce, sometimes even turning violent, as when Federalists and Anti-Federalists brawled in the streets of Albany, New York, in 1788.
Ultimately, the Federalists prevailed, but only by making a crucial concession. Several key states, including New York, Virginia, and Massachusetts, agreed to ratify the Constitution only with the understanding that a bill of rights would be added immediately.
The Tenth Amendment was the capstone of this compromise, drafted specifically to address the Anti-Federalist fear that the federal government would “seek to exercise powers not granted” and to confirm that the states would retain their essential sovereignty.
The Deliberate Ambiguity: Why “Expressly” Was Left Out
During the debate over the amendment’s text, a single word became the focal point of the entire conflict: “expressly.” The old Articles of Confederation had stated that the states retained all powers not “expressly delegated” to the national government. This language had severely restricted the central government’s ability to act.
The Anti-Federalists, wanting to keep the new federal government on a short leash, fought to include the word “expressly” in the Tenth Amendment.
James Madison, a key architect of the Constitution and a leading Federalist, staunchly opposed this. He argued that it was impossible to list every single power a government might need to function effectively over time.
As he stated, “it was impossible to confine a Government to the exercise of express powers; there must necessarily be admitted powers by implication, unless the Constitution descended to recount every minutia.”
Chief Justice John Marshall would later echo this sentiment in the landmark case McCulloch v. Maryland, noting that a constitution that tried to detail every subdivision of its powers “would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind.”
Madison’s argument won the day, and the word “expressly” was deliberately omitted from the final text. This was a quiet but monumental victory for the Federalist vision.
It created a flexible, yet inherently ambiguous, boundary between federal and state power. It ensured that the scope of federal authority would not be a fixed checklist but a matter of continuous interpretation, debate, and conflict for centuries to come.
The Tenth Amendment can thus be seen not just as a legal text, but as the written embodiment of a fragile political truce. Its primary purpose was to secure the ratification of the Constitution by appeasing the legitimate fears of the Anti-Federalists.
Without it, the Union may never have been formed. However, the Federalists, in a moment of strategic genius, ensured that the truce was written on their terms.
By successfully rejecting the restrictive word “expressly,” Madison and his allies left the door open for the federal government to grow and adapt through the use of “implied powers.”
This act of deliberate ambiguity guaranteed that the fundamental conflict over the balance of power would not end with ratification. Instead, it was permanently embedded into the nation’s legal DNA, transferring the battle from the state conventions to the halls of Congress and the chambers of the Supreme Court for all of American history.
How Federalism Works: Delegated Powers and Reserved Powers
To understand the Tenth Amendment’s power, one must first understand the unique governmental structure it reinforces. It’s the key that unlocks the complex machine of American government, defining who does what and establishing the rules of engagement between the national and state governments.
Federalism: America’s System of Dual Sovereignty
At its core, the Tenth Amendment is the constitutional expression of federalism. Federalism is a system of government where the same territory and people are controlled by two distinct levels of government—in this case, the national (or federal) government and the 50 state governments.
The U.S. Constitution created this system of “dual sovereignty,” in which the states surrendered certain specific powers to the federal government but retained a broad and significant sphere of their own authority.
You are simultaneously a citizen of the United States and a citizen of the state in which you reside, subject to the laws of both.
This structure was a deliberate choice by the Founders, designed to achieve two primary goals. First, it serves as a powerful check on the abuse of power. By dividing authority between the national and state governments, federalism ensures that no single entity can accumulate absolute control, thereby reducing the risk of tyranny.
Second, federalism fosters innovation and responsiveness by allowing states to function as “laboratories of democracy.” A policy that works well for a large, diverse state like California might be ineffective in a smaller, rural state like Wyoming.
Federalism allows states to experiment with different solutions to local problems, tailoring policies to the specific needs and preferences of their citizens without imposing a one-size-fits-all approach on the entire nation.
Delegated Powers: The Federal Government’s Limited Job Description
The government of the United States is a government of delegated and enumerated powers. This means that the federal government is not all-powerful; it can only exercise the powers specifically granted to it in the Constitution.
These powers, often called the “enumerated powers,” are primarily listed in Article I, Section 8 of the Constitution.
Examples of these delegated powers include the authority to:
- Regulate commerce with foreign nations and among the several states (the Commerce Clause)
- Declare war and raise and support armies and a navy
- Coin money and regulate its value
- Establish post offices and post roads
- Establish a system of federal courts
The list of delegated powers also includes the crucial “Necessary and Proper” Clause. This clause gives Congress the power “To make all Laws which shall be necessary and proper for carrying into execution the foregoing Powers.”
This is the constitutional source of the federal government’s “implied powers”—powers not explicitly listed but deemed necessary to carry out the ones that are. As we have seen, this clause is often in direct tension with the Tenth Amendment’s reservation of powers to the states.
Reserved Powers: The States’ Authority
If the federal government’s powers are limited to what is written down, what about everything else? This is where the Tenth Amendment’s power comes into play.
Reserved powers are all the powers that the Constitution does not grant to the federal government, nor explicitly forbid to the states. The Tenth Amendment makes it clear that this vast, undefined reservoir of governing authority belongs to the states or to the people themselves.
As James Madison famously wrote in The Federalist No. 45, the powers delegated to the federal government are “few and defined,” while the powers that remain with the state governments are “numerous and indefinite.”
This is the domain where states exercise their most direct influence over the lives of their citizens.
Examples of these reserved powers include:
- Establishing and operating public school systems
- Creating and overseeing state courts and local governments
- Regulating businesses and trade that occur entirely within the state’s borders (“intrastate commerce”)
- Issuing licenses for marriage, driving, and various professions like medicine and law
- Managing state and local elections
- Exercising the general “police power”—the broad authority to pass laws for the protection of the health, safety, morals, and general welfare of the public
Concurrent Powers: When Responsibilities Are Shared
Some powers are not exclusive to either level of government but are exercised by both simultaneously. These are known as concurrent powers.
The most prominent examples include the power to tax citizens, borrow money, build roads, and establish court systems. You pay both federal and state income taxes, and you are subject to the jurisdiction of both federal and state courts.
It’s a common misconception that the Tenth Amendment gives power to the states. In reality, it doesn’t grant any new authority. Instead, it acts as a fundamental rule for interpreting the entire Constitution.
Its power lies in its function as a constitutional stop sign, a powerful reminder that the federal government is one of limited powers. The Supreme Court has often referred to it as a “truism” for this very reason—it simply states a principle that is already implicit in the Constitution’s structure of enumerated powers.
The amendment forces any debate about the legitimacy of a federal action back to the most basic question: “Where in the Constitution does it say the federal government can do that?”
If a clear source of authority cannot be found within the delegated powers listed in the Constitution, then the Tenth Amendment dictates that the power is automatically “reserved” to the states or the people.
Its power is not a power it contains within itself, but its ability to protect the vast expanse of state authority by strictly defining the limits of federal power.
The Supreme Court as Referee
The deliberate ambiguity of the Tenth Amendment guaranteed that the line between federal and state power would be a battleground. For more than 200 years, the Supreme Court has served as the referee in this ongoing contest, and its interpretation of the amendment has swung dramatically over time.
The amendment’s influence has waxed and waned, at times being a formidable shield for state sovereignty and at other times being dismissed as little more than a constitutional afterthought.
Early Rulings: Establishing Federal Supremacy
In the early years of the republic, two landmark decisions by the Court under Chief Justice John Marshall decisively tilted the balance of power toward the federal government, setting a precedent that would last for a century.
McCulloch v. Maryland (1819): The Birth of Implied Powers
This case presented the first major test of the Tenth Amendment’s limits. The state of Maryland attempted to tax the Second Bank of the United States, a federal institution. The Supreme Court was faced with two critical questions: Did Congress have the authority to create a national bank in the first place, and could a state tax it?
Marshall’s unanimous opinion was a resounding victory for federal power. He argued that even though the power to create a bank is not explicitly listed in the Constitution, it was an “implied power” that was “necessary and proper” for Congress to carry out its enumerated powers of collecting taxes, borrowing money, and regulating commerce.
Crucially, he pointed to the framers’ deliberate omission of the word “expressly” from the Tenth Amendment as proof that the federal government was not confined to only those powers explicitly listed.
The Court then ruled that Maryland could not tax the bank, establishing the doctrine of federal supremacy with the famous declaration that “the power to tax involves the power to destroy.” A state could not be allowed to destroy an instrument of the national government.
Gibbons v. Ogden (1824): Defining Interstate Commerce Broadly
Five years later, the Marshall Court further expanded federal authority. The case involved a monopoly on steamboat operation that the state of New York had granted to a private company. This monopoly was challenged by another steamboat operator who had a license from the federal government.
The Court struck down the state-granted monopoly, ruling that the federal government’s power under the Commerce Clause to regulate “commerce among the several States” was broad and comprehensive.
Marshall defined “commerce” not merely as traffic or the exchange of goods, but as “intercourse,” which included navigation. This decision prevented states from creating protectionist economic barriers and firmly established the federal government’s supremacy in regulating all aspects of interstate economic life.
The Long Dormancy: New Deal and Civil Rights Era
For nearly a century after Marshall’s death, the Tenth Amendment was often used to curtail federal power, particularly in economic regulation. But the crises of the 20th century led to a dramatic expansion of federal authority and pushed the Tenth Amendment into a long period of dormancy.
During the Great Depression, President Franklin D. Roosevelt’s New Deal programs sought to regulate the national economy on an unprecedented scale. While the Supreme Court initially resisted, it eventually acquiesced, leading to a series of rulings that stretched the Commerce Clause to its limits.
The most famous of these was Wickard v. Filburn (1942), where the Court held that the federal government could regulate the amount of wheat a farmer grew for his own personal consumption on his own farm. The Court’s reasoning was that if many farmers did the same, it would have a substantial cumulative effect on the national wheat market.
With such a broad interpretation of federal power, there seemed to be very little economic activity left for the Tenth Amendment to reserve to the states.
In the mid-20th century, the Tenth Amendment’s reputation was further tarnished when it became the legal banner for segregationist states resisting the Civil Rights Movement. Arguments for “states’ rights” were used to defend racial segregation in schools and public accommodations.
In the pivotal case of Cooper v. Aaron (1958), the Supreme Court forcefully rejected Arkansas’s attempt to use the Tenth Amendment to defy the desegregation mandate of Brown v. Board of Education. The Court declared that federal court orders based on the Constitution were the “supreme Law of the Land” and that no state could nullify them.
This association with the defense of racial inequality made the Tenth Amendment politically and morally toxic for a generation of legal scholars and judges.
This decline culminated in the 1941 case of United States v. Darby. In upholding the federal Fair Labor Standards Act, the Court dismissed the Tenth Amendment challenge by declaring the amendment to be “but a truism that all is retained which has not been surrendered.”
In essence, the Court said the amendment stated the obvious but added no new power or limitation. For nearly 40 years, from the late 1930s to the mid-1970s, the Tenth Amendment virtually disappeared from constitutional law, seen as an irrelevant relic.
The Modern Revival: The Anti-Commandeering Doctrine
Beginning in the late 20th century, a judicial movement known as the “New Federalism” began to breathe new life into the Tenth Amendment, re-establishing it as a meaningful check on federal power. This revival gave rise to the “anti-commandeering” doctrine.
New York v. United States (1992)
The comeback began with this case, where the Court invalidated a federal law concerning the disposal of radioactive waste. The law gave states a choice: either regulate the waste according to federal standards or take legal ownership of it and become liable for all damages.
The Court ruled that this was unconstitutional coercion. Justice Sandra Day O’Connor wrote that while Congress could use its spending power to encourage states to act, it could not “commandeer the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.”
Printz v. United States (1997)
Five years later, the Court extended this principle from state legislatures to state executive officials. It struck down a key provision of the Brady Handgun Violence Prevention Act, which required local chief law enforcement officers (CLEOs) to conduct background checks on prospective gun purchasers.
The Court ruled that the federal government could not press state and local officials into service to administer or enforce federal law. Just as Congress could not force a state legislature to pass a law, it could not force a county sheriff to execute federal policy.
Murphy v. NCAA (2018)
The Court solidified the doctrine in a case challenging a federal law that prohibited states from authorizing sports betting. The Court ruled that the anti-commandeering principle works both ways: Congress cannot force states to act, and it also cannot prohibit states from repealing their own laws.
The decision affirmed that the federal government cannot control a state’s legislative agenda, either by compelling or forbidding action.
The Power of the Purse: Limits on Federal Spending
The final frontier of the Tenth Amendment’s modern revival involves the limits of Congress’s vast spending power.
NFIB v. Sebelius (2012)
This landmark case concerned the Patient Protection and Affordable Care Act (ACA). A key provision of the law required states to significantly expand their Medicaid programs to cover more low-income adults. If a state refused, the law threatened the state with the loss of all of its existing federal Medicaid funding.
Chief Justice John Roberts, writing for the majority on this issue, found this to be unconstitutionally coercive. He acknowledged that Congress can attach conditions to the federal money it gives to states.
However, he argued that when the financial inducement is so powerful that it leaves the states with no real choice, it crosses the line from persuasion to compulsion. The threat of withdrawing all Medicaid funds—which constituted over 10% of the average state’s entire budget—was not a reasonable choice but a “gun to the head.”
This form of “economic dragooning,” he concluded, violated the fundamental principles of federalism embodied in the Tenth Amendment.
Instead of striking down the entire law, however, the Court chose a more surgical remedy. It severed the coercive enforcement mechanism, leaving the Medicaid expansion itself intact but making it effectively voluntary for the states.
States could now choose to participate in the expansion or not, without risking their existing federal funds.
The long history of the Tenth Amendment in the Supreme Court reveals a clear pattern: the amendment’s power is inversely proportional to the Court’s interpretation of the Commerce Clause.
When the Court reads the Commerce Clause broadly, as it did during the New Deal, the power of Congress to regulate national life expands, and the Tenth Amendment’s reserved powers shrink to a mere “truism.”
Conversely, when the Court narrows the scope of the Commerce Clause, the Tenth Amendment is revitalized as a substantive limit on federal power.
Your State’s Powers in Daily Life
The legal battles over the Tenth Amendment may seem abstract, but their outcomes have a direct and profound impact on the daily lives of all Americans. The “reserved powers” of the states are not distant constitutional theories; they are the source of the laws and services that shape our communities.
Education: The Power Over Schools
Perhaps the most significant reserved power exercised by the states is control over public education. The U.S. Constitution is completely silent on the subject of education, which means, under the Tenth Amendment, it is a power reserved to the states or the people.
While the federal government plays a role through funding (like the Every Student Succeeds Act) and by enforcing civil rights protections under the 14th Amendment, it is states and local school districts that have the primary responsibility for establishing, funding, and operating public schools.
This state-level authority translates into control over the most critical aspects of schooling:
Curriculum and Standards: States establish the core academic standards that define what students should know and be able to do at each grade level. They create curriculum frameworks that guide instruction in subjects from math and science to history and language arts.
Graduation Requirements: Your state legislature determines the number of credits and the specific courses a student must complete to receive a high school diploma.
Teacher Certification: States set the standards for who is qualified to teach in a public school classroom, managing the entire process of teacher licensing and certification.
Funding and Governance: States design the funding formulas that distribute tax dollars to local school districts and have the authority to intervene in or take over districts that are failing academically or financially.
This power has made state and local school boards the epicenters of intense cultural and political debates. Recent controversies over the teaching of topics like evolution, sex education, American history, and the content of school library books are all manifestations of the Tenth Amendment in action.
These are not federal debates; they are battles fought at the state and local level over how to exercise this fundamental reserved power.
The principle of federalism allows for a wide variety of approaches to educational governance across the country. The following table illustrates how different states delegate the authority to develop K-12 curriculum:
| State | Primary Curriculum Authority | Example of State Policy |
|---|---|---|
| Alabama | Local (County Boards of Education) | County boards, based on recommendations from the county superintendent, determine the course of study. |
| Arkansas | Hybrid / Shared Authority | Both the state board of education and local school district boards have authority. The state’s “Right to Read Act” mandates certain literacy curriculum. |
| California | Local (School District Boards) | Local school district governing boards have authority, but the state board provides recommendations. |
| North Carolina | State-level Entity | The State Board of Education has the authority to develop and adopt the standard course of study. |
| Rhode Island | State-level Entity | The state develops the curriculum, with a mix of requirements and recommendations for local districts to follow. |
| Texas | Local (School District Boards) | Local districts have authority, but the state provides guidance and incentives for selecting high-quality materials. |
Source: Data compiled from Ballotpedia and the National Association of State Boards of Education.
Business Regulation: Running the Local Economy
While the federal government regulates interstate commerce, the Tenth Amendment reserves to the states the power to regulate most economic activity that occurs within their borders. This authority touches nearly every aspect of local business.
Licensing and Permits: If you want to open a business, whether it’s a restaurant, a daycare center, or a construction company, you will almost certainly need licenses and permits from your state, county, or city government.
These requirements and their associated fees vary dramatically from state to state. For example, Ohio’s state government lists over 200 different professional licenses it issues, covering everything from accountants and architects to athletic trainers and acupuncturists. In Nevada, a state business license costs $500 per year, while in Alaska it is $50.
Taxes and Fees: States have the power to levy their own taxes on businesses and individuals, including income taxes, sales taxes, and payroll taxes that fund state-specific programs like unemployment insurance. They also set the fees for legally forming a business entity like an LLC or a corporation.
Labor Laws: The federal government sets a baseline for labor standards, such as a federal minimum wage. However, states are free to provide greater protections. Many states have used this reserved power to mandate a higher minimum wage, require more generous family and medical leave, or enact stricter workplace safety regulations than federal law requires.
Public Health and Safety: The Police Power
One of the most fundamental reserved powers of the states is the “police power.” This is a broad legal term for the inherent authority of a government to pass laws to protect the health, safety, and general welfare of its citizens.
Public Health Initiatives: Your state health department is on the front lines of protecting community health. States run vaccination programs, ensure the safety of food establishments and drinking water, monitor for disease outbreaks, and have the authority to implement quarantines and other emergency measures during a public health crisis.
Recent state-led initiatives demonstrate this power in action. For example, Colorado has established a new Office of Gun Violence Prevention and implemented a statewide plan to combat rising syphilis rates. California’s Department of Public Health operates numerous centers dedicated to issues like infectious diseases, environmental health, and chronic disease control.
Traffic Laws: Every rule of the road you follow is a product of your state’s reserved powers. State legislatures write the vehicle codes that set speed limits, define the rules for turning and passing, and establish penalties for violations like DUIs.
This leads to a diverse and sometimes quirky patchwork of laws across the country. For example, it is illegal for a woman to drive while wearing a housecoat in California, and it is illegal to honk your horn at a sandwich shop in Little Rock, Arkansas, after 9 p.m.
While some of these laws may be antiquated or unenforced, they are a vivid illustration of the Tenth Amendment’s grant of local control.
Modern Battlegrounds
The 18th-century language of the Tenth Amendment is at the very heart of the most pressing and divisive political issues of the 21st century. From climate change to healthcare and drug policy, the fundamental debate over the proper balance of power between the federal government and the states continues.
Environmental Protection: A Clash of Jurisdictions
The regulation of the environment presents a classic Tenth Amendment conflict. On one hand, pollution does not respect state borders. Acid rain from factories in one state can damage forests in another, and pollution in a major river can affect every state downstream.
This reality provides the constitutional justification for the federal government, primarily through the Environmental Protection Agency (EPA), to set national standards for air and water quality under its broad Commerce Clause power.
On the other hand, many environmental problems are intrinsically linked to local land use decisions—a power traditionally reserved to the states under the Tenth Amendment. For example, a major source of water pollution is “non-point source” runoff, such as stormwater carrying pesticides from suburban lawns and oil from parking lots.
This type of pollution is directly related to zoning and development decisions made by local governments under the authority of the state.
This creates a constant tension: Should the federal government have the power to dictate local land use to achieve national environmental goals? Or should states have the freedom to manage their own resources and economies, even if their decisions have broader environmental consequences?
The Tenth Amendment is the constitutional foundation for states that argue against what they perceive as federal overreach in environmental policy, creating an ongoing debate about where to draw the line between national priorities and local control.
Healthcare Policy: Mandates vs. State Control
The American healthcare system is another major arena for Tenth Amendment battles. The Supreme Court’s 2012 decision in NFIB v. Sebelius, which made the Affordable Care Act’s Medicaid expansion voluntary, was a landmark victory for proponents of states’ rights.
The ruling powerfully affirmed the principle that the federal government cannot use financial coercion to force states into adopting a national healthcare program against their will.
The amendment continues to be a central feature in debates over public health measures. While long-standing Supreme Court precedent confirms that states possess broad “police powers” to protect public health, including the authority to impose quarantines and isolation, the question of federal mandates remains a contentious issue.
Proposals for federal vaccine mandates or other national public health requirements inevitably clash with the Tenth Amendment’s reservation of these police powers to the states, fueling legal and political challenges over who has the ultimate authority to make health decisions for the population.
Marijuana Legalization: The Ultimate Federalism Standoff
Perhaps the clearest and most dramatic modern example of the Tenth Amendment in action is the state-level legalization of marijuana. A growing number of states have chosen to legalize cannabis for either medical or recreational use, placing their state laws in direct opposition to the federal Controlled Substances Act, which continues to classify marijuana as an illegal drug.
This creates a fascinating legal standoff made possible entirely by the Tenth Amendment’s modern interpretation. States are not, and cannot be, “nullifying” federal law. The Supremacy Clause of the Constitution makes it clear that federal law trumps conflicting state law, and state officials cannot prevent federal agents from enforcing federal law within their borders.
However, the anti-commandeering doctrine, established in cases like Printz v. United States, means that the federal government cannot force state and local police to enforce federal marijuana laws. A state can, in effect, order its own law enforcement officers to stand down.
This creates a situation where marijuana can be simultaneously legal under state law and illegal under federal law. A person can purchase cannabis from a state-licensed store in Colorado or California, while the federal Drug Enforcement Administration (DEA) retains the legal authority to arrest that same person for violating federal law.
This tense but stable equilibrium exists because the anti-commandeering doctrine has created a space for a form of practical, de facto nullification.
While the legal theory of nullification—the idea that a state can unilaterally declare a federal law unconstitutional and void—was decisively defeated in the Civil War, the modern anti-commandeering doctrine has created a powerful backdoor version of it.
By prohibiting the federal government from compelling states to use their own resources and personnel to enforce federal law, the Tenth Amendment allows states to effectively decriminalize or legalize activities that remain federally prohibited.
The federal government retains its authority to enforce its own laws with its own agents, but it loses the immense force-multiplying power of the thousands of state and local law enforcement officers across the country. This makes widespread, routine enforcement of federal law practically impossible in states that have chosen a different path.
This dynamic, a direct consequence of the Supreme Court’s revival of the Tenth Amendment, creates the legal and political space for major policy divergences between the states and the federal government on some of the most controversial issues of our time, from drug policy to immigration enforcement in so-called “sanctuary cities.”
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