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The Tenth Amendment to the US Constitution says:

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.

However, it seems like all sorts of things (education, medical insurance, minimum wage, small-business loans, gun control, and police reform, to name just a few) can all be done at the national level.

It seems like anything the federal government wants to do, it can do. So what does the 10th Amendment actually do in practice?

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    This is really more of a commerce clause question in disguise, as that's where the federal government gets its authority on most of these matters. – zibadawa timmy Jun 19 at 6:18
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    @zibadawatimmy Police reform, min wage, medical insurance, and education are commerce clause? – Paul Draper Jun 19 at 6:32
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    The middle two very obviously so. The latter because quality and availability of education has a direct relation to (national) commercial productivity and demand. Police reform probably for the same reason. The modern commerce clause is very powerful, if for no other reason than that modern commerce is nigh omnipresent, multi-state, and multi-national, though it's been pared down a little bit recently. Still one of the most powerful clauses available, though. – zibadawa timmy Jun 19 at 7:12
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    Don't they also get lots of power by putting conditions on federal subsidies? A state has to enact laws consistent with federal policy to be eligible for this money. – Barmar Jun 19 at 17:21
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    @Barmar: Yes in general, but SCOTUS has limited this strategy to some extent in NFIB v. Sebelius (no kicking states out of Medicaid if they don't want to expand it). I'm not sure how that case generalizes, however. – Kevin Jun 19 at 20:51
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The Ninth and Tenth amendments are something of an inseparable pair. The Ninth in particular has been almost entirely subsumed into the Tenth, and almost never gets mentioned in any binding opinion/decision. The Lost Jurisprudence of the Ninth Amendment by Kurt Lash is a fairly recent treatment of the Ninth amendment's jurisprudence (insofar as mostly historical accounts, dissents, and non-binding opinions count as such), and so details a lot about the Tenth amendment's jurisprudence as a result. It's a good read, provided one can handle law review style articles.

The short of the matter is that the 9th and 10th amendments, in the modern era, were basically gutted in their practical import by the New Deal era SCOTUS. Roosevelt's New Deal needed a vast expansion of federal power and authority to enact, and while initially it received a number of defeats at SCOTUS, by 1937 the (judicial) tide turned and many of these expansions were granted/recognized.

The power that Congress is exercising on these matters is the Commerce Clause. The power of this clause has waxed and waned over time, with a vast expansion of its potency beginning in 1937. Two prominent such cases are Wickard v. Filburn (1942; Congress can regulate goods that impact interstate commerce in the abstract, even if they are never actually sold or used across state lines, or even leave the possession of their producer) and West Coast Hotel Co. v. Parrish (1937). The latter case is what enabled minimum wage laws to be enabled, now justified by the Commerce Clause; this despite the fact that the court had ruled before that such laws were unconstitutional. The court then enabled laws prohibiting child labor, mandated overtime, etc. These were, again, all things the court had previously struck down as beyond Federal power, but now enabled and firmly set within that power. Federal drug laws all find their constitutional validity in the commerce clause, as well.

1937 was the transition point from SCOTUS-as-protector-of-economic-rights to SCOTUS-as-protector-of-civil-rights. The court heavily deferred to the judgement of Congress on the invocation of the Commerce Clause, holding it as a political question. It wasn't until United States v. Lopez in 1995, nearly 60 years later, that SCOTUS issued a ruling that actually struck down a law which was enacted based on the Commerce Clause. That law dealt with firearms near school areas, but was struck down as being too tenuous a connection to Commerce (basically, "schools are good for commerce, crime is bad for schools, guns abet crime, ergo guns near schools are bad for commerce and can be regulated on that basis" was held to be a stretch—even with the gun bits removed). However, Congress amended that law in response so that it only applied to guns that had crossed state lines, and this has been upheld to date as it specifically invokes the conditions of the Commerce Clause.

The Rehnquist Court restrained the clause's power in other cases as well. But nevertheless, in the modern era, where nearly everything has become commercialized on a multinational scale and nearly every commercial enterprise is thereby unavoidably and substantively tied to interstate (and international) trade, the Commerce Clause is extremely potent. The Necessary and Proper clause is also another source of potentially broad federal powers, but I won't get into that here.

For modern uses of the 10th amendment, you can see James' answer. In short, the 10th has been used to prevent the federal government from forcing state governments to enforce federal laws or pass certain laws. They can be encouraged to pass certain laws via federal funding requirements, but it can't be a coercive or mandatory thing (or be something unrelated to the subject of the funding).

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    @indigochild Reading the first link would provide a number of answers to that. Pre-1937 many SCOTUS decisions were related to economic rights, which very heavily turns on what the Federal government is allowed to do to control things like river traffic, wages, and child labor, or establish a national bank, etc. Before 1937, SCOTUS routinely ruled the Federal government lacked such powers (the Marshall court was a bit more willing to grant them, but subsequent ones not so much), directly or indirectly applying the 9th/10th as a rule of construction and leaving such things to the states. – zibadawa timmy Jun 20 at 12:40
  • Re "...the transition point from SCOTUS-as-protector-of-economic-rights to SCOTUS-as-protector-of-civil-rights...": on the surface it might seem that way, but given how much the US prospered thereafter, the former may be an unacknowledged subset of the latter. – agc Jun 20 at 13:16
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The tenth amendment has been called a "truism" by the SCOTUS, As such it formally never mattered. It was always implicit.

The amendment states but a truism that all is retained which has not been surrendered. (from US v Darby Lumber Co.)

The amendment is sometimes referenced in judgments when the Federal government requires states to enforce federal laws. So, for example, the federal law that required states to ban sports betting was declared unconstitutional as it commandeered states to enforce the law.

However, as you note, the Commerce clause has been interpreted as giving Congress wide power to legislate on matters that could affect interstate commerce. Judging by the frequency with which cases that test this clause come before the courts, there is certainly a grey area on what powers Congress has to regulate the states, and the tenth amendment is used in practice in presentations to the court, even if, as the court has noted, as a truism, it should not materially affect any decision that the court makes.

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    California's sanctuary city laws were also (recently) upheld on 10th amendment grounds, I think; with the same "states can't be compelled to enforce federal law" logic. Though in that case SCOTUS refused to hear the case, leaving in place the district court's ruling (for that district). Which is strong indication they think the district court got it right, but leaves open the door for other districts to rule differently, which would then be hard for SCOTUS not to then deal with. – zibadawa timmy Jun 19 at 10:37
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    Incidentally, your quote comes from US v Darby Lumber Company – zibadawa timmy Jun 19 at 11:00
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The 10th amendment is also relevant in recent discussions of police reform. Basically, because of the 10th amendment, congress can't just change how the police work because that's up to the states.

The Constitution establishes a “system of dual sovereignty between the States and the Federal Government.” Under the Tenth Amendment, “[t]he 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.” Thus, states generally have broad authorityto enact legislation, including to regulate the states and its localities’ law enforcement approaches. In contrast, Congress may only enact legislation under a specific power that is enumeratedin the Constitution and cannot use its power to intrude impermissibly on the sovereign powers of thestates. In this vein, the Supreme Court has recognized that there are certain subjects that are largely of a local concern where states “historically have been sovereign,”such as issuesrelated to the family, crime, and education.

source: Congressional Research Service legal sidebar 10487 (pdf warning)

Below is an example of this, relating to use of chokeholds.

The Congressional Research Services put together a summary (updated yesterday) of police reform bills by senate Republicans and Democrats. See "Congress and Police Reform: Current Law and Recent Proposals" (pdf warning).

The bill sponsored by the Congressional Black Caucus would limit funding to local/state police unless local laws or policies are in place to ban chokehold use.

Section 363 would require states that receive Byrne JAG funding to enact laws banning the use of chokeholds by law enforcement officers.

The Republican bill bans chokehold use by federal officers ("except when deadly force is authorized"). Which doesn't apply to state police agencies.

Section 105 would require recipients of certain federal funding to develop law enforcement agency policies “prohibit[ing]the use of chokeholds except when deadly force is authorized.” This section would also require the Attorney General to develop such a policy at the federal level.

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  • Is it? The 10th amendment is a simple tautology. It doesn't create any restrictions or obligations. Paraphrased it says "any powers the states still have, they still have", with no definition of what it is they have. – OrangeDog Jun 19 at 17:08
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    @OrangeDog The powers not delegated to the United States by the Constitution, nor prohibited by it to the States... Pretty clear. – AbraCadaver Jun 19 at 19:43
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    @OrangeDog It depends on one's philosophy and the matter at hand. In one sense, yes, the 9th and 10th are just explicit restatements of the the design of the constitution, and are redundant. In another, they were put in there as safeguards against corrupted or misguided manipulations of what is otherwise there in the constitution. So, at least in principle, trying to take what the constitution otherwise says/does too far is directly protected by these amendments. Early jurisprudence on the amendments concerned invoking them to not read things too expansively, or read between the lines. – zibadawa timmy Jun 20 at 5:28

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