Although the U.S. Supreme Court in recent years has reaffirmed the substantive force of the Tenth Amendment, it has not resolved the fundamental question of who has standing to raise claims under the Amendment. The Court’s reticence on the matter has sparked a rapidly intensifying split between those U.S. courts of appeals that allow private parties to raise claims under the Tenth Amendment and those—currently the majority—that allow only states to raise Tenth Amendment claims. This Note argues that circuit courts denying private parties standing erroneously rely on dicta from the Supreme Court’s 1939 decision in Tennessee Electric Power Co. v. Tennessee Valley Authority, and that other Supreme Court precedent implicitly recognizes private party Tenth Amendment standing. Because recent Supreme Court Tenth Amendment jurisprudence, along with the history and text of the Tenth Amendment, indicate that the Amendment safeguards an individual right, this Note concludes that private parties should be able to assert Tenth Amendment claims whenever they demonstrate distinct, personal harm and satisfy other traditional standing requirements.
Katherine A. Connolly, Who's Left Standing for State Sovereignty?: Private Party Standing to Raise Tenth Amendment Claims, 51 B.C.L. Rev. 1539 (2010), http://lawdigitalcommons.bc.edu/bclr/vol51/iss5/5