The Tenth-and-a-Half Amendment

Abstract

Congress can use its Article I powers to impose substantive obligations on the States, such as an obligation to pay its employees a minimum wage. Under the Supreme Court's decision in Seminole Tribe v. Florida, however, Congress cannot use Article I to authorize private suits to enforce those obligations in federal court. Congress may well respond to Seminole Tribe by compelling state courts to entertain private suits against their own State. It is unsettled whether Congress can use its Article I powers to control a State's courts in this way if the State has, under state law, retained immunity from all state-court suits. This article argues that Congress cannot do so under current Supreme Court precedent. The Tenth Amendment bars Congress from using its Article I powers to commandeer the machinery of state government to achieve federal objectives. In light of the concerns underlying this anticommandeering principle, it would bar a federal law compelling state courts to hear claims against their own State. The immunity that States thus enjoy under the Tenth Amendment is not absolute, however; it is subject to the same limitations as is the States' immunity from suit in federal court under the Eleventh Amendment.