The Burger and Rehnquist Courts have looked to the Tenth and Eleventh Amendments for building "the new federalism."  Both amendments have been seen as limitations on the powers of Congress--although the Eleventh Amendment, by its own words, would appear to be only a limitation on judicial power.

In 1976, in National League of Cities v Usery, the Court struck down provisions of a federal law that extended minimum wage protection to almost all state and municipal employees.  Although the Court recognized that the Commerce Clause authorized minimum wage laws covering most employees, the Court held that the Constitution's structure and the Tenth Amendment's recognition of the role of states in the federal structure prohibited the federal government from telling states what they must pay their own employees. 

Nine years later, however, the Court overruled National League of Cities in Garcia v San Antonio Metro Transit Authority when Justice Blackmun--who had provided the critical fifth vote in the earlier case--reversed himself, concluding that the National League of Cities rule was causing so much confusion in the lower courts as to be "unworkable." 

The federalism debate again resurfaced in the 1992 case of New York v United States, when the Court invalidated a provision of the Radioactive Waste Policy Act that required states failing to develop an adequate plan for disposing of waste generated within their own borders to, "at the request of the owner or generator of the waste, take title to the waste."  The Court found that the so-called "take title" provision effectively "commandered the legislative processes" of states--something that the federal government cannot constitutionally do. 

In Printz v United States (1997), the Court again found that Congress had unconstitutionally intruded upon state sovereignty.  The law in question in Printz was a provision of the Brady Act requiring chief law enforcement officers of states to run background checks on prospective hand gun purchasers.  The Court rejected the federal government's argument that it could enlist states in enforcing federal law, even though it might be unconstitutional to require states to make law--the problem identified in New York v U. S.

The Eleventh Amendment was a response to the Supreme Court's unpopular decision in Chisholm v Georgia, in which the Court ordered Georgia to pay two South Carolina residents a debt the Court found was owed them.  Georgia legislators were so outraged by the decision that the passed a law declaring that anyone who attempted to carrry out the Court's mandate would be hanged with benefit of clergy!

Read literally, the Eleventh Amendment places no limitations on the power of the judiciary to entertain suits brought by against a state by residents of that same state.  Nonetheless, the Court in a controversial 1890 decision, Hans v Louisiana, concluded that the Eleventh Amendment was in fact a bar to to federal suits against a state by that state's own citizens.  The Court reasoned that at the time of the amendment's ratification in 1798 that such a limitation was taken for granted. 

The Court limited the effect of Hans somewhat in the 1908 case of Ex Parte Young.  The Court allowed a suit for injunctive relief against a state official reasoning that if a state official violated the Constitution he can't be acting on behalf of a state, which can only act constitutionally.  Thus, state officials--but not states--might be sued when the violate the Constitution, even when they do so in the name of the state.  Ex Parte Young was in turn limited by the Court in Edelman v Jordan (1974), holding that the Eleventh Amendment also bars suits against state officials for restitution or damages that will in fact be paid out of the state treasury. 

In Seminole Tribe of Florida v Florida (1996), the Court indicated for the first time that Congress is without power under the Commerce Clause (or Indian Commerce Clause) to abrogate a state's sovereign immunity.  In so doing, the Court overruled an earlier (Pennsylvania v Union Gas, 1989) decision that found such authority to exist.  According to the Court, only under the Fourteenth Amendment does the Congress have the power to abrogate state sovereign immunity.  In dissent, Justice Stevens warned of the far-reaching consequences of the Court's decision, which he called "a shocking affront to a co-equal branch of government."

In Alden v Maine (1999), the Court, by the same 5-4 margin seen in Seminole and Printz, extended constitutional protection to states sued in their own STATE courts for federal law violations.  Clearly, as the Court recognized, this result is not dictated (or even supported) by the language of the Eleventh Amendment.  Instead, the Court concluded that the English common-law notion of sovereign immunity--reaching even suits against sovereigns in their own courts--was implicitly adopted by the framers and ratifiers of the Constitution.

The 5-4 majority extended the constitutionalized sovereign immunity doctrine yet again in 2002, in the case of Federal Maritime Commission v South Carolina State Ports Authority.  Writing for the Court, Justice Thomas concluded that the Constitution shielded states from having to answer private complaints before federal agencies.  The case represented the first time that the sovereign immunity doctrine had been extended beyond the courtroom to executive branch agencies.  In dissent, Justice Breyer said that the majority opinion had no support "in any text, in any tradition, or in any relevant purpose."