Text and original understanding
Bob Zadek reads the amendment as a single short sentence and quotes it in full: powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, and to the people California Discovers Federalism (2018). He calls it a reminder rather than a true amendment, observing that it does not amend anything but tells readers of the Constitution not to forget about the states. In the same passage he says almost all powers reside in the states or in the people, with only enumerated powers reserved for the federal government, and calls that arrangement a bit of a cruel joke given the power of the federal government today.
Carol Berkin supplies the drafting history. She says the fight in Congress was over the word “expressly,” which the Anti-Federalists wanted inserted so that only powers expressly given to the federal government could be used Carol Berkin on The Bill of Rights No One Wanted (2016). The Anti-Federalists were outnumbered. Berkin attributes the contrary position to the framers’ belief that they had to be able to legislate on matters they had not anticipated when writing the Constitution, which is why they wanted implied powers and the necessary and proper clause. She recites the amendment’s text as reserving to the states and the people the powers not delegated to the United States nor prohibited by the Constitution to the states.
Bob Zadek frames the underlying doctrine as enumerated powers: the federal government has very limited powers and none others, and the fear was that Congress would take specifically enumerated powers and expand them through necessary and proper and other clauses. Berkin resists the conspiratorial framing but confirms the substance of the dispute, noting that the 9th Amendment protects unenumerated rights of the people and that debate over it continues after 235 years. On her account Madison believed a bill of rights added nothing of substance because the federal government already lacked power to interfere with the freedoms protected, and he wanted the federal government to be able to step in when states abused the civil rights of minorities — by which she says he meant religious sects such as Baptists, Moravians and Quakers, and people who disagreed with the majority about policy, not African Americans or gays.
Anti-commandeering and sanctuary cities
Bob Zadek raises anti-commandeering as a little-known but important part of constitutional law: the federal government is not permitted to compel local law enforcement to enforce federal law Alex Nowrasteh: How Prop. 187 Turned California Blue (2016). He allows that the federal government might do so coercively by denying other federal benefits to states and localities, but says the Supreme Court is sensitive to that too, and calls the sanctuary city question constitutionally tricky.
Alex Nowrasteh agrees it is constitutionally tricky and adds detail. He says the Obama administration attempted it from 2009 to 2011 and triggered a backlash that caused it to back down on immigration enforcement. He cites the Obamacare decision, NFIB v. Sebelius, as limiting the federal government’s ability to use funds to coerce states into adopting certain activities, and says that if funds are to be denied or attached to cities such as sanctuary cities, the law must clearly and explicitly spell out why. He adds that this is not currently in the law, so Congress would have to pass a law.
Bob Zadek then states that the sanctuary city movement — naming San Francisco and New York among other major urban centers — is on the right side of the Constitution in refusing to assist the feds in enforcing federal law, and calls this a little-known aspect of the 10th Amendment. Earlier in the same episode he had asked how much of the incoming administration’s immigration program could be done by executive order versus legislation, and Nowrasteh had answered that DACA could be ended immediately because it was an executive action, that the refugee program could be killed entirely on the president’s own authority, that legal immigration numbers could not be changed by the executive but regulatory burdens could shrink admissions, and that immigration enforcement agencies could not be expanded in size but localities could be pressed to cooperate.
Federalism, state experimentation and the 10th Amendment
In the 2011 episode Bob Zadek argues that the Secure Communities initiative represents an unconstitutional federalization of local police, saying the Founders feared a federal police force and that the police power was delegated to the states and to the states alone Immigration Reform Is Broken (2011). He attributes the program to Janet Napolitano and says she found a way to get around the 10th Amendment and usurp local police power. The episode’s summary states that guests Elise Foley and Sophia Campos discuss how the program often targets non-criminals and creates fear in immigrant communities, while Bob advocates a free-market approach to immigration.
Joe Mathews supplies the state-side case. Bob Zadek introduces Mathews’s proposal for a California residency status under which otherwise undocumented immigrants would be lawfully in California even if not welcome legally in other states, and frames it as embracing federalism for immigration policy California Discovers Federalism (2018). Mathews calls it 10th Amendment territory and federalist territory, and observes the irony that liberals and progressives who have not been great fans of the 10th Amendment have been willing, in the context of President Trump, to embrace its full fruits. He notes California’s history of carve-outs, including exemptions granted under President Nixon around auto emissions and air quality, which he says are still used and are now contested by the Trump administration, whom he describes as not 10th Amendment people.
Mathews also notes that California has exercised its rights under federalism in extending Medi-Cal benefits to undocumented people, and that the state has fought both the Obama and Trump administrations over education standards, driven by the state’s teachers’ unions. Bob Zadek counters with licensing: he says California has had strongly Democratic, progressive administrations in control of all branches of state government and ranks 49th or 50th out of 50 on an economic freedom index, and that progressives are often the proponents of licensing rules because states have the power to make them. Mathews agrees there is good and bad to all of this depending on where one is coming from.
Across episodes
The topic recurs in four episodes spanning 2011 to 2018, and the excerpts show a shift in emphasis rather than a single developing argument. The 2011 episode treats the amendment as a limit on federal conscription of local police, with Bob Zadek supplying the constitutional claim and his guests supplying the on-the-ground effects. The 2016 Berkin episode moves to drafting history and the word “expressly,” with Berkin doing the substantive work and correcting Bob’s framing of the states’ ratification conditions. The December 2016 episode reframes the same anti-commandeering principle around sanctuary cities, with Nowrasteh adding the NFIB v. Sebelius limit on coercive funding conditions. The 2018 Mathews episode inverts the posture: there the 10th Amendment is invoked not against federal power but on behalf of a state’s own policy experiment, and Mathews names the irony that progressives have adopted the argument under Trump. The Bolick episode, on grassroots tyranny and the limits of federalism, is listed with the topic but its excerpt contains no substantive exchange.
What the sources do not cover
The excerpts do not state the full text of any judicial decision beyond the naming of NFIB v. Sebelius, nor which amendment any case turned on. They do not give the outcome of the Secure Communities program, the terms of any sanctuary city statute, or the legal status of California’s residency proposal. The Bolick episode’s excerpt contains no quoted discussion, so its treatment of federalism’s limits cannot be described. Founding dates, ratification votes and the identities of the Anti-Federalist leaders other than as described by Berkin are absent.