Federal Taxing Power .--Not until after the Civil War was the idea that the reserved powers of the States comprise an independent qualification of otherwise constitutional acts of the Federal Government actually applied to nullify, in part, an act of Congress. This result was first reached in a tax case--Collector v. Day. 9 Holding that a national income tax, in itself valid, could not be constitutionally levied upon the official salaries of state officers, Justice Nelson made the sweeping statement that ''the States within the limits of their powers not granted, or, in the language of the Tenth Amendment, 'reserved,' are as independent of the general government as that government within its sphere is independent of the States.'' 10 In 1939, Collector v. Day was expressly overruled. 11 Nevertheless, the problem of reconciling state and national interest still confronts the Court occasionally, and was elaborately considered in New York v. United States, 12 where, by a vote of six-to-two, the Court upheld the right of the United States to tax the sale of mineral waters taken from property owned by a State. Speaking for four members of the Court, Chief Justice Stone justified the tax on the ground that ''[t]he national taxing power would be unduly curtailed if the State, by extending its activities, could withdraw from it subjects of taxation traditionally within it.'' 13 Justices Frankfurter and Rutledge found in the Tenth Amendment ''no restriction upon Congress to include the States in levying a tax exacted equally from private persons upon the same subject matter.'' 14 Justices Douglas and Black dissented, saying: ''If the power of the federal government to tax the States is conceded, the reserved power of the States guaranteed by the Tenth Amendment does not give them the independence which they have always been assumed to have.'' 15
Federal Police Power .--A year before Collector v. Day was decided, the Court held invalid, except as applied in the District of Columbia and other areas over which Congress has exclusive authority, a federal statute penalizing the sale of dangerous illuminating oils. 16 The Court did not refer to the Tenth Amendment. Instead, it asserted that the ''express grant of power to regulate commerce among the States has always been understood as limited by its terms; and as a virtual denial of any power to interfere with the internal trade and business of the separate States; except, indeed, as a necessary and proper means for carrying into execution some other power expressly granted or vested.'' 17 Similarly, in the Employers' Liability Cases, 18 an act of Congress making every carrier engaged in interstate commerce liable to ''any'' employee, including those whose activities related solely to intrastate activities, for injuries caused by negligence, was held unconstitutional by a closely divided Court, without explicit reliance on the Tenth Amendment. Not until it was confronted with the Child Labor Law, which prohibited the transportation in interstate commerce of goods produced in establishments in which child labor was employed, did the Court hold that the state police power was an obstacle to adoption of a measure which operated directly and immediately upon interstate commerce. In Hammer v. Dagenhart, 19 five members of the Court found in the Tenth Amendment a mandate to nullify this law as an unwarranted invasion of the reserved powers of the States. This decision was expressly overruled in United States v. Darby. 20
During the twenty years following Hammer v. Dagenhart, a variety of measures designed to regulate economic activities, directly or indirectly, were held void on similar grounds. Excise taxes on the profits of factories in which child labor was employed, 21 on the sale of grain futures on markets which failed to comply with federal regulations, 22 on the sale of coal produced by nonmembers of a coal code established as a part of a federal regulatory scheme, 23 and a tax on the processing of agricultural products, the proceeds of which were paid to farmers who complied with production limitations imposed by the Federal Government, 24 were all found to invade the reserved powers of the States. In Schechter Corp. v. United States, 25 the Court, after holding that the commerce power did not extend to local sales of poultry, cited the Tenth Amendment to refute the argument that the existence of an economic emergency justified the exercise of what Chief Justice Hughes called ''extraconstitutional authority.'' 26
In 1941, the Court came full circle in its exposition of this Amendment. Having returned four years earlier to the position of John Marshall when it sustained the Social Security Act 27 and National Labor Relations Act, 28 it explicitly restated Marshall's thesis in upholding the Fair Labor Standards Act in United States v. Darby. 29 Speaking for a unanimous Court, Chief Justice Stone wrote: ''The power of Congress over interstate commerce 'is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution.' . . . That power can neither be enlarged nor diminished by the exercise or non- exercise of state power. . . . It is no objection to the assertion of the power to regulate interstate commerce that its exercise is attended by the same incidents which attended the exercise of the police power of the states. . . . Our conclusion is unaffected by the Tenth Amendment which . . . states but a truism that all is retained which has not been surrendered.'' 30
But even prior to 1937 not all measures taken to promote objectives which had traditionally been regarded as the responsibilities of the States had been held invalid. In Hamilton v. Kentucky Distilleries Co., 31 a unanimous Court, speaking by Justice Brandeis, upheld ''War Prohibition,'' saying: ''That the United States lacks the police power, and that this was reserved to the States by the Tenth Amendment, is true. But it is nonetheless true that when the United States exerts any of the powers conferred upon it by the Constitution, no valid objection can be based upon the fact that such exercise may be attended by the same incidents which attend the exercise by a State of its police power.'' 32 And in a series of cases, which today seem irreconcilable with Hammer v. Dagenhart, it sustained federal laws penalizing the interstate transportation of lottery tickets, 33 of women for immoral purposes, 34 of stolen automobiles, 35 and of tick- infected cattle, 36 as well as a statute prohibiting the mailing of obscene matter. 37 It affirmed the power of Congress to punish the forgery of bills of lading purporting to cover interstate shipments of merchandise, 38 to subject prison-made goods moved from one State to another to the laws of the receiving State, 39 to regulate prescriptions for the medicinal use of liquor as an appropriate measure for the enforcement of the Eighteenth Amendment, 40 and to control extortionate means of collecting and attempting to collect payments on loans, even when all aspects of the credit transaction took place within one State's boundaries. 41 More recently, the Court upheld provisions of federal surface mining law that could be characterized as ''land use regulation'' traditionally subject to state police power regulation. 42
Notwithstanding these federal inroads into powers otherwise reserved to the States, the Court has held that Congress could not itself undertake to punish a violation of state law; in United States v. Constantine, 43 a grossly disproportionate excise tax imposed on retail liquor dealers carrying on business in violation of local law was held unconstitutional. More recently, the Court struck down a statute prohibiting possession of a gun at or near a school, rejecting an argument that possession of firearms in school zones can be punished under the Commerce Clause because it impairs the functioning of the national economy. Acceptance of this rationale, the Court said, would eliminate ''a[ny] distinction between what is truly national and what is truly local,'' would convert Congress' commerce power into ''a general police power of the sort retained by the States,'' and would undermine the ''first principle'' that the Federal Government is one of enumerated and limited powers. Supp.1 However, Congress does not contravene reserved state police powers when it levies an occupation tax on all persons engaged in the business of accepting wagers regardless of whether those persons are violating state law, and imposes severe penalties for failure to register and pay the tax. 44
Federal Regulations Affecting State Activities and Instrumentalities .--Since the mid-1970s, the Court has been closely divided over whether the Tenth Amendment or related constitutional doctrine constrains congressional authority to subject state activities and instrumentalities to generally applicable requirements enacted pursuant to the commerce power. 45 Under Garcia v. San Antonio Metropolitan Transit Authority, 46 the Court's most recent ruling directly on point, the Tenth Amendment imposes practically no judicially enforceable limit on generally applicable federal legislation, and states must look to the political process for redress. Garcia, however, like National League of Cities v. Usery, 47 the case it overruled, was a 5-4 decision, and there are recent indications that the Court may be ready to resurrect some form of Tenth Amendment constraint on Congress.
In National League of Cities v. Usery, the Court conceded that the legislation under attack, which regulated the wages and hours of certain state and local governmental employees, was ''undoubtedly within the scope of the Commerce Clause,'' 48 but it cautioned that ''there are attributes of sovereignty attaching to every state government which may not be impaired by Congress, not because Congress may lack an affirmative grant of legislative authority to reach the matter, but because the Constitution prohibits it from exercising the authority in that manner.'' 49 The Court approached but did not reach the conclusion that the Tenth Amendment was the prohibition here, not that it directly interdicted federal power because power which is delegated is not reserved, but that it implicitly embodied a policy against impairing the States' integrity or ability to function. 50 But, in the end, the Court held that the legislation was invalid, not because it violated a prohibition found in the Tenth Amendment or elsewhere, but because the law was ''not within the authority granted Congress.'' 51 In subsequent cases applying or distinguishing National League of Cities, the Court and dissenters wrote as if the Tenth Amendment was the prohibition. 52 Whatever the source of the constraint, it was held not to limit the exercise of power under the Reconstruction Amendments. 53
The Court overruled National League of Cities in Garcia v. San Antonio Metropolitan Transit Auth. 54 Justice Blackmun's opinion for the Court in Garcia concluded that the National League of Cities test for ''integral operations in areas of traditional governmental functions'' had proven ''both impractical and doctrinally barren,'' and that the Court in 1976 had ''tried to repair what did not need repair.'' 55 With only passing reference to the Tenth Amendment the Court nonetheless clearly reverted to the Madisonian view of the Amendment reflected in Unites States v. Darby. 56 States retain a significant amount of sovereign authority ''only to the extent that the Constitution has not divested them of their original powers and transferred those powers to the Federal Government.'' 57 The principal restraints on congressional exercise of the Commerce power are to be found not in the Tenth Amendment or in the Commerce Clause itself, but in the structure of the Federal Government and in the political processes. 58 ''Freestanding conceptions of state sovereignty'' such as the National League of Cities test subvert the federal system by ''invit[ing] an unelected federal judiciary to make decisions about which state policies it favors and which ones it dislikes.'' 59 While continuing to recognize that ''Congress' authority under the Commerce Clause must reflect [the] position . . . that the States occupy a special and specific position in our constitutional system,'' the Court held that application of Fair Labor Standards Act minimum wage and overtime provisions to state employment does not require identification of these ''affirmative limits.'' 60 In sum, the Court in Garcia seems to have said that most but not necessarily all disputes over the effects on state sovereignty of federal commerce power legislation are to be considered political questions. What it would take for legislation to so threaten the ''special and specific position'' that states occupy in the constitutional system as to require judicial rather than political resolution was not delineated.
The first indication was that it would take a very unusual case indeed. In South Carolina v. Baker the Court expansively interpreted Garcia as meaning that there must be an allegation of ''some extraordinary defects in the national political process'' before the Court will apply substantive judicial review standards to claims that Congress has regulated state activities in violation of the Tenth Amendment. 61 A claim that Congress acted on incomplete information would not suffice, the Court noting that South Carolina had ''not even alleged that it was deprived of any right to participate in the national political process or that it was singled out in a way that left it politically isolated and powerless.'' 62 Thus, the general rule was that ''limits on Congress' authority to regulate state activities . . . are structural, not substantive--i.e., that States must find their protection from congressional regulation through the national political process, not through judicially defined spheres of unregulable state activity.'' 63
Later indications are that the Court may be looking for ways to back off from Garcia. One device is to apply a ''clear statement'' rule requiring unambiguous statement of congressional intent to displace state authority. After noting the serious constitutional issues that would be raised by interpreting the Age Discrimination in Employment Act to apply to appointed state judges, the Court in Gregory v. Ashcroft 64 explained that, because Garcia ''constrained'' consideration of ''the limits that the state-federal balance places on Congress' powers,'' a plain statement rule was all the more necessary. ''[I]nasmuch as this Court in Garcia has left primarily to the political process the protection of the States against intrusive exercises of Congress' Commerce Clause powers, we must be absolutely certain that Congress intended such an exercise.''
The Court's 1992 decision in New York v. United States, 65 may portend a more direct retreat from Garcia. The holding in New York, that Congress may not ''commandeer'' state regulatory processes by ordering states to enact or administer a federal regulatory program, applied a limitation on congressional power previously recognized in dictum 66 and in no way inconsistent with the holding in Garcia. Language in the opinion, however, sounds more reminiscent of National League of Cities than of Garcia. First, the Court's opinion by Justice O'Connor declares that it makes no difference whether federalism constraints derive from limitations inherent in the Tenth Amendment, or instead from the absence of power delegated to Congress under Article I; ''the Tenth Amendment thus directs us to determine . . . whether an incident of state sovereignty is protected by a limitation on an Article I power.'' 67 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 had participated in developing the compromise legislation and had consented to its enactment, the Court declared that ''[t]he 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, ''State officials cannot consent to the enlargement of the powers of Congress beyond those enumerated in the Constitution.'' 68 The stage appears to be set, therefore, for some relaxation of Garcia's obstacles to federalism-based challenges to legislation enacted pursuant to the commerce power.
[Footnote 10] Id. at 124.
[Footnote 11] Graves v. New York ex rel. O'Keefe, 306 U.S 466 (1939). The Internal Revenue Service is authorized to sue a state auditor personally and recover from him an amount equal to the accrued salaries which, after having been served with notice of levy, he paid to state employees delinquent in their federal income tax. Sims v. United States, 359 U.S. 108 (1959).
[Footnote 13] Id. at 589.
[Footnote 14] Id. at 584.
[Footnote 17] Id. at 44.
[Footnote 26] Id. at 529.
[Footnote 32] Id. at 156.
[Footnote 43] 296 U.S. 287 (1935). The Civil Rights Act of 1875, which made it a crime for one person to deprive another of equal accommodations at inns, theaters or public conveyances was found to exceed the powers conferred on Congress by the Thirteenth and Fourteenth Amendments and hence to be an unlawful invasion of the powers reserved to the States by the Tenth Amendment. Civil Rights Cases, 109 U.S. 3, 15 (1883). Congress has now accomplished this end under its commerce powers, Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964); Katzenbach v. McClung, 379 U.S. 294 (1964), but it is clear that the rationale of the Civil Rights Cases has been greatly modified if not severely impaired. Cf. Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968) (13th Amendment); Griffin v. Breckenridge, 403 U.S. 88 (1971) (13th Amendment); United States v. Guest, 383 U.S. 745 (1966) (14th Amendment).
[Footnote 1 (1996 Supplement)] United States v. Lopez, 115 S. Ct. 1624, 1633-34 (1995).
[Footnote 45] The matter is discussed more fully supra, pp.922-30.
[Footnote 48] Id. at 841.
[Footnote 49] Id. at 845.
[Footnote 50] Id. at 843.
[Footnote 51] Id. at 852.
[Footnote 52] E.g., FERC v. Mississippi, 456 U.S. 742, 771 (1982) (Justice Powell dissenting); id. at 775 (Justice O'Connor dissenting); EEOC v. Wyoming, 460 U.S. 226 (1983). The EEOC Court distinguished National League of Cities, holding that application of the Age Discrimination in Employment Act to state fish and game wardens did not directly impair the state's ability to structure integral operations in areas of traditional governmental function, since the state remained free to assess each warden's fitness on an individualized basis and retire those found unfit for the job.
[Footnote 53] Fitzpatrick v. Bitzer, 427 U.S. 445 (1976); City of Rome v. United States, 446 U.S. 156 (1980); Fullilove v. Klutznick, 448 U.S. 448, 476 -78 (1980) (plurality opinion of Chief Justice Burger).
[Footnote 54] 469 U.S. 528 (1985). The issue was again decided by a 5 to 4 vote, Justice Blackmun's qualified acceptance of the National League of Cities approach having changed to complete rejection.
[Footnote 55] Id. at 557.
[Footnote 58] ''Apart from the limitation on federal authority inherent in the delegated nature of Congress' Article I powers, the principal means chosen by the Framers to ensure the role of the States in the federal system lies in the structure of the Federal Government itself.'' 469 U.S. at 550 . The Court cited the role of states in selecting the President, and the equal representation of states in the Senate. Id. at 551.
[Footnote 61] 485 U.S. 505, 512 (1988). Justice Scalia, in a separate concurring opinion, objected to this language as departing from the Court's assertion in Garcia that the ''constitutional structure'' imposes some affirmative limits on congressional action. Id. at 528.
[Footnote 62] Id. at 513.
[Footnote 63] Id. at 512.
[Footnote 64] 501 U.S. 452, 464 (1991). The Court left no doubt that it considered the constitutional issue 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 O'Connor cited Merritt, The Guarantee Clause and State Autonomy: Federalism for a Third Century, 88 Colum. L. Rev. 1 (1988). See also 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).
[Footnote 65] 112 S. Ct. 2408 (1992).
[Footnote 66] See, e.g., Hodel v. Virginia Surface Mining & Recl. 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).
[Footnote 67] 112 S. Ct. at 2418.
[Footnote 68] Id. at 2431-32.