This essay for our symposium is by Steven D. Schwinn, an associate professor of law at the John Marshall Law School in Chicago and co-editor of the Constitutional Law Prof Blog.  He teaches, writes, and practices in the areas of U.S. constitutional law, comparative constitutional law, and human rights.


Constitutional arguments against the Affordable Care Act (ACA) have centered principally around congressional authority under the Commerce Clause.  Thus opponents of the ACA, both in litigation and in the public sphere, have argued that the individual health insurance mandate exceeds congressional authority under the Commerce Clause, because the mandate is not a regulation (it is a requirement) and because those regulated are not engaged in commerce (they are inert).  These arguments are novel and ahistorical, representing nothing less than a bald-faced attempt to rewrite the Constitution in a libertarian image.

But there is another argument, similarly novel and ahistorical, that has gone relatively unnoticed "“ that the ACA violates the Tenth Amendment and related federalism principles.  The argument is that the Tenth Amendment is a bulwark against federal overreaching in the ACA: the Tenth Amendment cabins federal power, protects state citizens, and protects states' rights.  This Tenth Amendment argument, like its Commerce Clause companion, lacks support in the text, history, and Supreme Court jurisprudence of the Constitution.  Like so much of what we hear in constitutional debates today, it is an insidious attempt to shift the frames of constitutional debate and, at the end of the day, reshape the very contours of the Constitution.

No amount of repetition and volume in these arguments can change the text, history, and jurisprudence of the Tenth Amendment.  The Sixth Circuit recently recognized this in its ruling upholding the ACA against novel Commerce Clause and Tenth Amendment challenges in Thomas More Law Center v. Obama.  Other courts, including the Supreme Court (even if sharply divided), are likely to follow.

To see just how novel the Tenth Amendment arguments are, let us first look at the text, history, and jurisprudence of the Tenth Amendment, and then compare to the arguments against the ACA.

The Text, history, and jurisprudence

In a Constitution full of vague and ambiguous terms, the Tenth Amendment is remarkably clear.  It merely says 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."  By its plain terms, then, the Tenth Amendment simply underscores what we already know from the main body of the Constitution: the federal government is one of enumerated powers; and, as far as the federal Constitution is concerned, any power not enumerated in the Constitution is left to the states.  In a federal system like ours, this is mere tautology, or in the words of the Supreme Court, a "truism."  It does nothing to limit federal power, or to expand the powers of the states.

Moreover, the broader text of the Constitution confirms that the Tenth Amendment does not limit federal power.  If anything, the Tenth Amendment recognizes potentially expansive federal power.  That is because the enumerated powers in Article I, Section 8, themselves are deliberately vague and potentially capacious "“ designed by the Framers not as a rigid code, but as pliable principles to endure over time.  Consider the clause at issue in the cases challenging the ACA, the Commerce Clause: "The Congress shall have Power To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."  Terms and phrases like "to regulate," "commerce," and "among the several states" are inherently indeterminate and susceptible of a wide range of interpretations, especially as society, technology, and trade change and evolve.  (If there is any doubt that these terms and phrases are ambiguous, look at two hundred years of contentious litigation over their meanings.)  The Framers knew how to write more specific and defined clauses, but they didn't.  Instead, they wrote the enumerated powers vaguely.

Now consider the mighty Sweeping Clause, which acts like an exclamation point at the end of the list of enumerated powers in Article I, Section 8.  It says that Congress has power "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."  This gives Congress the power not only to effect the enumerated ends in Article I, Section 8, but also the power to effect any reasonable, unenumerated means to achieve those ends.  Like other congressional authorities, the Sweeping Clause (or Necessary and Proper Clause), too, is deliberately vague and potentially capacious, giving Congress broad powers.

The Tenth Amendment only validates these authorities; it does not limit them.  Thus the principal question for the Tenth Amendment is only whether Congress has authority in the first place.  If Congress has authority  "“ and, as above, it could have quite broad authority "“ the Tenth Amendment is irrelevant.  (If Congress has authority, we should note, another clause in the Constitution, the Supremacy Clause, would quash contrary state action.)  If, on the other hand, Congress lacks authority, the Tenth Amendment only reserves the power to the states, or to the people.  In either case, the Tenth Amendment itself says nothing about the scope of any sovereign's power.  Instead, the constitutional text makes clear that the Tenth Amendment merely reminds us how power is allocated in our system of dual sovereignty: when the federal government lacks power, the states, or the people, have it.

This plain interpretation of the Tenth Amendment is supported by its original understanding.  This is perhaps best illustrated by the Framers' and ratifiers' rejection of a more robust alternative "“ one that would have "reserved to the States" "all powers not expressly delegated to the United States."  The addition of the word "expressly" would have cabined federal power in relation to the states and made explicit that congressional authority must be expressly delegated.  Several states proposed such language as part of their package of amendments in 1788 and 1789; their proposals were rejected.   And when Representative Thomas Tucker sought to insert the word during the 1789 congressional debates, James Madison quickly pounced, objecting that "it was impossible to confine a Government to the exercise of express powers; there must necessarily be admitted powers by implication, unless the Constitution descended to recount every minutia."

In the same debate, Representative Daniel Carroll successfully moved to insert the phrase "or to the people."  Carroll's amendment underscored the "popular sovereignty" idea that all power resides first in the people, and that government enjoys power only by the grace of the people's delegation.  The phrase was no substitute for Tucker's addition in confining federal power, and it did nothing to enhance state power or to create "states' rights."  Instead, the phrase simply reserved all nondelegated power to its original source, the people.

The resulting Tenth Amendment is a far cry from its predecessor in the Articles of Confederation.  Article II read, "Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled."  Unlike the Tenth Amendment, that provision explicitly protected state sovereignty, "states' rights," and state power in the Confederation.  But that provision, along with the rest of the Articles, proved unworkable.  Its replacement, the Constitution, and its later Tenth Amendment, was designed to form "a more perfect Union," one comprised of "We the People," not the states, and one where federal power, where it exists, reigns supreme.

The plain language and original understanding of the Tenth Amendment find support in the Supreme Court's jurisprudence.  In the Court's most recent foray, in United States v. Comstock (2010), the Court flatly rejected a Tenth Amendment challenge (among other challenges) to a federal law that allows a district court to order the civil commitment of a "sexually dangerous" federal prisoner beyond the date of his scheduled release.  Reflecting the plain-spoken meaning of the Tenth Amendment, the Court wrote, "The powers "delegated to the United States by the Constitution' include those specifically enumerated powers listed in Article I along with the implementation authority granted by the Necessary and Proper Clause.  Virtually by definition, these powers are not powers that the Constitution "reserved to the States.'"

To be sure, the Tenth Amendment had its heydays.  During the first, in the early nineteenth century, the Court interpreted the Tenth Amendment to bar federal legislation related to manufacturing and production "“ areas traditionally within the states' police powers.  But this high point of the Tenth Amendment ended decisively in 1941, when the Court in United States v. Darby upheld the Fair Labor Standards Act of 1938, writing that the Tenth Amendment posed no bar; instead, it "states but a truism."

During the next, the Court ruled that the Tenth Amendment barred the application of federal minimum wage legislation to state governments.  The Court in National League of Cities v. Usery (1976) ruled that this legislation would interfere with traditional state and local government functions.  But this high point ended decisively in 1985, when the Court in Garcia v. San Antonio Metropolitan Transit Authority expressly overruled National League of Cities and said that any protections that states enjoy come through the political process, not the Tenth Amendment.

Today, the Court acknowledges that the Tenth Amendment serves two principal purposes.  First, it prohibits the federal government from commandeering the states or their officials "“ from using them as mere instrumentalities of the federal regulatory agenda.  Next, it (along with its spirit of federalism) protects against federal legislation that goes too far into areas of traditional state concern, areas like family law.  But these are loose constraints, easily bypassed by the federal government "“ for example, by conditioning federal spending (instead of regulating directly) to achieve federal ends.  Moreover, any enclave of traditional state concern is necessarily ill-defined and eroding with increasing national integration.  In the wake of Comstock, and in the mine run of federal legislation (that is, non-commandeering legislation), the Court's approach to the Tenth Amendment is clear: It states but a truism.

The Tenth Amendment arguments against the ACA

Against the Tenth Amendment's text, history, and jurisprudence, Tenth Amendment (and related federalism) claims against the ACA, both in the litigation and in the public debates, are simply breathtaking.  In short, they are bald-faced attempts to rewrite the Tenth Amendment and give birth to an entirely new kind of federalism, one that has no support in the text, history, or practice of the Tenth Amendment.

Opponents of the ACA have propounded three principal arguments.

First, they have argued that the Tenth Amendment (and related federalism principles) cabin congressional authority and keep it appropriately bound.  The argument assumes that because federal authority is limited and defined, something in the Constitution must limit and define it.  For opponents, the Tenth Amendment is one limit.

But this argument confuses the concept of limited government (as in defined or enumerated government) with a concept of limited government (as in small government).  The Constitution creates a government of defined and enumerated powers; but nothing in the document says that those defined and enumerated powers must be small.  In fact, as we have seen, they might be quite large.  The Tenth Amendment says nothing about this.  Moreover, this argument merely harkens back to the Court's categorical approach to the Tenth Amendment in the early nineteenth century "“ an approach soundly rejected in 1941, and rejected again just last year in Comstock.  This argument is nothing more than an effort to rewrite the Tenth Amendment in a libertarian image "“ an image that has no support in the text, history, or jurisprudence of the Amendment.

Next, opponents have argued that the Tenth Amendment prohibits Congress from commandeering states and their citizens.  The argument draws on the anti-commandeering principle in the Court's current Tenth Amendment jurisprudence.

But this argument misses the mark.  Nothing in the ACA commandeers state governments or their employees; at most, the Act creates incentives to encourage states to take certain actions.  Moreover, nothing in the Tenth Amendment prohibits the federal government from "commandeering" citizens.  It does it all the time, perhaps most clearly in the requirement for selective service registration.  The government may rely on a different authority (a non-Commerce Clause authority) for selective service registration, but that does not matter.  If the Tenth Amendment prohibits commandeering citizens, it would prohibit commandeering under any authority.  This argument, too, is nothing more than a bold attempt to rewrite the Tenth Amendment.

Finally, opponents have argued that the Tenth Amendment prohibits Congress from interfering with states' rights to protect their own citizens from the individual mandate.  This argument arises out of those state laws enacted in the wake of the ACA that prohibit any requirement that state citizens purchase health insurance.  These state laws are nothing more than transparent attempts to manufacture state standing to challenge the ACA and to make political statements against the individual mandate.

But the arguments are wrong.  As we have seen, the Tenth Amendment does not protect states' rights.  Opponents' arguments to the contrary merely take us back to National League of Cities and even earlier "“ to the Articles of Confederation, when "states' rights" meant something. They are, again, a bald-faced attempt to reshape the very meaning of the Tenth Amendment.

 

***

 

The Tenth Amendment arguments against the ACA, like their Commerce Clause companions, lack support in the text, history, and jurisprudence of the Constitution.  They are not only novel and ahistorical; they are also insidious attempts to reshape the frames of constitutional debate and, ultimately, reshape the contours of the Constitution itself.

As the challenges move toward the Supreme Court, we might anticipate the Court's ruling based on its latest foray into the substance of the Tenth Amendment, United States v. Comstock.  In that case, a five-member majority, including the Court's "liberal" wing plus Chief Justice Roberts, joined in an opinion by Justice Breyer reaffirming that the Tenth Amendment is only a truism.  Justices Kennedy and Alito joined in the result, but wrote separately to emphasize other points.  Only Justices Scalia and Thomas signaled support for the kind of robust Tenth Amendment and federalism principles advocated by opponents of the ACA.

The ACA is not the same as the law at issue in Comstock, to be sure.  But Court's modest "“ and correct "“ approach to the Tenth Amendment, drawing at least five Justices and possibly seven, should tell us that the Court is likely to reject the opponents' novel Tenth Amendment claims.

Posted in Featured, The Constitutionality of the Affordable Care Act

Recommended Citation: Steven Schwinn, The ACA and the Tenth Amendment, SCOTUSblog (Aug. 5, 2011, 1:38 PM), http://www.scotusblog.com/2011/08/the-aca-and-the-tenth-amendment/