Con Law · WikiFramers

Part One - The Structure of Government · Module 3A

The Tenth Amendment

Anti-commandeering: what the federal government may not make the states do. New York draws the line at legislatures, Printz extends it to executive officers, and Murphy shows the doctrine has no exception for prohibitions.

Topics

The Tenth Amendment as a constraint on Congress. The anti-commandeering principle: legislatures, executive officers, and the difference between commandeering and preemption. Political accountability as the doctrine's justification, and its critics.

Reading list

6 of 6 readings published

  1. Note National League of Cities v. Usery 426 U.S. 833 (1976)
  2. Note Garcia v. San Antonio Metropolitan Transit Authority 469 U.S. 528 (1985)
  3. Opinion (edited) New York v. United States 505 U.S. 144 (1992)
  4. Opinion (edited) Printz v. United States 521 U.S. 898 (1997)
  5. Opinion (edited) Reno v. Condon 528 U.S. 141 (2000)
  6. Opinion (edited) Murphy v. National Collegiate Athletic Association 584 U.S. 453 (2018)
  7. Current case City & County of San Francisco v. Trump, No. 25-cv-01350-WHO (N.D. Cal. Apr. 24, 2025) (Orrick, J.) (conditions on federal funds to so-called sanctuary jurisdictions, analyzed under the anti-commandeering principle and the Spending Clause). in preparation

Also assigned

Canvas The Federalist No. 45 (Madison), "The Alleged Danger From the Powers of the Union to the State Governments Considered." This is the source of the line that the federal powers are "few and defined" while those remaining with the States are "numerous and indefinite." Every anti-commandeering opinion you are about to read leans on it. Read it and decide whether it will bear the weight.

How to read this list

A case named without a marker is assigned as an opinion and is to be read in its entirety. Opinion (edited) means the Professor has cut it for length; the text on this site is the assigned text. Note means the case is not assigned as an opinion at all — its holding, its facts to the extent they matter, and its place in the doctrinal line are given in a note written for this course, and you are responsible for that note exactly as you are responsible for an assigned opinion. Most modules close with a Current case, a recent decision chosen because it shows the doctrine you have just read being applied at its live edge; current cases are assigned as opinions. You are responsible for all assigned required materials, including the notes, questions, problems and commentary that accompany the cases, whether or not we discuss them in class.

Notes

National League of Cities v. Usery

426 U.S. 833 (1976)

The Tenth Amendment’s modern career begins with a failure, and you need the failure to understand what came after. Congress extended the Fair Labor Standards Act’s minimum-wage and maximum-hour rules to state and municipal employees; the Court, 5–4 (Rehnquist, J.), struck the extension down as applied. The reasoning was not that Congress lacked commerce power over the wages — plainly it had that — but that the Tenth Amendment marks an affirmative limit: Congress may not use an otherwise valid power to displace the States’ freedom to structure “integral” or “traditional” governmental functions, of which police and fire protection were the examples given. Brennan, J., dissenting for himself, White and Marshall, called the limit unprincipled and warned it had no stopping point; Stevens, J., dissented separately; Blackmun, J., supplied the fifth vote while writing separately that he read the opinion as a balancing test rather than a categorical enclave. Blackmun’s hesitation turned out to be the whole story. Nine years of lower courts trying to sort traditional functions from non-traditional ones — is running a municipal transit system traditional? a state liquor monopoly? mosquito abatement? — produced no usable line, and Blackmun himself wrote the opinion overruling it in Garcia. Ask yourself, as you read New York and Printz, what the anti-commandeering doctrine does differently. It is not a subject-matter immunity and it does not ask judges to classify state activities; it asks a formal question about what Congress is directing the State to do. Whether that formalism is more principled than National League of Cities or merely easier to administer is a fair thing to argue in class.

Garcia v. San Antonio Metropolitan Transit Authority

469 U.S. 528 (1985)

Before the anti-commandeering doctrine there was a different Tenth Amendment experiment. National League of Cities v. Usery (1976) had immunized “traditional governmental functions” of states from generally applicable federal regulation — there, the Fair Labor Standards Act. Nine years of unworkable line-drawing later (is a municipal bus system “traditional”?), Garcia overruled it, 5–4: the states’ protection from federal overreach lies chiefly in the political safeguards of federalism — their representation in Congress — not in judicially enforced subject-matter enclaves. Blackmun, J., wrote the majority; Rehnquist, J., dissenting, predicted that the abandoned principle “will, I am confident, in time again command the support of a majority of this Court.” He was half right. The Court never revived National League of Cities, but seven years later New York v. United States opened the anti-commandeering line — protecting states not from federal regulation of them as employers, but from federal conscription of their lawmaking machinery. Keep Garcia in view as you read this module: it marks the boundary the modern cases carefully do not cross.