Tenth Amendment, commandeering, preemption, and intergovernmental immunity

Black-letter propositions

1. 01

   Congress may preempt state law expressly, by occupying a field, or through impossibility or obstacle conflict.

2. 02

   The federal government may encourage states through valid conditional spending or regulate private actors directly.

3. 03

   States may not discriminate against or directly regulate the federal government absent congressional consent.

4. 04

   State sovereign functions do not create a general exemption from otherwise valid, generally applicable federal laws.

Use this attack sequence under time

Common wrong turns

• A federal law cannot evade anti-commandeering by commanding a state not to legislate.
• A savings clause does not necessarily defeat all conflict preemption.
• Political accountability is central to the commandeering concern.

Worked example

A federal statute orders each state legislature to enact a prescribed waste-disposal code.

Practice this topic

The texts

The Tenth Amendment says 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. Cornell says it helps define federalism, the relationship between federal and state governments. Article VI makes the Constitution, the laws of the United States made in pursuance of it, and treaties the supreme law of the land, with state judges bound by them despite contrary state law.

Cornell describes the Supremacy Clause as the principle that federal law takes precedence over conflicting state law, and says it does not allow the federal government to review or veto state laws before they take effect.

Preemption categories

Cornell says federal law does not displace state law merely because both address the same subject. Congress may preempt expressly by a preemption clause, or preemption may be implied. Field preemption exists when Congress intended federal law to occupy an entire field. Conflict preemption arises in two situations, impossibility of complying with both laws and obstacle to the full purposes and objectives of federal law.

Courts examine the federal text, structure and regulatory framework. A detailed federal scheme does not by itself establish field preemption, and overlap is not enough. A court may find only part of a state statute preempted.

Preemption analysis starts with the federal source, since Cornell says valid federal regulations issued under delegated authority can also have preemptive effect. Then classify the theory: express, field, impossibility or obstacle. A court may find only part of a state statute preempted or limit preemption to particular applications.

Frequently asked questions