The Tenth Amendment Rule That Protects Red States Also Protects Sanctuary Cities

Let me tell you about the best idea conservatives ever won in the Supreme Court that nobody ever puts on a bumper sticker. It is not the Second Amendment, though that is a good one. It is not a tax cut. It is a rule so simple that a sheriff in Montana could explain it to you over coffee: the federal government cannot order your county sheriff to do its work.

That is it. That is the doctrine. Washington can pass a law, and Washington can send its own agents to enforce it, but Washington cannot reach down into a state capital or a county courthouse and conscript the people who work there. It is called the anti-commandeering doctrine, and its great opinions were written by conservative justices: O'Connor, Scalia and Alito. State officials of every stripe have leaned on it.

Now here is the part that makes some of my friends uncomfortable, and I'd be a lousy commentator if I ducked it. The doctrine does not check your politics at the door. The same rule that lets a sheriff in a red county say "I won't run your background checks" lets the mayor of a blue city say "I won't hold people for your immigration agents." A principle is a principle, folks. You either believe in it or you believe in your side winning. Let me walk you through where the rule came from, what it protects, and, just as important, what it does not.

The text and the structure

The Tenth Amendment is short. It reads: "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 idea is that the federal government is one of enumerated powers. It can do what the Constitution lets it do, and everything else is left to the states and the people. The Supreme Court once called the amendment a truism, meaning it states the obvious about what was retained, and for many decades it did very little work.

The anti-commandeering rule is not exactly in the text of the Tenth Amendment, and I want to be straight about that. The Court derived it from the structure of the Constitution as a whole: the Constitution creates two sovereigns, state and federal, and gives the federal government power to regulate individuals, not to govern the states as if they were its departments. The Founders made a point of it. Under the Articles of Confederation, Congress could only make requests of the states, and the states often ignored them, which was a disaster. The Constitution fixed that by letting Washington act directly on the people. It did not fix it by turning states into administrative arms of Washington. If you want the broader structural argument, it is the same one in Madison Built a Government Where Ambition Fights Ambition, and It Works.

New York v. United States (1992): the nuclear waste case

The first big case concerned radioactive waste. In the 1980s, there were three states with disposal sites for low-level radioactive waste, and the other states were shipping their waste there. Congress passed the Low-Level Radioactive Waste Policy Amendments Act of 1985 to push states to take care of their own waste. The act offered the states three kinds of incentives. Two of them were money and the right to charge extra fees to out-of-state waste. The third said that a state that failed to provide for disposal of its waste by a certain date had to take title to it and become liable for any damage caused by it.

New York, which had not made arrangements, sued. In an opinion by Justice Sandra Day O'Connor, a six-to-three Court upheld the first two incentives and struck down the third. The reasoning was that Congress may encourage states to act, for example with funding conditions, and may regulate private parties directly, but it may not simply order a state to enact or administer a federal program. The "take title" provision gave the state a choice between two unconstitutional options: regulate according to Congress's instructions, or become the owner of the waste. That, the Court said, was commandeering. A state is not a federal agency.

Printz v. United States (1997): the sheriff

The next case is the one I like best, because it is about the sheriffs. In 1993, Congress passed the Brady Handgun Violence Prevention Act. It established a national instant background check system but, for an interim period until that system came online, it required the chief law enforcement officer in each local jurisdiction to make a reasonable effort to determine whether a prospective handgun buyer was legally allowed to buy one.

Two sheriffs sued. Jay Printz was the sheriff of Ravalli County, Montana. Richard Mack was the sheriff of Graham County, Arizona. They argued that the federal government had no authority to make them run federal background checks. In Printz, a five-to-four Court agreed. Justice Scalia wrote the opinion. The federal government cannot conscript state executive officers to carry out a federal regulatory program. The Founders had designed a system with two governments each answering to its own citizens, and a federal law that makes a local officer answer to Washington blurs the line of accountability. A voter who is angry about a federal mandate may blame the sheriff, who had no choice. Justice Thomas wrote a concurrence suggesting that the Second Amendment might also be a reason to doubt the law.

Note what Printz did not do. It did not end background checks. The national instant check system, which the federal government itself operates, went on. The Court said only that Washington could not make local officers do its job. If Washington wants a background check, Washington can run one. If you want the policy side of those checks, we explain them in what a federal background check covers, and what it never did.

Murphy v. NCAA (2018): the sports betting case

The doctrine was extended in 2018. Congress had passed the Professional and Amateur Sports Protection Act of 1992, which, among other things, made it unlawful for a state to authorize sports gambling. New Jersey wanted to let its casinos and racetracks take bets on sports and repealed some of its own prohibitions. The sports leagues sued under the federal act.

In Murphy v. National Collegiate Athletic Association, a six-to-three Court, in an opinion by Justice Alito, held that the federal law violated the anti-commandeering rule. What mattered was that the rule did not apply only when Congress told states to do something. It applied when Congress told states they could not do something with their own laws. Congress can regulate sports betting itself. It cannot dictate to state legislatures what laws they may pass or repeal. The Court said that a federal statute that directs a state legislature to keep a ban on the books is no different in kind from one that orders it to enact one. Whatever you think of sports betting, the principle was the important thing.

Where red states have leaned on it

You can see the doctrine at work in the red-state playbook. When the Affordable Care Act encouraged states to set up insurance exchanges, many states declined, and the federal government set up and ran exchanges in their place. That was possible because Washington had to build its own machinery when states said no. When the Court decided NFIB v. Sebelius in 2012, it held that Congress could not coerce the states into expanding Medicaid by threatening to cut off their existing Medicaid funds. We explain that holding in NFIB v. Sebelius Lost the Mandate Fight but Won a Limit on Federal Strings. The strings that Congress attaches to money, the Court said, cannot be a gun to the head.

States have also invoked the principle to decline to participate in a range of federal programs and to pass laws telling their own officers not to help enforce certain federal rules. The details vary by state, and the law in this area is unsettled enough that you should look up the statute you care about. For a sense of how red-state governments use their powers, see Three Imaginary States Show What a Trifecta Really Buys You.

And then there are the sanctuary cities

Now the uncomfortable part. A number of cities and states have adopted policies that limit their cooperation with federal immigration enforcement. They may decline to hold people in jail past their release dates on the request of immigration officers, or decline to share certain information, or direct local police not to ask about immigration status. Critics call them sanctuary jurisdictions. The jurisdictions argue that they are exercising the same power that Printz and Murphy recognized: the power to decide how their own officers and resources are used.

They have a point, and it is the same point. If the federal government cannot order a sheriff in Montana to run background checks, then it cannot order a county jail in a blue state to detain someone for it. Federal detainers, the written requests that immigration officials send to local jails, have generally been treated by courts as requests and not commands, which is consistent with the rule. Conservatives who cheered Printz have a hard time telling a blue city that the same shield does not apply. The honest position is that either you believe the states are not the federal government's employees, or you don't. We take up the immigration side of this argument in The Tenth Amendment Defense of Sanctuary Cities, and Where It Runs Out.

What the doctrine does not do

This is where the conservative case for enforcement stands firm, and I want it to be as clear as the case for the rule.

One, the Supremacy Clause is still in the Constitution. Article VI says that the Constitution and the laws of the United States made in pursuance of it are the supreme law of the land. A state cannot pass a law that contradicts a valid federal law, and when it does, the federal law wins. In Arizona v. United States (2012), the Court held that parts of Arizona's immigration law were preempted by federal law. The anti-commandeering rule protects a state's right to refuse to help. It does not give a state the right to pass laws to interfere with the federal government's own work.

Two, federal agents can do their jobs themselves. If federal law gives federal officers the authority to arrest someone, they can arrest him within any state. A state may decline to assist them. It may not obstruct them, harbor a fugitive, or arrest a federal officer for doing his lawful job. The line between declining to help and actively blocking is one the courts keep drawing, and the details matter. Anyone who tells you the doctrine lets a state shut down federal enforcement within its borders has not read the cases.

Three, Congress can still use money and can still regulate individuals directly. The Court upheld the funding conditions in South Dakota v. Dole (1987), which allowed Congress to attach conditions to federal highway money, and NFIB limited how coercive those conditions can be. Congress can also pass laws that bind private citizens and businesses everywhere, and in Reno v. Condon (2000) the Court upheld a federal law restricting the disclosure of driver's license information because it regulated the states as owners of databases in the same way it regulated private parties.

Four, the Court draws lines in specific statutes. A federal law about sharing information on immigration status, for example, has been litigated for years and the courts have not all agreed. If you care about a particular statute, read the court decisions on it rather than a slogan. For a method to run on any federal law, see A Five-Question Constitutional Test You Can Run on Any Federal Law.

The best argument against, answered

The strongest objection goes like this. One, immigration is a federal responsibility. Two, a city that refuses to cooperate undermines the enforcement of a law that Congress passed. Three, the Supremacy Clause makes federal law the supreme law, so a state should not be able to pick and choose. Four, therefore the doctrine should not cover immigration.

Points one and three are right, and I've said why: the federal government may enforce its laws with its own agents, and a state may not obstruct them. But point four does not follow. The Supremacy Clause makes federal law supreme within the sphere where Congress can act. It does not say that Congress can make the states do its work. The Printz Court said exactly that. The remedy for a state that will not help is for Washington to do the job itself, with its own officers and its own money. If that costs more, that is the price of a system where the federal and state governments each answer to the voters. And if you think the federal government should have more help, you can ask Congress to offer states a deal, such as the voluntary arrangements we describe in A County Sheriff's Playbook for Joining ICE Under 287.

The bottom line

• The anti-commandeering rule says Washington cannot conscript state officers or tell state legislatures what laws to pass or repeal. Conservatives won it, in New York, Printz and Murphy.
• The rule belongs to everybody. The sheriff who declines to enforce a federal rule and the city that declines to hold a detainee are using the same shield.
• The shield has limits. Federal agents can enforce federal law themselves, the Supremacy Clause preempts state laws that interfere with it, and Congress can still attach conditions to money, within limits.
• Before you cheer or jeer a state or city policy, ask which side of the line it falls on: refusing to help, or actively blocking. They are different questions.
• If you want Washington to get more cooperation from the states, push Congress to make voluntary offers, not to give orders it cannot lawfully give.