The relation of nation and states in a federal system - Stat...

Learning Outcomes

This article explains how the Tenth Amendment and related federalism doctrines limit federal power over the states, including:

• Identifying the basic allocation of authority between the national government and the states, and how the Tenth Amendment reinforces that structure on MBE fact patterns.
• Distinguishing generally applicable federal regulations that validly bind states as market participants or employers from unconstitutional efforts to treat states as federal administrators.
• Applying the anti-commandeering doctrine to statutes that direct state legislatures to enact, retain, or repeal particular laws, or that conscript state executive officials to implement federal regulatory schemes.
• Evaluating when conditions attached to federal grants satisfy the requirements for valid Spending Power legislation and when those conditions become unduly coercive under cases such as South Dakota v. Dole and NFIB v. Sebelius.
• Differentiating ordinary preemption under the Supremacy Clause from unconstitutional commandeering of state governments.
• Connecting Tenth Amendment limits to state sovereign immunity and the Eleventh Amendment, and determining when Congress can subject states to private suits in federal court.
• Developing a step-by-step approach for analyzing federalism questions on the MBE, so you can quickly identify the relevant doctrine and select the most defensible answer choice under exam pressure.

MBE Syllabus

For the MBE, you are required to understand this topic area, with a focus on the following syllabus points:

• Identify the scope of powers reserved to the states under the Tenth Amendment.
• Apply the anti-commandeering doctrine established in New York v. United States, Printz v. United States, and clarified in Murphy v. NCAA.
• Distinguish between permissible federal regulation of states (e.g., generally applicable laws) and impermissible commandeering of state legislative or executive branches.
• Analyze the validity of conditions attached to federal spending under the Spending Power (South Dakota v. Dole, NFIB v. Sebelius).
• Recognize the limits on Congress's power to abrogate state sovereign immunity under the Eleventh Amendment and Section 5 of the Fourteenth Amendment, and how these limits interact with federalism principles.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. The Tenth Amendment primarily stands for the principle that:
   1. The federal government possesses supreme power over the states.
   2. Powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states or the people.
   3. States are immune from all forms of federal regulation.
   4. The federal government can compel states to enact federal legislation.
2. The anti-commandeering doctrine prohibits the federal government from:
   1. Enacting laws that apply to both state governments and private actors.
   2. Attaching conditions to federal funds granted to states.
   3. Directly compelling states to enact or enforce federal regulatory programs.
   4. Suing state governments in federal court.
3. Congress passes a law requiring all state law enforcement officers to dedicate 10 hours per week to enforcing a new federal database tracking handgun sales. Which constitutional principle is most likely implicated by this law?
   1. The Commerce Clause
   2. The Spending Power
   3. The Tenth Amendment's anti-commandeering principle
   4. The Supremacy Clause
4. For a condition on federal funds granted to a state to be valid under the Spending Power, the condition generally must NOT be:
   1. Related to the purpose of the federal spending.
   2. Clearly stated.
   3. Unduly coercive.
   4. Applicable to activities traditionally regulated by the states.

Introduction

The United States operates under a system of federalism, in which power is divided between the national (federal) government and the state governments. The federal government is a government of limited, enumerated powers; it may act only when the Constitution grants it authority. State governments, by contrast, retain the general “residual” authority to legislate for the health, safety, morals, and general welfare of their populations.

Key Term: Police Power
The broad authority of state and local governments to regulate for the health, safety, morals, and general welfare of their residents. The federal government does not have a general police power (except in federal territories and the District of Columbia).

The Tenth Amendment emphasizes this basic structure. It provides that 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. Federal courts use this provision both as a reminder that federal power must be traced to an enumerated source, and as a substantive limit when federal action threatens to treat states as mere administrative subdivisions of the national government.

At the same time, the Supremacy Clause makes valid federal law “the supreme Law of the Land,” preempting conflicting state law. States cannot simply invoke “state sovereignty” to disregard federal statutes that are within Congress’s enumerated powers.

This interplay gives rise to three recurring MBE issues:

• When does a federal statute validly regulate state governments, and when does it unconstitutionally “commandeer” them?
• When are conditions on federal grants to states valid under the Spending Power, and when do they become coercive?
• How do Tenth Amendment limits on federal power relate to, but differ from, state sovereign immunity under the Eleventh Amendment?

The remainder of this article develops each of these themes and provides a framework to analyze exam fact patterns.

The Tenth Amendment and State Sovereignty

The Tenth Amendment does not create new powers; it reflects the basic premise that the federal government is one of limited, enumerated powers and that states retain substantial sovereign authority.

Key Term: Tenth Amendment
The constitutional provision stating that powers not delegated to the federal government by the Constitution, nor prohibited by it to the states, are reserved to the states or the people.

On the MBE, the Tenth Amendment arises in two main ways:

• As a background principle: it reminds you that you must be able to identify a valid source of congressional power (such as the Commerce Clause or the Taxing and Spending Power) for any federal statute.
• As a direct limit: it underlies the anti-commandeering doctrine, which bars federal mandates that force states to legislate or administer federal programs.

Federal Laws of General Applicability

Despite the Tenth Amendment, states are not generally immune from federal regulation. When Congress legislates under a valid enumerated power, it may often regulate states directly, so long as it regulates them in the same way as private actors.

Key Term: Generally Applicable Law
A federal law that applies to both private entities and state governments on equal terms, rather than singling out states as regulators.

For example, in Garcia v. San Antonio Metropolitan Transit Authority, the Court held that federal minimum wage and overtime laws could constitutionally apply to a municipally owned transit system. The statute regulated all covered employers, public and private, under the Commerce Clause. States’ interests were protected not by immunity from regulation, but through their participation in the national political process.

Other examples of acceptable regulation of states include:

• Federal environmental standards that apply to all owners and operators of certain facilities, including state-owned facilities.
• Federal record-keeping or reporting requirements imposed on all employers, including state agencies, about workplace safety or discrimination.

The key is that Congress is regulating states as participants in the regulated activity (e.g., as employers or facility operators), not as sovereign regulators.

Contrast this with statutes that:

• Tell states what laws they must or must not enact, or
• Command state officials to enforce federal law.

Those raise Tenth Amendment anti-commandeering concerns.

The Anti-Commandeering Doctrine

The most important modern limit on federal power over states is the anti-commandeering doctrine. This doctrine is rooted in federalism and the Tenth Amendment.

Key Term: Anti-Commandeering Doctrine
The constitutional principle that Congress may not require state legislatures to enact particular laws or state executive officials to administer or enforce federal regulatory programs.

Congress may regulate individuals directly; it may encourage states through incentives; and it may preempt conflicting state laws. What it may not do is turn state governments into federal field offices.

Commandeering State Legislatures

Congress cannot directly command state legislatures to enact, maintain, or repeal specific laws.

• In New York v. United States, Congress gave states a choice: either regulate radioactive waste according to federal standards or “take title” to the waste. The Court held this unconstitutional because it effectively forced states to regulate private actors on Congress’s terms or face a punitive consequence.
• In Murphy v. NCAA (2018), Congress prohibited states from authorizing sports gambling under state law. The Court struck this down on anti-commandeering grounds: a federal law that tells state legislatures that they may not enact or maintain certain laws is as problematic as one telling them they must enact particular laws.

The exam trap here is to confuse anti-commandeering with preemption. A federal statute that directly regulates private actors and displaces inconsistent state law is ordinary preemption and is generally valid. A federal statute that regulates the states as lawmakers (telling them what their statutes must say) is commandeering.

Commandeering State Executive Officials

Congress also cannot require state executive officials to administer federal programs.

• In Printz v. United States, the Brady Handgun Violence Prevention Act required local chief law enforcement officers to conduct background checks on prospective handgun purchasers until a federal system came online. The Court held this requirement unconstitutional: the federal government cannot conscript state executive officers into enforcing federal law.

However, not every obligation imposed on state officials is problematic. Congress may:

• Impose generally applicable record-keeping or reporting requirements on state employers, just like private employers.
• Require state courts (as opposed to executive officials) to hear certain federal causes of action, pursuant to the Supremacy Clause.

State courts must apply valid federal law when properly invoked, and this is treated as a consequence of the supremacy of federal law, not as commandeering.

Worked Example 1.1

Congress enacts the National Clean Air Act, setting new air quality standards. A provision requires each state's environmental protection agency to adopt regulations implementing these federal standards within one year and to submit enforcement reports to the federal EPA. State X refuses, citing budget constraints and disagreement with the standards. Can Congress compel State X's agency to adopt and enforce the regulations?

Answer:
No. This likely violates the anti-commandeering doctrine. Congress cannot directly compel a state agency (part of the executive branch) to administer or enforce a federal regulatory program. Congress may set federal standards and enforce them itself through federal officers, or it may induce state cooperation using conditional spending, but it may not command state officials to implement the federal scheme.

Worked Example 1.2

Congress passes a statute stating that “no State shall authorize or operate any sports-betting scheme” and that any existing state laws authorizing sports betting are “hereby invalid.” State Z previously legalized sports betting and challenges the federal statute. Is the statute valid?

Answer:
Probably not. This resembles Murphy v. NCAA. Instead of directly regulating private betting operators, Congress is dictating what state law must say and requiring states to repeal or refrain from enacting certain statutes. That is an impermissible attempt to control state legislative processes and violates the anti-commandeering doctrine.

Permissible Alternatives to Commandeering

Faced with a policy problem, Congress has several options that do not violate the Tenth Amendment:

• Regulate private actors directly, preempting inconsistent state law.
• Create and administer a federal program using federal agencies and employees.
• Use the Spending Power to encourage states to cooperate by attaching conditions to federal funds, within constitutional limits (discussed next).

A useful MBE checklist when you see a federal statute aimed at states:

• Does it regulate states and private parties evenhandedly in a commercial role (e.g., as employers)? → Usually valid.
• Does it tell state legislatures what they must or must not enact, or require state officers to carry out federal programs? → Likely invalid commandeering.
• Does it attach conditions to federal funds? → Analyze under the Spending Power.

Permissible Federal Influence: The Spending Power

Even though Congress cannot command state governments, it may encourage them to pursue federal policy objectives by attaching conditions to federal funds.

Key Term: Spending Power Condition
A requirement attached by Congress to the receipt of federal funds by a state or local government, used to induce (but not compel) state compliance with federal policy objectives.

Article I gives Congress the power to tax and spend for the “general Welfare.” Under this power, Congress may offer funds to states on specified terms. States remain formally free to decline the funds, but the financial consequences of refusal can raise constitutional questions.

For a condition on federal funds to be valid, the Supreme Court has identified several requirements:

1. General Welfare
   The spending must be in pursuit of the general welfare. Courts are highly deferential on this point and rarely invalidate legislation on this ground.

2. Unambiguous
   The condition must be clearly stated so that states can make an informed choice regarding acceptance. Hidden conditions are not allowed.

3. Relatedness (“Germaneness”)
   The condition must be related to the federal interest in the particular program being funded. Congress cannot use an unrelated program as a means to regulate any and all state activities.

4. No Independent Constitutional Bar
   The condition may not require states to violate other constitutional provisions (for example, by discriminating on suspect classifications).

5. Not Unduly Coercive
   The financial inducement must not be so coercive as to cross the line from pressure to compulsion.

This framework comes primarily from South Dakota v. Dole and NFIB v. Sebelius.

Classic Example: South Dakota v. Dole

In Dole, Congress directed the Secretary of Transportation to withhold a small percentage of federal highway funds from states that did not adopt a minimum drinking age of 21. South Dakota challenged this as beyond Congress’s powers and a violation of the Tenth Amendment.

The Court upheld the scheme:

• Promoting safe interstate travel is within the general welfare.
• The condition (21-year-old drinking age) was clearly stated.
• It was related to the program being funded (highway safety).
• It did not require unconstitutional state action.
• Withholding only a small fraction of highway funds was considered “relatively mild encouragement,” not coercion.

Worked Example 1.3

Congress offers federal highway funds to states, conditioned on the states enacting laws setting the minimum drinking age at 21. State Y, which currently allows 18-year-olds to drink, challenges the condition, arguing that regulating drinking ages is a state police power function and the condition violates the Tenth Amendment. Is the condition likely valid?

Answer:
Yes. This mirrors South Dakota v. Dole. Congress is using its Spending Power to encourage, not command, state action. The condition relates to highway safety (a purpose of highway funds), is clearly stated, does not require unconstitutional action, and withholding a modest percentage of highway funds is not considered unduly coercive. The fact that drinking ages fall within state police power does not preclude Congress from influencing that area via conditional spending.

Coercive Conditions: NFIB v. Sebelius

In NFIB v. Sebelius, Congress conditioned continued receipt of all existing Medicaid funds on a state’s agreement to expand its Medicaid program to a new population group. States that refused would lose every dollar of federal Medicaid funding, not just the new funds tied to the expansion.

The Court held this unduly coercive:

• Medicaid funding constituted a huge portion of state budgets.
• Threatening to terminate existing funding for a long-standing program left states with no real choice; it was more like “a gun to the head” than a genuine incentive.

The key takeaway for the MBE:

• Modest conditions on new funding are usually valid.
• Threats to cut off all existing funding under a major program unless states accept a fundamentally new program may be unconstitutional coercion.

Worked Example 1.4

Congress creates a new federal health program, HealthPlus, and offers generous new funds to states that adopt certain coverage expansions. States that decline receive no HealthPlus money but keep all existing Medicaid funds. Is this condition likely coercive?

Answer:
No. States are choosing whether to participate in a new program. Congress is not threatening to withdraw existing Medicaid funds; it is merely declining to provide additional HealthPlus funds to nonparticipating states. That is typical, non-coercive use of the Spending Power.

Worked Example 1.5

Congress amends the Medicaid statute to require coverage of a new group of adults and provides additional funding for that coverage. It also authorizes the Secretary of Health and Human Services to terminate all Medicaid funding for any state that refuses to adopt the expansion. Several states sue. Is this likely constitutional?

Answer:
Likely not. This resembles the invalid provision in NFIB v. Sebelius. By threatening to terminate all existing Medicaid funding—a very large share of state budgets—Congress is effectively compelling state participation in the expansion. The choice is so onerous that it crosses the line from permissible inducement to unconstitutional coercion.

State Immunity from Federal Law and the Supremacy Clause

It is important to distinguish:

• Limits on federal power to regulate or commandeer states (Tenth Amendment, anti-commandeering, spending coercion)
  from
• The binding force of valid federal law on states (Supremacy Clause and preemption).

Key Term: Supremacy Clause
Article VI of the Constitution, which provides that the Constitution, federal laws made pursuant to it, and treaties made under its authority are the supreme law of the land, overriding conflicting state constitutions and statutes.

Once Congress validly legislates within an enumerated power and does so in a way that does not commandeer states, the resulting federal law is supreme. States cannot claim “immunity” from such laws simply by appealing to sovereignty. For example:

• A state agency that operates a trucking business must comply with federal safety regulations that apply to all trucking companies.
• A state university must comply with federal anti-discrimination statutes that validly apply to all educational institutions.

Sometimes a federal law both preempts state law and raises anti-commandeering issues. To analyze these questions on the MBE:

• Ask first whether Congress is regulating private conduct and merely displacing inconsistent state law → this is preemption, usually valid.
• Ask whether the statute instead directs states, as states, to legislate or not legislate in a certain way, or to administer a federal program → this triggers anti-commandeering concerns.

State Sovereign Immunity and the Eleventh Amendment

Questions about “state immunity from federal law” on the MBE often implicate two distinct doctrines:

• Tenth Amendment and anti-commandeering: limits on what Congress can force states to do.
• State sovereign immunity and the Eleventh Amendment: limits on who can sue states where, even when Congress acts within its powers.

Key Term: State Sovereign Immunity
The principle that states, as sovereigns, cannot be sued without their consent in certain fora, particularly in federal court by private parties, subject to limited exceptions.

Key Term: Eleventh Amendment
The constitutional amendment interpreted to bar suits in federal court by private parties or foreign governments against a state, unless the state consents or Congress validly abrogates that immunity under specific constitutional authority (primarily Section 5 of the Fourteenth Amendment).

Under the Eleventh Amendment and related sovereign immunity doctrine:

• Private individuals generally cannot sue a state for damages in federal court without the state’s consent.
• Congress can sometimes abrogate (override) state sovereign immunity, but only when:
  • It acts under Section 5 of the Fourteenth Amendment (not under the Commerce Clause alone), and
  • It makes its intent to abrogate unmistakably clear in the statute.

Thus, for MBE purposes:

• A federal statute enacted under the Commerce Clause that authorizes private suits for money damages against states in federal court is usually invalid as applied to states (no valid abrogation of immunity).
• A federal civil-rights statute enacted under Section 5 of the Fourteenth Amendment that clearly authorizes damages suits against states may be valid, if it is a congruent and proportional response to constitutional violations.

This sovereign immunity has nothing to do with whether Congress can regulate the state’s conduct in the first place. A state might be substantively bound by a federal law but immune from certain kinds of suits to enforce it.

For example:

• States must comply with federal minimum-wage laws that validly apply to state employers (no Tenth Amendment problem after Garcia).
• However, a private employee may be barred by the Eleventh Amendment from suing the state in federal court for damages unless Congress validly abrogated immunity or the state consented.

On the MBE, carefully distinguish:

• “Congress cannot force states to enact laws or administer programs” → anti-commandeering (Tenth Amendment).
• “Private plaintiff cannot sue state X for damages in federal court under this statute” → Eleventh Amendment/sovereign immunity issue.

Key Point Checklist

This article has covered the following key knowledge points:

• The Tenth Amendment reflects that the federal government has only enumerated powers; states retain general police power over health, safety, morals, and welfare.
• Federal laws of general applicability that regulate states in the same way as private actors (e.g., as employers or market participants) are usually valid and do not violate the Tenth Amendment.
• The anti-commandeering doctrine bars Congress from:
  • Requiring state legislatures to enact, maintain, or repeal specific laws, and
  • Requiring state executive officials to administer or enforce federal regulatory programs.
• Preemption (under the Supremacy Clause) is distinct from commandeering: Congress may directly regulate private conduct and displace conflicting state law, but may not dictate the content of state law or turn state officials into federal agents.
• Under the Spending Power, Congress can encourage state action by attaching conditions to federal funds if:
  • The spending is for the general welfare.
  • The conditions are clearly stated.
  • The conditions are related to the federal interest in the program.
  • The conditions do not require unconstitutional conduct.
  • The financial inducement is not unduly coercive.
• Modest conditions on new federal funds (as in South Dakota v. Dole) are usually valid; threatening loss of all existing funding for a major program (as in NFIB v. Sebelius) can be coercive and unconstitutional.
• State sovereign immunity, reflected in the Eleventh Amendment, generally bars private suits for damages against states in federal court unless the state consents or Congress validly abrogates immunity under Section 5 of the Fourteenth Amendment.
• Tenth Amendment limits (commandeering and coercive spending) and Eleventh Amendment sovereign immunity are related federalism doctrines but address different questions: what Congress may require states to do versus who may sue states and where.

Key Terms and Concepts

• Tenth Amendment
• Police Power
• Generally Applicable Law
• Anti-Commandeering Doctrine
• Spending Power Condition
• Supremacy Clause
• State Sovereign Immunity
• Eleventh Amendment