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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.