As the Left often does, once they are out of national power, they rediscover the power of state sovereignty. Ironically, they are using it to resist the new administration’s federal immigration policy in formalistically the same way as did the Right during the early days of the Obama administration—albeit in service of an opposite outcome.
Granted, the Left did their best to destroy the principle of state sovereignty as a check on federal power when they controlled Washington, DC, but perhaps constitutionalists should let bygones be bygones. After all, the Right can hardly claim to be fully consistent on the principle of state sovereignty when they control DC. Rather than revisit past disputes, constitutionalists should seize the moment of cross-ideological support for state sovereignty. We should enlist the Left in a mutual spirit of opportunism to fully revive the not quite dead forty-one year old Supreme Court case of National League of Cities v. Usery.
Why? Because a robust Tenth Amendment is absolutely essential to preserving the Constitution’s establishment of a limited federal government. Fully resuscitated, there would be no more powerful bulwark of the Tenth Amendment principles—and the Constitution—than Usery.
Usery involved a direct clash between federal and state power. Congress removed an exemption for state employees under the Fair Labor Standards Act and presumed to directly regulate the wages, hours and benefits of state employees. Under the FLSA, the federal government was essentially empowered to dictate the terms under which states hired their employees. Of course, in practical effect, the power to determine the terms of employment is equivalent to the power to determine how states operate and who states could hire. This amendment to FLSA thus effectively established the principle that Congress could completely obliterate the operational reach of state sovereignty under the Commerce Clause because States can obviously only exercise their sovereignty through employees. This was a rather radical notion even for the 1970s. Its implications for effective dissolution of our “compound Republic” were readily apparent.
The defenders of the amendment to FLSA nevertheless relied on the usual Commerce Clause plus Necessary and Proper Clause plus Supremacy Clause arguments: that the aggregate effects of state employment policies affect interstate commerce; thus, regulating state employment policies is a convenient means of regulating interstate commerce; therefore, Congress can regulate and override contrary state employment policies under the Supremacy Clause. This tried and true argument had been winning Supreme Court cases in the private sector ever since the 1942 case of Wickard v. Filburn, which uncorked the Commerce Clause power through the Necessary and Proper Clause to regulate unsold, untransported, wholly intrastate self-consumed wheat. The fact that this argument was extended to the public sector posed no reason for pause. Why? Because state sovereignty had been taking body blows even before Wickard popped the lid on the Commerce Clause. In the 1941 case of United States v. Darby Lumber Co., the Court breezily declared that the Tenth Amendment was a “mere truism,” by which the Court meant the Tenth Amendment meant nothing.
Such were the spoils of FDR’s threat to pack the Supreme Court with his acolytes after the Court dealt his New Deal program a series of near-fatal blows in the 1930s.
But in Usery, the usual formula for federal power expansion failed. The Court finally discovered the limits of straight-faced argumentation. Justice William Rehnquist wrote in the majority opinion that Congress could not regulate states in their traditional functions that are “essential” to their “separate and independent existence.” The majority decided that federal powers could not displace core aspects of state sovereignty because the Tenth Amendment guaranteed the preservation of a system of dual sovereignty in which state sovereignty was meant to check and balance federal power. The Court declared unequivocally that if federal laws “directly displace the States’ freedom to structure integral operations in areas of traditional governmental functions, they are not within the authority granted Congress by Article 1, Section 8, Clause 3.” Accordingly, the Court ruled that a federal law violates principles of state sovereignty when it 1) regulates states as states, 2) concerns attributes of state sovereignty; and 3) directly impairs a state’s ability to restructure integral operations in areas of traditional government functions.
In short, the Usery majority recognized that the power to regulate state employment was effectively the power to destroy the state, which the Constitution simply did not allow. Score 1 for the Tenth Amendment. At that time, it was the first real win for state sovereignty in nearly forty years.
Sadly, it didn’t take long for the Court to backtrack. Fewer than 10 years later, the Court declared the Usery test unworkable when one Justice Harry Blackmun abandoned the Usery majority for a new majority in Garcia v. San Antonio Metropolitan Transit Authority. The new majority appeared to overrule Usery completely, declaring that the defense of state sovereignty should be mounted from within the political process at the federal level—in Congress—not within the court system.
Fortunately, Usery was not quite dead yet. With the addition of a few new Justices like Justice Antonin Scalia, Clarence Thomas and, yes, Anthony Kennedy, Usery would start feeling a lot better. Most famously, in New York v. United States and Printz v. United States, the Court would prohibit Congress from “commandeering” states in the exercise of federal powers—and the Court’s prohibition on “commandeering” in New York and Printz was not a standalone constitutional axiom.
In New York, the prohibition on commandeering was expressly made an extension of the first principle that the Constitution is designed to prevent the dangerous concentration of power in any one government to “reduce the risk of tyranny and abuse.” Printz specifically emphasized that “the power of the Federal Government would be augmented immeasurably if it were able to impress into its service—and at no cost to itself—the police officers of the 50 States.” As held in Printz, when a “Law . . . for carrying into Execution” the Commerce Clause violates the principle of state sovereignty, it is “merely [an] act of usurpation” which “deserves to be treated as such.” That rationale logically extended beyond the specific holdings in New York and Printz because a prohibition on federal commandeering is necessary, but not sufficient, for a meaningful division of power within our system of federalism.
As explained in Alden v. Maine, the Supreme Court is now committed to enforcing the principle of state sovereignty that “[t]he States ‘form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority than the general authority is subject to them, within its own sphere.’” And that the federal power has no power to threaten the State’s existence as a state. As more recently held in Bond v. United States, our system of dual sovereignty denies “any one government complete jurisdiction over all the concerns of public life.”
Under current precedent, federal courts routinely patrol the boundaries between state sovereignty and federal power without deferring to Congress. Such fully-engaged judicial review has been further buttressed by cases that have repeatedly applied heightened scrutiny even to federal actions that have invoked the 14th Amendment’s Enforcement Clause to override state sovereignty (where, if anything, the principle of state sovereignty is less secure).
The current rule of law whereby courts enforce the Tenth Amendment is the correct one. It is entirely appropriate for courts to continue to review claims of federal power independently and without deference to Congress when the principle of state sovereignty is at stake. The judicial disengagement embraced by the Garcia majority in rejecting Usery cannot be reconciled with the fact that states as states have not been represented in Congress since the ratification of the 17th Amendment. Congress simply cannot be entrusted with exclusive authority to protect our system of dual sovereignty. Nor should it be entrusted with such power. As passionately emphasized by Justice Powell in his dissent to the holding of Garcia:
“The Framers believed that the separate sphere of sovereignty reserved to the States would ensure that the States would serve as an effective “counterpoise” to the power of the Federal Government…. [F]ederal overreaching under the Commerce Clause undermines the constitutionally mandated balance of power between the States and the Federal Government, a balance designed to protect our fundamental liberties.”
Trusting the federal political process to protect state sovereignty is like entrusting the fox to guard the henhouse. The principal claim of Garcia—that Usery’s enforcement of the Tenth Amendment is unworkable—has been all but fully repudiated by the modern Court’s own jurisprudential record. The only thing missing from that record is an express recognition that Usery is very much alive. Now that the Left has stopped beating the Tenth Amendment to death, we should join forces in amici briefs and principled litigation to achieve that recognition.
National League of Cities v. Usery (1976) Supreme Court decision: https://casetext.com/case/national-league-of-cities-v-usery-california-v-usery
Nick Dranias is President of Compact for America Educational Foundation. Compact for America urges states to unite in formal agreements to advance powerful reform ideas, such as the ProsperityStates.org initiative. Nick also serves as Policy Advisor with the Heartland Institute, Expert with the Federalist Society, and Speaker with Students for Liberty. Previously, Nick was Constitutional Policy Director at the Goldwater Institute, where he led the Institute’s successful challenge to Arizona’s system of government campaign financing to the U.S. Supreme Court and helped re-ignite the Article V movement almost ten years ago. Nick has appeared as a constitutional expert on Fox News, MSN-NBC, and NPR.