Powers delegated to the Nation, therefore, are subject to limitations that reserve power to the states. Both the Federal Government and the states owe political accountability to the people. When Congress encourages states to adopt and administer a federally prescribed program, both governments maintain their accountability for their decisions. When Congress compels the states to act, state officials will bear the brunt of accountability that properly belongs at the national level. Federal laws of general applicability, therefore, are surely subject to examination under the New York test rather than under the Garcia structural standard.
Expanding upon its anti-commandeering rule, the Court in Printz v. Thus, although it had earlier rejected the commandeering of legislative assistance, the Court now made clear that administrative officers and resources were also fenced off from federal power. The scope of the rule thus expounded was unclear. A partial answer was provided in Reno v. Davis, U. Darby, U. Among the cases incompatible with the theory was Maryland v. Wirtz, U. United States, U. Taylor, U. Bowles, U.
Twin Falls County, U. Phillips v. Atkinson Co. Justices Douglas and Stewart dissented. Essentially, the Justice was required to establish an affirmative constitutional barrier to congressional action. But when he asserts that, say, the First or Fifth Amendment bars congressional action concededly within its commerce power, one interposes an affirmative constitutional defense that has a chance of success. But whence the affirmative barrier?
The states are thereby accorded no greater interest in restraining the exercise of nondelegated power than are the people. See Massachusetts v. Mellon, U. Usery, U. Had it not done so, it's pretty clear that children in you fill in the state would be suffocating in mines today. The third thing Lee did not mention is that nothing in the Constitution anywhere says that regulation of shipment of child-produced goods in interstate commerce "has to be done by state legislators, not by Members of Congress.
Lee is a "Tenther," part of a new extremist movement that seeks to brand all major federal legislation -- not only labor regulation, but environmental laws, gun control laws, and Social Security and Medicare -- as violations of the "rights" of states as supposedly spelled out in the Tenth Amendment.
Senator Jim DeMint last year phrased it this way: "the Tenth Amendment says powers not explicitly given to the federal government in the Constitution go to the states or to the people. Is he right? Let's look at the text, which reads, in its entirety :. Notice that DeMint, like a lot of "Tenthers," managed to sneak a word in that the Framers didn't write.
The word is "explicitly. Compare the language of the Articles of Confederation:. When the First Congress adapted this repealed provision as an amendment to the new Constitution, a few important words didn't make the cut.
The Articles were familiar to every member of the First Congress. It seems hard to believe that they meant to copy the language but accidentally left some of it out. Since the Amendment was adopted, constitutional thinkers have concluded that the express powers delegated to the federal government by the Constitution necessarily carry with them the "implied" powers needed to carry them out. If "implied power" sounds like tricky lawyer talk, ask yourself the following question: Is the American flag unconstitutional?
The Constitution doesn't make any reference to a national flag. By the "express" argument, states and only states would retain what we might call "the flag power.
Army would have to march under a congeries of the fifty state flags, depending on the origin of each unit. That would be cumbersome, confusing, and dangerous -- and more to the point, stupid. Congress can "raise and support armies. Nobody seriously reads a Constitution any other way. Conservatives don't when it's a power they want the government to have.
In the wake of the New Deal, the expansion of federal powers increasingly eroded the Tenth Amendment protections, and the Court from to roughly the s largely ignored the Tenth Amendment. During that time, only one federal law was held to violate the Tenth Amendment.
Whether the Court was influenced by this bill and its likely passage cannot be known for sure; but shortly thereafter, the Court began upholding New Deal legislation of the kind that had previously been struck down.
Initiating a new era of constitutional interpretation, the Supreme Court endorsed a permanent enlargement in the scope of federal power, at the expense of the states. Under this relaxed posture toward congressional power, the Court would later uphold a wide range of statutes over the next fifty years, including purely local incidents of loan sharking.
After almost sixty years of dormancy, federalism made a constitutional comeback in the s. In its federalism revolution, the Rehnquist Court reinvigorated the doctrine of federalism and restored power to the states. Under the Court, there occurred a slow but steady trend towards curbing the power of the federal government and using the Tenth Amendment to safeguard the states from overreaching by the federal government.
And this federalism revolution, which fostered a new respect for the sovereignty of the states, also revived the Tenth Amendment as a limit on congressional power. The Tenth Amendment continues to be a constitutional force and was instrumental in National Federation of Independent Business v.
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