State Autonomy Hypotheticals

1. Congress regulates use of marijuana for medical purposes as part of a comprehensive regulation of the cultivation, production, use, distribution, and sale of marijuana. A State says the states have traditionally regulated health care and, therefore, this federal law violates the Tenth Amendment by regulating in an area traditionally regulated by the states. Will the argument succeed?

2. Congress regulates the wages of employees under the Equal Pay Act. The act applies to private employers and also applies to government employers. A State challenges the application of the EPA to state employees as a violation of the Tenth Amendment because the law interferes with the State’s ability to deliver essential services such as police protection, fire protection, and education. Will the argument succeed?

3. Congress is regulating health care. It needs to collect data on the number of people who show up in hospital emergency rooms without health insurance. It orders the states to collect that data and provide it to the federal government. A State challenges this order as a violation of the Tenth Amendment because the federal government cannot force the states to participate in a federal regulatory program and cannot commandeer state workers for this purpose. Will the argument succeed?

4. States collect information from their citizens about the birth of babies within the state through their issuance of birth certificates. Some states sell this information. It is purchased by diaper services, companies that sell baby clothes, insurance companies, and other businesses that wish to sell products to the parents of newborns. The federal government passes a law outlawing the sale of such information by anyone possessing it including the states. A State challenges this law as applied to its sale of such information on the ground that it violates the Tenth Amendment. Will the argument succeed?

5. The federal government passes a law requiring all states to have at least 50 members in each house of their state legislatures. A State challenges the law as a violation of the Tenth Amendment because it interferes with a critical aspect of its governmental structure. Will the argument succeed?

6. The federal government outlaws the sale and use of a popular child’s toy that has been responsible for a series of fatal accidents. To enforce the ban, the federal government orders the states to conduct home inspections to seize the toy if it is found in the home. A state challenges this law as a violation of the Tenth Amendment. Will the argument succeed?

7. The federal government investigates a series of fatal accidents caused by a popular child’s toy and determines that the toy is extremely dangerous. The federal government passes a law banning the sale of the toy. In addition, it orders the states to enact a law outlawing the possession of the toy. A State challenges the federal order that it enact a law outlawing possession as a violation of the Tenth Amendment. Will the argument succeed?

8. In the aftermath of Hurricane Katrina, Congress passes the Federal Emergency Commandeering Act.  The Act allows the President, in the case of natural disasters, to commandeer state emergency responders including police, fire, and medical personnel for a temporary period of time in order to be able to coordinate the federal, state, and local response to such a disaster. A State challenges the law as a violation of the Tenth Amendment. Will the argument succeed?

Federal Spending Hypothetical

1. Congress recently enacted the Federal School Safety Act. Under the Act, states will be provided with money to improve the safety of their schools. As a condition of obtaining money under the School Safety Act, a state must enact a Gun-Free School Zones Act to make it a violation of state law "for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone." Is the condition constitutional?

2. The states currently receive annual appropriations under the Federal Elementary and Secondary Education Act. Congress recently amended the Act so that starting next year a state will lose 10 percent of the federal education funds otherwise payable to that state under the Act in any year in which the state fails to make the possession of a firearm in a school zone a crime under state law. Is the Act constitutional?

3.  As a further condition under the Federal School Safety Act referred to in hypothetical 1 above, Congress requires the states to create waste disposal sites for low-level radioactive waste in order to be eligible for federal funds under the Act. Is the condition constitutional?

4. As a further condition under the Federal School Safety Act, Congress requires that the states prohibit students from engaging in anti-government speech on school grounds. Is the condition constitutional?