THE TENTH AMENDMENT

The Tenth Amendment 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." U.S. Const. amend. X.

The 10th Amendment then, is the essense of resistance to federal intrusion and the heart of the nullification movement. Always remember that nullification carried to its extreme can lead to secession.

As a textual matter, therefore, the Tenth Amendment "states but a truism that all is retained which has not been surrendered." United States v. Darby, 312 U.S. 100, 124 (1941). By its terms, the Amendment does not purport to limit the commerce power or any other enumerated power of Congress.

In recent years, however, the Tenth Amendment has been interpreted "to encompass any implied constitutional limitation on Congress' authority to regulate state activities, whether grounded in the Tenth Amendment itself or in principles of federalism derived generally from the Constitution." South Carolina v. Baker, 485 U.S. 505, 511 n.5 (1988). Thus, "the Tenth Amendment confirms that the power of the Federal Government is subject to limits that may, in a given instance, reserve power to the States." New York v. United States, 505 U.S. 144, 157 (1992).

There are good reasons for focusing Tenth Amemdment concern on federal coercion of a State's enactment of legislation or regulations or creation of an administrative program. These activities are inherently central acts of a sovereign; if an area of state activity is to be protected from direct coercion by an implication drawn from the Tenth Amendment, legislating and regulating are prime candidates. "[T]he power to make decisions and to set policy is what gives the State its sovereign nature."

There is a second reason, also, emphasized in New York itself. Democratic governments must be politically accountable. When the federal government requires the States to enact legislation, the enacted legislation is state legislation. Thus, it will likely "be state officials who will bear the brunt of public disapproval, while the federal officials who devised the regulatory program may remain insulated from the electoral ramifications of their decision."

http://www.lectlaw.com/def2/t065.htm

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