National League of Cities Rising: How the Telecommunications Act of 1996 Could Expand Tenth Amendment Jurisprudence

Abstract

Whether and how the Tenth Amendment affects Congress’s Commerce Clause power has been the subject of heated debate in the Supreme Court for over thirty years. In 1976, the Court held in National League of Cities v. Usery that the Tenth Amendment acts to immunize certain essential aspects of state sovereignty from federal regulation. This case was later overruled as stating an unworkable rule, but the 1992 case of New York v. United States revived the Tenth Amendment as instead standing for an anti-commandeering principle. In 2000, a lone Fourth Circuit judge argued that a provision of the Telecommunications Act of 1996 (TCA) violated this principle. This Note tracks the evolution of the Supreme Court’s Tenth Amendment jurisprudence, analyzes how the challenge posed by the TCA falls within that evolution, and concludes that such challenge may provide the next step in the Court’s surreptitious revival of National League of Cities.