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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Episode Transcript

SPEAKER_01 (00:00):
Welcome back.
This is part two of our 10thAmendment.
So if you haven't listened tothe part one, highly suggest it
is the episode right before.
Dr.
Byenberg is back with us.
And in this episode, we'retalking about how the 10th
Amendment has been implementedthroughout history.
So, Dr.
Beyenberg, what are some waysthat the 10th Amendment has been
used and implemented in Americanhistory?

SPEAKER_00 (00:23):
I think the way that we might think of it is how it's
been invoked, because there aresome of these that the
invocations have been successfuland some of them very much not.
So in the 10th Amendment is areflection of America's
principle of federalism.
But the question is sort of howdo we how do we enforce that?
So early on, we were talking inthe last session, we're talking

(00:44):
about the congressional debatesabout the bank.
But I think probably the one ofthe real major early ones that I
think is are pretty well knownbut are worth pausing on, are
the so-called Virginia andKentucky resolutions, because
these articulate some of theways 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 10thAmendment?

(01:06):
And so this is one where this isin response to the so-called
Alien and Sedition Acts, whichare sort of quasi-war policies
that are passed for thequasi-war that's going on with
France.
And Jefferson and Madison, andso the Sedition Acts are
basically regulating speech, andthe alien acts are sort of
regulating immigration inparticular ways.

(01:27):
And Jefferson and Madison bothbasically write a protest saying
these are unconstitutional onvarious grounds.
But one of the grounds that theyfocus on is they say this
seemingly violates the 10thAmendment.
And then they go through andthey say, and so what should a
state do about it if they thinksomething is violating the 10th
Amendment, violating federalism?

(01:48):
So most naturally today, wewould say you go to the courts.
Now they're not going to citethat at this point because their
fear is that the court isdominated by their political
enemies and probably won't bethat responsive to them.
So what they propose, and theyuse different techniques, people
will fold them together, butthey're actually subtly

(02:09):
different.
Jefferson's Kentucky resolution,and this is wild to think about.
He writes this while he is thesitting vice president, right?
This would be the equivalent oflike JD Vance writing a memo and
laundering it through the Ohiolegislature to criticize Donald
Trump.
Again, this is like wild tothink about.

(02:30):
The Kentucky resolutioneffectively says we need to make
sure that the states are takingaction to stop unconstitutional
stuff.
And he flirts with an ideacalled nullification.
Now he doesn't articulate thisvery well.
And this ultimately the strongerparts of this get removed from
the draft version to the finalversion that gets approved by

(02:51):
the Kentucky legislature.
Quite likely with James Madisondoing some of the uh, as he
often does with ThomasJefferson, hey buddy, this is a
great idea, but like slow downhere.
Like, yes, we want to have thestates protecting federalism,
but having the possibility thatthe states are going to
unilaterally like seek to blockfederal policy is quite

(03:13):
dangerous.
So Madison's Virginia resolutionis much more measured and says,
we'll take sort of take theappropriate measures.
We're going to signal to otherstates.
So Madison seemingly envisionsthis more as a protest.
Hey, states, buddies, like we'regoing to send you a letter from
Virginia to your other statesbecause we think the federal
government is overreaching X, Y,and Z.

(03:35):
So Madison seemingly isrejecting nullification.
Jefferson is flirting with it.
But Madison views the states asdefinitely having a role to
play, but not one that is like,we're going to stand the state
militia and like shoot atfederal officials, which is a
possible implication ofnullification, as comes out
about 20 years later, during theso-called tariff nullification

(03:56):
crisis, when South Carolina istrying to basically block
particular kinds of federal taxpolicy.
And again, we have the samephenomenon.
John Calhoun is effectively thevice president, and he is
writing effectively ghostwritingstuff for South Carolina to
stick it to his president,Andrew Jackson, which is why
very quickly Andrew Jackson veryfamously says he's looking

(04:18):
forward to hanging John Calhounas vice president.
But South Carolina articulates avision where they say, and you
can go look at their ordinanceof secession, where they say, we
are expecting to take activeopposition to make sure this
federal law doesn't happen here.
This isn't just simply aprotest.
Like we're going to do somethingabout it.
And this gets debated inCongress.

(04:40):
And Daniel Webster says, look,this is crazy.
This is basically nullificationequals 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'sactually right about this
because I have an oath toexecute federal law if it's
constitutional.
Do I like this tax policy?

(05:01):
Not really.
But like Congress passed the taxlaw.
So I got to enforce it.
I can't just have some statesaying, nah, never mind, not
that one, right?
That's the Articles ofConfederation again.
And so, and Webster tells themquite bluntly, like, this is
going to start a civil war.
And strikingly, Jackson'seffectively sort of legal right
hand is a guy named EdwardLivingston.

(05:21):
But earlier he had been in theSenate and he debated this
extensively.
And Livingston's also importantbecause Alexis de Tocqueville,
who's like a hero among theSkettle folks, I'm a big fan of
him as well.
But Tocqueville is actually verystrongly influenced in his
constitutional thinking byLivingston, even though he hates
Jackson.
He thinks Jackson's a thug andan idiot and basically

(05:42):
illiterate, doesn't like himvery much.
But he respects Livingston alot.
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 a30-second story that's just too
fun not to tell.
Livingston goes on from beingCongress in the 1790s to mayor

(06:06):
of New York.
One of his underlings commitsfinancial malfeasance.
And Livingston is so appalled bythis that he pledges to leave
New York and go into politicalexile and move to Louisiana
where he thinks he can makeenough money to personally pay
back the New York Treasury, eventhough it wasn't him.
It was his underling.

(06:27):
And so Livingston haseffectively two political
careers.
One is as a young states' rightsJeffersonian ally protesting the
Virginia-Kentucky resolution.
And one is a sort of states'rights Jacksonian later.
But Livingston says, look, weagreed to the Constitution.
The Constitution is supreme.
There is no provision in herethat seems to say that the
states have their own disputeresolution technique, right?

(06:50):
One of the powers the stateshave seemingly delegated to
Livingston, Livingston says, isthe power of the Supreme Court
to adjudicate disputes.
So like you as a state don't getto say, nah, not that one.
Like you can file a legal casesaying, uh-uh, not that one, but
you can't then like park yourstate militia and shoot at
federal commerce, you know,customs agents or tax collectors

(07:11):
or something like that.
So nullification pretty quicklyfalls away as being crazy.
In fact, as an amusing aside, asthe Confederates are seceding,
they one by one will go on andsay, Yep, secession is okay.
We agree nullification is waytoo crazy.
We're not doing that one.

(07:32):
So we're doing the good versionof implementing states' rights.
Now that's a contested argument,whether secession is a right
that remains to the states ispretty politically loaded.
There's a stronger case for itthan nullification.
I don't know how strong it isexactly.
That's sort of dicey, but it'sclearly stronger than
nullification.

(07:53):
But very clearly, the Civil Warsort of is seen as saying, nope,
both of these are off the table.
States can protest, states youcan give instructions to your
senators, states you can andshould file lawsuits, states you
can also, and this is one thathas connections to today, states
don't have to help enforcefederal law.
So remember, we talked aboutwith the Articles of

(08:15):
Confederation, one of itsfailures is the feds had to ask
the states to do their dirtywork.
And so the argument gets builtthat says nope, they have their
own parallel obligations andimplementations.
States enforce state stuff, fedsenforce fed stuff.
States can help feds enforce Fedstuff if they want, but they
don't have to.
And this comes to be called theanti-commandeering doctrine.

(08:37):
And this comes in the thisearliest parts of this come
before the Civil War, which Ithink is important to remember.
We have this narrative thatstates rights is basically the
southern racists.
But in fact, before the CivilWar, there are some northern
states that are flirting withnullification.
Abelman v.
Booth is a Supreme Court caseputting down, which even some of

(08:58):
the dissensors in Dred Scott areputting down and saying, no, no,
no, no, no.
States cannot unilaterally likearrest federal agents enforcing
the Fugitive Slave Act.
So everybody is sort of invokingthese kinds of things, sort of
slavery, anti-slavery, whatever,right?
So it's not held by oneparticular political tribe.
Federalism and its varioustechniques, some legitimate,

(09:20):
some illegitimate, are cited byby lots of folks.
But anti-commandeering remains avalid one.
It gets invoked a lot duringprohibition when some of the
state governments start sayingwe don't want to help enforce
prohibition anymore.
That's complicated because ofthe weird way that prohibition
is written.
But as a general rule, statescan't be made to do this.

(09:42):
And this remains valid good law.
Sandra A.
O'Connor writes probably one ofthe two major opinions about
this in 1992, a case called NewYork versus United States, that
the federal government cannotforce the case, the like actual
mechanics of the case are superboring, but it's basically the
federal government can't forcethe states to regulate garbage
in a way, nuclear waste, in away that the feds want.

(10:05):
And then in 1997, a SupremeCourt case written by Scalia
says the feds can't basicallymake state sheriffs, state and
local sheriffs enforce federalgun laws.
Right.
The feds basically have to usethe 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 astate sheriff or a state

(10:28):
government, you didn't pick thispolicy that Congress did.
It might be dumb, it might beunconstitutional.
Why should you be on the hookfor that?

unknown (10:35):
Right.

SPEAKER_00 (10:35):
So you need a clear line of accountability.
That the states, if your statespassing stupid laws, like
replace your state legislators,replace your state sheriffs if
they're enforcing it unfairly.
But don't blame the states forthe Fed's dirty work.
And this came up again likeseven years ago with whether the
federal government could forcethe states to regulate sports

(10:56):
gambling and the NCAA in variousways.
And it's also been coming up alot lately, I guess even a
little longer ago than that.
Marijuana laws, same thing.
So states did not have to helpthe feds enforce marijuana law.
Congress can and the states thatlegalize marijuana were always
clear in saying we are notcommitting nullification.

(11:18):
DE agents want to come, fine.
But we do not want to commit ourstate resources to do this.
This is actually in for any ofyou in Arizona.
This is in the Arizona StateConstitution explicitly, the
section three of the Declarationof Rights.
Again, this is already implicitin constitutional law, but
Arizona just wanted to send asignal about this.
We're not going to be forced toimplement unconstitutional

(11:41):
legislation.
The place that it's got reallyinteresting uh political
connections now is some of thedebates about so-called
sanctuary states or sanctuarycities regarding immigration.
And depending on whether eitherthe federal government or the
state governments, whether it'sone of the more sort of
thoughtful people in either oneof them, they sometimes get it

(12:03):
right, but they sometimes spinout.
So the basic idea is again, thefederal government cannot force
the states to implement federalimmigration law.
And so the more narrowlytailored versions of the
sanctuary state policies, whichis just simply like we're not
going to help the state the fedsenforce immigration law, clearly
constitution.

(12:24):
Clearly, constitutional.
The wrinkle comes where some ofthe states have tried to put
additional provisions in there,basically saying we will either
make it harder for the federalgovernment to do its job, like
in terms of taking activeobstruction, or like, well, you
know, I think it was either NewYork or Illinois had a provision
that like we will tip off any unany illegal alien if the feds

(12:49):
take a look at their driver'slicense, right?
So taking active obstructioncrosses uh crosses the line.
And again, sometimes some of themore responsible parts of the
federal immigration folks havesaid, yep, states do not have to
help.
They're kind of obnoxious ifthey don't, but we can't make
them.
Sometimes some of the rhetoricthat's come out of the White
House more recently has beenlike, oh, absolutely, we can

(13:11):
totally crush them for that.
And so, you know, people haveasked me, like, who's right in
this?
Is it the states or the feds?
And the answer is much more islike basically it depends on the
exact way that the laws arewritten.
If the state just simply says,hands off, we're not helping,
totally legitimate.
If they cross the line intoactive obstruction, that

(13:31):
seemingly is closer tonullification and is
unconstitutional.
But you know, that's a reallyfundamental and I think
important principle offederalism that we've seen.
And there's a sort of similarpart on the financial side,
whether the federal governmentcan use financial pressure to
force the states to basicallyadopt federal policy that the

(13:53):
feds don't have authority to dounder the 10th Amendment.
So the classic case of this iscan the feds make the states
regulate drinking ages or makethem, you know, and the Supreme
Court in that case said, eh, themoney's not very much.
The state can opt in or out.
They had said something earlierabout Social Security in its
earliest iterations.
More recently, with the Medicaidexpansion with uh Obamacare, the

(14:16):
way that that was drafted wasstates have to basically
increase their participation orthey're going to have their
original Medicaid funding cutoff.
And the Roberts court said,look, it's one thing to say,
hey, states, if you want to kickin some, the feds will kick in
some to expand it.
But it's another thing tobasically say, but if you don't
do this, we're taking 20% ofyour budget away.
Right.
So the language that Robertsused in that case is that's not

(14:38):
a choice.
That's a gun to the head, inwhich basically the feds are
forcing the states to doMedicaid the way that the
federal government wants.
So again, this is one like theanti-commandeering doctrine.
The line can be a little hazy.
And I love asking my studentsthis has a moot court, well, it
drops a little hypothetical, andyou know, and I basically try to

(14:59):
position it exactly between thecases of this is enough to still
be a choice, and this is enoughthat it's a gun to the head of
coercion, and I make them argueabout it.
But the the principle is clear,even if the the you know, the
edge cases get dicey, that thefeds cannot make the states
regulate federal preenforcement, enforce federal and
federal preferences, orbasically spend for federal

(15:22):
priorities.
They can incentivize, they canask them.
You know, the federal governmentcan, in the immigration context,
like give states extra money ifthey want to help enforce
immigration law, but the fedscan't make the states do it, and
the states can't actively stopthe feds from doing what the
federal government has anenumerated power to do.

SPEAKER_01 (15:43):
So you gave the example of like the drinking
age.
So I think pretty mucheverywhere it's 21.
But if like the state of Arizonais like, we want to make it 19,
the federal government wouldprobably take away some of their
Department of Transportationmoney that they get from the
federal government.
And that's completely, you'resaying, completely
constitutional because it's notreally coercion.

SPEAKER_00 (16:05):
If if the amount is basically small, uh is
effectively the way that that ifit's small, that case, the the
South Dakota V toll dole opinionis very convoluted in terms of
it's like got a four-part test.
But the basic framework is ifthe amount is small and the
grant has to be meaningfullyrelated to the condition has to
be meaningfully related to thegrant.
And this is one of the placeswhere, depending on again,

(16:28):
what's been sort of vocalizedand what's been implemented in
the policy, there's somedifference.
But you know, some of the folksin the current administration
have talked about withholdingfederal funds for something if
the state doesn't implement somecompletely unrelated federal,
you know, federal preference.
That's another part that SouthDakota B dole.
So it's like you can't say,we're gonna cut off your school

(16:49):
funds because we don't like yourcrime policies or something like
that.
Right.
So the case of South Dakota Bdole is, hey, we'll give you
basically a little extra top-upmoney on your roads if you
implement something that meansroad safety is increased, right?
So there has to be sort of aconnection there.
You can't just simply say, well,we're gonna cut off some
unrelated, some unrelatedthings.

(17:11):
But the number has to be smalland there has to be a meaningful
connection between the conditionthat the feds are setting and
the grant.
It can't just be sort of here'sa pocket of money, do what
that's disconnected from whatthe feds are trying to do.
Which again is trying to force alittle bit of discipline.
Like the states can say, yeah,we actually like this, you know,

(17:31):
we want this extra money, andthis is not too much of a too
much of a concession from us.
But absolutely right.
If tomorrow you saw a similarthing with uh speed limits, were
similarly sort of incentivizedby federal funding.
And there are some states thathave basically moved away from
the federally preferred limits,and I assume are basically

(17:53):
forfeiting some level ofDepartment of Transportation
money as a result.
So yeah, again, the hard theedge 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 tosort of narrowly say clearly
this is the one side of the lineand this is the other.
But the concepts I think are arefairly straightforward.

(18:15):
And this isn't particularly away to make sure that we get,
again, one of the themes that Ikeep coming back to the benefits
of a federal system where thefederal government is clearly
empowered to do the things thatwe care about and to cleanly
enforce its own law, but thescope of that law is limited,
and you can't make others sortof take the blame for what the
feds are doing.
So, again, one of the placeswhere even if it's theoretically

(18:36):
messy, I think Americanconstitutional federalism does a
does a pretty good job ofbalancing these two competing
goals.

SPEAKER_01 (18:46):
Fantastic.
Dr.
Beyenberg, thank you.