The Supreme Court is currently faced with a direct conflict over allocation of federal and state authority. State and municipal officials are attempting to use the tenth amendment as a shield against extensive federal regulations of local government functions. The tests presently applied to resolve such controversies are poorly defined, and judicial dissatisfaction with them has been expressed. This discontent may be based on more than the inadequacy of the tests as tools for analysis, for indications exist that the Burger Court is becoming increasingly responsive to claims of state autonomy. In deciding these controversies, the Court should employ a test which allows greater consideration of federalism concerns. This Comment will determine which tests the Court has used in the past to weigh the competing considerations of federalism and will analyze possible new models.
Kathleen G. McGuinness,
An Affirmative Constitutional Right: The Tenth Amendment and the Resolution of Federalism Conflicts,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol13/iss4/6