I. Constitutional Components Of Federalism
A. Federalism involves two constitutional provisions which directly address the respective powers of the US government and the State governments:(1) the Supremacy Clause, which provides that within the zone in which the US government is empowered to act, the acts of the US government trump the acts of the State governments; and
(2) the Tenth Amendment, which classifies four kinds of powers according to who possesses those powers: (a) only the US government, (b) both the US government and the State governments, (c) only the State governments, or (d) neither the US government nor the State governments.
B. Federalism also involves four bundles of other constitutional provisions:
(3) the dizzying array of powers which the Constitution confers upon the US government;
(4) the various prohibitions which the Constitution imposes upon the US government;
(5) the very few powers which the Constitution explicitly confers upon the State governments; and
(6) the various prohibitions which the Constitution imposes upon the State governments.
C. Finally, federalism also involves (7) the powers about which the Constitution says nothing at all.
II. The Supremacy Clause
Article VI provides, in part:
For our purposes, the meaning of that provision is obvious: If the US government has the power to do something, and if the US government does that thing, then the State governments must yield to the US government. Such controversy as there has ever been about that core principle is long settled.[1]This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
III. The Tenth Amendment
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.
A. Express and Implied Delegation of Powers
There are only two ways in which powers can be delegated: expressly and impliedly. The Tenth Amendment does not say "powers not expressly delegated to the United States". In fact, a proposal to make it say that was resoundingly rejected (32 to 17) by the House of Representatives in the Congress which proposed the Tenth Amendment to the States. The Supreme Court subsequently observed that Tenth Amendment "omits the word 'expressly' ...."[2]Powers can be delegated expressly or impliedly. The Tenth Amendment deliberately does not limit the powers delegated to the US government to those "expressly" delegated. Therefore, powers can be delegated to the US government either expressly or impliedly.
B. The Constitutional Principle Articulated By The Tenth Amendment
The Tenth Amendment states an important constitutional principle: The US government has the power to do only what the Constitution, expressly or impliedly, gives it the power to do. The State governments, in contrast, have the power to do anything which the Constitution does not, expressly or impliedly, prohibit them from doing. In other words, the US can do only what is authorized, whereas the State governments can do whatever is not forbidden.C. The Four Kinds of Powers Identified by the Tenth Amendment
The Tenth Amendment identifies four kinds of powers:1. The US government's exclusive powers.
The powers which (a) are delegated to the US government and (b) are prohibited to the States are the powers which only the US government possesses. Examples include the power to coin money and the power to enter into treaties.[3]2. The US and State governments' concurrent powers.
The powers which (a) are delegated to the US government and (b) are not prohibited to the State governments are the powers which both the US government and the State governments possess. The premier example is the power to tax: The US government lays and collects taxes, and so do the State governments.[4]N.B.: Powers Which The State Governments Do Not Possess, Even Though They Fit Within The Tenth Amendment's Classification of Concurrent Powers
There are some powers which, by their very nature, the State governments cannot exercise, even though the Constitution does not prohibit the State governments from exercising that power. For example, the US government has the power “To regulate Commerce … among the several States” (Article I, Section 8). The Constitution does not prohibit the State governments from regulating interstate commerce. Nonetheless, the State governments cannot do so. That is because regulating interstate commerce necessarily involves imposing regulations which apply to more than one State. And the State governments self-evidently cannot do that: California cannot impose regulations on Kentucky, not because the Constitution prohibits California from imposing regulations on Kentucky, but because California and Kentucky are separate sovereign entities, subordinate in many respects to the US government, but in no way subordinate to each other.3. The State governments' exclusive powers.
The powers which (a) are not delegated to the US government and (b) are not prohibited to the State governments are the powers which only the State governments possess. They are innumerable, because most of them exist by virtue of not being mentioned in the Constitution at all. Setting aside the few that are specifically provided for in the Constitution,[5] one can identify three categories (without saying that they are the only categories) of the State governments’ exclusive powers which are not mentioned in the Constitution:(i) The State governments’ exclusive power to control the operation of the State. Subject to various constitutional restrictions, each State has the exclusive power to determine how long its governor’s term in office shall be, how long its legislators’ terms in office shall be, what political subdivisions (cities, counties, parishes, townships, etc.) shall exist within it, and so on.
(ii) The State governments’ exclusive general police power. In general, if I bludgeon my neighbor, the US government cannot prosecute me for doing that. There are special circumstances in which the US government can prosecute me for doing that: My neighbor might be a federal officer, I might bludgeon my neighbor on federal land or in the course of committing a federal crime, etc. But that is the point: For the US government to prosecute me for bludgeoning my neighbor, there must be special circumstances. Thus, the California government can prosecute me for bludgeoning my neighbor simply because I did so within California, but the US government cannot prosecute me for bludgeoning my neighbor simply because I did so within the US.
(iii) The State governments’ exclusive power to regulate matters which, although they deal with the same subject matter as do the powers of the US government, lie beyond the scope of the powers of the US government. For example, the US government has the power to lay and collect taxes to provide for the general welfare of the US. That power is limited by the qualification that the welfare for which the taxes are laid and collected must be general, not merely local. A State, on the other hand, has the power to lay and collect taxes to provide for the local welfare of any portion of that State, regardless of whether those taxes also provide for the welfare of any other portion of that State. In other words, States can lay and collect taxes to provide for some merely local welfare, whereas the US government cannot. So the States' power to lay and collect taxes for merely local welfare is one of the States' exclusive powers.
4. The people's exclusive powers.
The powers which (a) are not delegated to the US government and (b) are prohibited to the State governments are the powers which neither the US government nor the State governments possess. They are problematic on at least two grounds.First, almost all of the powers which are prohibited to the State governments are either (a) expressly delegated to the US government[6] or (b) prohibited to the US government.[7] Almost all of the other powers which are prohibited to the State governments either (a) are conditioned on the consent of Congress[8] or (b) have been held to fall within one of the US government’s delegated powers.[9] So identifying a power which is prohibited to the State governments but is neither delegated to the US government nor prohibited to the US government is a daunting task.
Second, it is far from clear how the people could exercise their exclusive powers if not through the State or US governments. The people have the exclusive power, for example, to grant titles of nobility. How could they go about doing so without acting through the State or US governments? Even a popular vote would take place under the auspices of one government or another: Some governmental entity would be in charge of determining who may and who may not vote, in charge of counting the votes, etc.
D. What The Tenth Amendment Does Not Tell Us: The Scope of the US Government’s Powers
The Tenth Amendment classifies four kinds of powers as discussed above. But what the Tenth Amendment does not do is tell us anything about any particular power, other than which of the four categories it falls within.For example, the Constitution tells us that the US government has the power “To regulate Commerce … among the several States” (Article I, Section 8). And the Tenth Amendment tells us, redundantly, that because Article I, Section 8, gives the US government that power, the US government does, indeed, have that power. But the Tenth Amendment tells us nothing about how broad or narrow that power is.
--> If A has a State-granted monopoly of steam navigation on that State’s waters, but B has a US-granted coasting license and runs competing boats between that State and another State, does the US-granted coasting license trump the State-granted monopoly?[10]
--> What if a sugar company acquires all of the stock of its leading competitors, thereby securing control of almost all of the sugar refining in the United States? Does the US government’s power to regulate interstate commerce reach that company’s activities, even though they take place only within one State? What if meat companies combine with the intent to restrain interstate commerce, but each company’s acts occur solely within a single State?[11]
--> What if the US government has not chosen to regulate interstate railroad traffic? Does that mean that each State government is free to regulate railroad traffic within its own borders? Or does the US government’s power to regulate interstate railroad traffic preempt the State governments from regulating railroad traffic within their own borders, even though the US government has not exercised its power to regulate interstate railroad traffic?[12]
The Tenth Amendment sheds no light on such questions. It tells us that the US government has the power to regulate interstate commerce – which is, of course, exactly what Article I, Section 8 has already told us – but it tells us nothing about how far that power extends, about what things are within the scope of that power and what things are not.
That is why the Supreme Court observed that the Tenth Amendment “leav[es] the question, whether the particular power which may become the subject of contest has been delegated to the one government [the US government], or prohibited to the other [a State government], to depend on a fair construction of the whole instrument [the Constitution].”[13]
Simply shouting “Tenth Amendment! Tenth Amendment!” may be emotionally satisfying, but it is analytically useless. In the end, to determine what the US government’s power to regulate interstate commerce – or any of the US government’s other powers – does and does not include, we must construe the power itself. The Tenth Amendment, notwithstanding the importance of the constitutional principle which it (re)states, is simply not helpful in answering such questions.
Notes
1. See Martin v. Hunter’s Lessee (1816) 14 U.S. 304. On its face, the language of the Supremacy Clause treats the Constitution, US law, and US treaties as equally "the supreme Law of the Land". But the Supreme Court has held that a treaty is subordinate to the Constitution and on par with a US statute. (See Foster v. Neilson (1829) 27 U.S. 878 and Missouri v. Holland (1920) 252 U.S. 416.)There is another issue: If the US government has the power to regulate a certain subject, but the US government does not regulate that subject, are the State governments free to regulate that subject? (See Part III.D below.) We will squarely confront that issue when we address Congress’s power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes” (Art. I, Sec. 8).
2. McCulloch v. Maryland (1819) 17 U.S. 316, 406.
3. The power to coin money is delegated to the US government in Article I, Section 8; the power to enter into treaties is delegated to the US government in Article II, Section 2; and both powers are prohibited to the States in Article I, Section 10.
4. The power to tax is delegated to the US government in Article I, Section 8; it is not prohibited to the State governments in anything in the Constitution.
5. For example, subject to various constitutional restrictions, the States have the exclusive power to determine who is qualified to vote for Representatives in the US Congress. (See Article I, Section 2.) Also subject to various constitutional restrictions, the States -- specifically, the State legislatures -- have the exclusive power to determine how presidential electors are chosen. (See Article II, Section 1.) The most obvious constitutional restriction is race: No State may exclude African-Americans from voting for Representatives, and no State legislature may exclude African-Americans from choosing presidential electors (unless it excludes the public generally, which it has the power to do).
6. The State governments are prohibited from entering into treaties, and the US government is empowered to enter into treaties. The State governments are prohibited from granting letters of marque and reprisal, and the US government is empowered to grant letters of marque and reprisal. The State governments are prohibited from coining money, and the US government is empowered to coin money. The State governments are prohibited from emitting bills of credit, and the US government is empowered to borrow money on the credit of the US. (See Article I, Sections 8 and 10.)
7. The State governments are prohibited from passing bills of attainder, and so is the US government. The State governments are prohibited from passing ex post facto laws, and so is the US government. The State governments are prohibited from granting titles of nobility, and so is the US government. (See Article I, Sections 9 and 10.)
8. See Article I, Section 10.
9. The State governments are prohibited from “mak[ing] any Thing but gold and silver Coin a Tender in Payment of Debts” (Article I, Section 10). The power to do so is not expressly delegated to the US government, but it has been held to be impliedly delegated to the US government under the express power “To coin Money [and] regulate the Value thereof” (Article I, Section 8). (See Gold Clause Cases (1935) 294 U.S. 240, 294 U.S. 317, and 294 U.S. 330.)
The odd one out here is the Constitution's prohibition of the State governments' enacting "any ... Law impairing the Obligation of Contracts" (Article I, Section 10). There is no parallel provision either delegating the power to do so to the US government or prohibiting the US government from doing so. For a time, the Supreme Court held that the powers of US government were restricted by the "liberty of contract" which the Court found in the Due Process Clause of the Fifth Amendment. The Court has largely abandoned that view. We will confront that issue when we discuss the substance of the US government's power to regulate interstate commerce.
10. See Gibbons v. Ogden (1824) 22 U.S. 1 (holding that the US-granted coastal license trumped the State-granted monopoly).
11. Compare E. C. Knight Co. v. US (1895) 156 U.S. 1 (holding that the sugar monopoly was beyond the reach of the US government’s power to regulate interstate commerce) with Swift & Co. v. US (1905) 196 U.S. 375 (holding that the US government’s power to regulate interstate commerce reached even the intrastate activities of companies which intended to restrain interstate commerce).
12. Compare Peik v. Chicago and Northwestern Railway Co. (1877) 94 U.S. 164 (holding that in the absence of regulation by the US government, a State government could regulate a railroad’s intrastate activities) with Wabash, St. Louis & Pacific Railway Co. v. Illinois (1886) 118 U.S. 557 (holding that even in the absence of regulation by the US government, if a railroad was part of an interstate network, a State could not regulate the railroad’s intrastate activities).
See also Willson v. Blackbird Creek Marsh Co. (1829) 27 U.S. 245 (referring in passing to “the power to regulate commerce in its dormant state”) and Cooley v. Port Wardens of Philadelphia (1852) 53 U.S. 299 (holding that when the subject matter of the commerce requires a uniform national rule, only the US government may regulate it; but if the commerce is of a local nature, and the US government has not exercised its power to regulate that commerce, a State government may regulate that commerce).
13. McCulloch v. Maryland (1819) 17 U.S. 316, 406.
