The Tenth Amendment to the Constitution is a model of brevity: just 28 words declaring that powers not delegated to the federal government, nor prohibited to the states, are reserved to the states or the people. For roughly six decades after the New Deal, courts treated this as a constitutional pleasantry with no operative force. That has changed, partially, over the past thirty years — but not nearly enough. The structural damage from the Commerce Clause era has not been repaired.
James Madison, writing in Federalist No. 45, put the original vision plainly: “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” The Founders built a government of enumerated powers because they understood what happens when authority is limited only by ambition. The Tenth Amendment made that commitment explicit: Federal authority stops where the Constitution’s actual delegations stop. The New Deal dismantled it, root and branch.
In Wickard v. Filburn (1942), the Supreme Court upheld federal regulation of wheat grown on a private farm for personal consumption, reasoning that its aggregate economic effect on interstate commerce brought it within Congress’s reach. Once home-grown wheat for personal use was counted as interstate commerce, Congress’s enumerated powers became a historical curiosity rather than an operative constraint. The Commerce Clause effectively consumed the Tenth Amendment, and nobody in Washington complained.
The court started pushing back 30 years ago. U.S. v. Lopez (1995) imposed the first Commerce Clause limit in six decades. Chief Justice Rehnquist’s 5-4 majority held that the Gun-Free School Zones Act exceeded congressional authority, because possessing a firearm near a school is not an economic activity with a substantial effect on interstate commerce. U.S. v. Morrison (2000) applied the same reasoning to the civil remedy provisions of the Violence Against Women Act. NFIB v. Sebelius (2012) rejected the commerce rationale for the Affordable Care Act’s individual mandate. West Virginia v. EPA (2022) established the major questions doctrine — Congress must speak clearly before delegating sweeping regulatory authority to agencies. Loper Bright Enterprises v. Raimondo (2024) then overruled Chevron deference, requiring courts to exercise independent judgment on what agencies are authorized to do.
These decisions represent real movement. But they do not undo six decades of expansion. The most practically significant Tenth Amendment doctrine — anti-commandeering — is not in the Commerce Clause cases. In Printz v. United States (1997), Justice Scalia wrote that the federal government cannot conscript state officers to administer federal programs. Murphy v. NCAA (2018) extended that to legislative commandeering — Congress cannot dictate what state legislatures may enact. Sanctuary city policy is where this applies most visibly: The federal government cannot compel local law enforcement to enforce immigration law. But anti-commandeering has been badly misread. It protects states from being used as federal instruments without consent, but it does not relieve state and local officials of their own duties.
A sheriff who declines to honor an ICE detainer is making an affirmative policy choice. The relevant question is not whether Washington can force his cooperation, but whether his constituents can hold him accountable when that choice produces a predictable outcome. In California, the pattern is consistent: aggressive regulation where federal standards are lax, and invocation of state autonomy where federal requirements are inconvenient. The Tenth Amendment’s protection of state power is not a conservative doctrine as such. States can misuse the autonomy it protects as readily as the federal government can misuse the powers it limits.
The Founders were not trying to guarantee wise state decisions when they built this into our system. They were ensuring the government closest to and most directly accountable to the people retained authority to make decisions. A federal government that overrides state policy on everything from school lunches to healthcare mandates to water regulation is not improving on state judgment; it is removing the accountability structure that makes bad state decisions correctable by voters rather than litigated in federal court. Madison’s twenty-eight words were supposed to prevent this where political incentives work systematically against expansion. Congress expands because expansion generates credit for legislators; agencies expand because expansion generates authority for them. The partial reversal of the last thirty years is progress, and the court has drawn some lines. But it still hasn’t redrawn the map.
For more on how these dynamics play out in practice, see the recent House rejection of the Lebanon War Powers Resolution, which shows Congress asserting its constitutional authority on foreign policy. Similarly, the debate over limiting presidential tariff powers under Section 301 highlights ongoing tensions over the scope of federal power.
