The Constitution of the United States of America: Analysis and Interpretation Part 169

AMENDMENT 10

RESERVED STATE POWERS

Page Scope and purpose 915 The taxing power 916 The commerce power 917 Police power 918 State activities and instrumentalities 919

RESERVED STATE POWERS

Amendment 10

The powers not delegated to the United States by the Const.i.tution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Scope and Purpose

"The Tenth Amendment was intended to confirm the understanding of the people at the time the Const.i.tution was adopted, that powers not granted to the United States were reserved to the States or to the people. It added nothing to the instrument as originally ratified * * *."[1] That this provision was not conceived to be a yardstick for measuring the powers granted to the Federal Government or reserved to the States was clearly indicated by its sponsor, James Madison, in the course of the debate which took place while the amendment was pending concerning Hamilton's proposal to establish a national bank. He declared that: "Interference with the power of the States was no const.i.tutional criterion of the power of Congress. If the power was not given, Congress could not exercise it; if given, they might exercise it, although it should interfere with the laws, or even the Const.i.tutions of the States."[2] Nevertheless, for approximately a century, from the death of Marshall until 1937, the Tenth Amendment was frequently invoked to curtail powers expressly granted to Congress, notably the powers to regulate interstate commerce, to enforce the Fourteenth Amendment and to lay and collect taxes.

The first, and logically the strongest, effort to set up the Tenth Amendment as a limitation on federal power was directed to the expansion of that power by virtue of the necessary and proper clause. In McCulloch _v._ Maryland,[3] the Attorney-General of Maryland cited the charges made by the enemies of the Const.i.tution that it contained "* * * a vast variety of powers, lurking under the generality of its phraseology, which would prove highly dangerous to the liberties of the people, and the rights of the states, * * *" and he cited the adoption of the Tenth Amendment to allay these apprehensions, in support of his contention that the power to create corporations was reserved by that amendment to the States.[4] Stressing the fact that this amendment, unlike the cognate section of the Articles of Confederation, omitted the word "expressly" as a qualification of the powers granted to the National Government, Chief Justice Marshall declared that its effect was to leave the question "whether the particular power which may become the subject of contest has been delegated to the one government, or prohibited to the other, to depend upon a fair construction of the whole instrument."[5]

The Taxing Power

Not until after the Civil War was the idea that the reserved powers of the States comprise an independent qualification of otherwise const.i.tutional 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.[6] Holding that a national income tax, in itself valid, could not be const.i.tutionally 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."[7] In 1939, Collector _v._ Day was expressly overruled.[8] Nevertheless, the problem of reconciling State and national interests still confronts the Court occasionally, and was elaborately considered in New York _v._ United States,[9] 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 "The national taxing power would be unduly curtailed if the State, by extending its activities, could withdraw from it subjects of taxation traditionally within it."[10] 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."[11] 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 a.s.sumed to have."[12]

The Commerce 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.[13] The Court did not refer to the Tenth Amendment. Instead, it a.s.serted 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."[14] Similarly, in the Employers' Liability Cases,[15] 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 unconst.i.tutional 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,[16] 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.[17]

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,[18] on the sale of grain futures on markets which failed to comply with federal regulations,[19] on the sale of coal produced by nonmembers of a coal code established as a part of a federal regulatory scheme,[20] 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,[21] were all found to invade the reserved powers of the States. In Schechter Poultry Corporation _v._ United States[22] 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 "extraconst.i.tutional authority."[23]

In 1941 the Court came full circle in its exposition of this amendment.

Having returned to the position of John Marshall four years earlier when it sustained the Social Security[24] and National Labor Relations Acts,[25] it explicitly restated Marshall's thesis in upholding the Fair Labor Standards Act in United States _v._ Darby.[26] 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 Const.i.tution.' * * * That power can neither be enlarged nor diminished by the exercise or non-exercise of state power. * * * It is no objection to the a.s.sertion of the power to regulate interstate commerce that its exercise is attended by the same incidents which attend 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."[27]

Police Power

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.,[28] 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 none the less true that when the United States exerts any of the powers conferred upon it by the Const.i.tution, 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."[29] 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,[30] of women for immoral purposes,[31] of stolen automobiles,[32] and of tick-infested cattle.[33] It affirmed the power of Congress to punish the forgery of bills of lading purporting to cover interstate shipments of merchandise,[34] to subject prison made goods moved from one State to another to the laws of the receiving State,[35] and to regulate prescriptions for the medicinal use of liquor as an appropriate measure for the enforcement of the Eighteenth Amendment.[36] But while Congress might thus prevent the use of the channels of interstate commerce to frustrate State law, it could not itself, the Court held, undertake to punish a violation of that law by discriminatory taxation; and in United States _v._ Constantine,[37] a grossly disproportionate excise tax imposed on retail liquor dealers carrying on business in violation of local law was held unconst.i.tutional.

State Activities and Instrumentalities

Today it is apparent that the Tenth Amendment does not shield the States nor their political subdivisions from the impact of the authority affirmatively granted to the Federal Government. It was cited to no avail in Case _v._ Bowles,[38] where a State officer was enjoined from selling timber on school lands at a price in excess of the maximum prescribed by the Office of Price Administration. When California violated the Federal Safety Appliance Act in the operation of the State Belt Railroad as a common carrier in interstate commerce it was held liable for the statutory penalty.[39] At the suit of the Attorney General of the United States, the Sanitary District of Chicago was enjoined from diverting water from Lake Michigan in excess of a specified rate. On behalf of a unanimous court, Justice Holmes wrote: "This is not a controversy among equals. The United States is a.s.serting its sovereign power to regulate commerce and to control the navigable waters within its jurisdiction. * * * There is no question that this power is superior to that of the States to provide for the welfare or necessities of their inhabitants."[40] Some years earlier, in a suit brought by Kansas to prevent Colorado from using the waters of the Arkansas River for irrigation, the Attorney General of the United States had unsuccessfully advanced the claim that the Federal Government had an inherent legislative authority to deal with the matter. In a pet.i.tion to intervene in the suit he had taken the position, as summarized by the Supreme Court, that "the National Government * * * has the right to make such legislative provision as in its judgment is needful for the reclamation of all these arid lands and for that purpose to appropriate the accessible waters. * * * All legislative power must be vested in either the state or the National Government; no legislative powers belong to a state government other than those which affect solely the internal affairs of that State; consequently all powers which are national in their scope must be found vested in the Congress of the United States."[41] The pet.i.tion to intervene was dismissed on the ground that the authority claimed for the Federal Government was incompatible with the Tenth Amendment; but this could hardly happen today.[42] Under its superior power of eminent domain, the United States may condemn land owned by a State even where the taking will interfere with the State's own project for water development and conservation.[43]

The rights reserved to the States are not invaded by a statute which requires a reduction in the amount of a federal grant-in-aid of the construction of highways upon failure of a State to remove from office a member of the State Highway Commission found to have violated federal law by partic.i.p.ating in a political campaign.[44]

Federal legislation frequently has been challenged as an unconst.i.tutional interference with the prerogative of the States to control the ent.i.ties they create, but the attack has been successful only once, in Hopkins Federal Savings and Loan a.s.sociation _v._ Cleary.[45] There an act of Congress authorizing the conversion of State building and loan a.s.sociations without State consent was found to contravene the Tenth Amendment. Thirty years earlier, in Northern Securities Co. _v._ United States,[46] a closely divided Court had ruled that this amendment was no barrier to the application of the Sherman Ant.i.trust Act to prevent one corporation from restraining commerce by means of stock ownership in two competing corporations. It announced the general proposition that: "No State can, by merely creating a corporation, or in any other mode, project its authority into other States, and across the continent, so as to prevent Congress from exerting the power it possesses under the Const.i.tution over interstate and international commerce, or so as to exempt its corporation engaged in interstate commerce from obedience to any rule lawfully established by Congress for such commerce. It cannot be said that any State may give a corporation, created under its laws, authority to restrain interstate or international commerce against the will of the nation as lawfully expressed by Congress. Every corporation created by a State is necessarily subject to the supreme law of the land."[47] Even a charter contract between a State and an intrastate railroad, limiting the rates of the latter, is no barrier to enforcement of an order of the Interstate Commerce Commission requiring an increase in local rates to remove a discrimination against interstate commerce.[48] An order of the Federal Power Commission prescribing the methods of keeping the accounts of an electric company was sustained over the objection that it violated the reserved right of the States under the Tenth Amendment.[49] A similar objection to the levy of a special surtax on any corporation formed or availed of to prevent the imposition of a surtax upon its shareholders was rejected, since the taxing statute did not limit in any way the power of the corporations to declare or withhold dividends as permitted by State law.[50] Likewise, the Court held that the failure to allow a credit against the undistributed profits tax for earnings which could not be distributed under State law did not infringe the reserved power of the State over its corporate offspring.[51]

Notes

[1] United States _v._ Sprague, 282 U.S. 716, 733 (1931).

[2] II Annals of Congress 1897 (1791).

[3] 4 Wheat. 316 (1819).

[4] Ibid. 372.

[5] Ibid. 406.

[6] 11 Wall. 113 (1871).

[7] Ibid. 124.

[8] Graves _v._ O'Keefe, 306 U.S. 466 (1939).

[9] 326 U.S. 572 (1946).

[10] Ibid. 589.

[11] Ibid. 584.

[12] Ibid. 595.

[13] United States _v._ Dewitt, 9 Wall. 41 (1870).

[14] Ibid. 44.

[15] 207 U.S. 463 (1908). _See also_ Keller _v._ United States, 213 U.S.

138 (1909).

[16] 247 U.S. 251 (1918).

[17] 312 U.S. 100, 116, 117 (1941).

[18] Bailey _v._ Drexel Furniture Co., 259 U.S. 20, 36, 38 (1922).

[19] Hill _v._ Wallace, 259 U.S. 44 (1922). _See also_ Trusler _v._ Crooks, 269 U.S. 475 (1926).

[20] Carter _v._ Carter Coal Co., 298 U.S. 238 (1936).

[21] United States _v._ Butler, 297 U.S. 1 (1936).

[22] 295 U.S. 495 (1935).