Improper Commandeering

32 Pages Posted: 19 Apr 2019 Last revised: 30 May 2019

See all articles by Josh Blackman

Josh Blackman

South Texas College of Law Houston

Date Written: March 21, 2019


Pop quiz! Which of the following federal laws did the Supreme Court find to violate the Tenth Amendment?

A. The “Take Title” provision in New York v. United States
B. The background-check mandate in Printz v. United States
C. The prohibition on state gambling laws in Murphy v. NCAA
D. All of the above
E. None of the above

The correct answer is E, but you will be forgiven for thinking it was D. Judges, attorneys, law students, and even law professors routinely make this common mistake. New York v. United States, Printz v. United States, and Murphy v. NCAA each involved federal laws that told a state to do, or not do something. And, in each case, the Court found that the federal laws were unconstitutional because they violated the so-called “anti-commandeering” doctrine. However, the Court did not hold that any of these laws violated the Tenth Amendment, standing by itself. Rather, in each case, the federal laws were unconstitutional because they exceeded the scope of Congress’s enumerated powers. Most recently, Murphy acknowledged the issue, but ultimately tiptoed around the doctrine of enumerated powers.

Soon enough, the Supreme Court can restore doctrinal clarity in the percolating litigation over sanctuary cities. To date, several courts have held that 8 U.S.C. § 1373(a) is unconstitutional on its face. This law requires states and their subdivisions to share information about unlawful aliens in their custody. Or more precisely, states cannot enact laws that prevent their subdivisions from sharing that information with the federal government.

Regrettably, these courts have based their rulings solely on the Tenth Amendment, without discussing the scope of Congress’s enumerated powers. Section 1373(a) is arguably a “necessary” means to carry into execution Congress’s powers to establish a uniform system of naturalization laws. However, it cannot be “proper” for Congress to accomplish that end by instructing states how to manage their law enforcement agencies. On appeal, the Supreme Court should provide this textual explanation for why Section 1373(a) violates the anticommandeering doctrine.

Suggested Citation

Blackman, Josh, Improper Commandeering (March 21, 2019). University of Pennsylvania Journal of Constitutional Law, Vol. 21, No. 4, 2019, Available at SSRN:

Josh Blackman (Contact Author)

South Texas College of Law Houston ( email )

1303 San Jacinto Street
Houston, TX 77002
United States

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