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Fair-Weather Federalism: Strategic Uses of the 10th Amendment

Columbia law professor Jessica Bulman-Pozen anticipates a new wave of states’ rights cases now that the Supreme Court has struck down Roe v. Wade.

July 5, 2022

Amend­ment X

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.

Repub­lican state attor­neys general banded together during the Obama era to try to block a series of admin­is­tra­tion actions. Pres­id­ent Obama, they argued, was imper­miss­ibly forcing federal policies on unwill­ing states. When Donald Trump was elec­ted pres­id­ent, Demo­cratic state attor­neys general like­wise pushed back on many of that admin­is­tra­tion’s most contro­ver­sial direct­ives. The Trump White House, these state attor­neys argued, for example, could not make states discrim­in­ate against undoc­u­mented immig­rants. Now that Joe Biden is pres­id­ent, the wheel has turned again. It’s time for Repub­lic­ans to complain about exec­ut­ive author­ity.

The polit­ical hypo­crisy of this is obvi­ous. But there’s another wrinkle that makes it worse. Many of the same state offi­cials who have spent so much time over the past two decades fight­ing back against federal author­ity have, in turn, tried to impose statewide restric­tions on city or county offi­cials. They have frequently done to local offi­cials, in other words, what they loudly complain about when it’s done to them. Ask the resid­ents of largely Demo­cratic Austin, Texas, for example, what they think of the efforts by Repub­lican legis­lat­ors to stymie justice reform there. Ask resid­ents of Milwau­kee, Wiscon­sin, or Mari­copa County, Arizona, whether they think they are getting a fair shake from state legis­lat­ors. 

The short answer to why this is toler­ated under the Consti­tu­tion is that states got a really good deal with the 10th Amend­ment and the prin­ciples of feder­al­ism that other­wise flow from that docu­ment. The best of both worlds, you could say. Dozens of state consti­tu­tions provide “home rule” provi­sions that are designed to protect cities and counties in some of the same ways the 10th Amend­ment was designed to protect states from federal power. But many of those provi­sions aren’t broad enough, or haven’t been inter­preted broadly enough by state judges, to protect local interests when they collide with those of state lawmakers.

To gain some context and perspect­ive on feder­al­ism, answer basic ques­tions about the 10th Amend­ment, and explore the contours of the debate over its use in an author­it­arian age, I reached out to Jessica Bulman-Pozen, a professor at Columbia Law School. She’s writ­ten extens­ively about feder­al­ism since clerking for late Supreme Court Justice John Paul Stevens and for current Attor­ney General Merrick Garland when he was a judge on the DC Circuit Court of Appeals.

COHEN: Let’s start at the begin­ning. Please explain the 10th Amend­ment and its rela­tion­ship to feder­al­ism to me like I’m a student in middle school. And please give me a quick sense of why the 10th Amend­ment was rati­fied and included in the Bill of Rights. What were the framers concerned about then and how does it trans­late today?

BULMAN-POZEN: The 10th Amend­ment was added to the Consti­tu­tion as part of the Bill of Rights in 1791. Although it is some­times cited as a source of state power, a smart middle school student would quickly note that the amend­ment itself does not confer any author­ity. It just says that if the Consti­tu­tion has not gran­ted the federal govern­ment a power, that power remains with either the states or the people them­selves. So why does it matter? In brief, because it is the main consti­tu­tional provi­sion recog­niz­ing feder­al­ism. Divid­ing power between the states and the federal govern­ment to protect indi­vidual liberty was a basic premise of the original consti­tu­tional design, and it is one that remains with us today. Over time, the 10th Amend­ment has func­tioned as a sort of short­hand for our system of feder­al­ism.

I do want to emphas­ize that it is mislead­ing to focus on the framers’ specific vision of the 10th Amend­ment. When the Bill of Rights was rati­fied, the Consti­tu­tion sought to protect indi­vidu­als from the federal govern­ment, not from the states. But after the Civil War, the Recon­struc­tion Amend­ments trans­formed our consti­tu­tional order, includ­ing by protect­ing indi­vidu­als from their state govern­ments and by making the federal govern­ment a source of such protec­tion. So when you see the Supreme Court in a case like Shelby County (which inval­id­ated the cover­age formula for Section 5 of the Voting Rights Act) cite the 10th Amend­ment as if it is unaf­fected by the Recon­struc­tion Amend­ments and stands for a partic­u­lar reser­va­tion of power to the states, that is a grave error.

In recent decades, the main place we’ve seen the 10th Amend­ment invoked is the anti-command­eer­ing doctrine. This doctrine says the federal govern­ment cannot issue commands to the states, for example by requir­ing them to admin­is­ter federal laws. Polit­ic­ally and ideo­lo­gic­ally, the doctrine cuts in differ­ent ways. One of the main cases, Printz v. United States, inval­id­ated provi­sions of the Brady Act that required state law enforce­ment officers to conduct back­ground checks on prospect­ive gun purchasers. But the doctrine has also been cited to protect sanc­tu­ary cities that do not want to enforce federal immig­ra­tion law and to shield state legal­iz­a­tion of marijuana despite the federal Controlled Substances Act. 

COHEN: Let me ask a ques­tion that I hope you will answer both specific­ally and gener­ally. Where do the 10th Amend­ment and feder­al­ism come into the furi­ous debate we are having over abor­tion rights, the recent demise of Roe v. Wade and a consti­tu­tional right to an abor­tion, and states’ very differ­ent reac­tions to the issue of abor­tions. What does “post-Roe feder­al­ism,” as a professor put it recently, look like?

BULMAN-POZEN: Not being subject to govern­ment-compelled preg­nancy or child­birth is essen­tial to women’s equal­ity and liberty. Abor­tion rights are accord­ingly guar­an­teed by the 14th Amend­ment, which is not limited by the 10th. But now that the Supreme Court has over­ruled Roe and other preced­ents recog­niz­ing this consti­tu­tional right, we will likely see the 10th Amend­ment cited in debates about federal legis­la­tion or regu­la­tion concern­ing abor­tion. For example, if Congress were to pass the Women’s Health Protec­tion Act to safe­guard repro­duct­ive rights, oppon­ents would argue that the Act exceeds Congress’s powers and might invoke the 10th Amend­ment to emphas­ize that Congress possesses only enumer­ated powers. These same feder­al­ism argu­ments could also be made against federal legis­la­tion that banned or other­wise restric­ted abor­tion.

But what is most likely, at least in the near term, about a “post-Roe feder­al­ism” is that there will be acute conflicts among states oper­at­ing in the absence of national policy. The Supreme Court has sugges­ted that over­turn­ing Roe allows each state to set its own policy on abor­tion, but we are already seeing that states are not just seek­ing to regu­late within their borders. They are propos­ing laws that would impose liab­il­ity on people who travel out of state to receive abor­tion care or on out-of-state providers and others who help them. 

I think the 10th Amend­ment partially answers the ques­tion of whether states may exer­cise such extra­ter­rit­orial powers. In reserving powers “to the States respect­ively,” it recog­nizes our territ­orial system of feder­al­ism, which prevents states from regu­lat­ing outside of their borders in this way. Our territ­orial system of feder­al­ism is also recog­nized by other protec­tions, includ­ing the consti­tu­tional right to travel. But the feder­al­ism ques­tions that are emer­ging are very messy and complic­ated.

COHEN: I am old enough to remem­ber when Repub­lican politi­cians cited the 10th Amend­ment and feder­al­ism to push back against federal laws and regu­la­tions. In the civil rights era, some called this a “states’ rights” move­ment under the doctrine of “inter­pos­i­tion.” Now like-minded offi­cials are moving to strike down local laws and ordin­ances that diverge from state laws and policies. We see it in Texas, for example, in its fight with Austin offi­cials. Does the 10th Amend­ment protect cities and counties from state inter­fer­ence? Or does feder­al­ism only apply to limit the exer­cise of federal power?

BULMAN-POZEN: The 10th Amend­ment does not protect cities and counties from state inter­fer­ence. It addresses only the rela­tion­ship between the federal govern­ment and the states. In some respects, this is ironic. The values that both courts and comment­at­ors frequently asso­ci­ate with feder­al­ism — from policy exper­i­ment­a­tion to satis­fy­ing diverse pref­er­ences to foster­ing parti­cip­a­tion — are often better served by local govern­ments than states; they depend on much smal­ler polit­ical communit­ies than the fifty states, and states often pose a threat to real­iz­ing these values at the local level.

But as a matter of federal consti­tu­tional law, local govern­ments are creatures of their states and have no protec­tion from them. States can pree­mpt local policy and have been doing so in increas­ingly aggress­ive ways. As a matter of state consti­tu­tional law, I should add, local govern­ments some­times enjoy protec­tion from states, espe­cially because of home rule provi­sions. And in some cases, other federal consti­tu­tional provi­sions, includ­ing the First Amend­ment and 14th Amend­ment, or federal stat­utes or regu­la­tions can help local govern­ments in their fights with states. But the 10th Amend­ment does­n’t protect cities and counties.

COHEN: Are there vast differ­ences in how state consti­tu­tions handle the limit­a­tions on state author­ity?

BULMAN-POZEN: Most state consti­tu­tions include home rule provi­sions that empower cities and other local govern­ments to act with respect to local issues without seek­ing specific author­iz­a­tion from the state. More than 40 state consti­tu­tions contain such “initi­at­ive” home rule. About 15 of these states also contain “immunity” home rule provi­sions that protect local decisions from displace­ment by state law. In theory, immunity home rule creates a similar rela­tion­ship between local­it­ies and states as between states and the federal govern­ment. But in prac­tice, home rule provi­sions have not furnished much protec­tion to local govern­ments. Despite their differ­ent formu­la­tions, state consti­tu­tional home rule provi­sions usually allow state laws to pree­mpt local laws, at least if these state laws are general in their terms. So consti­tu­tional home rule has provided little protec­tion from state pree­mp­tion of local anti­discrim­in­a­tion laws, local minimum wage laws, local gun safety laws, local envir­on­mental protec­tion laws, and more.

COHEN: Have you gleaned anything beyond the obvi­ous from the record of the three Trump nomin­ees on the Supreme Court that helps us fore­cast how they are likely to see 10th Amend­ment or feder­al­ism issues?

BULMAN-POZEN: Not really. I would be surprised if any of them proved commit­ted to feder­al­ism as such or had a consist­ent posi­tion across policy issues. Based on what we’ve seen so far, I expect them to invoke state sover­eignty when they favor a state policy and to ignore it when they don’t, at least in high-stakes cases.

COHEN: Where do 10th Amend­ment juris­pru­dence and feder­al­ism fit into the grow­ing author­it­arian move­ment in the United States? Are you seeing it cited in the bliz­zard of court filings that surround the federal prosec­u­tion of the Capitol riot defend­ants? Are you seeing it in the polit­ical argu­ments being made by insur­rec­tions seek­ing to alter elec­tion rules? Are you seeing it cited by police and prosec­utors as they ramp up the war on drugs again or try to react to an increase in viol­ent crime rates in some juris­dic­tions?

BULMAN-POZEN: I’m not seeing the 10th Amend­ment or feder­al­ism prin­ciples play­ing a real role in these argu­ments. If anything, state sover­eignty cuts more in the other direc­tion. For example, police and prosec­utors rely on federal as well as state law in pursu­ing the war on drugs and respond­ing to viol­ent crime; it is the people who are charged with viol­at­ing the Controlled Substances Act or other federal laws who some­times invoke the 10th Amend­ment or other limits on federal power in response to these charges, albeit with little success to date. With respect to the Capitol riot, chal­lenges to the prosec­u­tions have focused mostly on the applic­ab­il­ity of federal stat­utes.

When it comes to elec­tion rules and the very real threat to our demo­cracy from elect­oral sabot­age and manip­u­la­tion in upcom­ing elec­tions, we are largely seeing argu­ments not about state versus federal power but instead about which state actors have author­ity. For example, the discred­ited “inde­pend­ent state legis­lature” theory, which the Supreme Court may yet endorse, would allow state legis­latures rather than voters to choose pres­id­en­tial elect­ors. This is right out of an author­it­arian play­book. It means state legis­latures — many of which are gerry­mandered so as to be extremely unrep­res­ent­at­ive — would pick the pres­id­ent against the will of state voters and against efforts by state courts or exec­ut­ives to enforce state consti­tu­tions.

This is not an argu­ment that depends on the 10th Amend­ment or feder­al­ism prin­ciples. It’s instead an (erro­neous) inter­pret­a­tion of the Pres­id­en­tial Elect­ors Clause. And it would not only flout the will of the people but also invert basic tenets of feder­al­ism: instead of protect­ing states from federal inter­fer­ence and allow­ing them to organ­ize elec­tions accord­ing to state consti­tu­tions, this theory would have federal judges empower­ing state legis­latures in the face of contrary state consti­tu­tional require­ments.

COHEN: Which 10th Amend­ment or feder­al­ism cases are ou watch­ing closely these days as they wend their way through the lower federal courts? Which cases and 10th Amend­ment issues should we try to pay partic­u­lar atten­tion to in the next few years? Are you begin­ning to see signs of conser­vat­ive-inspired litig­a­tion designed to expand states’ rights at the expense of federal author­ity given the current makeup of the Court? 

BULMAN-POZEN: The main thing I would note about feder­al­ism litig­a­tion in the 21st century is that it often does­n’t involve 10th Amend­ment claims or even chal­lenges to federal author­ity as a whole. Instead, states are increas­ingly chal­len­ging the federal exec­ut­ive branch, espe­cially federal admin­is­trat­ive agen­cies. Congress hasn’t been passing or updat­ing laws on many of the nation’s most press­ing and conten­tious issues, from climate change to fire­arms regu­la­tion to immig­ra­tion to voting rights to repro­duct­ive rights. In all of these areas, the pres­id­ent and federal agen­cies do what they can pursu­ant to exist­ing, often quite old, stat­utes.

And even when Congress passes new laws, such as recent meas­ures concern­ing Covid-19, these laws neces­sar­ily give the exec­ut­ive branch discre­tion in carry­ing them out. So, many “feder­al­ism” chal­lenges — in the sense of states disagree­ing with federal policy and defend­ing autonom­ous state poli­cy­mak­ing — don’t cite the 10th Amend­ment or limits on congres­sional power. Instead, they argue that the federal exec­ut­ive branch is exceed­ing its stat­utory author­ity.

This is the form of the recent chal­lenge by states to the mere possib­il­ity of federal climate change regu­la­tion in West Virginia v. EPA; it’s the form of the chal­lenge by states to the Biden admin­is­tra­tion’s immig­ra­tion policies at the south­w­est border in Biden v. Texas; and it’s been the form of chal­lenges by states to Covid-19 policies, includ­ing vaccin­a­tion require­ments for work­ers at facil­it­ies parti­cip­at­ing in Medi­care and Medi­caid in Biden v. Missouri. In think­ing about feder­al­ism cases going forward, I would pay special atten­tion to state chal­lenges to federal exec­ut­ive policy that don’t neces­sar­ily present as tradi­tional feder­al­ism cases.

And of course, conser­vat­ive actors frequently chal­lenge state policies they don’t like — for example, New York’s license require­ments for concealed carry (New York State Rifle & Pistol Asso­ci­ation v. Bruen) and Cali­for­ni­a’s ban on selling semi-auto­matic weapons to people under 21 (Jones v. Bonta). I there­fore don’t think it’s right to say that conser­vat­ive actors seek to expand states’ rights as a general matter. Like others, they invoke state author­ity instru­ment­ally, but their chal­lenges to state policies should also be under­stood as feder­al­ism cases.

This inter­­view has been edited for length and clar­ity.

This discus­­sion is one of several in a Bren­nan Center series on the Bill of Rights. The inter­­view with Darrell Miller about the Second Amend­ment is here, the inter­view with Orin Kerr about the Fourth Amend­­ment is here, the inter­­view with David Carroll about the Sixth Amend­­ment is here, and the inter­­view with Carol Steiker on the Eighth Amend­­ment is here.