9.1 The Tenth Amendment, Anti-Commandeering & Intergovernmental Immunities
Key Takeaways
- Congress may not commandeer state legislatures or executive officers to carry out federal programs (New York v. United States; Printz), and that rule also bars federal laws that forbid states from repealing or enacting their own laws (Murphy v. NCAA, 2018).
- Congress may subject states to generally applicable federal laws that also regulate private parties, such as wage-and-hour laws (Garcia v. San Antonio Metropolitan Transit Authority), and may encourage states through conditional spending or offers to preempt.
- States may not directly regulate or tax the federal government, its property, or federal officials performing federal duties without congressional consent (McCulloch; Johnson v. Maryland).
- States may impose nondiscriminatory taxes and regulations whose legal incidence falls on private federal contractors or employees, but may not discriminate against the federal government or those with whom it deals (United States v. Washington, 2022).
- The federal government may impose nondiscriminatory taxes and generally applicable regulations on states, subject to the anti-commandeering doctrine.
9.1 The Tenth Amendment, Anti-Commandeering & Intergovernmental Immunities
NCBE's outline first asks how the federal government and the states limit each other through intergovernmental immunities and the Tenth Amendment. State sovereign immunity from private lawsuits is covered in Section 6.1; preemption and the dormant Commerce Clause are covered in Section 9.2.
1. The Tenth Amendment & The Anti-Commandeering Doctrine
The Constitutional Reservation of State Power
The Tenth Amendment provides: "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." Under this reservation, states possess an inherent, plenary police power to enact legislation protecting the health, safety, welfare, and morals of their citizens, subject only to the constraints of the federal Constitution.
The Anti-Commandeering Doctrine
While Congress possesses broad enumerated authority to regulate individuals and commercial markets, the Tenth Amendment establishes that the federal government may not "commandeer" the apparatus of state government to implement federal regulatory schemes.
┌─────────────────────────────────────────┐
│ THE ANTI-COMMANDEERING DOCTRINE │
└────────────────────┬────────────────────┘
│
┌─────────────────────────────────┴─────────────────────────────────┐
│ │
▼ ▼
┌─────────────────────────────────────────┐ ┌─────────────────────────────────────────┐
│ NO LEGISLATIVE COMMANDEERING │ │ NO EXECUTIVE COMMANDEERING │
│ - Congress cannot compel state │ │ - Congress cannot conscript state or │
│ legislatures to pass laws or enact │ │ local executive officers to enforce │
│ federal regulatory programs │ │ or administer federal laws │
│ (New York v. United States, 1992) │ │ (Printz v. United States, 1997) │
└─────────────────────────────────────────┘ └─────────────────────────────────────────┘
1. Prohibiting Legislative Commandeering
In New York v. United States (1992), Congress enacted the Low-Level Radioactive Waste Policy Amendments, which contained a "take-title" provision requiring states to either pass legislation regulating the disposal of radioactive waste generated within their borders or take legal title and possession of the waste. The Supreme Court struck down the provision, holding that Congress cannot directly compel a state legislature to enact specific laws or enforce federal regulatory programs. Such federal conscription obscures political accountability by leaving voters unable to discern whether state or federal officials are responsible for the regulatory burden.
2. Prohibiting Executive Commandeering
In Printz v. United States (1997), the Supreme Court extended the anti-commandeering doctrine to state and local executive branch officials. The federal Brady Handgun Violence Prevention Act commanded local chief law enforcement officers (CLEOs) to conduct background checks on prospective handgun purchasers pending the establishment of a national computerized background system. The Court invalidated the requirement, holding that Congress cannot command state or local executive officers to administer or enforce a federal regulatory program. Conscripting state law enforcement compromises both federalism and the President's Article II authority to execute the laws.
Permissible Federal Methods (What Congress CAN Do)
The anti-commandeering doctrine limits the means Congress may employ, not its ultimate regulatory objectives. Congress may constitutionally achieve its goals through four alternative mechanisms:
- Direct Federal Regulation of Private Individuals: Congress may regulate private citizens, corporations, and transactions directly under its Article I commerce powers, deploying federal agencies to enforce the law;
- Laws of General Applicability: Congress may subject state and local governments to generally applicable federal regulations that govern private and public entities alike (Reno v. Condon, 2000, upholding the federal Driver's Privacy Protection Act restricting disclosure of driver's license records by state DMVs and private resellers);
- Conditional Spending Incentives: Congress may encourage states to adopt federal policies by attaching strings to federal funding grants under South Dakota v. Dole, provided the financial incentive is not coercive (NFIB); and
- Cooperative Federalism: Congress may establish federal standards and offer states the option to either adopt a state regulatory scheme that satisfies federal minimum criteria or permit federal regulators to preempt state law and regulate the field directly.
2. Intergovernmental Immunities
Federal Immunity from State Regulation and Taxation
Originating in Chief Justice Marshall's pronouncement in McCulloch v. Maryland (1819) that "the power to tax involves the power to destroy," the federal government possesses sovereign immunity from state interference, regulation, and direct taxation.
Absolute Prohibitions on State Control
- No State Regulation of Federal Instrumentalities: States cannot regulate, inspect, or license federal agencies, military installations, or federal employees performing their official federal duties without explicit congressional authorization (e.g., a state cannot require a federal postal employee to obtain a state driver's license to drive a mail truck on federal business, Johnson v. Maryland, 1920, or require a federal contractor to obtain a state contractor's license before performing work on a federal project governed by federal procurement standards, Leslie Miller, Inc. v. Arkansas, 1956).
- No Direct Taxation of the Federal Government: A state cannot impose a tax whose legal incidence falls directly on the United States, its agencies, military bases, or federal property without consent of Congress.
- No Taxation of Federal Debt: States cannot tax interest earned on United States federal bonds or debt obligations.
Permissible State Action: Indirect / Non-Discriminatory Taxation
States may impose non-discriminatory indirect taxes on private individuals or corporations that do business with or work for the federal government, provided the legal incidence of the tax falls upon the private party and not the federal treasury:
- Federal Employee Income: States may tax the income of federal employees residing within the state, provided the tax treats federal and state employees identically (Davis v. Michigan Department of Treasury);
- Private Federal Contractors: States may impose general sales or gross receipts taxes on private construction contractors working on federal military bases or government facilities, even if the economic cost is passed along to the federal government under a cost-plus contract (United States v. New Mexico).
State Immunity from Federal Taxation
The federal government cannot impose taxes directly on state governments or their governmental instrumentalities performing traditional or essential state sovereign functions. However, the federal government may impose non-discriminatory federal taxes on state-run proprietary or commercial enterprises (e.g., taxing state-owned retail liquor distribution or commercial bottling operations, New York v. United States, 1946).
Applying the Tenth Amendment and Intergovernmental Immunity Rules
What Congress May and May Not Do to the States
- Generally applicable laws: In Garcia v. San Antonio Metropolitan Transit Authority (1985), the Court overruled National League of Cities v. Usery (1976) and held that federal minimum-wage and overtime requirements may be applied to state and local employers. States are protected mainly through their participation in the national political process, not through judicially defined "traditional governmental functions."
- Regulating state activities directly: Congress may regulate how states engage in activities that private parties also carry out, such as issuing bonds (South Carolina v. Baker, 1988) or selling drivers' personal information (Reno v. Condon, 2000).
- No commands to legislate—or not to legislate: A federal law that prohibited states from authorizing sports gambling was invalid commandeering, because it dictated what state legislatures could and could not do (Murphy v. National Collegiate Athletic Ass'n, 2018). Congress could have regulated sports gambling directly.
- Offers to preempt: Congress may give states a choice between regulating according to federal standards or having federal law preempt state regulation (Hodel v. Virginia Surface Mining & Reclamation Ass'n, 1981).
- Clear statement: Courts will not read a federal statute to intrude on core state functions—such as setting qualifications for state judges—unless Congress makes that intent unmistakably clear (Gregory v. Ashcroft, 1991).
The Nondiscrimination Principle
A state regulation or tax violates intergovernmental immunity if it either directly regulates or taxes the federal government or discriminates against the federal government or those with whom it deals (North Dakota v. United States, 1990). In United States v. Washington (2022), a state workers' compensation law that applied only to workers employed by federal contractors at a federal nuclear site, and made their claims easier to win, was invalid because it singled out the federal government's contractors for less favorable treatment. Congress's general consent to state workers' compensation laws on federal land did not clearly authorize discrimination.
Federal Officials Performing Federal Duties
Federal officers acting within the scope of their federal authority are immune from state prosecution for conduct that is necessary and proper to carry out their duties (In re Neagle, 1890). A state may still enforce generally applicable laws against federal employees for conduct outside their federal duties.
| Question | Rule | Example |
|---|---|---|
| Does a state law directly regulate federal operations? | Invalid without congressional consent | State driver's license for a postal worker driving a mail truck |
| Does a state tax's legal incidence fall on the United States? | Invalid without congressional consent | State tax on federal property or federal bonds |
| Does a state tax or rule fall on a private contractor evenhandedly? | Valid | Gross receipts tax on a federal contractor (United States v. New Mexico) |
| Does a state tax or rule single out the federal government or its contractors? | Invalid | Discriminatory workers' compensation rule (United States v. Washington) |
| Does a federal law regulate states the same way as private parties? | Valid | Overtime pay for state employees (Garcia) |
| Does a federal law order states to legislate or enforce federal law? | Invalid | Take-title provision (New York); background checks (Printz); ban on state authorization (Murphy) |
To combat the illegal trafficking of prescription opioids, Congress enacted the 'State Pharmacy Oversight Act.' The statute required state boards of pharmacy in every state to establish computerized monitoring databases, register all state-licensed retail pharmacists, and submit quarterly compliance reports directly to the federal Drug Enforcement Administration (DEA). The statute contained no federal appropriation to offset the administrative costs of compliance, and provided that any state board of pharmacy failing to implement the reporting program would be subject to civil penalties assessed by the federal Department of Justice. A state board of pharmacy filed a federal lawsuit challenging the constitutionality of the statute. How should the court rule?
Congress amended a federal wage-and-hour statute to require all employers, including state and local governments, to pay overtime to employees who work more than 40 hours in a week. A state that operates a public hospital refused to pay overtime to its nurses, and the U.S. Department of Labor sued the state to enforce the statute. The state argued that Congress may not regulate the wages of state employees engaged in a traditional governmental function. How should the court rule?
The federal government operates a decommissioned nuclear weapons site within a state and hires private contractors to clean it up. The state enacted a workers' compensation law that applies only to people working at that site for federal contractors. The law creates a presumption that certain cancers and respiratory diseases were caused by work at the site, which makes claims easier to win and raises the contractors' costs, and those costs are passed on to the federal government under the contracts. No similar presumption applies to workers at state or private facilities. The United States sued to invalidate the law. How should the court rule?