Tenth Amendment
"The 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."
— U.S. Constitution, Amendment X (1791)
Understanding the Tenth Amendment
The Tenth Amendment is the constitutional foundation for all state resistance to federal overreach. It makes explicit what the structure of the Constitution implies: the federal government has only the powers delegated to it, and all other powers remain with the states and the people.
This is not merely a truism. The Tenth Amendment embodies the fundamental principle of American federalism: that liberty is best protected when power is divided between multiple sovereigns, each serving as a check on the others.
Why Federalism Matters
The division of power between federal and state governments isn't just about governmental efficiency—it's about liberty. When power is concentrated in a single sovereign, citizens have nowhere to turn when that sovereign overreaches. Federalism creates competition between governments and provides citizens with multiple levels of protection for their rights.
The Tenth Amendment empowers states to:
Refuse Resources
Decline to use state resources to enforce federal laws
Decline Programs
Refuse to implement federal regulatory programs
Challenge Actions
Contest federal actions that exceed constitutional authority
Coordinate
Work with other states to resist overreach
Experiment
Serve as laboratories of democracy
The Anti-Commandeering Doctrine
The Supreme Court has interpreted the Tenth Amendment to prohibit the federal government from "commandeering" state governments—that is, forcing states to implement federal programs or enforce federal law. This doctrine is the legal foundation for all the model legislation in the Liberty at 250 initiative.
No Legislative Commandeering
Congress cannot require state legislatures to enact or administer federal regulatory programs. New York v. United States (1992)
No Executive Commandeering
The federal government cannot compel state executive officials to enforce federal law. Printz v. United States (1997)
No Prohibition Commandeering
Congress cannot force states to prohibit conduct that Congress wishes to prohibit. Murphy v. NCAA (2018)
Political Accountability
Anti-commandeering ensures voters know which level of government is responsible for policies—preserving democratic accountability.
Key Precedent: Printz v. United States (1997)
521 U.S. 898
"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."
Key Precedent: New York v. United States (1992)
505 U.S. 144
"The Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress' instructions."
Key Precedent: Murphy v. NCAA (2018)
584 U.S. 453
"The anticommandeering doctrine may sound arcane, but it is simply the expression of a fundamental structural decision incorporated into the Constitution, i.e., the decision to withhold from Congress the power to issue orders directly to the States."
"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."— James Madison, Federalist No. 45
State Bills to Protect Reserved Powers
The following model legislation provides states with tools to assert their Tenth Amendment authority and resist federal overreach:
State Sovereignty Affirmation Resolution
DeclarationA formal resolution affirming state sovereignty under the Tenth Amendment. Declares that the state will review all federal mandates for constitutional authority and refuse unconstitutional mandates. Distributed to the President, Congress, and all other state governors.
Key Provisions:
- Affirms state sovereignty under the Tenth Amendment
- Declares intent to review all federal mandates for constitutional authority
- Provides notice of intent to refuse unconstitutional mandates
- Invites other states to join in coordinated resistance
- Distributed to federal government and all state governors
Anti-Commandeering Act
EnforcementProhibits state officials from implementing federal commandeering. Establishes process for Attorney General determination of commandeering. Provides immunity for officials who refuse to comply with commandeering based on good-faith belief.
Key Provisions:
- Prohibits state officials from implementing federal commandeering
- Establishes AG process for determining commandeering
- Provides immunity for good-faith refusal to comply
- Creates enforcement mechanisms and penalties
- Establishes rapid judicial review process
Federal Mandate Review Act
OversightCreates a Joint Committee on Federal Mandates with representation from both legislative chambers and the Attorney General. Reviews all federal mandates for constitutional authority. Recommends legislation to refuse unconstitutional mandates.
Key Provisions:
- Creates Joint Committee (3 Senate, 3 House, Attorney General)
- Reviews all federal mandates for constitutional authority
- Recommends legislation to refuse unconstitutional mandates
- Issues annual report on federal overreach
- Tracks federal funding conditions and their constitutionality
Interstate Compact Authority Act
CoordinationAuthorizes the Governor to enter compacts with other states to coordinate resistance to unconstitutional federal actions. Enables sharing of legal resources and mutual aid. Requires legislative ratification.
Key Provisions:
- Authorizes Governor to negotiate interstate compacts
- Enables sharing of legal resources and strategies
- Provides for mutual aid in resisting federal overreach
- Requires legislative ratification of all compacts
- Contains limitations against secession or violence
Considerations for State Legislators
Constitutional Grounding
All Tenth Amendment legislation should explicitly cite Supreme Court anti-commandeering precedents. The legal foundation is strong, but it must be clearly articulated in legislative findings.
Attorney General Role
Consider your state's AG election/appointment process when assigning commandeering determinations. In states with independently elected AGs, ensure alignment or build in legislative checks.
Interstate Coordination
Reach out to like-minded states early when considering the Interstate Compact Authority Act. Coordinated resistance is more effective than isolated action.
Federal Response
Be prepared for federal challenges and ensure legislation is carefully drafted to survive judicial review. The anti-commandeering doctrine is well-established, but implementation details matter.
Defend State Sovereignty
Download our model legislation and share it with your state legislators. The Tenth Amendment is the foundation of American federalism—and the constitutional basis for every bill in the Liberty at 250 initiative.