Thursday, June 21, 2012

The Tenth Amendment: What does it really say?

Almost twenty years have passed since the revolution in state medical marijuana laws first erupted.  With eighteen jurisdictions joining that revolution, questions about the relationship between state and federal laws have come to the fore.  Central to the debates has been the role and force of the Tenth Amendment to the Constitution.  Unfortunately, most of what has been said about that amendment has ranged between the mistaken and the ridiculous.  The time is ripe to examine that amendment and find out its actual meaning.  The place to start is with the text itself.

Amendment X

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.

The most straight-forward reading of this amendment is that it provides a series of tests to determine whether a government (federal or state) may constitutionally exercise a power that it claims.  These tests apply to both federal and state governments.

In order to be constitutional, a power asserted by the federal government (normally through a statute, executive order, or administrative regulation), must be delegated to it by the Constitution.  In many cases that power will be one of those expressly delegated in Article I.  For instance, the Controlled Substances Act has been upheld as a valid exercise of the power to regulate Interstate Commerce.

The express powers listed in Article I are not the only ones that the Constitution delegates to the Federal government.  Other sources of powers for the Federal Government include:
-- the “necessary and proper” clause of Article I – source of the power to create a Federal bank exercised by the first Congress,
 --the foreign affairs and commander in chief powers of Article II,
 --the judicial clause of Article III,
--the “republican form of government” clause
--the “full faith and credit” clause. 

The XIV and XV Amendments added additional powers for the Federal Government to insure equal protection of the laws and voting rights.

Unfortunately, most of those arguing for increased state powers under the Tenth Amendment read it as if it limited the Federal Government to only those powers expressly enumerated in Article I.  Many of them actually misquote the text to read: “The powers not expressly [sic] delegated to the United States…”.  That interpretation would completely enervate the government and is supported neither by text nor by history.

The Founders assumed that the states would continue to be responsible for the regulation of most day-to-day activities.  But they also put constraints on those state activities.  In order to comply with the Tenth Amendment, state action must meet three tests: is the activity prohibited to the states by the Constitution; is the power exercised one that has been delegated to the Federal Government; and have the people themselves exercised that power?

The Constitution imposes several strong prohibitions on the states.  These include bans on monetizing anything but gold or silver, interfering with contracts, refusing to give full faith and credit to the laws of other states, and requiring the states to grant free right of passage and residence of the inhabitants of other states.  The XIV and XV Amendments additionally forbade states from denying equal protection of the law to persons and from interfering with the right to vote.

In some states the people have directly taken powers from the state by exercise of ballot initiative or referendum powers.  The most noted example of this direct application of popular power identified in the Tenth Amendment is Proposition 13, through which Californians limited the state’s power to impose property taxes. Many states, including Oregon, Washington, Montana, California, Colorado, and Michigan, have used this power to restrict the state’s power to punish the medical use of marijuana.

Most state federalism[1] problems arise when a state tries to act concerning a power delegated to the federal government.  These problems may be divided into four categories:
1. A power has been delegated to the federal government, the federal government has not acted to implement that power, but a state attempts to do so;
2. The federal government has exercised a delegated power and a state has also exercised that power in a way  not inconsistent with the federal power;

3. The federal government has acted and a state elects to do nothing in this area; and

4. The federal government has acted and a state attempts to act in a way that is inconsistent with, or that would interfere with, the federal activity.

The first of these cases – no federal action in an area delegated to the federal government – presents few, if any, problems for state drug laws because federal regulation in this area is all encompassing.  This whole area can be relegated to the arcana of the Dormant Commerce Clause, now used primarily to befuddle and terrorize law students.

The second situation – the federal government has acted in a delegated area and a state government also acts within that area – is common and causes few problems so long as the state action is consistent with the federal action.  Robbing a nationally chartered bank and a federal crime and also is the state crime of bank robbery.  Both or either of those governments may prosecute and punish.  Likewise, a federal hate crime violating the civil rights of the victim, may also be punished by a state as an assault or battery.

Most current state drug laws fall within this category.  Possession or distribution of marijuana is a violation of both federal and state statutes, and each may enforce its own law.  Often cooperative task forces, mixing federal and state agents, join together to investigate possible drug crimes and make arrests.   Either or both of the governments may then prosecute those arrested.  The state law does not have to exactly mirror the federal statute so long as it does not interfere with federal enforcement of its own law.

Most state attempts to reform marijuana laws fall into the third category.  If the federal government has acted in an area, a state may choose to do nothing regarding that subject.  Even though the federal government has made all possession or distribution of marijuana illegal, a state government may elect not to take state action against marijuana users or growers itself.  If a state purports to legalize marijuana for medical use, it is in fact merely stating that the state will not use its enforcement powers to prevent distribution or use of marijuana for medical uses.  It cannot set aside the federal prohibition nor may it prevent the federal government from enforcing its laws within the state’s border.  On the other hand, the federal government may not require a state to use its resources to enforce the federal law.  To date, seventeen states have removed state penalties (“legalized”) medical marijuana, and fourteen have replaced state criminal penalties for possession of some amount of marijuana, imposing a small fine for a civil infraction instead (“decriminalization”).  The Tenth Amendment allows a state to refrain from taking action against all or some marijuana users.  It does not allow a state to set aside or interfere with the enforcement of a federal law.

Most problems for a state arise when it attempts to act in an area in which the federal government has acted and the state’s act conflicts or interferes with the federal law.

Although, as noted above, a state may act if that action is roughly parallel to or supportive of federal action, three activities are constitutionally forbidden to the states.  A state may not nullify a federal law, direct or compel its agents or citizens to violate a federal law, or take any action that interferes with the enforcement of a federal law or makes its enforcement more difficult.

Nullification, or the theory that a state could set aside a federal law, preventing its enforcement within that state, gained some support very soon after the ratification of the Constitution.  It was proposed, even though no state attempted it, until the 1830s when South Carolina announced that it intended to prevent imposition of the new tariff in its state.  When President Jackson threatened to use federal troops to enforce the law, South Carolina backed down, and no state has seriously claimed the power to nullify since then. 

The inability to nullify federal law has greatly hampered state attempts to implement medical marijuana laws.  A marijuana distributor, legal under state law, is still just an illegal drug dealer to the DEA and may be convicted and sent to federal prison.  If a bank accepts deposits from that distributor, it has probably violated federal money-laundering laws; and that distributor’s landlord may find his property forfeited under the Continuing Criminal Enterprise Act.  Many early attempts at medical marijuana laws ran afoul of the nullification ban by trying to require doctors’ prescriptions or distribution by pharmacies, either of which would be an attempt to nullify federal laws regulating prescription drugs.

A state may not require one of its agents or employees to violate the federal law.  At least two states that originally proposed state-run dispensaries and growing operations had to drop those provisions.  The New Jersey statute has been delayed for about two years because the governor tried to require that a state university grow all of the marijuana to be distributed.

The requirement that a state not hamper or interfere with federal enforcement of federal law is proving problematic.  A California Appeals Court has ruled that a city may not require marijuana dispensaries to obtain a business permit because that could make federal law enforcement more difficult[2].  Likewise, a local ordinance requiring all outdoor marijuana growing be screened by fences so that it could not be seen from the street is probably unconstitutional.  A DEA agent’s job would be hampered because he would be unable to see the illegal activity from the street.

The Tenth Amendment is not a sword the states can use to cut down or limit the federal law.  At most it is a shield, allowing states to refrain from being co-opted into joining the federal enforcement.  Constitutional state reform of marijuana law is limited to the extent that, at most, a state may elect to be an onlooker of the War on Drugs instead of a participant.

[1][1]  Federalism deals with the allocation of powers between federal and state governments.
[2] Now under review by the California Supreme Court


  1. Wickard changed our understanding of the commerce clause.

    Now what did the people who wrote the document mean when they wrote that? What were they trying to accomplish?

    Is growing something for yourself and then consuming it really commerce as the people who wrote the document understood it?

    If that is so there is nothing that the Federal Government can't control because EVERYTHING you do is commerce including breathing. (People sell air in bottles don't they?).

  2. The Supreme Court held in Raiche that the CSA was a valid exercise of the Commerce Clause powers. This holding "delegated powers" provision of the Xth Amendment, so that the question is that can the states do given that the CSA is a valid delegated federal power.

    This is not to say that a direct attack on the Commerce Clause holding isimpossible