Perhaps the purest Tenth Amendment cases in constitutional law have to do with congressional enactments that “commandeer” instrumentalities of state government.  The “commandeering” doctrine offers additional grounds for hoping that the Supreme Court will vindicate local authority and roll back federal overreach. In New York v. U.S. (1992) the Court struck down a federal law that required States to take title to nuclear waste.  In Printz v. U.S. five years later, the Court struck down a part of the Brady Act that required States to conduct background checks on prospective gun purchasers.

 These cases do not rely on enumerated powers constraints as a basis for decision.  Thus, they did not address general federal authority to regulate either nuclear waste or gun purchases.  What the federal government cannot do, under New York and Printz, is to order instrumentalities of state and local government to serve as instrumentalities of the federal government. 

 As Michael Greve notes in Real Federalism: Why It Matters, How It Could Happen (1999), “what the Supreme Court has done is to elevate the Tenth Amendment into an extratextual, judge-made principle of intergovernmental immunity.”  Greve argues that the “genius” of Justice Scalia’s majority opinion in Printz is to locate that intergovernmental immunity in the “structure” of the Constitution: “First Justice Scalia explains that the Constitution establishes a system of ‘dual sovereignty,’ wherein the States and the national government occupy separate ‘spheres.’  The Tenth Amendment is only one of the indicia of federalism so understood. 

 “Second, Justice Scalia maintains that the congressional commandeering of state and local officers would undermine the federal executive: by dragooning state and local officers into federal law enforcement, Congress could subvert and circumvent the President’s constitutional authority to ensure the faithful execution of the law. 

 “Third, Justice Scalia argues that Congress lacked the constitutional authority to enact the background check requirements under, of all things, the Necessary and Proper Clause of the Constitution, which empowers Congress to ‘make all laws which be necessary and proper’ to the enforcement of its delegated powers.  A law that presses state and local officers into federal service, Justice Scalia maintains, cannot be ‘proper.’  Each of these three claims points beyond the seemingly limited holding in Printz.  Each implies a notion of federalism, not as a mere protection of state immunity but as a direct constraint on the federal government.” 

 Justice Scalia’s opinion takes aim at the danger of requiring States to enforce federal laws, particularly the danger of diminishing political accountability: “By forcing state government to absorb the financial burden of implementing a federal regulatory program, Members of Congress can take credit for ‘solving’ problems without having to ask their constituents to pay for the solutions with higher federal taxes.  And even when the States are not forced to absorb the costs of implementing a federal program, they are still put in the position of taking the blame for its burdensomeness and for its defects.”

 One promising area of Tenth Amendment jurisprudence is therefore what meaning can be attached to the word “proper” within the final clause of Article I, Section 8 of the Constitution, which grants Congress the power “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.”  To follow Justice Scalia’s opinion in Printz, a law that upsets the federalist structure of the Constitution by infringing on the “quasi-sovereign” status of States might not be “proper.”    

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Wesley Allen Riddle is a retired military officer with degrees and honors from West Point and Oxford.  Widely published in the academic and opinion press, he ran for U.S. Congress (TX-District 31) in the 2004 Republican Primary and is currently Chairman of the Central Texas Tea Party.  Article condensed from an essay by Ted Cruz and Mario Loyola (Texas Public Policy Foundation, Nov 2010).  Email: Wes@WesRiddle.com.