State Autonomy Limits on Federal Power

A. State autonomy (sometimes referred to as state sovereignty) limits on federal power are inherent in the structure of the Constitution as well as confirmed by the text of the Tenth Amendment.

B. State autonomy limits on federal power prevent the federal government from interfering with decisions made by the state as to how to structure its basic governmental operations such as where to locate its capitol, how many members to elect to the state legislature, the length of the governor's term in office, and similar aspects of its governmental structure.

C. In recent years, the Supreme Court's state autonomy focus has shifted to protecting the states from being forced to adopt or administer federal regulatory programs. For example, in Printz v. United States, the Court struck down a provision of the Brady Act which commandeered, without the state’s permission, the services of state law enforcement officers to assist in the administration of a federal regulatory scheme. While the federal government is free to regulate areas falling with the scope of its Article I, Section 8 powers, including to apply those federal laws to the state’s own activities, or to provide incentives to encourage the states to cooperate, it can't force the states to participate in the administration of those laws. Federal programs that require the states to enact legislation, such as in New York v. United States, or require the states to administer and enforce federal regulatory programs, as in Printz, can be successfully challenged under the state autonomy principle confirmed by the Tenth Amendment.

D. In Reno v. Condon, the Court upheld provisions of the Driver’s Privacy Protection Act which prevented state motor vehicle departments from making available personal information about drivers without their consent. In upholding the provisions, the Court distinguished between federal laws that regulate the state’s own activities (as in Reno v. Condon in which the state was regulated as the owner of a database) and federal laws that require the states to regulate the behavior of their own citizens (as in Printz and New York v. United States). The Court focused on the fact that the federal law in Reno v. Condon did not require the states to legislate or to enforce a federal regulatory scheme.

E. Beyond the limited examples of federal laws that force the states to either enact legislation or administer a federal regulatory program, the Tenth Amendment has not been a significant source of limits on the power of Congress. When asserted in an effort to prevent the federal government from regulating in areas that have traditionally been regulated by the states, the Court has rejected this argument and described the Tenth Amendment as a tautology, only stating that whatever power has not been granted to the federal government remains with the states rather than defining the scope of the non-granted power.

F. Further, after abandoning the National League of Cities approach in Garcia v. San Antonio Metropolital Transit Authority, Tenth Amendment state autonomy arguments have also been rejected when states have argued that the states' own activities cannot be regulated along with their private conterparts. Therefore, Congress is free to regulate the state as an employer, an energy user, a trash disposer, etc. along with private entities that engage in these same activities. The Tenth Amendment does not require, as interpreted in Garcia, that the state be exempt from such federal regulations. As long as federal regulatory power exists, such as the grant of power in the Commerce Clause, Congress is free to regulate private activity as well as its state governmental conterpart.

G. Even though the Supreme Court has rejected the argument that the Tenth Amendment places limits on the areas where the federal government can regulate and requires the federal government to refrain from regulating in areas that have traditionally been regulated by the states, it is easy to see the influence of this argument in the Court's decisions in Lopez and Morrison.