Tenth Amendment

  • July 13, 2012

    by Joseph Jerome

    After declaring that Texas would not be expanding Medicaid to include millions of uninsured Texans, Gov. Rick Perry insisted that “the real issue here is about freedom.” South Carolina Gov. Nikki Haley argued that the Affordable Care Act reveals a federal government that “simply [doesn’t] believe states should be trusted to govern themselves.” Speaking on the Meet the Press, Louisiana Gov. Bobby Jindal invoked the principles of federalism when he suggested universal health care was akin to having Mardi Gras in Vermont.

    This rhetoric reveals a profoundly state-centric view on what freedom means, and while the Tenth Amendment certainly speaks to the rights of states vis-à-vis the federal government, it also talks about the rights of individual citizens. “If anything, the Tenth Amendment recognizes potentially expansive federal power,” Professor Steven Schwinn wrote on SCOTUSblog, rebutting “states’ rights” arguments against the Affordable Care Act.

    The problem is that “we are all hypocrites” when it comes to power struggles between the state and federal governments, Professor Garrett Epps explains. “The basic view of ‘states' rights’ is that they extend to any policy that the speaker thinks will go his or her way at the state level,” he writes.

    Though Gov. Perry (pictured) has long been a “states’ right stalwart,” he too falls into Epps’s trap. The governor supports federal efforts to restrict marriage equality and ban abortions, and the real issue was not freedom when $17 billion in federal stimulus money was used to balance Texas’ budget. When it comes to the Medicaid expansion, however, millions of Americans in these states must find comfort in being told they will go without health insurance as a matter of principle.

  • April 25, 2012
    Guest Post

    By Margaret Hu, a visiting assistant professor at Duke Law School. She is the author of a forthcoming article in the U.C. Davis Law Review titled "Reverse-Commandeering." 


    As the Supreme Court heard oral argument in Arizona v. U.S., one of the main legal questions it considered is this: Whether Arizona’s Senate Bill 1070 (SB 1070) is preempted by federal immigration law under the Supremacy Clause. This is a statutory-driven inquiry that misses the constitutional mark. The more relevant question is this: Whether SB 1070 poses a threat to the vertical separation of powers. 

    Increasingly, immigration federalism laws like SB 1070 —  state and local attempts to control unwanted migration — exemplify the inverse of the problem posed by the impermissible commandeering of states under the Tenth Amendment.  Specifically, the recent tidal wave of thousands of immigration control efforts proposed by state and local governments can best be characterized as “reverse-commandeering” laws. Setting migration policy at the national level, like establishing a national currency, falls within the sole power of the federal government. Reverse-commandeering by the states is an effort to usurp the federal government’s sole prerogative. This growing movement represents an attempt to control the terms of what federal resources and officers must be appropriated to accommodate a myriad of state immigration enforcement programs. It is a deliberate attempt to skew the immigration enforcement power in favor of the states. 

    In the years since Congress’s failure to pass comprehensive immigration reform legislation in 2006-07, state and local governments have considered over 7,000 immigration-related proposals. In the first quarter of 2011, 1,538 immigration bills and resolutions were considered in all 50 states and in Puerto Rico. By December 2011, 42 states and Puerto Rico had enacted 197 new laws and 109 new resolutions. A tiny handful of the most controversial state laws, such as the Legal Arizona Workers Act (LAWA) — the subject of the Court's recent decision in Chamber of Commerce v. Whiting — and SB 1070 — the subject of the Court's current consideration in Arizona v. U.S. — have received challenges in federal court. Consequently, such challenges address only the tip of an immigration federalism iceberg. 

  • June 17, 2011
    Guest Post

    By Martin Magnusson. Mr. Magnusson is an associate at Day Pitney LLP.


    Yesterday, the United States Supreme Court unanimously held that criminal defendants have standing to challenge the constitutionality (vis-à-vis the Tenth Amendment) of federal criminal statutes under which they are charged.  The Tenth Amendment reinforces federalism, providing that “[t]he 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.”

    The Supreme Court’s ruling on individuals’ Tenth Amendment standing came in Bond v. United States, an appeal brought by a microbiologist who had been married for several years but couldn’t bear a child. When Ms. Bond’s best friend announced that she was pregnant, Ms. Bond was excited. When Ms. Bond discovered that her husband was the child’s father, though, her mood understandably soured. She vowed to get revenge against her one-time best friend and tried to poison her with lethal chemicals that she stole from work and ordered online.

    Ms. Bond was ultimately charged with possessing and using a chemical weapon in violation of a federal criminal statute that implemented the United States’ treaty obligations under an international chemical-weapons treaty. At the district court, Ms. Bond argued that when Congress passed this statute, it exceeded its powers under the Constitution. The district court rejected that argument, but Ms. Bond has pursued it on appeal all the way to the United States Supreme Court.

    The argument against the constitutionality of the law at issue in Bond has several points in its favor. Unlike other federal statutes that address assaults, the law under which Ms. Bond was prosecuted includes no requirement that the alleged assault occur within the special jurisdiction of the United States, that the assault have an effect on interstate commerce, that the victim be a person or institution with recognized federal status, or that some other federal interest be involved. The law also includes no requirement that the government prove a federal interest as an element of the offense. As such, the law potentially criminalizes conduct with very little connection to a legitimate federal interest.

  • October 29, 2010
    Guest Post

    By Steve Sanders, an appellate lawyer and adjunct faculty member at the University of Michigan Law School
    Thirteen states have filed an amicus brief in Perry v. Schwarzenegger, the case in which the U.S. Court of Appeals for the Ninth Circuit will review a district court decision that struck down California's same-sex marriage ban. The brief-submitted by the attorneys general of Alabama, Alaska, Florida, Idaho, Indiana, Louisiana, Michigan, Nebraska, Pennsylvania, South Carolina, Utah, Virginia, and Wyoming-argues that it is gravely important that states be allowed to continue privileging "traditional" marriage and denying equality to same-sex couples. One of the brief's lead counsel is Virginia attorney general Ken Cuccinelli (pictured), a darling of social conservatives and the Tea Party movement.

    The brief purports to offer an argument about marriage federalism-that every state should be able to carry out its own ideas without interference either from Washington or pesky federal judges. But as I'll explain, these attorneys general -- call them the Cuccinelli 13 -- don't really believe their own argument. They just want their states to be able to keep discriminating against gays and lesbians.

    As you might expect from a group of mostly red states (11 of the 13 AGs are Republicans), the brief rehashes familiar social-conservative themes: marriage is about procreation; children are better off in heterosexual homes; it's a slippery slope from gay marriage to legalized polygamy and incest; the "traditional" understanding of marriage should be constitutionally dispositive.

    What's interesting, though, is that the brief frames these arguments within a sweeping claim that states have "sovereign primacy over marriage." "Primary state authority over family law," they write, "is confirmed by definite limitations on federal power" and is a "bedrock principle of federalism."

    Taking aim at the judge who invalidated California's Proposition 8, the Cuccinelli 13 insist that "federal judicial power threatens to undermine state determinations of marital or parental status," and that the district court's "fiat" (a silly characterization of a closely reasoned 136-page opinion) "exceeded its judicial authority." But this is an obtuse argument. The brief attempts to conflate the "domestic relations exception"-a judge-made abstention doctrine that deprives federal courts of jurisdiction over intrafamily disputes like divorce or child custody-with the power of federal courts to review the constitutionality of state laws. Faulty arguments aside, the Cuccinelli 13's real point is that if states want to keep discriminating against same-sex couples, federal courts just need to butt out; they have no right to question majoritarian ideas - what the AGs call "the acquired cultural wisdom of citizens" - about marriage.