News: Tenth Amendment Revisited: The enumerated powers clause

News: Tenth Amendment Revisited: The enumerated powers clause

Aug 20, 2019

Tenth Amendment revisited:
The enumerated powers clause
BY ALBERT DALE CLARY & SHARON S. WHITLOW
 
 
Political issues in the last few years have heightened public scrutiny of the relationship between the federal government and state governments. The greater expansion of the federal government into more and more areas of private life has prompted public discussions over whether there is any limit to the federal government’s power. The Tenth Amendment to the United States Constitution lies at the heart of those discussions.
The amendment had been mentioned in the news as part of GOP  presidential debates and commented on by several popular op-ed writers. New words like “nullification” and “Tenther” have reached political lexicons. Additionally, the Tenth Amendment is included in early opinions regarding the Patient Protection and Affordable Healthcare Act of  2010,1  which have held that the Act both comports with and violates the Tenth Amendment.2 In order to understand the ramifications of the U.S. Supreme Court’s anticipated ruling, we first revisit the Tenth Amendment and refresh our understanding of this Amendment.
 

Text and context

The Tenth Amendment provides:
 
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.
 
It is, of course, part of the Bill of Rights, historically considered a set of amendments offered to offset the “tyranny by the central government” feared by opponents of  the Constitution.3
The context of the Tenth  Amendment suggests it is the culmination of the Bill of Rights. The last of the 10 amendments contained in the Bill of Rights, the Tenth Amendment follows another oft-forgotten amendment, which also relates to the relationship between the  federal


and state governments:
 
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.4
 

Early commentary

The wording and context of the Tenth Amendment suggested to the authors of the Constitution that the powers of the federal government would be limited compared to those of the states:
The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are  numerous  and indefinite.5
 
In 1788, it was written:
[T]he powers proposed to be lodged in the federal government are as little formidable to those reserved to the individual States, … and that all those alarms which have been sounded, of … annihilation of the State governments, must, on the most favorable interpretation, be ascribed to the chimerical fears of the authors of them.6
 
Those who  wrote  the  Constitution  also  regarded  the structure of separate state and federal governments   as another level of governmental checks and balances beyond the legislative, executive and judicial branches of the federal government.7
The original authors also envisioned a difference in the types of powers allocated between the federal and state governments. The federal powers would be exercised “principally on external objects, as war, peace, negotiation, and foreign commerce.”8 However, the powers  reserved to the States would “extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order,
 
improvement and prosperity of the  State.”9
 

20th century interpretation

The intentions of the original authors continued to be reflected in United States Supreme Court opinions of the early 20th century in such statements as
 
The question is not what power the Federal Government ought to have but what powers in fact have been given by the people. It hardly seems necessary to reiterate that ours is a dual form of government; that in every state there are two governments, – the state and the United States. Each State has all governmental powers save such as the people, by their Constitution, have conferred upon the United States, denied to the States, or reserved to themselves.
United States v. Butler, 56 S.Ct. 312, 318  (1936).
 
However, shortly after Butler, a run of opinions dramatically changed the course of power between the federal and state governments. In a series of opinions arising out of the New Deal legislation between 1935 and 1937, the Court reversed the course of power between the two governments.
In 1935 and 1936 the Court struck down several New Deal enactments as outside the power of the federal government. These acts included the Agricultural Adjustment Act (“invades the reserved rights of the states…a statutory plan to regulate and control agricultural production, a matter beyond the powers delegated to the federal government”10), the National Industrial Recovery Act (“Extraordinary conditions do not create or enlarge constitutional  power”11),  the  Railroad  Retirement  Act (“These  matters  obviously  lie  outside  the  orbit  of Congressional power”12) and the Bituminous Coal Conservation Act (“The Tenth Amendment … disclosed the widespread fear that the National Government might, under the pressure of a supposed general welfare, attempt to exercise powers which had not been granted ….”13).
However, in 1937, the Court reversed field and handed down a series of decisions upholding greater expansion of federal power after what has been called a “court packing scheme” by then-President Roosevelt.14 These include unemployment compensation provisions of the Social Security Act (“There was need of help from the nation if the people were not to starve. …in a crisis so extreme the use of the moneys of the nation to relieve the unemployed….is a use for…the promotion of the general welfare”15), the old age benefits of the Social Security Act (“this statute is to save men and women from the rigors of the poor house…..when journey’s end is near”16), the National Labor Relations Board (“activities … intrastate in character …[which] have such a close and substantial relation to interstate commerce that their control is … appropriate to protect … commerce from burdens   and

obstructions,  Congress  cannot  be  denied  the  power   to
… control”17), and the Railway Labor Act. (“The …  Cases, …which mentioned railroad repair shops as a subject beyond the power to regulate commerce, are not controlling  here”18).
Following the post-New Deal decisions, the Court began to view the Tenth Amendment as merely a historical point of interest and nothing more than a “truism that all is retained which has not been surrendered.”19 The Court found “nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments...or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers.”20
What followed was a further expansion of the Commerce Clause21 and decreased emphasis on the Tenth Amendment. The Court “rejected the suggestion that Congress invades areas reserved to the States by the Tenth Amendment simply because it exercises its authority under the Commerce Clause in a manner that displaces  the States’ exercise of their police powers.”22 Eventually, the Tenth Amendment limits  on  Congress’  authority were viewed as merely “structural, not substantive – i.e., that States must find their protection from congressional regulation through the national political process, not through judicially defined spheres of unregulable state activity.”23
Ultimately, this led to the conclusion that the Tenth Amendment no longer even allows a court to examine a substantive basis for congressional legislation.
 
But nothing in Garcia or the Tenth Amendment authorizes courts to second-guess the substantive basis for congressional legislation .... Where, as here, the national  political  process  did  not operate in a defective manner, the Tenth Amendment is not  implicated.24
 
It is against this backdrop that the Court now considers the constitutionality of the Affordable Care    Act.
 

The Affordable Care Act

In June, the United States Supreme Court is expected to render its decision on the constitutionality of the Act. The lower court decisions under review by the Court focus primarily on whether the federal government has authority under the Commerce Clause to mandate the purchase of health insurance.
The trial courts have not shied from the constitutional question presented by the Act. As noted in Virginia v. Sebelius, “this case does not turn on the wisdom of Congress or the public policy implications ….The Court’s attention is focused solely on the constitutionality of the enactment.”25   The   Sebelius   court   ultimately   found the
 
individual insurance mandate  unconstitutional  under the Tenth Amendment, noting  that  “Article  I,  Section  8 of the Constitution confers upon Congress only discrete enumerated governmental powers ....”27 Some lower courts, however, avoided the question by finding that the Anti-Injunction Act applies and that no subject matter jurisdiction exists.28 There has indeed been a split in the circuit courts, with some finding the Act unconstitutional, while others concluded that the Act’s minimum coverage provision “is a valid exercise of Congress’ power under  the  Commerce  Clause  ....”29
The general trend of the Court has been to expand   the reach of the Commerce Clause and correspondingly minimize the impact of the Tenth Amendment. As Justice Thomas has noted, the Court’s 1995 decision in United States  v.   Lopez30  “marked  the first
time in half a century that this Court held that an Act of Congress exceeded  its  commerce   power.”   If the Court finds the insurance mandate unconstitutional, the question remains whether that ruling will mark the beginning of a constriction of the previously ever- expanding Commerce Clause and a resulting strengthening of the Tenth Amendment.

1 Pub.L.No.111-148, 124 Stat. 119 (2010).
2 Virginia ex rel. Cuccinelli v. Sebelius, 728 F.  Supp. 2d 768, 788 (E.D.  Va. 2010) (“The Patient Protection and Affordable Care Act – specifically the Minimum Essential Coverage Provision – exceeds the constitutional boundaries of congressional power.”), rev’d on procedural grounds Virginia ex rel. Cuccinelli v. Sebelius, 656 F.3d 253, 272 (4th Cir. Va. 2011) (“Virginia lacks standing to challenge the individual mandate”); Florida v. U.S. Dept. of Health & Human Servs., 716 F. Supp. 2d 1120, 1129-30 (N.D. Fla. 2010), aff’d on other grounds, Florida v. U.S. Dept.  of Health & Human Servs., 648 F.3d 1235, 1313 (11th Cir. 2011) (“[W] e cannot consider a free-standing Tenth Amendment claim.”).
3     http://archives.gov/exhibits/charters/bill_of_rights.html.
4 U.S. Const. Amend.  9
5 Federalist No. 45 (emphasis added).
6 Federalist No. 46.
7 Federalist No. 51; also cited in Thomas H. Odom, The Tenth Amendment after Garcia: Process-Based Procedural Protection, 135 U. Pa. L. Rev. 1657, 1670 note 62 (1987).
 
8 Federalist No. 45
9 Id.
10 United States v. Butler, 297 U.S. 1, 68 (1936).
11 A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 528-29
(1935).
12 Railroad Ret. Bd. v. Alton R. Co., 295 U.S. 330, 368 (1935).
13 Carter v.  Carter Coal Co., 298 U.S. 238, 293-94  (1936).
 
 
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14 The scope of this article does not include analysis of why the Court so dramatically altered course on these topics, but many authors do address the Roosevelt “court packing scheme” and its possible impact on the decisions of the mid-1930s. See, e.g., Marian C. McKenna, Franklin Roosevelt and the Great Constitutional War: The Courtpacking Crisis of 1937 (Fordham U. Press. 2002); Burt Solomon, FDR v. the Constitution:
the Court-Packing Fight and the Triumph of Democracy (Bloomsbury Pub. USA 2009); Jeff Shesol, Supreme Power: Franklin Roosevelt vs. the Supreme Court (W. W. Norton & Co. 2010).
15 Chas. C. Steward Mach. Co. v. Davis, 301 U.S. 548, 586-87 (1937).
16 Helvering v. Davis, 301 U.S. 619, 641 (1937).
17 NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37 (1937).
18 Virginian Ry. Co. v. Sys. Fed’n No. 40, 300 U.S. 515, 554 (1937).
19 United States v. Darby, 312 U.S. 100, 124 (1941)(emphasis added).
20 Id.
21 U.S. Const. Art. I, § 8, Cl.  3.
22 Hodel v. Va. Surface Mining  Reclamation  Ass’n,  452  U.S.  264,  291 (1981), citing Hoke v. United States, 227 U.S. 308, 320-23 (1913); Athanasaw v. United States, 227 U.S. 326 (1913); Cleveland v. United States, 329 U.S. 14, 19 (1946); United States v. Wrightwood Dairy Co., 315 U.S. 110, 119 (1942); United States v. Darby, 312 U.S. 100, 113-14 (1941); Cf. United States v. Carolene Prods. Co., 304 U.S. 144, 147 (1938). (“[I]t is no objection to the exertion of the power to regulate interstate commerce that its exercise is attended by the same incidents which attend the exercise of the police power of the states”).
23 South Carolina v. Baker, 485 U.S. 505, 512 (1988), citing Garcia v. San
Antonio Metro. Transit Auth., 469 U.S. 528, 537-54 (1985)(emphasis added).
24 Id., citing cf. Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464 (1981).
25 Commonwealth ex rel. Cuccinelli v. Sebelius, 728 F.  Supp. 2d 768, 771
(E.D. Va. 2010), rev’d, 656 F.3d 253 (4th Cir.   2011).
26 Id.
27 Id., citing U.S. Const. amend. X; Printz v. United States, 521 U.S. 898, 919 (1997).
28 Liberty Univ., Inc. v. Geithner, 671 F.3d 391 (4th Cir. 2011).
29 Thomas More Law Ctr.  v.  Obama, 651 F.3d  529, 534 (6th Cir.   2011).
30 Alderman v. United States, 131 S. Ct. 700, 700-01 (2011), citing United
States v. Lopez, 514 U.S. 549, 655  (1995).

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