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Viva National League of Cities v. Usery

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As it tends to do when not in political control in Washington, the Left has rediscovered the power of state sovereignty. That doctrine is being used to resist the new administration’s federal immigration policy in a way that’s identical, in formalistic terms, to the Right’s tactics during the early days of the Obama administration—albeit in service of an opposite outcome.

Granted, when they held the White House and congressional majorities, those on the Left did their best to destroy the principle of state sovereignty as a check on federal power, but perhaps constitutionalists should let bygones be bygones. After all, the Right can hardly claim consistency on this score. Rather than revisit past disputes, constitutionalists should seize the moment of cross-ideological support for state sovereignty. We should enlist the Left in a mutual spirit of opportunism to revive the Supreme Court’s holding in the 41-year-old case of National League of Cities v. Usery.

Why? Because a robust Tenth Amendment is absolutely essential to preserving the Constitution’s establishment of a limited federal government. If this not-quite-dead decision were fully resuscitated, there would be no more powerful bulwark of the Tenth Amendment principles—and the Constitution.

Usery directly pitted federal against state power. Congress, removing an exemption for state employees under the federal Fair Labor Standards Act, presumed to regulate the wages, hours, and benefits of state employees. Under the FLSA, the federal government was essentially empowered to dictate the terms under which state governments hired their workers.

Of course, in practical effect, the power to determine the terms of employment is equivalent to the power to determine how states operate and whom states can hire. This amendment to FLSA thus effectively established the principle that Congress, under the Commerce Clause, could obliterate the operational reach of state sovereignty—obviously states can only exercise their sovereignty through the officials they employ. This was a rather radical notion even for the 1970s. Its negative implications for our “compound Republic,” to use James Madison’s phrase from Federalist 51, were readily apparent.

The defenders of the amendment nevertheless relied on the usual Commerce Clause plus Necessary and Proper Clause plus Supremacy Clause arguments. They claimed that the aggregate effects of state employment policies affected interstate commerce; thus, to regulate interstate commerce, the feds could regulate the states’ workforces; thus Congress had the power to override, under the Supremacy Clause, state employment policies that it disfavored.

This argument had been winning Supreme Court cases in the private sector ever since the 1942 case of Wickard v. Filburn, which uncorked the Commerce Clause power through the Necessary and Proper Clause to regulate wheat that was unsold, untransported, wholly intrastate grown, wholly intrastate consumed. Extending this argument to the public sector gave no one pause. Why not? Because state sovereignty had been taking body blows even before Wickard popped the lid on the Commerce Clause. In the 1941 case of United States v. Darby Lumber Co., the Court breezily declared that the Tenth Amendment was a “mere truism.” By which, the Court meant the Tenth Amendment meant nothing of legal significance.

Such were the spoils of FDR’s threat to pack the Supreme Court with his acolytes after the Court dealt his New Deal program a series of near-fatal blows in the 1930s.

But in Usery, the usual formula for enhancing federal power failed. The Court finally discovered the limits of straight-faced argumentation. Justice William Rehnquist wrote for the majority that Congress could not regulate states in their traditional functions that are “essential” to their “separate and independent existence.” The majority decided that federal powers could not displace core aspects of state sovereignty because the Tenth Amendment guaranteed the preservation of a system of dual sovereignty in which state sovereignty was meant to check and balance federal power.

The Usery majority declared unequivocally that if federal laws “directly displace the States’ freedom to structure integral operations in areas of traditional governmental functions, they are not within the authority granted Congress by Article 1, Section 8, Clause 3.”  Accordingly, the Court ruled that a federal law violates principles of state sovereignty when it 1) regulates states as states, 2) concerns attributes of state sovereignty; and 3) directly impairs a state’s ability to restructure integral operations in areas of traditional government functions.

In short, the Usery Court recognized that the power to regulate state employment was effectively the power to destroy the state, which the Constitution simply did not allow. Score 1 for the Tenth Amendment. At that time (1976), it was the first real win for state sovereignty in decades.

Sadly, it didn’t take long for the Court to backtrack. Fewer than 10 years later, the Usery test was declared unworkable when one Justice Harry Blackmun abandoned that holding, writing on behalf of a new majority in Garcia v. San Antonio Metropolitan Transit Authority (1985). The new majority appeared to overrule Usery completely, declaring that the defense of state sovereignty must be mounted from within the political process at the federal level—in Congress—not within the court system.

The Usery decision, however, was not quite a dead letter. With the appointments of Antonin Scalia, Clarence Thomas and, yes, Anthony Kennedy, Usery would start feeling a lot better. Most famously, in New York v. United States (1992) and Printz v. United States (1997), the Court would prohibit Congress from “commandeering” states in the exercise of federal powers—and its prohibition on “commandeering” in these two decisions was not a stand-alone constitutional axiom.

In New York v. United States, the prohibition on commandeering was expressly made an extension of the first principle that the Constitution is designed to prevent the dangerous concentration of power in any one governmental branch to “reduce the risk of tyranny and abuse.” Printz v. United States specifically emphasized that “the power of the Federal Government would be augmented immeasurably if it were able to impress into its service—and at no cost to itself—the police officers of the 50 States.” As held in Printz, when a “Law . . . for carrying into Execution” the Commerce Clause violates the principle of state sovereignty, it is “merely [an] act of usurpation” which “deserves to be treated as such.” That rationale logically extended beyond the specific holdings in those two cases because a prohibition on federal commandeering is necessary, but not sufficient, for a meaningful division of power within our system of federalism.

As explained in Alden v. Maine (1999), the Supreme Court was now committed to enforcing the principle that

the States “form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority than the general authority is subject to them, within its own sphere.”

And it was committed to the principle that the federal power has no power to threaten the state’s existence as a state. As reaffirmed in Bond v. United States (2011), our system of dual sovereignty denies “any one government complete jurisdiction over all the concerns of public life.”

Under current precedent, federal courts routinely patrol the boundaries between state sovereignty and federal power without deferring to Congress. Such fully engaged judicial review has been further buttressed by decisions that have repeatedly applied heightened scrutiny even to federal actions that have invoked the Fourteenth Amendment’s Enforcement Clause to override state sovereignty (a clause that arguably does leave state sovereignty less secure).  

The current legal regime under which courts enforce the Tenth Amendment is the correct one. It is entirely appropriate for judges to continue to review claims of federal power independently and without deference to Congress when the principle of state sovereignty is at stake. The judicial disengagement embraced by the Garcia majority in rejecting Usery cannot be reconciled with the fact that states as states have not been represented in the U.S. Congress since the ratification of the Seventeenth Amendment in 1913. Congress simply cannot be entrusted with exclusive authority to protect our system of dual sovereignty. Nor should it be entrusted with such power.

As passionately emphasized by Justice Powell in his dissent in Garcia:

The Framers believed that the separate sphere of sovereignty reserved to the States would ensure that the States would serve as an effective “counterpoise” to the power of the Federal Government. . . . [F]ederal overreaching under the Commerce Clause undermines the constitutionally mandated balance of power between the States and the Federal Government, a balance designed to protect our fundamental liberties.

Trusting the federal political process to protect state sovereignty is like trusting the fox to guard the henhouse. The principal claim of the Garcia holding—that Usery’s enforcement of the Tenth Amendment is unworkable—has been all but repudiated by the record laid down by the modern Court. The only thing missing from that record is an express recognition that Usery is very much alive. Now that the Left has stopped beating the Tenth Amendment to death, we should join forces in amici briefs and principled litigation to secure that recognition.

Reader Discussion

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on July 20, 2017 at 08:19:10 am

"The judicial disengagement embraced by the Garcia majority in rejecting Usery cannot be reconciled with the fact that states as states have not been represented in the U.S. Congress since the ratification of the Seventeenth Amendment in 1913. "

That is one of the most succinct (and accurate) summations of the matter I have seen in quite some time.

Still, I have a question:

What to do if the States refuse to provide voter information to the Federales when the Feds suspect that FEDERAL elections may be compromised by illegal voters? Yep, the States are "granted" the power to set terms of / for elections BUT..... is a Federal Election a State or Federal matter?

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gabe
on July 20, 2017 at 12:09:49 pm

Thanks for your comment. The Elections Clause makes it both state (by default) and federal (if Congress acts). But where Congress has not spoken, it is a state matter. So I would defer to the preferences of the states on this issue as a default setting unless there is a specific provision of federal law requiring such information to be shared. Federalism does not guarantee good outcomes in particular cases, it is a systematic check and a balance.

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Nick Dranias
on July 20, 2017 at 17:18:24 pm

I am gaining an ever greater appreciation for the wisdom contained in the Constitution's Pre-17th Amendment, Article I design for the election of Senators, as it becomes increasingly evident in this day and age that it is ever necessary to ensure substantial state sovereignty over local governance, and meaningful state leverage over National domestic affairs.

To effect this outcome, necessarily requires to exist between Federal and State governments, mutual respect for, and commitment to maintaining, the boundaries purposefully laid down distinguishing State and Federal reserved powers; this if the desired system of checks and balances between Federal and States are to operate effectively and efficiently, and not be 'unworkable" - in short, its necessary for a strict adherence to the 10th Amendment.

The individuals rights issue notwithstanding, (to have standing in these 'travel ban' challenges); It would seem the question needs to be asked, or further considered, is immigration and national security primarily a function reserved for the Federal Government, (and solely of Congress and the Executive therein); and if so, how much deference should the Court's extend to the empowered Feds. in this regards, and how much interference should they tolerate from States before it is considered over-stepping? - The tension created by the 10th Amendment would seem, although probably and properly leveraged in favor of the States, also to probably provide superior leverage to the Federal in areas critical to National Security against threats foreign and domestic (and including those which would be imported for domestic consumption).

Does the 10th Amendment erect a draw-bridge, so by least interference and interruption, the intersecting movement of the Federal ship of State and the Several Railcars of States may be free to traverse paths in a safe, secure, and certain, but ordered/orderly manner; as they maneuver along their own distinct courses in conduct of their respective political, social, and economic commerce; or does it create a DMZ of two parallel and opposing check-points, wherein the space in between becomes a 'no-man's-land', into which the respective parties dare only trespass at the risk of their own peril?

To my thinking, (perhaps to the Framer's thinking), a draw-bridge is the most reasonable and least perilous. But, in either case, the efficacy of each mechanism's capability for averting foreseeable and unforeseeable disaster is vitally dependent on the assurance that agents be charged with over-seeing the controls and gates, and that they be ever vigilant, committed, and honorable.

An Independent Judiciary and a State Legislature elected Senate (prior to 1913,14) seem to be the duel-agents anticipated as best suited to oversee these draw-bridge or gates. The 17th Amendment may undermine the Senate's vigilance and commitment, (the members are always presumed honorable), to this task, and in turn, undermine the 10th Amendment, the Constitution, and Republican Democracy. In addition, what appears to be, at worst, characterized as an increasing, 'coziness" between the courts and the political elite, (i.e. State of Washington v. Trump), and at best, as a creeping into the Courts of an acquiescent and deferential passivity (i.e. Keepseagle v. Purdue) to whims of elite or special interest political and economic maneuverings, only seems to risk further erosion of the enamel on 10th Amendment's teeth.

Does the 17th Amendment likewise erode the efficaciousness, (and maybe intent) of the Electoral College?

Commonly understood, the Electoral College acts as a means of protecting against foreseeable abuses of factional majorities; But does the Electoral College (of Article II, Section 1, Clause 2), when coupled with Article I, Section 3, Clause 1 provision for electing Senators, also provide predictable assurances to the states of more unified majority efficiencies within the Senate, as well as more direct orientation of the Senate and Executive towards the States? - end result: a further tempering of any incentive an ambitious Federal Executive may have to seize and centralize power unto him/herself, and helping to ensure the Body Senate is solidly representative of States majority interests, sans the debilitating, paralyzing effects of partisan bickering, brinkmanship, and stonewalling typified by the current Senate (and House)?

Did/Does State Legislature election of U.S. Senators AND Presidential and Vice-presidential (indirect) election via Electoral College, more often result in the election of a same party, super-majority Senate, and of a President from the same party as the Senatorial super-majority? In the 2016 Election Cycle, where Trump won the electoral vote but not the popular vote, under the original system of electing Senators by state legislature, could it be anticipated by past experience, that the Republican majority in the Senate would have been significantly more substantial than its current make-up? It would only seem probable that a state-legislature elected Senate would provide similar protections to states from the tyranny of factional state majorities in the same manner protections from factional popular majorities are afforded by the Electoral College. It also seems probable, that the Republican Senate majority following the 2016 election would have been greater, assuming States tend to vote uniformly by party for President and Senators, and that the States whose Electoral College majority Trump relied on in 2016, were also by majority, of his same party, or or for this election, disposed to voting with it.

I have not studied these issues, so I do not know the answers, but the answers may be very interesting to discover.

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Paul Binotto
on July 20, 2017 at 17:59:26 pm

Thoughtful response. I thought your "drawbridge" versus "DMZ" analogy was apt. I favor the DMZ approach. Why? Because clear dividing lines are easier to enforce and know when they are not being enforced.

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Nick Dranias
on July 20, 2017 at 19:30:11 pm

I also lean toward the DMZ approach. However, in fairness, or perhaps reluctant recognition of the post - 17th Amendment constitutional regime we currently endure, it may be that the best that is possible, as Paul suggests, is the drawbridge. No longer are States Rights (used as a non-perjorative) to be protected and assured by a Senate comprised of "States Diplomats", a term actually used at times during ratification debates. Consider, if you will, the FULL meaning of the term AND the implication for State Sovereignty issues.

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gabe
on July 21, 2017 at 07:35:43 am

Thank you for your kind response. Your preference for "DMZ" is a sound one.

It gave me cause to make another reading of the text of the 10th Amendment; perhaps I have been incorrectly reading a necessary ambiguousness into the language, "or to the people"; seeing (wrongly) the "or" operating here singly as the correlative conjunction "either..or" ; as indicating that the framers are assigning a third category of rights, unenumerated, that are neither reserved for the Federal, nor prohibited by it (the Const.) to the States, (and therefore belonging to the states), but that may be belonging ("either)" to the states, "or" to the people. A stricter textualist approach (by me) may have avoided this (incorrect) inference.

Can we then say, therefore, the Framers would seem to be creating a clear DMZ between Federal and States (& People), but erecting a draw-bridge, between States and People? This configuration would seem most in keeping with the Framer’s over-arching view of good government; that they would intend that any disputes/adjudications arising over individual rights should occur between the States and the Individual, and NOT (or only in rarest circumstances) between the Federal and the Individual; and between the Federal and State, only on occasion.

In any event, this does seem to reveal a major flaw in my analogies; I failed to account for those rights reserved ONLY for "the people"; And, in so doing, unwittingly committed the greatest and most common offence against Republican Democracy.

Best, -Paul

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Paul Binotto
on July 21, 2017 at 07:53:04 am

Thanks for your comments, Mr. Gabe. I really like the notion of "States Diplomats" and knowing this is how the Framer's largely viewed the role of the Senate! Their wisdom should not have been so readily diluted or rejected.

Just an aside; isn't it interesting, this period of 1912-1920 in American(World) history, saw such a move towards centralizing government(s) - 1912-13 the 17th Amendment; 1920+/- the League of Nations, 1917 Russian Revolution and rise of Communism...and almost exactly a century later, (The Big O's Term: 2009 -2017), the same (failed, failing) centralizing maneuvering was again gaining momentum - Hopefully recent political outcomes home and abroad have put the brakes on it, of not begun a reversal, before this century plays out again in a subsequent and similar manner as the last.

Best, -Paul

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Paul Binotto
on July 21, 2017 at 10:01:50 am

The 10th Amendment is about power, not rights. The 9th Amendment is the parallel provision for rights. I think they were recognizing that the people of each state may delegate different powers or different extents of powers to their respective state, and where powers were not delegated to their state, they necessarily reside in the people.

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Nick Dranias
on July 21, 2017 at 10:26:32 am

"The 10th Amendment is about power, not rights" - quite right, thanks for pointing this out - I'm apt for confusing the two; Yet another pit-fall of being only an arm-chair constitutional scholar.

Well, I'm off now to visit the 9th Amendment. Thanks!

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Paul Binotto
on July 21, 2017 at 10:36:01 am

Paul:

re: "centralization"

You forgot one. Who can forget the *centralizing* efforts of that Sicilian Statesman, Lucky Luciano, and the yeoman work he did in centralizing criminal operations. Oops, that was different - ow was it?

Ha!

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gabe
on July 21, 2017 at 10:51:10 am

Ha,Yes! My origin is Veneto so it was less obvious to me...ha-ha!!

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Paul Binotto
on July 21, 2017 at 10:52:28 am

Nick:

"The 10th Amendment is about power..."

Absotively! "power", not sovereignty is the more apt descriptor of the content / intent of the 10th.
We hear some commentators raise the issue of State Sovereignty (and not just neo-confederates) when addressing matters of Federal vs State *power(s)* / discretion. The States are not sovereign (I'll skip the litany of factors denying their sovereignty), were never intended to be and have never been recognized as such. Yet, we often act / argue as if they are. This leads to confusion as to what specifically the States as States were a) either granted or b) retained and leads to odd decision-making by the Judiciary when State - Federal issues arise. Simply put, as you say, the question is "What POWERS do the States retain?"

The inability to properly answer this question leads to all manner of confusion, especially when dealing with "treaty issues" and, for example, the P&I Clauses of the Constitution.

Still there are interesting questions to be resolved.

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gabe

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.