Wednesday, July 14, 2010

Immigration and the Tenth Amendment

"If the federal government chooses not to exercise its powers, does it forfeit that power to the states and the people [under the Tenth Amendment]?"  Chicago Tribune columnist Dennis Byrne asks the question in his op-ed in today's paper, Immigration: A state or federal power? 

The Tenth Amendment states simply that "[t]he 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."

Byrne isn't alone in arguing that the Tenth Amendment bans the federal government from taking action in any number of areas, including, health care reform and immigration.  Such claims have even worked their way into Supreme Court nominee Elena Kagan's hearings.  Consider these written follow-up questions (pages 9 to 10) from Senator Sessions to Kagan (released with Kagan's written responses on Friday):

Do you think the Tenth Amendment is "a very specific provision" of the Constitution, or a "broad principle"?  Please explain your answer.

Do you think the purpose of the Tenth Amendment was intended to give further textual protections to federalism, apart from the broader structure set up by the Constitution?

If you believe the Tenth Amendment is a "broad principle," do you think the "broad principle" was ultimately intended to protect the liberty of individuals, or the power of governments?

But Byrne overreads the Tenth Amendment in two ways.  First, he suggests that the Tenth Amendment somehow empowers the states to act in areas delegated to the federal government when the federal government declines to exercise its full power, or when it exercises its power in a way that the states don't like.  This is exactly what happened in the Arizona immigration debate: The federal government enforced its comprehensive immigration scheme in a way that Arizona didn't like.  Byrne argues that this is enough under the Tenth Amendment to reserve the immigration power to Arizona. 

This position is belied by the plain language of the Amendment.  The Amendment doesn't reserve to the states "the powers not executed (or only partially executed, or executed in a way that a state doesn't like) by the United States"; instead, it reserves "powers not delegated to the United States."  The Tenth Amendment does not take the federal government out of the federalism equation and vest all powers in the states simply because the federal government exercises its powers incompletely, or in a way that a state doesn't like.  Instead, it merely does what it says: It reserves powers to the states that are not delegated to the federal government.

But more: Byrne (and Sessions and others) seem to read the Tenth Amendment as a protection against too much federal power--even when the Constitution delegates the federal power.  Again, the Tenth Amendment cannot bear this weight.  To be sure, the Supreme Court has ruled that the Tenth Amendment bars the federal government from directly commandeering the states and their employees--using the states or their employees as mere arms of the federal government--but the Court's contemporary approach to the Amendment does not otherwise limit valid congressional enactments under the Constitution.

Kagan said it well in response to Sessions's questions:

The Tenth Amendment reserves to the States or to the people the "powers not delegated to the United States by the Constitution, nor prohibited by it to the States."  The principal question the Court has considered with respect to this Amendment is whether it provides protections to the States and to the people beyond what follows from a system of enumerated and limited federal powers.

As Justice Story explained, the Tenth Amendment is an "affirmation" of the "necessary rule of interpreting the constitution" that all powers "not conferred" on the federal government are "withheld, and belong[] to state authorities."  United States v. Darby [citation omitted].  In New York v. United States, the Court noted that, "[i]f a power is delegated to Congress in the Constitution, the Tenth Amendment expressly disclaims any reservation of that power to the States; if a power is an attribute of state sovereignty reserved by the Tenth Amendment, it is necessarily a power the Constitution has not conferred on Congress."  [Citation omitted.]

The Court has explained that the Tenth Amendment was intended to protect the powers reserved to the states, and thereby to safeguard individual liberty: "The Constitution divides authority between federal and state governments for the protection of individuals.  State sovereignty is not just an end in itself: 'Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.'"  New York v. United States [citation omitted].

SDS

http://lawprofessors.typepad.com/conlaw/2010/07/immigration-and-the-tenth-amendment.html

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