Amendment 10 — Anti Commandeering Doctrine

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Tenth Amendment :

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.

In Garcia v. San Antonio Metropolitan Transit Authority,[1](https://www.law.cornell.edu/constitution-conan/amendment-10/anti-commandeering-doctrine#fn1amd10 " 469 U.S. 528 (1985). ") the Supreme Court adopted a narrow conception of states’ reserved powers under the Tenth Amendment . Following Garcia, the Court adopted a “clear statement” rule requiring an unambiguous statement of congressional intent to displace state authority, a rule first articulated in Gregory v. Ashcroft.[2](https://www.law.cornell.edu/constitution-conan/amendment-10/anti-commandeering-doctrine#fn2amd10 " 501 U.S. 452 (1991). ") After noting the serious constitutional issues that would be raised by interpreting the Age Discrimination in Employment Act to apply to appointed state judges, Gregory explained that, because Garcia “constrained” consideration of “the limits that the state-federal balance places on Congress’s powers,” a plain statement rule was all the more necessary.[3](https://www.law.cornell.edu/constitution-conan/amendment-10/anti-commandeering-doctrine#fn3amd10 " The Court left no doubt that it considered the constitutional issue to be serious: “[T]he authority of the people of the States to determine the qualifications of their most important government officials . . . is an authority that lies at ‘the heart of representative government’ [and] is a power reserved to the States under the Tenth Amendment and guaranteed them by [the Guarantee Clause].” Id. at 463. In the latter context, the Court’s opinion by Justice Sandra Day O’Connor cited Deborah Jones Merritt, The Guarantee Clause and State Autonomy: Federalism for a Third Century, 88 Colum. L. Rev. 1 (1988) and Michael W. McConnell, Federalism: Evaluating the Founders’ Design, 54 U. Chi. L. Rev. 1484 (1987) (also cited by the Court); and Van Alystyne, The Second Death of Federalism, 83 Mich. L. Rev. 1709 (1985). ") The Court stated: “[I]nasmuch as this Court in Garcia has left primarily to the political process the protection of the States against intrusive exercises of Congress’s Commerce Clause powers, we must be absolutely certain that Congress intended such an exercise.” [4](https://www.law.cornell.edu/constitution-conan/amendment-10/anti-commandeering-doctrine#fn4amd10 " 501 U.S. at 464. ")

The Court’s 1992 decision in New York v. United States[5](https://www.law.cornell.edu/constitution-conan/amendment-10/anti-commandeering-doctrine#fn5amd10 " 505 U.S. 144 (1992). ") signaled a continuing retreat from the narrow conception of state power adopted in Garcia and the genesis of the Supreme Court’s “anti-commandeering” doctrine. The New York holding that Congress may not “commandeer” state regulatory processes by ordering states to enact or administer a federal regulatory program limited congressional power previously recognized in dictum.[6](https://www.law.cornell.edu/constitution-conan/amendment-10/anti-commandeering-doctrine#fn6amd10 " See, e.g., Hodel v. Va. Surface Mining & Reclamation Ass’n, 452 U.S. 264, 288 (1981); FERC v. Mississippi, 456 U.S. 742, 765 (1982); South Carolina v. Baker, 485 U.S. 505, 513–15 (1988). ")

Language in New York seems more reminiscent of National League of Cities v. Usery[7](https://www.law.cornell.edu/constitution-conan/amendment-10/anti-commandeering-doctrine#fn7amd10 " 426 U.S. 833 (1976). ") than of the Court’s later Garcia decision. First, Justice Sandra Day O’Connor’s opinion declared that it makes no difference whether federalism constraints derive from the Tenth Amendment , or instead from a lack of power delegated to Congress under Article I: “the Tenth Amendment . . . directs us to determine . . . whether an incident of state sovereignty is protected by a limitation on an Article I power.” [8](https://www.law.cornell.edu/constitution-conan/amendment-10/anti-commandeering-doctrine#fn8amd10 " 505 U.S. at 157. “If a power is delegated to Congress in the Constitution, the Tenth Amendment expressly disclaims any reservation of that power to the States . . . .” Id. at 156 (quoted with approval in Watters v. Wachovia Bank, N.A., 550 U.S. 1, 22 (2007) (holding a national bank’s state-chartered subsidiary real estate lending business is subject to federal, not state, law)). ") Second, the Court, without reference to Garcia, thoroughly repudiated Garcia's “structural” approach requiring states to look primarily to the political processes for protection. In rejecting arguments that New York’s sovereignty could not have been infringed because its representatives participated in developing the compromise legislation and consented to its enactment, the Court declared: “The Constitution does not protect the sovereignty of States for the benefit of the States or State governments, [but instead] for the protection of individuals.” Consequently, the Court reasoned, “State officials cannot consent to the enlargement of the powers of Congress beyond those enumerated in the Constitution.” [9](https://www.law.cornell.edu/constitution-conan/amendment-10/anti-commandeering-doctrine#fn9amd10 " 505 U.S. at 181, 182. ") The Court thus appeared to contemplate relaxation of Garcia's obstacles to federalism-based challenges.

Extending the principle applied in New York, the Court in Printz v. United States[10](https://www.law.cornell.edu/constitution-conan/amendment-10/anti-commandeering-doctrine#fn10amd10 " 521 U.S. 898 (1997). ") held that Congress may not “circumvent” the prohibition on commandeering a state’s regulatory processes “by conscripting the State’s officers directly.” [11](https://www.law.cornell.edu/constitution-conan/amendment-10/anti-commandeering-doctrine#fn11amd10 " Id. at 935. ") Printz struck down interim provisions of the Brady Handgun Violence Protection Act that required state and local law enforcement officers to conduct background checks on prospective handgun purchasers. In Printz, the Court noted:

The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers . . . to administer or enforce a federal regulatory program. It matters not whether policymaking is involved, and no case-by-case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.[12](https://www.law.cornell.edu/constitution-conan/amendment-10/anti-commandeering-doctrine#fn12amd10 " Id. ")

In Reno v. Condon,[13](https://www.law.cornell.edu/constitution-conan/amendment-10/anti-commandeering-doctrine#fn13amd10 " 528 U.S. 141 (2000). ") the Court distinguished New York and Printz in upholding the Driver’s Privacy Protection Act of 1994 (DPPA), a federal law that restricted the disclosure and resale of personal information contained in the records of state motor vehicles departments. The Court returned to a principle articulated in South Carolina v. Baker that distinguished between laws that improperly seek to control the manner in which states regulate private parties, and those that merely regulate state activities directly.[14](https://www.law.cornell.edu/constitution-conan/amendment-10/anti-commandeering-doctrine#fn14amd10 " 485 U.S. 505, 514–15 (1988). ")

In Condon, the Court found that the DPPA did “not require the States in their sovereign capacities to regulate their own citizens,” but rather “regulate[d] the States as the owners of databases.” [15](https://www.law.cornell.edu/constitution-conan/amendment-10/anti-commandeering-doctrine#fn15amd10 " Condon, 528 U.S. at 151. ") The Court saw no need to decide whether a federal law may regulate the states exclusively, because the DPPA was a law of general applicability that regulated private resellers of information as well as states.[16](https://www.law.cornell.edu/constitution-conan/amendment-10/anti-commandeering-doctrine#fn16amd10 " Id. ")

The Supreme Court’s anti-commandeering cases have recognized parallels—as well as distinctions—between commandeering state legislatures and requiring states to implement policies as a condition of federal funding.[17](https://www.law.cornell.edu/constitution-conan/amendment-10/anti-commandeering-doctrine#fn17amd10 " See . ") In both New York and Printz, the Court observed that Congress may attach conditions to federal funds disbursed under its Spending Clause power and thereby avoid anti-commandeering problems.[18](https://www.law.cornell.edu/constitution-conan/amendment-10/anti-commandeering-doctrine#fn18amd10 " New York v. United States, 505 U.S. 144, 167 (1992); Printz v. United States, 521 U.S. 898, 917 (1997). ") The Court’s decision in National Federation of Independent Business v. Sebelius (NFIB) explored the limits of this power, holding that a federal spending condition unconstitutionally “coerced” state legislatures to adopt a federal regulatory program.[19](https://www.law.cornell.edu/constitution-conan/amendment-10/anti-commandeering-doctrine#fn19amd10 " 567 U.S. 519, 580 (2012) (plurality opinion of Roberts, C.J.). ")

In NFIB, which involved constitutional challenges to the Patient Protection and Affordable Care Act (ACA),[20](https://www.law.cornell.edu/constitution-conan/amendment-10/anti-commandeering-doctrine#fn20amd10 " Pub. L. No. 111–148, 124 Stat. 119 (2010). ") several states challenged a provision that would have terminated a state’s Medicaid funding if the state failed to expand Medicaid coverage as directed by the Act.[21](https://www.law.cornell.edu/constitution-conan/amendment-10/anti-commandeering-doctrine#fn21amd10 " See 46 U.S.C. §§ 1396a (setting forth Medicaid requirements), 1396c (permitting the Secretary of the Department of Health and Human Services to withhold Medicaid payments). ") The Court held that the ACA’s Medicaid expansion was an unconstitutional exercise of Congress’s spending power.[22](https://www.law.cornell.edu/constitution-conan/amendment-10/anti-commandeering-doctrine#fn22amd10 " NFIB, 567 U.S. at 580 (plurality opinion). Chief Justice Roberts’s opinion with respect to the Medicaid expansion was joined by only three members of the Court, though four other Justices agreed that the ACA’s Medicaid expansion was unconstitutionally coercive. See id. at 681 (Scalia, Kennedy, Thomas, and Alito, JJ., dissenting). ") Though his opinion analyzed the ACA’s Medicaid expansion under the Spending Clause, Chief Justice John Roberts made repeated reference to the commandeering issues raised in New York and Printz.[23](https://www.law.cornell.edu/constitution-conan/amendment-1