Federalism In Practice

Power doesn’t just shift in Washington; it moves along a carefully drawn map between the federal government and the states. We dive into that map by tracing the Tenth Amendment through two centuries of clashes, from the Virginia and Kentucky Resolutions to modern fights over immigration, marijuana, sports betting, and healthcare funding. With Dr. Beienberg, we unpack why nullification burned out, how anti-commandeering took hold, and what the courts mean by a real choice versus a gun to the head.

We start where the early republic set the tone: Jefferson’s flirtation with nullification and Madison’s push for coordinated protest. That split helps explain the tariff crisis, Jackson’s hard line against unilateral state defiance, and Edward Livingston’s enduring point that once states ratified the Constitution, disputes move to the courts, not militias. From there, we follow the law’s evolution to New York v. United States and Printz v. United States, where Justices O’Connor and Scalia cemented a simple accountability rule: Congress makes federal policy, and federal officers enforce it. States can cooperate, but they cannot be drafted.

Then we take on the questions shaping headlines today. What makes a sanctuary policy constitutional? Where is the boundary between noncooperation and obstruction? How did the Supreme Court handle conditional spending in South Dakota v. Dole and the Medicaid expansion, and what counts as related, optional, and noncoercive? Along the way, we connect these rules to real-world choices on road safety, speed limits, and how states navigate federal incentives without surrendering their own priorities.

If you care about how power works in practice—who decides, who enforces, and who the voters can hold accountable—this conversation offers a clear framework. Listen, share with a friend who loves constitutional history, and leave a review to tell us where you’d draw the line between cooperation and control.

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Chapters

• 1:32 Framing Part Two: Tenth Amendment
• 1:58 Virginia And Kentucky Resolutions
• 4:03 Nullification’s Logic And Risks
• 5:26 Tariff Crisis And Jackson’s Response
• 7:10 Livingston, Tocqueville, And Constitutional Supremacy
• 10:05 Anti-Commandeering Emerges
• 11:37 Prohibition And Fugitive Slave Act Lessons
• 13:17 Modern Doctrine: O’Connor And Scalia
• 15:06 Sports Betting And Marijuana Federalism
• 16:21 Sanctuary Policies: Hands Off vs Obstruction
• 18:54 Conditional Spending And Coercion
• 20:50 South Dakota v. Dole And Relatedness

Transcript

SPEAKER_01: 0:46

Welcome back. This is part two of our 10th Amendment. So if you haven't listened to the part one, highly suggest it is the episode right before. Dr. Byenberg is back with us. And in this episode, we're talking about how the 10th Amendment has been implemented throughout history. So, Dr. Beyenberg, what are some ways that the 10th Amendment has been used and implemented in American history?

SPEAKER_00: 1:09

I think the way that we might think of it is how it's been invoked, because there are some of these that the invocations have been successful and some of them very much not. So in the 10th Amendment is a reflection of America's principle of federalism. But the question is sort of how do we how do we enforce that? So early on, we were talking in the last session, we're talking about the congressional debates about the bank. But I think probably the one of the real major early ones that I think is are pretty well known but are worth pausing on, are the so-called Virginia and Kentucky resolutions, because these articulate some of the ways that get proposed early on for how do we vindicate? How do we vindicate federalism? How do we vindicate states' rights? How do we vindicate the 10th Amendment? And so this is one where this is in response to the so-called Alien and Sedition Acts, which are sort of quasi-war policies that are passed for the quasi-war that's going on with France. And Jefferson and Madison, and so the Sedition Acts are basically regulating speech, and the alien acts are sort of regulating immigration in particular ways. And Jefferson and Madison both basically write a protest saying these are unconstitutional on various grounds. But one of the grounds that they focus on is they say this seemingly violates the 10th Amendment. And then they go through and they say, and so what should a state do about it if they think something is violating the 10th Amendment, violating federalism? So most naturally today, we would say you go to the courts. Now they're not going to cite that at this point because their fear is that the court is dominated by their political enemies and probably won't be that responsive to them. So what they propose, and they use different techniques, people will fold them together, but they're actually subtly different. Jefferson's Kentucky resolution, and this is wild to think about. He writes this while he is the sitting vice president, right? This would be the equivalent of like JD Vance writing a memo and laundering it through the Ohio legislature to criticize Donald Trump. Again, this is like wild to think about. The Kentucky resolution effectively says we need to make sure that the states are taking action to stop unconstitutional stuff. And he flirts with an idea called nullification. Now he doesn't articulate this very well. And this ultimately the stronger parts of this get removed from the draft version to the final version that gets approved by the Kentucky legislature. Quite likely with James Madison doing some of the uh, as he often does with Thomas Jefferson, hey buddy, this is a great idea, but like slow down here. Like, yes, we want to have the states protecting federalism, but having the possibility that the states are going to unilaterally like seek to block federal policy is quite dangerous. So Madison's Virginia resolution is much more measured and says, we'll take sort of take the appropriate measures. We're going to signal to other states. So Madison seemingly envisions this more as a protest. Hey, states, buddies, like we're going to send you a letter from Virginia to your other states because we think the federal government is overreaching X, Y, and Z. So Madison seemingly is rejecting nullification. Jefferson is flirting with it. But Madison views the states as definitely having a role to play, but not one that is like, we're going to stand the state militia and like shoot at federal officials, which is a possible implication of nullification, as comes out about 20 years later, during the so-called tariff nullification crisis, when South Carolina is trying to basically block particular kinds of federal tax policy. And again, we have the same phenomenon. John Calhoun is effectively the vice president, and he is writing effectively ghostwriting stuff for South Carolina to stick it to his president, Andrew Jackson, which is why very quickly Andrew Jackson very famously says he's looking forward to hanging John Calhoun as vice president. But South Carolina articulates a vision where they say, and you can go look at their ordinance of secession, where they say, we are expecting to take active opposition to make sure this federal law doesn't happen here. This isn't just simply a protest. Like we're going to do something about it. And this gets debated in Congress. And Daniel Webster says, look, this is crazy. This is basically nullification equals civil war. Because, and Jackson, who hates, I mean, he's a state's rights guy. Jackson's very much a states' rights guy. But he says, Yeah, Webster's actually right about this because I have an oath to execute federal law if it's constitutional. Do I like this tax policy? Not really. But like Congress passed the tax law. So I got to enforce it. I can't just have some state saying, nah, never mind, not that one, right? That's the Articles of Confederation again. And so, and Webster tells them quite bluntly, like, this is going to start a civil war. And strikingly, Jackson's effectively sort of legal right hand is a guy named Edward Livingston. But earlier he had been in the Senate and he debated this extensively. And Livingston's also important because Alexis de Tocqueville, who's like a hero among the Skettle folks, I'm a big fan of him as well. But Tocqueville is actually very strongly influenced in his constitutional thinking by Livingston, even though he hates Jackson. He thinks Jackson's a thug and an idiot and basically illiterate, doesn't like him very much. But he respects Livingston a lot. And Livingston says effectively, look, yes, I love states' rights. I was, as a young congressman, part of the defenders of the Virginia-Kentucky Resolution. This is an aside, but it's a 30-second story that's just too fun not to tell. Livingston goes on from being Congress in the 1790s to mayor of New York. One of his underlings commits financial malfeasance. And Livingston is so appalled by this that he pledges to leave New York and go into political exile and move to Louisiana where he thinks he can make enough money to personally pay back the New York Treasury, even though it wasn't him. It was his underling. And so Livingston has effectively two political careers. One is as a young states' rights Jeffersonian ally protesting the Virginia-Kentucky resolution. And one is a sort of states' rights Jacksonian later. But Livingston says, look, we agreed to the Constitution. The Constitution is supreme. There is no provision in here that seems to say that the states have their own dispute resolution technique, right? One of the powers the states have seemingly delegated to Livingston, Livingston says, is the power of the Supreme Court to adjudicate disputes. So like you as a state don't get to say, nah, not that one. Like you can file a legal case saying, uh-uh, not that one, but you can't then like park your state militia and shoot at federal commerce, you know, customs agents or tax collectors or something like that. So nullification pretty quickly falls away as being crazy. In fact, as an amusing aside, as the Confederates are seceding, they one by one will go on and say, Yep, secession is okay. We agree nullification is way too crazy. We're not doing that one. So we're doing the good version of implementing states' rights. Now that's a contested argument, whether secession is a right that remains to the states is pretty politically loaded. There's a stronger case for it than nullification. I don't know how strong it is exactly. That's sort of dicey, but it's clearly stronger than nullification. But very clearly, the Civil War sort of is seen as saying, nope, both of these are off the table. States can protest, states you can give instructions to your senators, states you can and should file lawsuits, states you can also, and this is one that has connections to today, states don't have to help enforce federal law. So remember, we talked about with the Articles of Confederation, one of its failures is the feds had to ask the states to do their dirty work. And so the argument gets built that says nope, they have their own parallel obligations and implementations. States enforce state stuff, feds enforce fed stuff. States can help feds enforce Fed stuff if they want, but they don't have to. And this comes to be called the anti-commandeering doctrine. And this comes in the this earliest parts of this come before the Civil War, which I think is important to remember. We have this narrative that states rights is basically the southern racists. But in fact, before the Civil War, there are some northern states that are flirting with nullification. Abelman v. Booth is a Supreme Court case putting down, which even some of the dissensors in Dred Scott are putting down and saying, no, no, no, no, no. States cannot unilaterally like arrest federal agents enforcing the Fugitive Slave Act. So everybody is sort of invoking these kinds of things, sort of slavery, anti-slavery, whatever, right? So it's not held by one particular political tribe. Federalism and its various techniques, some legitimate, some illegitimate, are cited by by lots of folks. But anti-commandeering remains a valid one. It gets invoked a lot during prohibition when some of the state governments start saying we don't want to help enforce prohibition anymore. That's complicated because of the weird way that prohibition is written. But as a general rule, states can't be made to do this. And this remains valid good law. Sandra A. O'Connor writes probably one of the two major opinions about this in 1992, a case called New York versus United States, that the federal government cannot force the case, the like actual mechanics of the case are super boring, but it's basically the federal government can't force the states to regulate garbage in a way, nuclear waste, in a way that the feds want. And then in 1997, a Supreme Court case written by Scalia says the feds can't basically make state sheriffs, state and local sheriffs enforce federal gun laws. Right. The feds basically have to use the ATF or whatever to enforce federal gun laws. They can't say, today, sheriff, do this. And the reason that O'Connor, and our O'Connor articulates why this is, which is if you're a state sheriff or a state government, you didn't pick this policy that Congress did. It might be dumb, it might be unconstitutional. Why should you be on the hook for that?

unknown: 11:21

Right.

SPEAKER_00: 11:22

So you need a clear line of accountability. That the states, if your states passing stupid laws, like replace your state legislators, replace your state sheriffs if they're enforcing it unfairly. But don't blame the states for the Fed's dirty work. And this came up again like seven years ago with whether the federal government could force the states to regulate sports gambling and the NCAA in various ways. And it's also been coming up a lot lately, I guess even a little longer ago than that. Marijuana laws, same thing. So states did not have to help the feds enforce marijuana law. Congress can and the states that legalize marijuana were always clear in saying we are not committing nullification. DE agents want to come, fine. But we do not want to commit our state resources to do this. This is actually in for any of you in Arizona. This is in the Arizona State Constitution explicitly, the section three of the Declaration of Rights. Again, this is already implicit in constitutional law, but Arizona just wanted to send a signal about this. We're not going to be forced to implement unconstitutional legislation. The place that it's got really interesting uh political connections now is some of the debates about so-called sanctuary states or sanctuary cities regarding immigration. And depending on whether either the federal government or the state governments, whether it's one of the more sort of thoughtful people in either one of them, they sometimes get it right, but they sometimes spin out. So the basic idea is again, the federal government cannot force the states to implement federal immigration law. And so the more narrowly tailored versions of the sanctuary state policies, which is just simply like we're not going to help the state the feds enforce immigration law, clearly constitution. Clearly, constitutional. The wrinkle comes where some of the states have tried to put additional provisions in there, basically saying we will either make it harder for the federal government to do its job, like in terms of taking active obstruction, or like, well, you know, I think it was either New York or Illinois had a provision that like we will tip off any un any illegal alien if the feds take a look at their driver's license, right? So taking active obstruction crosses uh crosses the line. And again, sometimes some of the more responsible parts of the federal immigration folks have said, yep, states do not have to help. They're kind of obnoxious if they don't, but we can't make them. Sometimes some of the rhetoric that's come out of the White House more recently has been like, oh, absolutely, we can totally crush them for that. And so, you know, people have asked me, like, who's right in this? Is it the states or the feds? And the answer is much more is like basically it depends on the exact way that the laws are written. If the state just simply says, hands off, we're not helping, totally legitimate. If they cross the line into active obstruction, that seemingly is closer to nullification and is unconstitutional. But you know, that's a really fundamental and I think important principle of federalism that we've seen. And there's a sort of similar part on the financial side, whether the federal government can use financial pressure to force the states to basically adopt federal policy that the feds don't have authority to do under the 10th Amendment. So the classic case of this is can the feds make the states regulate drinking ages or make them, you know, and the Supreme Court in that case said, eh, the money's not very much. The state can opt in or out. They had said something earlier about Social Security in its earliest iterations. More recently, with the Medicaid expansion with uh Obamacare, the way that that was drafted was states have to basically increase their participation or they're going to have their original Medicaid funding cut off. And the Roberts court said, look, it's one thing to say, hey, states, if you want to kick in some, the feds will kick in some to expand it. But it's another thing to basically say, but if you don't do this, we're taking 20% of your budget away. Right. So the language that Roberts used in that case is that's not a choice. That's a gun to the head, in which basically the feds are forcing the states to do Medicaid the way that the federal government wants. So again, this is one like the anti-commandeering doctrine. The line can be a little hazy. And I love asking my students this has a moot court, well, it drops a little hypothetical, and you know, and I basically try to position it exactly between the cases of this is enough to still be a choice, and this is enough that it's a gun to the head of coercion, and I make them argue about it. But the the principle is clear, even if the the you know, the edge cases get dicey, that the feds cannot make the states regulate federal pre enforcement, enforce federal and federal preferences, or basically spend for federal priorities. They can incentivize, they can ask them. You know, the federal government can, in the immigration context, like give states extra money if they want to help enforce immigration law, but the feds can't make the states do it, and the states can't actively stop the feds from doing what the federal government has an enumerated power to do.

SPEAKER_01: 16:29

So you gave the example of like the drinking age. So I think pretty much everywhere it's 21. But if like the state of Arizona is like, we want to make it 19, the federal government would probably take away some of their Department of Transportation money that they get from the federal government. And that's completely, you're saying, completely constitutional because it's not really coercion.

SPEAKER_00: 16:52

If if the amount is basically small, uh is effectively the way that that if it's small, that case, the the South Dakota V toll dole opinion is very convoluted in terms of it's like got a four-part test. But the basic framework is if the amount is small and the grant has to be meaningfully related to the condition has to be meaningfully related to the grant. And this is one of the places where, depending on again, what's been sort of vocalized and what's been implemented in the policy, there's some difference. But you know, some of the folks in the current administration have talked about withholding federal funds for something if the state doesn't implement some completely unrelated federal, you know, federal preference. That's another part that South Dakota B dole. So it's like you can't say, we're gonna cut off your school funds because we don't like your crime policies or something like that. Right. So the case of South Dakota B dole is, hey, we'll give you basically a little extra top-up money on your roads if you implement something that means road safety is increased, right? So there has to be sort of a connection there. You can't just simply say, well, we're gonna cut off some unrelated, some unrelated things. But the number has to be small and there has to be a meaningful connection between the condition that the feds are setting and the grant. It can't just be sort of here's a pocket of money, do what that's disconnected from what the feds are trying to do. Which again is trying to force a little bit of discipline. Like the states can say, yeah, we actually like this, you know, we want this extra money, and this is not too much of a too much of a concession from us. But absolutely right. If tomorrow you saw a similar thing with uh speed limits, were similarly sort of incentivized by federal funding. And there are some states that have basically moved away from the federally preferred limits, and I assume are basically forfeiting some level of Department of Transportation money as a result. So yeah, again, the hard the edge cases are hard. So if the listeners are like, well, what about you know this amount versus this amount? We don't have enough case law to sort of narrowly say clearly this is the one side of the line and this is the other. But the concepts I think are are fairly straightforward. And this isn't particularly a way to make sure that we get, again, one of the themes that I keep coming back to the benefits of a federal system where the federal government is clearly empowered to do the things that we care about and to cleanly enforce its own law, but the scope of that law is limited, and you can't make others sort of take the blame for what the feds are doing. So, again, one of the places where even if it's theoretically messy, I think American constitutional federalism does a does a pretty good job of balancing these two competing goals.

SPEAKER_01: 19:32

Fantastic. Dr. Beyenberg, thank you.