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. The same division of power reaches everyday questions: who is responsible for schools, how far Congress can push states with federal money, and why federal law can still prohibit marijuana use that a state allows.

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.

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 are therefore what is left after setting aside the powers given to the federal government and those denied to the states.

The amendment reserves those remaining powers to the states “or to the people.” Those final words matter: a power outside Washington’s reach does not automatically belong to a state legislature.

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. The tide turned in Massachusetts, where a compromise to ratify first and amend later helped win approval there and eventually in the last states holding out. The demand for amendments grew out of worry about what the new national government could do.

Article II of the Articles of Confederation, the agreement among the states that preceded the Constitution, 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.” Without that word, the amendment leaves room for implied federal powers: the means needed to exercise a power the Constitution names.

The Constitution’s Necessary and Proper Clause authorizes Congress to make laws needed to carry its constitutional powers into execution. In McCulloch v. Maryland (1819), Chief Justice Marshall wrote that when an end is legitimate and within the Constitution’s scope, any appropriate means plainly adapted to that end is constitutional, so long as it is not prohibited and fits the Constitution’s letter and spirit. 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. The opinion said it did not extend to ordinary taxes on the bank’s real estate or on citizens’ ownership interests in it. The bank case shows two things: Congress may use a means the Constitution does not name, and a state cannot use its own powers to obstruct it.

State authority reaches ordinary life

The powers reserved to the states reach much of ordinary life, from schools to business licenses. The legal term police power means a government’s broad authority to regulate for the public good, including health, safety and public order, not only the work of police officers.

Federal education law says the primary public responsibility for education is reserved to the states, local school systems and other state bodies. 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.

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. Either choice made the state carry out a federal responsibility, so offering a choice did not cure 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 over who had to carry out the federal requirement, not over 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. The ruling 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. Nor could the provision be defended as preemption, the rule that federal law displaces conflicting state law. Murphy explained that a valid preemption provision must exercise a power the Constitution gives Congress and must regulate private actors. The sports-gambling provision gave private actors no federal rights and placed no federal restrictions on their conduct.

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

State courts are in a different position from state legislatures and executive officers: the Constitution’s Supremacy Clause expressly binds state judges to federal law even when state rules say otherwise. 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 five percent of funds under certain federal highway grant programs 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 Court in Dole listed limits on Congress’s spending power: the money must be spent for the general welfare, the conditions must be clear and reasonably related to the purpose of the spending, and the law may not violate another constitutional prohibition.

Medicaid helps fund medical care for low-income families and other eligible groups; the 2010 law expanded coverage to more low-income adults, including adults without children.

In National Federation of Independent Business v. Sebelius, decided June 28, 2012, the Supreme Court rejected a threat to take away states’ existing Medicaid funding if they refused the Medicaid expansion in the 2010 Affordable Care Act. The threatened loss exceeded 10 percent of a state’s overall budget. The Court’s fix was to bar the government from withdrawing existing Medicaid funds from a state that refused the expansion, which left states a genuine choice about joining.

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. That passage is known as the Supremacy Clause. Supremacy belongs to federal laws made under the Constitution’s authority, so Congress still needs a source of power; but a state’s disagreement does not cancel a federal law that has one.

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.

Federal rules can also apply to state and local governments as employers. In Garcia v. San Antonio Metropolitan Transit Authority, decided February 19, 1985, the Supreme Court upheld applying federal minimum-wage and overtime rules to employees of a public transit authority. It rejected the claim that a government employer is immune from those rules when it performs traditional governmental functions. Garcia overruled National League of Cities v. Usery (1976), which had protected states from those wage and overtime rules in areas of traditional governmental functions. A state acting as an employer is different from a state ordered to govern other people on Congress’s behalf.

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 state that wants a federal law struck down therefore has to win that argument in court; it cannot simply declare that its own view prevails.

A state’s freedom to decline a federal assignment does not make a person’s conduct lawful. Congress could not order local officers to run its background checks, yet it could prohibit marijuana growing that California law permitted: the Tenth Amendment protects a government’s independence without giving everyone inside its borders the same exemption.