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Hastings Constitutional Law Quarterly

Authors

David M. Palmer

Abstract

In the last thirty years, the Tenth Amendment has experienced a resurgence as an independent check on the powers of the federal government. This newfound interest in the meaning and power of the Tenth Amendment has inevitably led to the question: Who may bring a Tenth Amendment claim? As the Tenth Amendment concerns the relationship between states and the federal government, states, not private parties, have traditionally acted as plaintiffs in suits against federal government incursion. However, the Seventh and Eleventh Circuit Courts of Appeals have, in a series of cases beginning twenty-five years ago, expressly permitted private parties to bring Tenth Amendment claims against the federal government. In contrast, the First, Second, and Tenth Circuit Courts of Appeals have expressly denied private parties the standing to bring Tenth Amendment claims. What is the origin of this circuit split and why does it persist? How does authority guide us in answering this question? While there is something very alluring about the idea that an everyday private citizen can use the Tenth Amendment to keep the federal government's power in check, the purpose and practicalities of the Tenth Amendment necessarily prevent private citizens from bringing such claims. This note argues that only states, not private parties, are meant to use the Tenth Amendment as a constitutional check on federal power.

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