Document Type


Publication Date

October 2001

Journal Title

Catholic University Law Review


The Tenth Amendment is invoked whenever congressional powers threaten the independent law-making power of the several states. In that context, however, the Tenth Amendment does not tell us very much. After all, if powers are not delegated to the federal government, where else would they go but to the states? Accordingly, the Supreme Court has dismissed the Amendment as a truism.

Although the Amendment is only deployed as a rather ineffectual check on congressional authority, it clearly applies to all branches of the federal government. However, according to the theory of inherent executive authority, certain powers are unique to the sovereign. Consequently, they reside in the federal executive and require no constitutional delegation. This theory of inherent executive power implies that the theory of limited government, which finds its clearest constitutional expression in the Tenth Amendment, applies only to the Congress. By attempting to provide an extra-constitutional source for executive power, advocates of the theory of inherent executive power transform the Tenth Amendment into a truism that isn't true.

This Article contends that the theory of inherent executive powers cannot be reconciled with the theory of limited government embodied in the Tenth Amendment. The Article focuses on the allocation of war powers and maintains that because such powers are allocated to the Congress and not to the Executive, the Tenth Amendment (of all things!) makes it clear that the doctrine of inherent executive authority cannot provide a constitutional basis for the defense of unilateral, non-defensive executive war powers.

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