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The Tenth Amendment to the U.S. Constitution provides that:

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.

Judicial interpretations[]

While this language would appear to represent one of the most clear examples of a federalist principle in the Constitution, it has not had a significant impact in limiting federal powers. Initially, the U.S. Supreme Court interpreted the Tenth Amendment to have substantive content, so that certain “core” state functions would be beyond the authority of the federal government to regulate. Thus, in National League of Cities v. Usery,[1] the Court struck down federal wage and price controls on state employees as involving the regulation of core state functions.[2] The Court, however, overruled National League of Cities in Garcia v. San Antonio Metropolitan Transit Authority.[3] In sum, the Court in Garcia seemed to have said that most disputes over the effects on state sovereignty of federal commerce power legislation are to be considered political questions, and that the states should look for relief from federal regulation through the political process.[4] This appeared to have ended the Court’s attempt to substantively limit federal government regulation of the states.

The Court soon turned, however, to the question of how the Constitution limits the process by which the federal government regulates the states. In New York v. United States,[5] Congress had attempted to regulate in the area of low-level radioactive waste. In a 1985 statute, Congress provided that states must either develop legislation on how to dispose of all low-level radioactive waste generated within the state, or the state would be forced to take title to such waste, which would mean that it became the state’s responsibility. The Court found that although Congress had the authority under the Commerce Clause to regulate low-level radioactive waste, it only had the power to regulate the waste directly. Here, Congress had attempted to require the states to perform the regulation, and decreed that the failure to do so would require the state to deal with the financial consequences of owning large quantities of radioactive waste. In effect, Congress sought to “commandeer” the legislative process of the states. In the New York case, the Court found that this power was not found in the text or structure of the Constitution, and it was thus a violation of the Tenth Amendment.

A later case presented the question of the extent to which Congress could regulate through a state’s executive branch officers. This case, Printz v. United States,[6] involved the Brady Handgun Act. The Brady Handgun Act required state and local law-enforcement officers to conduct background checks on prospective handgun purchasers within five business days of an attempted purchase. This portion of the act was challenged under the Tenth Amendment, under the theory that Congress was without authority to “commandeer” state executive branch officials. After a historical study of federal commandeering of state officials, the Court concluded that commandeering of state executive branch officials was, like commandeering of the legislature, outside of Congress’s power, and consequently a violation of the Tenth Amendment.

Although the federal government is prohibited from commandeering either the legislature or executive branch of a state, this does not appear to be the case with state judicial branches. The federal judicial system and the state judicial system were not intended to be as separate as the other branches of government, and the Supremacy Clause of the Constitution explicitly provides that state courts must follow federal law, even if it overrides state laws or constitutions. So, there appears to be less of a concern regarding the “commandeering” of state courts.

A key distinction between constitutional “substantive regulation” and unconstitutional “commandeering” appears to be whether or not the federal mandate in question is regulating state activities or whether it is seeking to control the manner in which states regulate private parties. Thus, for instance, the Court held in Reno v. Condon[7] that the Driver’s Privacy Protection Act of 1994, which regulates the sale of personal information gathered from persons seeking drivers licenses, was substantive regulation, not commandeering. In that case, the Court found that the state was not being directed on how to regulate its citizens, but rather on how to treat information that had been elicited from those citizens. However, because the regulation affected both state governments and private resellers of such information, the Court reserved the question as to whether a law, which only regulated state activities, would be constitutionally suspect.


  1. 426 U.S. 833 (1976)(full-text).
  2. In National League of Cities v. Usery, the Court conceded that the legislation under attack, which regulated the wages and hours of certain state and local governmental employees, was undoubtedly within the scope of the Commerce Clause, but it cautioned that there are attributes of sovereignty attaching to every state government which may not be impaired by Congress, not because Congress may lack an affirmative grant of legislative authority to reach the matter, but because the Constitution prohibits it from exercising the authority in that manner.
  3. 469 U.S. 528 (1985)(full-text). Justice Blackmun’s opinion for the Court in Garcia concluded that the National League of Cities test for “integral operations” in areas of traditional governmental functions had proven impractical, and that the Court in 1976 had “tried to repair what did not need repair.”
  4. See also South Carolina v. Baker, 485 U.S. 505 (1988)(full-text).
  5. 505 U.S. 144 (1992)(full-text).
  6. 521 U.S. 898 (1997)(full-text).
  7. 528 U.S. 141 (2000)(full-text).


  • Kenneth R. Thomas, "Federalism, State Sovereignty, and the Constitution: Basis and Limits of Congressional Power" 17 (CRS Report RL30315 Feb. 1, 2008) (full-text).