The 10th Amendment articulates the difference between the legitimate powers of the state and federal governments, and it was probably inevitable that the courts would ultimately be called upon to settle disputes that arose between the two through its exercise of judicial review. Even though no explicit power of judicial review is granted to the federal courts in the Constitution, there is a great deal of evidence at the time of the Founding that the Constitution’s Framers believed that federal judges did possess this power. And under Article VI of the Constitution, state judges are required to recognize the supremacy of every federal law made in pursuance of the Constitution, regardless of any state law that may conflict with it. The Supreme Court officially recognized this power in 1803, in Marbury v. Madison.
When the Founders spoke of the power of judicial review residing in federal courts, they seemed to expect that it would be exercised most often when the courts would be required to act as umpire between the competing powers of the state and federal governments. And throughout its history, the federal courts have frequently been called upon to render these kinds of judgments. Each time they do, they must implicitly rely on the principles set forth in the 10th Amendment. Yet they have only occasionally appealed to the 10th Amendment explicitly.
The Court rarely even mentioned the 10th Amendment between 1941 and 1990. However, two cases during the 1990s resurrected the 10th Amendment as a direct limitation on the power to regulate interstate commerce. These cases were a slight reversal of the prevailing trend in the twentieth century that had given very expansive interpretations to the commerce clause. In New York v. United States (1990) a federal statute attempted to force states to adopt federal regulations for the disposal of low-level nuclear waste within their states by mandating that they accept ownership of such waste if they failed to implement the regulations. The Court struck down the relevant part of the federal statute, saying:
The take title provision appears to be unique. No other federal statute has been cited which offers a state government no option other than that of implementing legislation enacted by Congress. Whether one views the take title provision as lying outside Congress’ enumerated powers, or as infringing upon the core of state sovereignty reserved by the 10th Amendment, the provision is inconsistent with the federal structure of our Government established by the Constitution.
A few years later, in Printz v. United States (1997), the federal government attempted to use local law enforcement personnel to implement the Brady handgun control act. This, too, was struck down:
We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the State’s officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.
In both New York and Printz, the primary constitutional violation seemed to be that the national government was attempting to treat the state government like a subordinate, rather than as a sovereign entity. As the Court noted in New York:
States are not mere political subdivisions of the United States. State governments are neither regional offices nor administrative agencies of the Federal Government. The positions occupied by state officials appear nowhere on the Federal Government’s most detailed organizational chart. The Constitution instead “leaves to the several States a residuary and inviolable sovereignty,” (The Federalist No. 39) reserved explicitly to the States by the 10th Amendment.