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[Constitution of the United States of America:  Analysis, and Interpretation - 1992 Edition ]
[The Constitution of the United States of America (With Annotations)]
[Article VI. Prior Debts, National Supremacy, Oaths of Office ]
[From the U.S. Government Printing Office, www.gpo.gov]

[[Page 915]]

 
     ARTICLE VI __ PRIOR DEBTS, NATIONAL SUPREMACY, AND OATHS OF OFFICE

                               __________

 
                                CONTENTS

                                                                    Page
        Clause 1. Validity of Prior Debts and Engagements.........   917
        Clause 2. Supremacy of the Constitution, Laws and Treaties   917
        National Supremacy........................................   917
                Marshall's Interpretation of the National 
                    Supremacy Clause..............................   917
                Task of the Supreme Court Under the Clause: 
                    Preemption....................................   918
                The Operation of the Supremacy Clause.............   919
                        Federal Immunity Laws and State Courts....   919
                        Priority of National Claims Over State 
                            Claims................................   920
                Obligation of State Courts Under the Supremacy 
                    Clause........................................   920
                Supremacy Clause Versus the Tenth Amendment.......   921
                Federal Instrumentalities and Personnel and State 
                    Police Power..................................   930
                The Doctrine of Federal Exemption From State 
                    Taxation......................................   932
                        McCulloch v. Maryland.....................   932
                        Applicability of Doctrine to Federal 
                            Securities............................   933
                        Taxation of Government Contractors........   934
                        Taxation of Salaries of Employees of 
                            Federal Agencies......................   936
                        Ad Valorem Taxes Under the Doctrine.......   937
                        Federal Property and Functions............   940
                        Federally Chartered Finance Agencies: 
                            Statutory Exemptions..................   940
                        Royalties.................................   941
                        Immunity of Lessees of Indian Lands.......   942
                Summation and Evaluation..........................   942
        Clause 3. Oath of Office..................................   943
        Power of Congress in Respect to Oaths.....................   943
        National Duties of State Officers.........................   944

[[Page 917]]

                               ARTICLE VI
 
 
          PRIOR DEBTS, NATIONAL SUPREMACY, AND OATHS OF OFFICE

                               __________

  Clause 1. All Debts contracted and Engagements entered into, before 
the Adoption of this Constitution, shall be as valid against the United 
States under this Constitution, as under the Confederation.

                               PRIOR DEBTS

        There are no annotations to this clause.

  Clause 2. This Constitution, and the Laws of the United States which 
shall be made in Pursuance thereof; and all Treaties made, or which 
shall be made, under the Authority of the United States, shall be the 
supreme Law of the Land; and the Judges in every State shall be bound 
thereby; any Thing in the Constitution or Laws of any State to the 
Contrary notwithstanding.

                           NATIONAL SUPREMACY

      Marshall's Interpretation of the National Supremacy Clause

        Although the Supreme Court had held, prior to Marshall's 
appointment to the Bench, that the supremacy clause rendered null and 
void a state constitutional or statutory provision which was 
inconsistent with a treaty executed by the Federal Government,\1\ it was 
left for him to develop the full significance of the clause as applied 
to acts of Congress. By his vigorous opinions in McCulloch v. 
Maryland\2\ and Gibbons v. Ogden,\3\ he gave the principle a vitality 
which survived a century of vacillation under the doctrine of dual 
federalism. In the former case, he asserted broadly that ``the States 
have no power, by taxation or otherwise, to retard, impede, burden, or 
in any manner control, the operations of the constitutional laws enacted 
by Congress to carry into execution the powers vested in

[[Page 918]]
the general government. This is, we think, the unavoidable consequence 
of that supremacy which the Constitution has declared.''\4\ From this he 
concluded that a state tax upon notes issued by a branch of the Bank of 
the United States was void.

        \1\Ware v. Hylton, 3 Dall. (3 U.S.) 199 (1796).
        \2\4 Wheat. (17 U.S.) 316 (1819).
        \3\9 Wheat. (22 U.S.) 1 (1824).
        \4\4 Wheat. (17 U.S.) 436 (1819).
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        In Gibbons v. Ogden, the Court held that certain statutes of New 
York granting an exclusive right to use steam navigation on the waters 
of the State were null and void insofar as they applied to vessels 
licensed by the United States to engage in coastal trade. Said the Chief 
Justice: ``In argument, however, it has been contended, that if a law 
passed by a State, in the exercise of its acknowledged sovereignty, 
comes into conflict with a law passed by Congress in pursuance of the 
Constitution, they affect the subject, and each other, like equal 
opposing powers. But the framers of our Constitution foresaw this state 
of things, and provided for it, by declaring the supremacy not only of 
itself, but of the laws made in pursuance of it. The nullity of an act, 
inconsistent with the Constitution, is produced by the declaration, that 
the Constitution is the supreme law. The appropriate application of that 
part of the clause which confers the same supremacy on laws and 
treaties, is to such acts of the State legislatures as do not transcend 
their powers, but though enacted in the execution of acknowledged State 
powers, interfere with, or are contrary to the laws of Congress, made in 
pursuance of the Constitution, or some treaty made under the authority 
of the United States. In every such case, the act of Congress, or the 
treaty, is supreme; and the law of the State, though enacted in the 
exercise of powers not controverted, must yield to it.''\5\

        \5\9 Wheat. (22 U.S.), 210-211 (1824). See the Court's 
discussion of Gibbons in Douglas v. Seacoast Products, 431 U.S. 265, 
274-279 (1977).
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      Task of the Supreme Court Under the Clause: Preemption

        In applying the supremacy clause to subjects which have been 
regulated by Congress, the primary task of the Court is to ascertain 
whether a challenged state law is compatible with the policy expressed 
in the federal statute. When Congress legislates with regard to a 
subject, the extent and nature of the legal consequences of the 
regulation are federal questions, the answers to which are to be derived 
from a consideration of the language and policy of the state. If 
Congress expressly provides for exclusive federal dominion or if it 
expressly provides for concurrent federal-state jurisdiction, the task 
of the Court is simplified, though, of course, there may still be 
doubtful areas in which interpretation will be necessary. Where Congress 
is silent, however, the Court must itself decide

[[Page 919]]
whether the effect of the federal legislation is to oust state 
jurisdiction.\6\

        \6\Treatment of preemption principles and standards is set out 
under the commerce clause, which is the greatest source of preemptive 
authority.
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      The Operation of the Supremacy Clause

        When Congress legislates pursuant to its delegated powers, 
conflicting state law and policy must yield.\7\ Although the preemptive 
effect of federal legislation is best known in areas governed by the 
commerce clause, the same effect is present, of course, whenever 
Congress legislates constitutionally. And the operation of the supremacy 
clause may be seen as well when the authority of Congress is not express 
but implied, not plenary but dependent upon state acceptance. The latter 
may be seen in a series of cases concerning the validity of state 
legislation enacted to bring the States within the various programs 
authorized by Congress pursuant to the Social Security Act.\8\ State 
participation in the programs is voluntary, technically speaking, and no 
State is compelled to enact legislation comporting with the requirements 
of federal law. Once, however, a State is participating, its 
legislation, which is contrary to federal requirements, is void under 
the supremacy clause.\9\

        \7\Gibbons v. Ogden, 9 Wheat. (22 U.S.) 1, 210-211 (1824). See, 
e.g., Cipollone v. Liggett Group, Inc., 112 S.Ct. 2608 (1992); Morales 
v. TWA, 112 S.Ct. 2031 (1992); Maryland v. Lousiana, 451 U.S. 725, 746 
(1981); Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977).
        \8\By the Social Security Act of 1935, 49 Stat. 620, 42 U.S.C. 
Sec. 301 et seq., Congress established a series of programs operative in 
those States which joined the system and enacted the requisite complying 
legislation. Although participation is voluntary, the federal tax 
program underlying in effect induces state participation. See Steward 
Machine Co. v. Davis, 301 U.S. 548, 585-598 (1937).
        \9\On the operation of federal spending programs upon state 
laws, see South Dakota v. Dole, 483 U.S. 203 (1987) (under highway 
funding programs). On the preemptive effect of federal spending laws, 
see Lawrence County v. Lead-Deadwood School Dist., 469 U.S. 256 (1985). 
An early example of States being required to conform their laws to the 
federal standards is King v. Smith, 392 U.S. 309 (1968). Private parties 
may compel state acquiescence in federal standards to which they have 
agreed by participation in the programs through suits under a federal 
civil rights law (42 U.S.C. Sec. 1983). Maine v. Thiboutot, 448 U.S. 1 
(1980). The Court has imposed some federalism constraints in this area 
by imposing a ``clear statement'' rule on Congress when it seeks to 
impose new conditions on States. Pennhurst State School & Hospital v. 
Halderman, 451 U.S. 1, 11, 17-18 (1981).
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        Federal Immunity Laws and State Courts.--An example of the 
former circumstance is the operation of federal immunity acts\10\ to 
preclude the use in state courts of incriminating statements and 
testimony given by a witness before a committee of Congress or a federal 
grand jury.\11\ Because Congress in pursuance of its paramount authority 
to provide for the national defense, as

[[Page 920]]
complemented by the necessary and proper clause, is competent to compel 
testimony of persons which is needful for legislation, it is competent 
to obtain such testimony over a witness's self-incrimination claim by 
immunizing him from prosecution on evidence thus revealed not only in 
federal courts but in state courts as well.\12\

        \10\Which operate to compel witnesses to testify even over self-
incrimination claims by giving them an equivalent immunity. 
        \11\Adams v. Maryland, 347 U.S. 179 (1954).
        \12\Ullmann v. United States, 350 U.S. 422, 434-436 (1956). See 
also Reina v. United States, 364 U.S. 507, 510 (1960).
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        Priority of National Claims Over State Claims.--Anticipating his 
argument in McCulloch v. Maryland,\13\ Chief Justice Marshall in 1805 
upheld an act of 1792 asserting for the United States a priority of its 
claims over those of the States against a debtor in bankruptcy.\14\ 
Consistent therewith, federal enactments providing that taxes due to the 
United States by an insolvent shall have priority in payment over taxes 
due by him to a State also have been sustained.\15\ Similarly, the 
Federal Government was held entitled to prevail over a citizen enjoying 
a preference under state law as creditor of an enemy alien bank in the 
process of liquidation by state authorities.\16\ A federal law providing 
that when a veteran dies in a federal hospital without a will or heirs 
his personal property shall vest in the United States as trustee for the 
General Post Fund was held to operate automatically without prior 
agreement of the veteran with the United States for such disposition and 
to take precedence over a state claim founded on its escheat law.\17\

        \13\4 Wheat. (17 U.S.) 316 (1819).
        \14\United States v. Fisher, 2 Cr. (6 U.S.) 358 (1805).
        \15\Spokane County v. United States, 279 U.S. 80, 87 (1929). A 
state requirement that notice of a federal tax lien be filed in 
conformity with state law in a state office in order to be accorded 
priority was held to be controlling only insofar as Congress by law had 
made it so. Remedies for collection of federal taxes are independent of 
legislative action of the States. United States v. Union Central Life 
Ins. Co., 368 U.S. 291 (1961). See also United States v. Buffalo Savings 
Bank, 371 U.S. 228 (1963) (State may not avoid priority rules of a 
federal tax lien by providing that the discharge of state tax liens are 
to be part of the expenses of a mortgage foreclosure sale); United 
States v. Pioneer American Ins. Co., 374 U.S. 84 (1963) (Matter of 
federal law whether a lien created by state law has acquired sufficient 
substance and has become so perfected as to defeat a later-arising or 
later-filed federal tax lien).
        \16\Brownell v. Singer, 347 U.S. 403 (1954).
        \17\United States v. Oregon, 366 U.S. 643 (1961).
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      Obligation of State Courts Under the Supremacy Clause

        The Constitution, laws, and treaties of the United States are as 
much a part of the law of every State as its own local laws and 
constitution. Their obligation ``is imperative upon the state judges, in 
their official and not merely in their private capacities. From the very 
nature of their judicial duties, they would be called upon to pronounce 
the law applicable to the case in judgment. They were not to decide 
merely according to the laws or Constitution of the

[[Page 921]]
State, but according to the laws and treaties of the United States--`the 
supreme law of the land'.''\18\ State courts are bound then to give 
effect to federal law when it is applicable and to disregard state law 
when there is a conflict; federal law includes, of course, not only the 
Constitution and congressional enactments and treaties but as well the 
interpretations of their meanings by the United States Supreme 
Court.\19\ While States need not specially create courts competent to 
hear federal claims or necessarily to give courts authority specially, 
it violates the supremacy clause for a state court to refuse to hear a 
category of federal claims when the court entertains state law actions 
of a similar nature.\20\ The existence of inferior federal courts 
sitting in the States and exercising often concurrent jurisdiction of 
subjects has created problems with regard to the degree to which state 
courts are bound by their rulings. Though the Supreme Court has directed 
and encouraged the lower federal courts to create a corpus of federal 
common law,\21\ it has not spoken to the effect of such lower court 
rulings on state courts.

        \18\Martin v. Hunter's Lessee, 1 Wheat. (14 U.S.) 304, 335 
(1816). State courts have both the power and the duty to enforce 
obligations arising under federal law, unless Congress gives the federal 
courts exclusive jurisdiction. Claflin v. Houseman, 93 U.S. 130 (1876); 
Second Employers' Liability Cases, 223 U.S. 1 (1912); Testa v. Katt, 330 
U.S. 386 (1947).
        \19\Cooper v. Aaron, 358 U.S. 1 (1958).
        \20\Howlett v. Rose, 496 U.S. 356 (1990); Felder v. Casey, 487 
U.S. 131 (1988).
        \21\Clearfield Trust Co. v. United States, 318 U.S. 363 (1943); 
Textile Workers of America v. Lincoln Mills, 353 U.S. 448 (1957); 
Illinois v. City of Milwaukee, 406 U.S. 91 (1972).
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      Supremacy Clause Versus the Tenth Amendment

        The logic of the supremacy clause would seem to require that the 
powers of Congress be determined by the fair reading of the express and 
implied grants contained in the Constitution itself, without reference 
to the powers of the States. For a century after Marshall's death, 
however, the Court proceeded on the theory that the Tenth Amendment had 
the effect of withdrawing various matters of internal police from the 
reach of power expressly committed to Congress. This point of view was 
originally put forward in New York City v. Miln,\22\ which was first 
argued but not decided before Marshall's death. The Miln case involved a 
New York statute which required the captains of vessels entering New 
York Harbor with aliens aboard to make a report in writing to the Mayor 
of the City, giving certain prescribed information. It might have been 
distinguished from Gibbons v. Ogden on the ground that the statute 
involved in the earlier case conflicted with an act of Congress,

[[Page 922]]
whereas the Court found that no such conflict existed in this case. But 
the Court was unwilling to rest its decision on that distinction.

        \22\11 Pet. (36 U.S.) 102 (1837).
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        Speaking for the majority, Justice Barbour seized the 
opportunity to proclaim a new doctrine. ``But we do not place our 
opinion on this ground. We choose rather to plant ourselves on what we 
consider impregnable positions. They are these: That a State has the 
same undeniable and unlimited jurisdiction over all persons and things, 
within its territorial limits, as any foreign nation, where that 
jurisdiction is not surrendered or restrained by the Constitution of the 
United States. That, by virtue of this, it is not only the right, but 
the bounden and solemn duty of a State, to advance the safety, happiness 
and prosperity of its people, and to provide for its general welfare, by 
any and every act of legislation, which it may deem to be conducive to 
these ends; where the power over the particular subject, or the manner 
of its exercise is not surrendered or restrained, in the manner just 
stated. That all those powers which relate to merely municipal 
legislation, or what may, perhaps, more properly be called internal 
police, are not thus surrendered or restrained; and that, consequently, 
in relation to these, the authority of a State is complete, unqualified, 
and exclusive.''\23\ Justice Story, in dissent, stated that Marshall had 
heard the previous argument and reached the conclusion that the New York 
statute was unconstitutional.\24\

        \23\Id., 139.
        \24\Id., 161.
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        The conception of a ``complete, unqualified and exclusive'' 
police power residing in the States and limiting the powers of the 
National Government was endorsed by Chief Justice Taney ten years later 
in the License Cases.\25\ In upholding state laws requiring licenses for 
the sale of alcoholic beverages, including those imported from other 
States or from foreign countries, he set up the Supreme Court as the 
final arbiter in drawing the line between the mutually exclusive, 
reciprocally limiting fields of power occupied by the national and state 
governments.\26\

        \25\5 How. (46 U.S.) 504 (1847).
        \26\Id., 573-574.
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        Until recently, it appeared that in fact and in theory the Court 
had repudiated this doctrine,\27\ but in National League of Cities v. 
Usery,\28\ it revived part of this state police power limitation upon 
the exercise of delegated federal power. However, the decision was

[[Page 923]]
by a closely divided Court and subsequent interpretations closely 
cabined the development and then overruled the case.

        \27\Representative early cases include NLRB v. Jones & Laughlin 
Steel Corp., 301 U.S. 1 (1937); Steward Machine Co. v. Davis, 301 U.S. 
548 (1937); Helvering v. Davis, 301 U.S. 619 (1937); United States v. 
Darby, 312 U.S. 100 (1941). Among the cases incompatible with the theory 
was Maryland v. Wirtz, 392 U.S. 183 (1968).
        \28\426 U.S. 833 (1976).
---------------------------------------------------------------------------

        Following the demise of the ``doctrine of dual federalism'' in 
the 1930s, the Court confronted the question whether Congress had the 
power to regulate state conduct and activities to the same extent, 
primarily under the commerce clause, as it did to regulate private 
conduct and activities to the exclusion of state law.\29\ In United 
States v. California,\30\ upholding the validity of the application of a 
federal safety law to a state-owned railroad being operated as a non-
profit entity, the Court, speaking through Justice Stone, denied the 
existence of an implied limitation upon Congress' ``plenary power to 
regulate commerce'' when a state instrumentality was involved. ``The 
state can no more deny the power if its exercise has been authorized by 
Congress than can an individual.'' While the State in operating the 
railroad was acting as a sovereign and within the powers reserved to the 
States, the Court said, its exercise was ``in subordination to the power 
to regulate interstate commerce, which has been granted specifically to 
the national government. The sovereign power of the states is 
necessarily diminished to the extent of the grants of power to the 
federal government in the Constitution.''\31\ A series of cases followed 
in which the Court refused to construct any state immunity from 
regulation when Congress acted pursuant to a delegated power.\32\ The 
culmination of this series had been thought to be Maryland v. Wirtz,\33\ 
in which the Court upheld the constitutionality of applying the federal 
wage and hour law to nonprofessional employees of state-operated schools 
and hospitals. In an opinion by Justice Harlan, the Court saw a clear 
connection between working conditions in these institutions and 
interstate commerce. Labor conditions in schools and hospitals affect 
commerce; strikes and work stoppages involving such

[[Page 924]]
employees interrupt and burden the flow across state lines of goods 
purchased by state agencies and the wages paid have a substantial 
effect. The commerce clause being thus applicable, the Justice wrote, 
Congress was not constitutionally required to ``yield to state 
sovereignty in the performance of governmental functions. This argument 
simply is not tenable. There is no general `doctrine implied in the 
Federal Constitution that ``the two governments, national and state, are 
each to exercise its powers so as not to interfere with the free and 
full exercise of the powers of the other.''' . . . [I]t is clear that 
the Federal Government when acting within a delegated power, may 
override countervailing state interests whether these be described as 
`governmental' or `proprietary' in character. . . . [V]alid general 
regulations of commerce do not cease to be regulations of commerce 
because a State is involved. If a State is engaging in economic 
activities that are validly regulated by the Federal Government when 
engaged in by private persons, the State too may be forced to conform 
its activities to federal regulation.''\34\

        \29\On the doctrine of ``dual federalism,'' see the commentary 
by the originator of the phrase, Professor Corwin. E. Corwin, The 
Twilight of the Supreme Court--A History of Our Constitutional Theory 
(Yale: 1934), 10-51; The Commerce Power Versus States Rights (Princeton: 
1936), 115-172;  A Constitution of Powers in a Secular State 
(Charlottesville: 1951), 1-28.
        \30\297 U.S. 175 (1936).
        \31\Id., 183-185.
        \32\California v. United States, 320 U.S. 577 (1944) (federal 
regulation of shipping terminal facilities owned by State); California 
v. Taylor, 353 U.S. 553 (1957) (Railway Labor Act applies on state-owned 
railroad); Case v. Bowles, 327 U.S. 92 (1946); Hubler v. Twin Falls 
County, 327 U.S. 103 (1946) (federal wartime price regulations applied 
to state transactions; Congress' power effectively to wage war); Board 
of Trustees v. United States, 289 U.S. 48 (1933) (State university 
required to pay federal customs duties on imported educational 
equipment); Oklahoma ex rel. Phillips v. Atkinson Co., 313 U.S. 508 
(1941) (federal condemnation of state lands for flood control project); 
Sanitary District v. United States, 206 U.S. 405 (1925) (prohibition of 
State from diverting water from Great Lakes).
        \33\392 U.S. 183 (1968). Justices Douglas and Stewart dissented. 
Id., 201.
        \34\Id., 195, 196-197.
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        Wirtz was specifically reaffirmed in Fry v. United States,\35\ 
in which the Court upheld the constitutionality of presidentially 
imposed wage and salary controls, pursuant to congressional statute, on 
all state governmental employees. In dissent, however, Justice Rehnquist 
propounded a doctrine which was to obtain majority approval in League of 
Cities.\36\ In that opinion, he said for the Court: ``[T]here are 
attributes of sovereignty attaching to every state government which may 
not be impaired by Congress, not because Con

[[Page 925]]
gress may lack an affirmative grant of legislative authority to reach 
the matter, but because the Constitution prohibits it from exercising 
the authority in that manner.''\37\ The standard apparently, in judging 
between permissible and impermissible federal regulation, is whether 
there is federal interference with ``functions essential to separate and 
independent existence.''\38\ In the context of this case, state 
decisions with respect to the pay of their employees and the hours to be 
worked were essential aspects of their ``freedom to structure integral 
operations in areas of traditional governmental functions.''\39\ The 
line of cases, exemplified by United States v. California, was 
distinguished and preserved on the basis that the state activities there 
regulated were so unlike the traditional activities of a State that 
Congress could reach them;\40\ Case v. Bowles was held distinguishable 
on the basis that Congress had acted pursuant to its war powers and to 
have rejected the power would have impaired national defense;\41\ Fry 
was distinguished on the bases that it was emergency legislation 
tailored to combat a serious national emergency, the means were limited 
in time and effect, the freeze did not displace state discretion in 
structuring operations or force a restructuring, and, the federal action 
``operated to reduce the pressure upon state budgets rather than 
increase them.''\42\ Wirtz was overruled; it permitted Congress to 
intrude into the conduct of integral and traditional state governmental 
functions and could not therefore stand.\43\

        \35\421 U.S. 542 (1975).
        \36\Id. 549. Essentially, the Justice was required to establish 
an affirmative constitutional barrier to congressional action. Id, 552-
553. That is, if one asserts only the absence of congressional 
authority, one's chances of success are dim because of the breadth of 
the commerce power. But when he asserts that, say, the First or Fifth 
Amendment bars congressional action concededly within its commerce 
power, one interposes an affirmative constitutional defense that has a 
chance of success. It was the Justice's view that the State was 
``asserting an affirmative constitutional right, inherent in its 
capacity as a State, to be free from such congressionally asserted 
authority.'' Id., 553. But whence the affirmative barrier? ``[I]t is not 
the Tenth Amendment by its terms. . . .'' Id., 557 (emphasis supplied). 
Rather, the Amendment was an example of the Framers' understanding that 
the sovereignty of the States imposed an implied affirmative barrier to 
the assertion of otherwise valid congressional powers. Id., 557-559. But 
the difficulty with this construction is that the equivalence sought to 
be established by Justice Rehnquist lies not between an individual 
asserting a constitutional limit on delegated powers and a State 
asserting the same thing but is rather between an individual asserting a 
lack of authority and a State asserting a lack of authority; this 
equivalence is evident on the face of the Tenth Amendment which states 
that the powers not delegated to the United States ``are reserved to the 
States respectively, or to the people.'' (emphasis supplied). The States 
are thereby accorded no greater interest in restraining the exercise of 
nondelegated power than are the people. See Massachusetts v. Mellon, 262 
U.S. 447 (1823).
        \37\National League of Cities v. Usery, 426 U.S. 833, 845 
(1976).
        \38\Ibid.
        \39\Id., 852.
        \40\Id., 854.
        \41\Id., 854 n. 18.
        \42\Id., 852-853.
        \43\Id., 853-855.
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        League of Cities did not prove to be much of a restriction upon 
congressional power in subsequent decisions. First, its principle was 
held not to reach to state regulation of private conduct that affects 
interstate commerce, even as to such matters as state jurisdiction over 
land within its borders.\44\ Second, it was held not to immunize state 
conduct of a business operation, that is, proprietary activity not like 
``traditional governmental activities.''\45\ Third, it was held not to 
preclude Congress from regulating the way States regulate private 
activities within the State, even though such state activity is 
certainly traditional governmental action, on the theory that because 
Congress could displace or preempt state regulation it may require the 
States to regulate in a certain way if they wish

[[Page 926]]
to continue to act in this field.\46\ Fourth, it was held not to limit 
Congress when it acts in an emergency or pursuant to its war powers, so 
that Congress may indeed reach even traditional governmental 
activity.\47\ Fifth, it was held not to apply at all to Congress' 
enforcement powers under the Thirteenth, Fourteenth, and Fifteenth 
Amendments.\48\ Sixth, it apparently was to have no application to the 
exercise of Congress' spending power with conditions attached.\49\ 
Seventh, not because of the way the Court framed the statement of its 
doctrinal position, which is absolutist, but because of the way it 
accommodated precedent and because of Justice Blackmun's concurrence, it 
was always open to interpretation that Congress was enabled to reach 
traditional governmental activities not involving employer-employee 
relations or is enabled to reach even these relations if the effect is 
``to reduce the pressures upon state budgets rather than increase 
them.''\50\ In his concurrence, Justice Blackmun suggested his lack of 
agreement with ``certain possible implications'' of the opinion and 
recast it as a ``balancing approach'' which ``does not outlaw federal 
power in areas such as environmental protection, where the federal 
interest is demonstrably greater and where state facility compliance 
with imposed federal standards would be essential.''\51\ Indeed, Justice 
Blackmun's deviation from League of Cities in the subsequent cases 
usually made the difference in the majority. dispute.

        \44\Hodel v. Virginia Surface Mining & Reclamation Assn., 452 
U.S. 264 (1981).
        \45\United Transp. Union v. Long Island Rail Road Co., 455 U.S. 
678 (1982).
        \46\FERC v. Mississippi, 456 U.S. 742 (1982).
        \47\National League of Cities v. Usery, 426 U.S. 833, 854 n. 18 
(1976).
        \48\Fitzpatrick v. Bitzer, 427 U.S. 445 (1976); City of Rome v. 
United States, 446 U.S. 156, 178-180 (1980).
        \49\In Pennhurst State School & Hospital v. Halderman, 451 U.S. 
1, 17 n. 13 (1981), the Court suggested rather ambiguously that League 
of Cities may restrict the federal spending power, citing its 
reservation of the cases in League of Cities, 426 U.S. 852 n. 17, but 
citing also spending clause cases indicating a rational basis standard 
of review of conditioned spending. Earlier, the Court had summarily 
affirmed a decision holding that the spending power was not affected by 
the case. North Carolina ex rel. Morrow v. Califano, 445 F.Supp. 532 
(E.D.N.C. 1977) (three-judge court), affd. 435 U.S. 962 (1978). No hint 
of such a limitation is contained in more recent decisions (to be sure, 
in the aftermath of League of Cities' demise). New York v. United 
States, 112 S.Ct. 2408, 2423, 2426, 2433 (1992); South Dakota v. Dole, 
483 U.S. 203, 210-212 (1987).
        \50\National League of Cities v. Usery, 426 U.S. 833, 846-851 
(1976). The quotation in the text is at id., 853 (one of the elements 
distinguishing the case from Fry ).
        \51\Id., 856.
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        The Court overruled National League of Cities in Garcia v. San 
Antonio Metropolitan Transit Auth.,\52\ and seemingly returned to

[[Page 927]]
the conception of federal supremacy embodied in Wirtz and Fry. For the 
most part, the Court indicated, States must seek protection from the 
impact of federal regulation in the political processes, and not in any 
limitations imposed on the commerce power or found in the Tenth 
Amendment. Justice Blackmun's opinion for the Court in Garcia concluded 
that the National League of Cities test for ``integral operations in 
areas of traditional governmental functions'' had proven ``both 
impractical and doctrinally barren.''\53\ State autonomy is both limited 
and protected by the terms of the Constitution itself, hence--
ordinarily, at least--exercise of Congress' enumerated powers is not to 
be limited by ``a priori definitions of state sovereignty.''\54\ States 
retain a significant amount of sovereign authority ``only to the extent 
that the Constitution has not divested them of their original powers and 
transferred those powers to the Federal Government.''\55\ There are 
direct limitations in Art. I, Sec. 10, and ``Section 8 . . . works an 
equally sharp contraction of state sovereignty by authorizing Congress 
to exercise a wide range of legislative powers and (in conjunction with 
the supremacy clause of Article VI) to displace contrary state 
legislation.''\56\ On the other hand, the principal restraints on 
congressional exercise of the commerce power are to be found not in the 
Tenth Amendment, in the commerce clause itself, or in ``judicially 
created limitations on federal power,'' but in the structure of the 
Federal Government and in the political processes.\57\ ``[T]he 
fundamental limitation that the constitutional scheme imposes on the 
Commerce Clause to protect the 'States as States' is one of process 
rather than one of result.''\58\ While continuing to recognize that 
``Congress' authority under the Commerce Clause must reflect [the] 
position . . . that the States occupy a special and specific position in 
our constitutional system,'' the Court held that application of Fair 
Labor Standards Act minimum wage and overtime provisions to state 
employment does not require identification of these ``affirmative 
limits.''\59\ Thus, arguably, the Court has not totally abandoned the 
National League of Cities premise that there are limits on the extent to 
which federal regulation may burden States as States. Rather, it has 
stipulated

[[Page 928]]
that any such limits on exercise of federal power must be premised on a 
failure of the political processes to protect state interests, and 
``must be tailored to compensate for [such] failings . . . rather than 
to dictate a `sacred province of state autonomy.'''\60\

        \52\469 U.S. 528 (1985). The issue was again decided by a 5 to 4 
vote, Justice Blackmun's qualified acceptance of the National League of 
Cities approach having changed to complete rejection. Justice Blackmun's 
opinion of the Court was joined by Justices Brennan, White, Marshall, 
and Stevens. Writing in dissent were Justices Powell (joined by Chief 
Justice Burger and by Justices Rehnquist and O'Connor), O'Connor (joined 
by Justices Powell and Rehnquist), and Rehnquist.
        \53\Id., 557.
        \54\Id., 548.
        \55\Id., 549.
        \56\Id., 548.
        \57\``Apart from the limitation on federal authority inherent in 
the delegated nature of Congress' Article I powers, the principal means 
chosen by the Framers to ensure the role of the States in the federal 
system lies in the structure of the Federal Government itself.'' Id., 
550. The Court cited as prime examples the role of states in selecting 
the President, and the equal representation of states in the Senate. 
Id., 551.
        \58\Id., 554.
        \59\Id., 556.
        \60\Id., 554.
---------------------------------------------------------------------------

        Further indication of what must be alleged in order to establish 
affirmative limits to commerce power regulation was provided in South 
Carolina v. Baker.\61\ The Court expansively interpreted Garcia as 
meaning that there must be an allegation of ``some extraordinary defects 
in the national political process'' before the Court will intervene. A 
claim that Congress acted on incomplete information will not suffice, 
the Court noting that South Carolina had ``not even alleged that it was 
deprived of any right to participate in the national political process 
or that it was singled out in a way that left it politically isolated 
and powerless.''\62\ Thus, the general rule is that ``limits on 
Congress' authority to regulate state activities . . . are structural, 
not substantive--i.e., that States must find their protection from 
congressional regulation through the national political process, not 
through judicially defined spheres of unregulable state activity.''\63\

        \61\485 U.S. 505 (1988).
        \62\Id., 512-513.
        \63\Id., 512.
---------------------------------------------------------------------------

        Dissenting in Garcia, Justice Rehnquist predicted that the 
doctrine propounded by the dissenters and by those Justices in National 
League of Cities ``will . . . in time again command the support of a 
majority of the Court.''\64\ As the membership of the Court changed, it 
appeared that the prediction was proving true.\65\ Confronted with the 
opportunity in New York v. United States,\66\ to re-examine Garcia, the 
Court instead distinguished it,\67\ striking down a federal law on the 
basis that Congress could not ``commandeer'' the legislative and 
administrative processes of state government to compel the 
administration of federal programs.\68\ The

[[Page 929]]
line of analysis pursued by the Court makes clear, however, the result 
when a Garcia kind of federal law is reviewed.

        \64\Garcia v. San Antonio Metropolitan Transit Auth., 469 U.S. 
528, 579-580 (1985).
        \65\The shift was pronounced in Gregory v. Ashcroft, 501 U.S. 
452 (1991), in which the Court, cognizant of the constraints of Garcia, 
chose to apply a ``plain statement'' rule to construction of a statute 
seen to be intruding into the heart of state autonomy. Id., 463. To do 
otherwise, said Justice O'Connor, was to confront ``a potential 
constitutional problem'' under the Tenth Amendment and the guarantee 
clause of Article IV, Sec. 4. Id., 463-464.
        \66\112 S.Ct. 2408 (1992).
        \67\The line of cases exemplified by Garcia was said to concern 
the authority of Congress to subject state governments to generally 
applicable laws, those covering private concerns as well as the States, 
necessitating no revisiting of those cases. Id., 2420.
        \68\Struck down was a provision of law providing for the 
disposal of radioactive wastes generated in the United States by 
government and industry. Placing various responsibilities on the States, 
the provision sought to compel performance by requiring that any State 
that failed to provide for the permanent disposal of wastes generated 
within its borders must take title to, take possession of, and assume 
liability for the wastes, id., 2414-2417, 2427-2429, obviously a 
considerable burden.
---------------------------------------------------------------------------

        That is, because the dispute involved the division of authority 
between federal and state governments, Justice O'Connor wrote for the 
Court, one could inquire whether Congress acted under a delegated power 
or one could ask whether Congress had invaded a state province protected 
by the Tenth Amendment. But, said the Justice, ``the two inquiries are 
mirror images of each other. If a power is delegated to Congress in the 
Constitution, the Tenth Amendment expressly disclaims any reservation of 
that power to the States; if a power is an attribute of state 
sovereignty reserved by the Tenth Amendment, it is necessarily a power 
the Constitution has not conferred on Congress.''\69\

        \69\Id., 2417.
---------------------------------------------------------------------------

        Powers delegated to the Nation, therefore, are subject to 
limitations that reserve power to the States. This limitation is not 
found in the text of the Tenth Amendment, which is, the Court stated, 
``but a truism,''\70\ but is a direct constraint on Article I powers 
when an incident of state sovereignty is invaded.\71\ The ``take title'' 
provision was such an invasion. Both the Federal Government and the 
States owe political accountability to the people. When Congress 
encourages States to adopt and administer a federally-prescribed 
program, both governments maintain their accountability for their 
decisions. When Congress compels the States to act, state officials will 
bear the brunt of accountability that properly belongs at the national 
level.\72\The ``take title'' provision, because it presented the States 
with ``an unavoidable command'', transformed state governments into 
``regional offices'' or ``administrative agencies'' of the Federal 
Government, impermissibly undermined the accountability owing the people 
and was void.\73\ Whether viewed as lying outside Congress' enumerated 
powers or as infringing the core of state sovereignty reserved by the 
Tenth Amendment, ``the provision is inconsistent with the federal 
structure of our Government established by the Constitution.''\74\

        \70\Id., 2418 (quoting United States v. Darby, 312 U.S. 100, 124 
(1941)).
        \71\Ibid.
        \72\Id., 2424.
        \73\Id., 2427-2429, 2434-2435.
        \74\Id., 2429.
---------------------------------------------------------------------------

        Federal laws of general applicability, therefore, are surely 
subject to examination under the New York test rather than under the 
Garcia structural standard. The exercise of Congress' commerce

[[Page 930]]
powers will likely be reviewed under a level of close scrutiny in the 
foreseeable future.

      Federal Instrumentalities and Personnel and State Police Power

        Federal instrumentalities and agencies have never enjoyed the 
same degree of immunity from state police regulation as from state 
taxation. The Court has looked to the nature of each regulation to 
determine whether it is compatible with the functions committed by 
Congress to the federal agency. This problem has arisen most often with 
reference to the applicability of state laws to the operation of 
national banks. Two correlative propositions have governed the decisions 
in these cases. The first was stated by Justice Miller in First National 
Bank v. Commonwealth.\75\ ``[National banks are] subject to the laws of 
the State, and are governed in their daily course of business far more 
by the laws of the State than of the Nation. All their contracts are 
governed and construed by State laws. Their acquisition and transfer of 
property, their right to collect their debts, and their liability to be 
sued for debts are all based on State law. It is only when the State law 
incapacitates the banks discharging their duties to the government that 
it becomes unconstitutional.''\76\ In Davis v. Elmira Savings Bank,\77\ 
the Court stated the second proposition thus: ``National banks are 
instrumentalities of the Federal Government, created for a public 
purpose, and as such necessarily subject to the paramount authority of 
the United States. It follows that an attempt by a State to define their 
duties or control the conduct of their affairs is absolutely void, 
wherever such attempted exercise of authority expressly conflicts with 
the laws of the United States, and either frustrates the purpose of the 
national legislation, or impairs the efficiency of these agencies of the 
Federal Government to discharge the duties for the performance of which 
they were created.''\78\

        \75\9 Wall. (76 U.S.) 353 (1870).
        \76\Id., 362.
        \77\161 U.S. 275 (1896).
        \78\Id., 283.
---------------------------------------------------------------------------

        Similarly, a state law, insofar as it forbids national banks to 
use the word ``saving'' or ``savings'' in their business and advertising 
is void by reason of conflict with the Federal Reserve Act authorizing 
such banks to receive savings deposits.\79\ However, federal 
incorporation of a railroad company of itself does not operate to exempt 
it from control by a State as to business consummated wholly 
therein.\80\ Also, Treasury Department regulations, designed

[[Page 931]]
to implement the federal borrowing power (Art. I, Sec. 8, cl. 2) by 
making United States Savings Bonds attractive to investors and 
conferring exclusive title thereto upon a surviving joint owner, 
override contrary state community property laws whereunder a one-half 
interest in such property remains part of the estate of a decedent co-
owner.\81\ Similarly, the Patent Office having been granted by Congress 
an unqualified authorization to license and regulate the conduct 
throughout the United States of nonlawyers as patent agents, a State, 
under the guise of prohibiting unauthorized practice of law, is 
preempted from enjoining such activities of a licensed agent as entail 
the rendering of legal opinions as to patentability or infringement of 
patent rights and the preparation and prosecution of application for 
patents.\82\

        \79\Franklin Nat. Bank v. New York, 347 U.S. 273 (1954).
        \80\Reagan v. Mercantile Trust Co., 154 U.S. 413 (1894).
        \81\Free v. Bland, 369 U.S. 663 (1962).
        \82\Sperry v. Florida, 373 U.S. 379 (1963).
---------------------------------------------------------------------------

        The extent to which States may go in regulating contractors who 
furnish goods or services to the Federal Government is not as clearly 
established as is their right to tax such dealers. In 1943, a closely 
divided Court sustained the refusal of the Pennsylvania Milk Control 
Commission to renew the license of a milk dealer who, in violation of 
state law, had sold milk to the United States for consumption by troops 
at an army camp located on land belonging to the State, at prices below 
the minimum established by the Commission.\83\ The majority was unable 
to find in congressional legislation, or in the Constitution, unaided by 
congressional enactment, any immunity from such price fixing 
regulations. On the same day, a different majority held that California 
could not penalize a milk dealer for selling milk to the War Department 
at less than the minimum price fixed by state law where the sales and 
deliveries were made in a territory which had been ceded to the Federal 
Government by the State and were subject to the exclusive jurisdiction 
of the former.\84\ On the other hand, by virtue of its conflict with 
standards set forth in the Armed Services Procurement Act, 41 U.S.C. 
Sec. 152, for determining the letting of contracts to responsible 
bidders, a state law licensing contractors cannot be enforced against 
one selected by federal authorities for work on an Air Force base.\85\

        \83\Penn Dairies v. Milk Control Comm., 318 U.S. 261 (1943).
        \84\Pacific Coast Dairy v. Dept. of Agriculture, 318 U.S. 285 
(1943). See also Paul v. United States, 371 U.S. 245 (1963).
        \85\Leslie Miller, Inc. v. Arkansas, 353 U.S. 187 (1956).
---------------------------------------------------------------------------

        Most recently, the Court has done little to clarify the 
doctrinal difficulties.\86\ The Court looked to a ``functional'' 
analysis of state

[[Page 932]]
regulations, much like the rule covering state taxation. ``A state 
regulation is invalid only if it regulates the United States directly or 
discriminates against the Federal Government or those with whom it 
deals.''\87\In determining whether a regulation discriminates against 
the Federal Government, ``the entire regulatory system should be 
analyzed.''\88\

        \86\North Dakota v. United States, 495 U.S. 423 (1990). The 
difficulty is that the case was five-to-four with a single Justice 
concurring with a plurality of four to reach the result. Id., 444. 
Presumably, the concurrence agreed with the rationale set forth here, 
disagreeing only in other respects.
        \87\Id., 435. Four dissenting Justices agreed with this 
principle, but they also would invalidate a state law that ``actually 
and substantially interferes with specific federal programs.'' Id., 448, 
451-452.
        \88\Ibid. That is, only when the overall effect, when balanced 
against other regulations applicable to similarly situated persons who 
do not deal with the government, imposes a discriminatory burden will 
they be invalidated. The concurring Justice was doubtful of this 
standard.Id., 444 (Justice Scalia concurring).
---------------------------------------------------------------------------
      The Doctrine of Federal Exemption From State Taxation

        McCulloch v. Maryland.--Five years after the decision in 
McCulloch v. Maryland that a State may not tax an instrumentality of the 
Federal Government, the Court was asked to and did reexamine the entire 
question in Osborn v. United States Bank.\89\ In that case counsel for 
the State of Ohio, whose attempt to tax the Bank was challenged, put 
forward two arguments of great importance. In the first place it was 
``contended, that, admitting Congress to possess the power, this 
exemption ought to have been expressly asserted in the act of 
incorporation; and not being expressed, ought not to be implied by the 
Court.''\90\ To which Marshall replied: ``It is no unusual thing for an 
act of Congress to imply, without expressing, this very exemption from 
state control, which is said to be so objectionable in this 
instance.''\91\ Secondly, the appellants relied ``greatly on the 
distinction between the bank and the public institutions, such as the 
mint or the post office. The agents in those offices are, it is said, 
officers of government. . . . Not so the directors of the bank. The 
connection of the government with the bank, is likened to that with 
contractors.''\92\ Marshall accepted this analogy but not to the 
advantage of the appellants. He simply indicated that all contractors 
who dealt with the Government were entitled to immunity from taxation 
upon such transactions.\93\ Thus, not only was the decision of McCulloch 
v. Maryland reaffirmed but the foundation was laid for the vast 
expansion

[[Page 933]]
of the principle of immunity that was to follow in the succeeding 
decades.

        \89\9 Wheat. (22 U.S.) 738 (1824).
        \90\Id., 865.
        \91\Ibid.
        \92\Id., 866.
        \93\Id., 867.
---------------------------------------------------------------------------

        Applicability of Doctrine to Federal Securities.--The first 
significant extension of the doctrine of the immunity of federal 
instrumentalities from state taxation came in Weston v. Charleston,\94\ 
where Chief Justice Marshall also found in the supremacy clause a bar to 
state taxation of obligations of the United States. During the Civil 
War, when Congress authorized the issuance of legal tender notes, it 
explicitly declared that such notes, as well as United States bonds and 
other securities, should be exempt from state taxation.\95\ A modified 
version of this section remains on the statute books today.\96\ The 
right of Congress to exempt legal tender notes to the same extent as 
bonds was sustained in Bank v. Supervisors,\97\ over the objection that 
such notes circulate as money and should be taxable in the same way as 
coin. But a state tax on checks issued by the Treasurer of the United 
States for interest accrued upon government bonds was sustained since it 
did not in any way affect the credit of the National Government.\98\ 
Similarly, the assessment for an ad valorem property tax of an open 
account for money due under a federal contract,\99\ and the inclusion of 
the value of United States bonds owed by a decedent, in measuring an 
inheritance tax,\100\ were held valid, since neither tax would 
substantially embarrass the power of the United States to secure 
credit.\101\ A state property tax levied on mutual savings banks and 
federal savings and loan associations and measured by the amount of 
their capital, surplus, or reserve and undivided profits, but without 
deduction of the value of their United States securities, was voided as 
a tax on obligations of the Federal Government. Apart from the fact that 
the ownership interest of depositors in such institutions was different 
from that of corporate stockholders, the tax was im

[[Page 934]]
posed on the banks which were solely liable for payment thereof.\102\

        \94\2 Pet. (27 U.S.) 449 (1829), followed in New York ex rel. 
Bank of Commerce v. New York City, 2 Bl. (67 U.S.) 620 (1863).
        \95\12 Stat. 709, 710, 1 (1863).
        \96\31 U.S.C. Sec. 3124. The exemption under the statute is no 
broader than that which the Constitution requires. First National Bank 
v. Bartow County Bd. of Tax Assessors, 470 U.S. 583 (1985). The 
relationship of this statute to another, 12 U.S.C. Sec. 548, governing 
taxation of shares of national banking associations, has occasioned no 
little difficulty. American Bank & Trust Co. v. Dallas County, 463 U.S. 
855 (1983); Memphis Bank & Trust Co. v. Garner, 459 U.S. 392 (1983).
        \97\7 Wall. (74 U.S.) 26 (1868).
        \98\Hibernia Savings Society v. San Francisco, 200 U.S. 310, 315 
(1906).
        \99\Smith v. Davis, 323 U.S. 111 (1944).
        \100\Plummer v. Coler, 178 U.S. 115 (1900); Blodgett v. 
Silberman, 277 U.S. 1, 12 (1928).
        \101\Accord: Rockford Life Ins. Co. v. Illinois Dept. of 
Revenue, 482 U.S. 182 (1987) (Tax including in an investor's net assets 
the value of federally-backed securities (``Ginnie Maes'') upheld, since 
it would have no adverse effect on Federal Government's borrowing 
ability).
        \102\Society for Savings v. Bowers, 349 U.S. 143 (1955).
---------------------------------------------------------------------------

        Income from federal securities is also beyond the reach of the 
state taxing power as the cases now stand.\103\ Nor can such a tax be 
imposed indirectly upon the stockholders on such part of the corporate 
dividends as corresponds to the part of the corporation's income which 
is not assessed, i.e., income from tax exempt bonds.\104\ A State may 
constitutionally levy an excise tax on corporations for the privilege of 
doing business, and measure the tax by the property of net income of the 
corporation, including tax exempt United States securities or the income 
derived therefrom.\105\ The designation of a tax is not 
controlling.\106\ Where a so-called ``license tax'' upon insurance 
companies, measured by gross income, including interest on government 
bonds, was, in effect, a commutation tax levied in lieu of other 
taxation upon the personal property of the taxpayer, it was still held 
to amount to an unconstitutional tax on the bonds themselves.\107\

        \103\Northwestern Mutual L. Ins. Co. v. Wisconsin, 275 U.S. 136, 
140 (1927).
        \104\Miller v. Milwaukee, 272 U.S. 713 (1927).
        \105\Provident Institution v. Massachusetts, 6 Wall. (73 U.S.) 
611 (1868); Society for Savings v. Coite, 6 Wall. (73 U.S.) 594 (1868); 
Hamilton Company v. Massachusetts, 6 Wall. (73 U.S.) 632 (1868); Home 
Ins. Co. v. New York, 134 U.S. 594 (1890); Werner Machine Co. v. 
Director of Taxation, 350 U.S. 492 (1956).
        \106\Macallen v. Massachusetts, 279 U.S. 620, 625 (1929).
        \107\Northwestern Mutual L. Ins. Co. v. Wisconsin, 275 U.S. 136 
(1927).
---------------------------------------------------------------------------

        Taxation of Government Contractors.--In the course of his 
opinion in Osborn v. United States Bank,\108\ Chief Justice Marshall 
posed the question: ``Can a contractor for supplying a military post 
with provisions, be restrained from making purchases within any state, 
or from transporting the provisions to the place at which the troops 
were stationed? Or could he be fined or taxed for doing so? We have not 
yet heard these questions answered in the affirmative.''\109\ Today, the 
question insofar as taxation is concerned is answered in the 
affirmative. While the early cases looked toward immunity,\110\ in James 
v. Dravo Contracting Co.,\111\ by a 5-to-4 vote, the Court established 
the modern doctrine. Upholding a state tax on the gross receipts of a 
contractor providing services to the Fed

[[Page 935]]
eral Government, the Court said that ```[I]t is not necessary to cripple 
[the State's power to tax] by extending the constitutional exemption 
from taxation to those subjects which fall within the general 
application of non-discriminatory laws, and where no direct burden is 
laid upon the governmental instrumentality, and there is only a remote, 
if any, influence upon the exercise of the functions of 
government.'''\112\ A state-imposed sales tax upon the purchase of goods 
by a private firm having a cost-plus contract with the Federal 
Government was sustained, it not being critical to the tax's validity 
that it would be passed on to the Government.\113\ Previously, it had 
sustained a gross receipts tax levied in lieu of a property tax upon the 
operator of an automobile stage line, who was engaged in carrying the 
mails as an independent contractor\114\ and an excise tax on gasoline 
sold to a contractor with the Government and used to operate machinery 
in the construction of levees on the Mississippi River.\115\ While the 
decisions have not set an unwavering line,\116\ the Court has in recent 
years hewed to a very restrictive doctrine of immunity. ``[T]ax immunity 
is appropriate in only one circumstance: when the levy falls on the 
United States itself, or on an agency or instrumentality so closely 
connected to the Government that the two cannot realistically be viewed 
as separate entities, at least insofar as the activity being taxed is 
concerned.''\117\ Thus, New Mexico sustained a state gross receipts tax 
and a use tax imposed upon contractors with the Federal Government which 
operated on ``advanced funding,'' drawing on federal deposits so that 
only federal funds were expended by the contractors to meet their 
obligations.\118\

        \108\9 Wheat. (22 U.S.) 738 (1824).
        \109\Id., 867.
        \110\The dissent in James v. Dravo Contracting Co., 302 U.S. 
134, 161 (1937), observed that the Court was overruling ``a century of 
precedents.'' See, e.g., Panhandle Oil Co. v. Mississippi ex rel. Knox, 
277 U.S. 218 (1928) (voiding a state privilege tax on dealers in 
gasoline as applied to sales by a dealer to the Federal Government for 
use by Coast Guard). It was in Panhandle that Justice Holmes uttered his 
riposte to Chief Justice Marshall: ``The power to tax is not the power 
to destroy while this Court sits.'' Id., 223 (dissenting).
        \111\302 U.S. 134 (1937).
        \112\Id., 150(quoting Willcuts v. Bunn, 282 U.S. 216, 225 
(1931)).
        \113\Alabama v. King & Boozer, 314 U.S. 1 (1941), overruling 
Panhandle Oil Co. v. Mississippi ex rel. Knox, 277 U.S. 218 (1928), and 
Graves v. Texas Co., 298 U.S. 393 (1936). See also Curry v. United 
States, 314 U.S. 14 (1941). ``The Constitution . . . does not forbid a 
tax whose legal incidence is upon a contractor doing business with the 
United States, even though the economic burden of the tax, by contract 
or otherwise, is ultimately borne by the United States.'' United States 
v. Boyd, 378 U.S. 39, 44 (1964) (sustaining sales and use taxes on 
contractors using tangible personal property to carry out government 
cost-plus contract).
        \114\Alward v. Johnson, 282 U.S. 509 (1931).
        \115\Trinityfarm Const. Co. v. Grosjean, 291 U.S. 466 (1934).
        \116\United States v. Allegheny County, 322 U.S. 174 (1944) 
(voiding property tax that included in assessment the value of federal 
machinery held by private party); Kern-Limerick v. Scurlock, 347 U.S. 
110 (1954) (voiding gross receipts sales tax applied to contractor 
purchasing article under agreement whereby he was to act as agent for 
Government and title to articles purchased passed directly from vendor 
to United States).
        \117\United States v. New Mexico, 455 U.S. 720, 735 (1982). See 
South Carolina v. Baker, 485 U.S. 505, 523 (1988).
        \118\``[I]mmunity may not be conferred simply because the tax 
has an effect on the United States, or even because the Federal 
Government shoulders the entire economic burden of the levy.'' United 
States v. New Mexico, 455 U.S. 720, 734 (1982).

---------------------------------------------------------------------------

[[Page 936]]

        Of course, Congress may statutorily provide for immunity from 
taxation of federal contractors generally or in particular 
programs.\119\

        \119\James v. Dravo Contracting Co., 302 U.S. 134, 161 (1937); 
Carson v. Roane-Anderson Co., 342 U.S. 232, 234 (1952); United States v. 
New Mexico, 455 U.S. 720, 737 (1982). Roane-Anderson held that a section 
of the Atomic Energy Act barred the collection of state sales and use 
taxes in connection with sales to private companies of personal property 
used by them in fulfilling their contracts with the AEC. Thereafter, 
Congress repealed the section for the express purpose of placing AEC 
contractors on the same footing as other federal contractors and the 
Court upheld imposition of the taxes. United States v. Boyd, 378 U.S. 39 
(1964).
---------------------------------------------------------------------------

        Taxation of Salaries of Employees of Federal Agencies.--Of a 
piece with James v. Dravo Contracting Co. was the decision in Graves v. 
New York ex rel. O'Keefe,\120\ handed down two years later. Repudiating 
the theory ``that a tax on income is legally or economically a tax on 
its source,'' the Court held that a State could levy a nondiscriminatory 
income tax upon the salary of an employee of a government corporation. 
In the opinion of the Court, Justice Stone intimated that Congress could 
not validly confer such an immunity upon federal employees. ``The 
burden, so far as it can be said to exist or to affect the government in 
any indirect or incidental way, is one which the Constitution 
presupposes; and hence it cannot rightly be deemed to be within an 
implied restriction upon the taxing power of the national and state 
governments which the Constitution has expressly granted to one and has 
confirmed to the other. The immunity is not one to be implied from the 
Constitution, because if allowed it would impose to an inadmissible 
extent a restriction on the taxing power which the Constitution has 
reserved to the state governments.''\121\ Chief Justice Hughes concurred 
in the result without opinion. Justices Butler and McReynolds dissented 
and Justice Frankfurter wrote a concurring opinion in which he reserved 
judgment as to ``whether Congress may, by express legislation, relieve 
its functionaries from their civic obligations to pay for the benefits 
of the State governments under which they live.''\122\

        \120\306 U.S. 466 (1939), followed in State Comm. v. Van Cott, 
306 U.S. 511 (1939). This case overruled by implication Dobbins v. Erie 
County, 16 Pet. (41 U.S.) 435 (1842), and New York ex rel. Rogers v. 
Graves, 299 U.S. 401 (1937), which held the income of federal employees 
to be immune from State taxation.
        \121\Id., 487.
        \122\Id. 492.
---------------------------------------------------------------------------

        That question is academic, Congress having consented to state 
taxation of its employees' compensation as long as the taxation ``does 
not discriminate against the . . . employee, because of the

[[Page 937]]
source of the . . . compensation.''\123\ This statute, the Court has 
held, ``is coextensive with the prohibition against discriminatory taxes 
embodied in the modern constitutional doctrine of intergovernmental tax 
immunity.''\124\

        \123\4 U.S.C. Sec. 111. The statute, part of the Public Salary 
Tax Act of 1939, was considered and enacted contemporaneously with the 
alteration occurring in constitutional law, exemplified by Graves. That 
is, in Helvering v. Gerhardt, 304 U.S. 405 (1938), the Court had 
overruled precedents and held that Congress could impose 
nondiscriminatory taxes on the incomes of most state employees, and the 
1939 Act had as its primary purpose the imposition of federal income 
taxes on the salaries of all state and local government employees. 
Feeling equity required it, Congress included a provision authorizing 
nondiscriminatory state taxation of federal employees. Graves came down 
while the provision was pending in Congress. See Davis v. Michigan Dept. 
of the Treasury, 489 U.S. 803, 810-814 (1989).
        \124\Id., 813. This case struck down, as violative of the 
provision, a state tax imposed on federal retirement benefits but 
exempting state retirement benefits. See also Barker v. Kansas, 112 
S.Ct. 1619 (1992) (similarly voiding a state tax on federal military 
retirement benefits but not reaching state and local government 
retirees).
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        Ad Valorem Taxes Under the Doctrine.--Property owned by a 
federally chartered corporation engaged in private business is subject 
to state and local ad valorem taxes. This was conceded in McCulloch v. 
Maryland,\125\ and confirmed a half century later with respect to 
railroads incorporated by Congress.\126\ Similarly, a property tax may 
be levied against the lands under water which are owned by a person 
holding a license under the Federal Water Power Act.\127\ However, when 
privately owned property erected by lessees on tax exempt state lands is 
taxed by a county at less than full value, and houses erected by 
contractors on land leased from a federal Air Force base are taxed at 
full value, the latter tax, solely by reason of the discrimination 
against the United States and its lessees, is rendered void.\128\ 
Likewise, when under state laws, a school district does not tax private 
lessees of state and municipal realty, whose leases are subject to 
termination at the lessor's option in the event of sale, but does levy a 
tax, measured by the entire value of the realty, on lessees of United 
States property utilized for private purposes and whose leases are 
terminable at the option of the United States in an emergency or upon 
sale, the discrimination voided the tax collected from the latter. ``A 
state tax may not discriminate against the Government or those with whom 
it deals'' in the absence of significant differences justifying levy of 
higher taxes on lessees of federal property.\129\ Land conveyed by

[[Page 938]]
the United States to a corporation for dry dock purposes was subject to 
a general property tax, despite a reservation in the conveyance of a 
right to free use of the dry dock and a provision for forfeiture in case 
of the continued unfitness of the dry dock for use or the use of land 
for other purposes.\130\ Also, where equitable title has passed to the 
purchaser of land from the Government, a State may tax the equitable 
owner on the full value thereof, despite retention of legal title;\131\ 
but, in the case of reclamation entries, the tax may not be collected 
until the equitable title passes.\132\ In the pioneer case of Van 
Brocklin v. Tennessee,\133\ the State was denied the right to sell for 
taxes lands which the United States owned at the time the taxes were 
levied, but in which it had ceased to have any interest at the time of 
sale. Similarly, a State cannot assess land in the hands of private 
owners for benefits from a road improvement completed while it was owned 
by the United States.\134\

        \125\4 Wheat. (17 U.S.) 316, 426 (1819).
        \126\Thomson v. Pacific Railroad, 9 Wall. (76 U.S.) 579, 588, 
(1870); Union Pacific R. Co. v. Penistion, 18 Wall. (85 U.S.) 5, 31 
(1873).
        \127\Susquehanna Power Co. v. Tax Comm. (No. 1), 283 U.S. 291 
(1931).
        \128\Moses Lake Homes v. Grant County, 365 U.S. 744 (1961).
        \129\Phillips Chemical Co. v. Dumas School Dist., 361 U.S. 376, 
383, 387 (1960). In Offutt Housing Co. v. Sarpy County, 351 U.S. 253 
(1956), a housing company was held liable for county personal property 
taxes on the ground that the Government had consented to state taxation 
of the company's interest as lessee. Upon its completion of housing 
accommodations at an Air Force Base, the company had leased the houses 
and the furniture therein from the Federal Government.
        \130\Baltimore Shipbuilding Co. v. Baltimore, 195 U.S. 375 
(1904).
        \131\Northern Pacific R. Co. v. Myers, 172 U.S. 589 (1899); New 
Brunswick v. United States, 276 U.S. 547 (1928).
        \132\Irwin v. Wright, 258 U.S. 219 (1922).
        \133\117 U.S. 151 (1886).
        \134\Lee v. Osceola Imp. Dist., 268 U.S. 643 (1925).
---------------------------------------------------------------------------

        In 1944, with two dissents, the Court held that where the 
Government purchased movable machinery and leased it to a private 
contractor the lessee could not be taxed on the full value of the 
equipment.\135\ Twelve years later, and with a like number of Justices 
dissenting, the Court upheld the following taxes imposed on federal 
contractors: (1) a municipal tax levied pursuant to a state law which 
stipulated that when tax exempt real property is used by a private firm 
for profit, the latter is subject to taxation to the same extent as if 
it owned the property, and based upon the value of real property, a 
factory, owned by the United States and made available under a lease 
permitting the contracting corporation to deduct such taxes from rentals 
paid by it; the tax was collectible only by direct action against the 
contractor for a debt owed, and was not applicable to federal properties 
on which payments in lieu of taxes are made; (2) a municipal tax, levied 
under the authority of the same state law, based on the value of the 
realty owned by the United States, and collected from a cost-plus-fixed-
fee contractor, who paid no rent but agreed not to include any part of 
the cost of the facilities furnished by the Government in the price of 
goods supplied under the contract; (3) another municipal tax levied in 
the

[[Page 939]]
same State against a federal subcontractor, and computed on the value of 
materials and work in process in his possession, notwithstanding that 
title thereto had passed to the United States following his receipt of 
installment payments.\136\

        \135\United States v. Allegheny County, 322 U.S. 174 (1944).
        \136\United States v. City of Detroit, 355 U.S. 466 (1958). The 
Court more recently has stated that Allegheny County ``in large part was 
overruled'' by Detroit. United States v. New Mexico, 455 U.S. 720, 732 
(1982).
---------------------------------------------------------------------------

        In sustaining the first tax, the Court held that it was imposed, 
not on the Government or on its property, but upon a private lessee, 
that it was computed by the value of the use to the contractor of the 
federally leased property, and that it was nondiscriminatory; that is, 
it was designed to equalize the tax burden carried by private business 
using exempt property with that of similar businesses using taxed 
property. Distinguishing the Allegheny case, the Court maintained that 
in this older decision, the tax invalidated was imposed directly on 
federal property and that the question of the legality of a privilege on 
use and possession of such property had been expressly reserved therein. 
Also insofar as the economic incidents of such tax on private use 
curtails the net rental accruing to the Government, such burden was 
viewed as insufficient to vitiate the tax.\137\

        \137\United States v. City of Detroit, 355 U.S. 478, 482, 483 
(1958). See also California Bd. of Equalization v. Sierra Summit, 490 
U.S. 844 (1989).
---------------------------------------------------------------------------

        Deeming the second and third taxes similar to the first, the 
Court sustained them as taxes on the privilege of using federal property 
in the conduct of private business for profit. With reference to the 
second, the Court emphasized that the Government had reserved no right 
of control over the contractor and, hence, the latter could not be 
viewed as an agent of the Government entitled to the immunity derivable 
from that status.\138\ As to the third tax, the Court asserted that 
there was no difference between taxing a private party for the privilege 
of using property he possesses, and taxing him for possessing property 
which he uses; for, in both instances, the use was private profit. 
Moreover, the economic burden thrust upon the Government was viewed as 
even more remote than in the administration of the first two taxes.\139\

        \138\United States v. Township of Muskegon, 355 U.S. 484 (1958).
        \139\City of Detroit v. Murray Corp., 355 U.S. 489 (1958). In 
United States v. County of Fresno, 429 U.S. 452 (1977), these cases were 
reaffirmed and applied to sustain a tax imposed on the possessory 
interests of United States Forest Service employees in housing located 
in national forests within the county and supplied to the employees by 
the Forest Service as part of their compensation. A State or local 
government may raise revenues on the basis of property owned by the 
United States as long as it is in possession or use by the private 
citizen that is being taxed.

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[[Page 940]]

        Federal Property and Functions.--Property owned by the United 
States is, of course, wholly immune from state taxation.\140\ No State 
can regulate, by the imposition of an inspection fee, any activity 
carried on by the United States directly through its own agents and 
employees.\141\ An early case, the authority of which is now uncertain, 
held invalid a flat rate tax on telegraphic messages, as applied to 
messages sent by public officers on official business.\142\

        \140\Clallam County v. United States, 263 U.S. 341 (1923). See 
also Cleveland v. United States, 323 U.S. 329, 333 (1945); United States 
v. Mississippi Tax Comm., 412 U.S. 363 (1973); United States v. 
Mississippi Tax Comm ., 421 U.S. 599 (1975).
        \141\Mayo v. United States, 319 U.S. 441 (1943). A municipal tax 
on the privilege of working within the city, levied at the rate of one 
percent of earnings, although not deemed to be an income tax under state 
law, was sustained as such when collected from employees of a naval 
ordinance plant by reason of federal assent to that type of tax 
expressed in the Buck Act. 4 U.S.C. Sec. Sec. 105-110. Howard v. 
Commissioners, 344 U.S. 624 (1953).
        \142\Telegraph Co. v. Texas, 105 U.S. 460, 464 (1882).
---------------------------------------------------------------------------

        Federally Chartered Finance Agencies: Statutory Exemptions.--
Fiscal institutions chartered by Congress, their shares and their 
property, are taxable only with the consent of Congress and only in 
conformity with the restrictions it has attached to its consent.\143\ 
Immediately after the Supreme Court construed the statute authorizing 
the States to tax national bank shares as allowing a tax on the 
preferred shares of such a bank held by the Reconstruction Finance 
Corporation,\144\ Congress passed a law exempting such shares from 
taxation. The Court upheld this measure, saying: ``When Congress 
authorized the states to impose such taxation, it did no more than 
gratuitously grant them political power which they theretofore lacked. 
Its sovereign power to revoke the grant remained unimpaired, the grant 
of the privilege being only a declaration of legislative policy 
changeable at will.''\145\ In Pittman v. Home Owners' Corp.,\146\ the 
Court sustained the power of Congress under the necessary and proper 
clause to immunize the activities of the Corporation from state 
taxation; and in Federal Land Bank v. Bismarck Co.,\147\ the like result 
was reached with respect to an attempt by the State to impose a retail 
sales tax on a sale of lumber and other building materials to the bank 
for use in repairing and improving property that had been acquired by 
foreclosure or mortgages.

        \143\Des Moines Bank v. Fairweather, 263 U.S. 103, 106 (1923); 
Owensboro National Bank v. Owensboro, 173 U.S. 664, 669 (1899); First 
Nat. Bank v. Adams, 258 U.S. 362 (1922); Michigan Nat. Bank v. Michigan, 
365 U.S. 467 (1961).
        \144\Baltimore Nat. Bank v. Tax Comm., 297 U.S. 209 (1936).
        \145\Maricopa County v. Valley Bank, 318 U.S. 357, 362, (1943).
        \146\308 U.S. 21 (1939).
        \147\314 U.S. 95 (1941).
        
---------------------------------------------------------------------------

[[Page 941]]

        The State's principal argument proceeded thus: ``Congress has 
authority to extend immunity only to the governmental functions of the 
federal land banks; the only governmental functions of the land banks 
are those performed by acting as depositories and fiscal agents for the 
federal government and providing a market for government bonds; all 
other functions of the land banks are private; petitioner here was 
engaged in an activity incidental to its business of lending money, an 
essentially private function; therefore 26 cannot operate to strike down 
a sales tax upon purchases made in furtherance of petitioner's lending 
functions.''\148\ The Court rejected this argument and invalidated the 
tax saying: ``The argument that the lending functions of the federal 
land banks are proprietary rather than governmental misconceives the 
nature of the federal government with respect to every function which it 
performs. The federal government is one of delegated powers, and from 
that it necessarily follows that any constitutional exercise of its 
delegated powers is governmental. . . . It also follows that, when 
Congress constitutionally creates a corporation through which the 
federal government lawfully acts, the activities of such corporation are 
governmental.''\149\

        \148\Id., 101.
        \149\Id., 102.
---------------------------------------------------------------------------

        Similarly, the lease by a federal land bank of oil and gas in a 
mineral estate, which it had reserved in land originally acquired 
through foreclosure and thereafter had conveyed to a third party, was 
held immune from a state personal property tax levied on the lease and 
on the royalties accruing thereunder. The fact that at the time of the 
conveyance and lease, the bank had recouped its entire loss resulting 
from the foreclosure did not operate to convert the mineral estate and 
lease into a non-governmental activity no longer entitled to 
exemption.\150\ However, in the absence of federal legislation, a state 
law laying a percentage tax on the users of safety deposit services, 
measured by the bank's charges therefore, was held valid as applied to 
national banks. The tax, being on the user, did not, the Court held, 
impose an intrinsically unconstitutional burden on a federal 
instrumentality.\151\

        \150\Fed. Land Bank v. Kiowa County, 368 U.S. 146 (1961).
        \151\Colorado Bank v. Bedford, 310 U.S. 41 (1940).
---------------------------------------------------------------------------

        Royalties.--In 1928, the Court went so far as to hold that a 
State could not tax as income royalties for the use of a patent issued 
by the United States.\152\ This proposition was soon overruled in Fox 
Film Corp. v. Doyal,\153\ where a privilege tax based on gross income 
and applicable to royalties from copyrights was upheld.

[[Page 942]]
Likewise a State may lay a franchise tax on corporations, measured by 
the net income from all sources and applicable to income from copyright 
royalties.\154\

        \152\Long v. Rockwood, 277 U.S. 142 (1928).
        \153\286 U.S. 123 (1932).
        \154\Educational Films Corp. v. Ward, 282 U.S. 379 (1931).
---------------------------------------------------------------------------

        Immunity of Lessees of Indian Lands.--Another line of anomalous 
decisions conferring tax immunity upon lessees of restricted Indian 
lands was overruled in 1949. The first of these cases, Choctaw, O. & G. 
R. Co. v. Harrison,\155\ held that a gross production tax on oil, gas, 
and other minerals was an occupational tax, and, as applied to a lessee 
of restricted Indian lands, was an unconstitutional burden on such 
lessee, who was deemed to be an instrumentality of the United States. 
Next, the Court held the lease itself a federal instrumentality immune 
from taxation.\156\ A modified gross production tax imposed in lieu of 
all ad valorem taxes was invalidated in two per curiam decisions.\157\ 
In Gillespie v. Oklahoma,\158\ a tax upon net income of the lessee 
derived from sales of his share of oil produced from restricted lands 
also was condemned. Finally a petroleum excise tax upon every barrel of 
oil produced in the State was held inapplicable to oil produced on 
restricted Indian lands.\159\ In harmony with the trend to restricting 
immunity implied from the Constitution to activities of the Government 
itself, the Court overruled all these decisions in Oklahoma Tax Comm. v. 
Texas Co. and held that a lessee of mineral rights in restricted Indian 
lands was subject to nondiscriminatory gross production and excise 
taxes, so long as Congress did not affirmatively grant him 
immunity.\160\

        \155\235 U.S. 292 (1914).
        \156\Indian Oil Co. v. Oklahoma, 240 U.S. 522 (1916).
        \157\Howard v. Gipsy Oil Co., 247 U.S. 503 (1918); Large Oil Co. 
v. Howard, 248 U.S. 549 (1919).
        \158\257 U.S. 501 (1922).
        \159\Oklahoma v. Barnsdall Corp., 296 U.S. 521 (1936).
        \160\336 U.S. 342 (1949). Justice Rutledge, speaking for the 
Court, sketched the history of the immunity lessees of Indian lands from 
state taxation, which he found to stem from early rulings that tribal 
lands are themselves immune. The Kansas Indians, 5 Wall. (72 U.S.) 737 
(1867); The New York Indians, 5 Wall. (72 U.S.) 761 (1867). One of the 
first steps taken to curtail the scope of the immunity was Shaw v. Oil 
Corp., 276 U.S. 575 (1928), which held that lands outside a reservation, 
though purchased with restricted Indian funds, were subject to state 
taxation. Congress soon upset the decision, however, and its act was 
sustained in Board of Comm. v. Seber, 318 U.S. 705 (1943).
---------------------------------------------------------------------------
      Summation and Evaluation

        Although McCulloch v. Maryland and Gibbons v. Ogden were 
expressions of a single thesis, the supremacy of the National 
Government, their development after Marshall's death has been sharply 
divergent. During the period when Gibbons v. Ogden was eclipsed by the 
theory of dual federalism, the doctrine of McCulloch

[[Page 943]]
v. Maryland was not merely followed but greatly extended as a restraint 
on state interference with federal instrumentalities. Conversely, the 
Court's recent return to Marshall's conception of the powers of Congress 
has coincided with a retreat from the more extreme positions taken in 
reliance upon McCulloch v. Maryland. Today, the application of the 
supremacy clause is becoming, to an ever increasing degree, a matter of 
statutory interpretation; a determination whether state regulations can 
be reconciled with the language and policy of federal enactments. In the 
field of taxation, the Court has all but wiped out the private 
immunities previously implied from the Constitution without explicit 
legislative command. Broadly speaking, the immunity which remains is 
limited to activities of the Government itself, and to that which is 
explicitly created by statute, e.g., that granted to federal securities 
and to fiscal institutions chartered by Congress. But the term, 
activities, will be broadly construed.

  Clause 3. The Senators and Representatives before mentioned, and the 
Members of the several State Legislatures, and all executive and 
judicial Officers, both of the United States and of the several States, 
shall be bound by Oath or Affirmation, to support this Constitution; but 
no religious Test shall ever be required as a Qualification to any 
Office or public Trust under the United States.

                             OATH OF OFFICE

      Power of Congress in Respect to Oaths 

        Congress may require no other oath of fidelity to the 
Constitution, but it may superadd to this oath such other oath of office 
as its wisdom may require.\161\ It may not, however, prescribe a test 
oath as a qualification for holding office, such an act being in effect 
an ex post facto law,\162\ and the same rule holds in the case of the 
States.\163\

        \161\McCulloch v. Maryland, 4 Wheat. (17 U.S.) 316, 416 (1819).
        \162\Ex parte Garland, 4 Wall. (71 U.S.) 333, 337 (1867).
        \163\Cummings v. Missouri, 4 Wall. (71 U.S.) 277, 323 (1867). 
See also Bond v. Floyd, 385 U.S. 116 (1966), where the Supreme Court 
held that antiwar statements made by a newly elected member of the 
Georgia House of Representatives were not inconsistent with the oath of 
office, pledging support to the federal Constitution.

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[[Page 944]]
      National Duties of State Officers

        Commenting in The Federalist on the requirement that state 
officers, as well as members of the state legislatures, shall be bound 
by oath or affirmation to support the Constitution, Hamilton wrote: 
``Thus the legislatures, courts, and magistrates, of the respective 
members, will be incorporated into the operations of the national 
government as far as its just and constitutional authority extends; and 
it will be rendered auxiliary to the enforcement of its laws.''\164\ The 
younger Pinckney had expressed the same idea on the floor of the 
Philadelphia Convention: ``They [the States] are the instruments upon 
which the Union must frequently depend for the support and execution of 
their powers . . .''\165\ Indeed, the Constitution itself lays many 
duties, both positive and negative, upon the different organs of state 
government,\166\ and Congress may frequently add others, provided it 
does not require the state authorities to act outside their normal 
jurisdiction. Early congressional legislation contains many 
illustrations of such action by Congress.

        \164\No. 27, (J. Cooke ed. 1961), 175(emphasis in original). See 
also, id., No. 45, 312-313 (Madison).
        \165\1 M. Farrand, The Records of the Federal Convention of 1787 
(New Haven: rev. ed. 1937), 404.
        \166\See Article I, Sec. 3, cl. 1; Sec. 4, cl. 1; 10; Article 
II, Sec. 1, cl. 2; Article III, 2, cl. 2; Article IV, Sec. Sec. 1, 2; 
Article V; Amendments 13, 14, 15, 17, 19, 25, and 26.
---------------------------------------------------------------------------

        The Judiciary Act of 1789 \167\ not only left the state courts 
in sole possession of a large part of the jurisdiction over 
controversies between citizens of different States and in concurrent 
possession of the rest, and by other sections state courts were 
authorized to entertain proceedings by the United States itself to 
enforce penalties and forfeitures under the revenue laws, examples of 
the principle that federal law is law to be applied by the state courts, 
but also any justice of the peace or other magistrates of any of the 
States were authorized to cause any offender against the United States 
to be arrested and imprisoned or bailed under the usual mode of process. 
From the beginning, Congress enacted hundreds of statutes that contained 
provisions authorizing state officers to enforce and execute federal 
laws.\168\ Pursuant to same idea of treating state governmental organs 
as available to the National Government for administrative purposes, the 
act of 1793 entrusted the rendition of fugitive slaves in part to 
national officials and in part to state offi

[[Page 945]]
cials and the rendition of fugitives from justice from one State to 
another exclusively to the state executives.\169\

        \167\1 Stat. 73 (1789).
        \168\See Warren, Federal Criminal Laws and the State Courts, 38 
Harv. L. Rev. 545 (1925); Holcomb, The States as Agents of the Nation, 3 
Selected Essays on Constitutional Law (Cambridge: 1938), 1187; Barnett, 
Cooperation Between the Federal and State Governments, 7 Ore. L. Rev. 
267 (1928). See also J. Clark, The Rise of a New Federalism (Princeton: 
1938); E. Corwin, Court Over Constitution (Princeton: 1938), 148-168.
        \169\1 Stat. 302 (1793).
---------------------------------------------------------------------------

        With the rise of the doctrine of States Rights and of the equal 
sovereignty of the States with the National Government, the availability 
of the former as instruments of the latter in the execution of its power 
came to be questioned.\170\ In Prigg v. Pennsylvania,\171\ decided in 
1842, the constitutionality of the provision of the act of 1793 making 
it the duty of state magistrates to act in the return of fugitive slaves 
was challenged; and in Kentucky v. Dennison,\172\ decided on the eve of 
the Civil War, similar objection was leveled against the provision of 
the same act which made it ``the duty'' of the Chief Executive of a 
State to render up a fugitive from justice upon the demand of the Chief 
Executive of State from which the fugitive had fled. The Court sustained 
both provisions, but upon the theory that the cooperation of the state 
authorities was purely voluntary. In the Prigg case the Court, speaking 
by Justice Story, said that ``while a difference of opinion has existed, 
and may exist still on the point, in different states, whether state 
magistrates are bound to act under it, none is entertained by this 
Court, that state magistrates may, if they choose, exercise that 
authority, unless prohibited by state legislation.''\173\ Subsequent 
cases confirmed the point that Congress could authorize willing state 
officers to perform such federal duties.\174\ Indeed, when Congress in 
the Selective Service Act of 1917 authorized enforcement to a great 
extent through state employees, the Court rejected ``as too wanting in 
merit to require further notice'' the contention that the Act was 
invalid because of this delegation.\175\ State officials were frequently 
employed in the enforcement of the National Prohibition Act, and suits 
to abate nuisances as defined by the statute were authorized to be 
brought, in the name of the United States, not only by federal

[[Page 946]]
officials, but also by ``any prosecuting attorney of any State or any 
subdivision thereof.''\176\

        \170\For the development of opinion, especially on the part of 
state courts, adverse to the validity of such legislation, see 1 J. 
Kent, Commentaries on American Law (New York: 1826), 396-404.
        \171\16 Pet. (41 U.S.) 539 (1842).
        \172\24 How. (65 U.S.) 66 (1861).
        \173\16 Pet. (41 U.S.) 539, 622 (1842). See also Kentucky v. 
Dennison, 24 How. (65 U.S.) 66, 108 (1861). The word ``magistrates'' in 
this passage does not refer solely to judicial officers but reflects the 
usage in that era in which officers generally were denominated 
magistrates; the power thus upheld is not the related but separate issue 
of the utilization of state courts to enforce federal law.
        \174\United States v. Jones, 109 U.S. 513, 519 (1883); Robertson 
v. Baldwin, 165 U.S. 275, 280 (1897); Dallemagne v. Moisan, 197 U.S. 
169, 174 (1905); Holmgren v. United States, 217 U.S. 509, 517 (1910); 
Parker v. Richard, 250 U.S. 235, 239 (1919).
        \175\Selective Draft Law Cases, 245 U.S. 366, 389 (1918). The 
Act was 40 Stat. 76 (1917).
        \176\41 Stat. 314, Sec. 22. In at least two States, the practice 
was approved by state appellate courts. Carse v. Marsh, 189 Cal. 743, 
210 Pac. 257 (1922); United States v. Richards, 201 Wis. 130, 229 N.W. 
675 (1930). On this and other issues under the Act, see Hart, Some Legal 
Questions Growing Out of the President's Executive Order for Prohibition 
Enforcement, 13 Va. L. Rev. 86 (1922).
---------------------------------------------------------------------------

        In the Dennison case, however, it was held that while Congress 
could delegate it could not require performance of an obligation. The 
``duty'' of state executives in the rendition of fugitives from justice 
was construed to be declaratory of a ``moral duty.'' Said Chief Justice 
Taney for the Court: ``The act does not provide any means to compel the 
execution of this duty, nor inflict any punishment for neglect or 
refusal on the part of the Executive of the State; nor is there any 
clause or provision in the Constitution which arms the Government of the 
United States with this power. Indeed, such a power would place every 
State under the control and dominion of the General Government, even in 
the administration of its internal concerns and reserved rights. And we 
think it clear that the Federal Government, under the Constitution, has 
no power to impose on a State officer, as such, any duty whatever, and 
compel him to perform it[.] . . . It is true,'' the Chief Justice 
conceded, ``that in the early days of the Government, Congress relied 
with confidence upon the co-operation and support of the States, when 
exercising the legitimate powers of the General Government, and were 
accustomed to receive it, [but this, he explained, was] upon principles 
of comity, and from a sense of mutual and common interest, where no such 
duty was imposed by the Constitution.''\177\

        \177\24 How. (65 U.S.) 66, 107-108 (1861).
---------------------------------------------------------------------------

        Eighteen years later, in Ex parte Siebold,\178\ the Court 
sustained the right of Congress, under Article I, Sec. 4, parag. 1 of 
the Constitution, to impose duties upon state election officials in 
connection with a congressional election and to prescribe additional 
penalties for the violation by such officials of their duties under 
state law. While the doctrine of the holding was expressly confined to 
cases in which the National Government and the States enjoy ``a 
concurrent power over the same subject matter,'' no attempt was made to 
catalogue such cases. Moreover, the outlook of Justice Bradley's opinion 
for the Court was decidedly nationalistic rather than dualistic, as is 
shown by the answer made to the contention of counsel ``that the nature 
of sovereignty is such as to preclude the joint cooperation of two 
sovereigns, even in a matter in which they are mutually concerned.'' To 
this Justice Bradley replied: ``As a general rule, it is no doubt 
expedient and wise that the operations

[[Page 947]]
of the State and national governments should, as far as practicable, be 
conducted separately, in order to avoid undue jealousies and fears and 
conflicts of jurisdiction and power. But there is no reason for laying 
this down as a rule of universal application. It should never be made to 
override the plain and manifest dictates of the Constitution itself. We 
cannot yield to such a transcendental view of state sovereignty. The 
Constitution and laws of the United States are the supreme law of the 
land, and to these every citizen of every State owes obedience, whether 
in his individual or official capacity.''\179\

        \178\100 U.S. 371 (1880).
        \179\Id., 392.
---------------------------------------------------------------------------

        Conflict, thus, developed early between these two doctrinal 
lines. But was the Siebold line that was to prevail. Enforcement of 
obligations upon state officials through mandamus or through injunctions 
was readily available, even when the State itself was immune, through 
the fiction of Ex parte Young,\180\ under which a state official could 
be sued in his official capacity but without the immunities attaching to 
his official capacity. Although the obligations were, for a long period, 
in their origin based on the Federal Constitution, the capacity of 
Congress to enforce statutory obligations through judicial action was 
little doubted.\181\ Nonetheless, it was only recently that the Court 
squarely overruled Dennison. ``If it seemed clear to the Court in 1861, 
facing the looming shadow of a Civil War, that `the Federal Government, 
under the Constitution, has no power to impose on a State officer, as 
such, any duty whatever, and compel him to perform it,' . . . basic 
constitutional principles now point as clearly the other way.''\182\ 
That case is doubly important, inasmuch as the Court spoke not only to 
the extradition clause and the federal statute directly enforcing it, 
but it also enforced a purely statutory right on behalf of a Territory 
that could not claim for itself rights under the clause itself.\183\

        \180\209 U.S. 123 (1908). See also Board of Liquidation v. 
McComb, 92 U.S. 531, 541 (1876).
        \181\Maine v. Thiboutot, 448 U.S. 1 (1980).
        \182\Puerto Rico v. Branstad, 483 U.S. 219, 227 (1987) (Dennison 
``rests upon a foundation with which time and the currents of 
constitutional change have dealt much less favorably'').
        \183\In including territories in the statute, Congress acted 
under the territorial clause rather than under the extradition clause. 
New York ex rel. Kopel v. Bingham, 211 U.S. 468 (1909).
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        Even as the Court imposes new federalism limits upon Congress' 
powers to regulated the States as States, it has reaffirmed the 
principle that Congress may authorize the federal courts to compel state 
officials to comply with federal law, statutory as well as 
constitutional. ``[T]he Supremacy Clause makes federal law paramount 
over the contrary positions of state officials; the power

[[Page 948]]
of federal courts to enforce federal law thus presupposes some authority 
to order state officials to comply.''\184\

        \184\New York v. United States, 112 S.Ct. 2408, 2430 (1992). See 
also FERC v. Mississippi, 456 U.S. 742, 761-765 (1982); Washington v. 
Washington State Commercial Passenger Fishing Vessel Assn., 443 U.S. 
658, 695 (1979); Illinois v. City of Milwaukee, 406 U.S. 91, 106-108 
(1972).
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        No doubt, there is tension between the exercise of Congress' 
power to impose duties on state officials\185\ and the developing 
doctrine under which the Court holds that Congress may not 
``commandeer'' state legislative or administrative processes in the 
enforcement of federal programs.\186\ However, the existence of the 
supremacy clause and the federal oath of office, as well as a body of 
precedent indicates that coexistence of the two lines of principles will 
be maintained.

        \185\The practice continues. See P.L. 94-435, title III, 90 
Stat. 1394, 15 U.S.C. Sec. 15c(authorizing state attorneys general to 
bring parens patriae antitrust actions in the name of the State to 
secure monetary relief for damages to the citizens of the State); 
Medical Waste Tracking Act of 1988, P. L. 100-582, 102 Stat. 2955, 42 
U.S.C. Sec. 6992f(authorizing States to impose civil and possibly 
criminal penalties for violations of the Act); Brady Handgun Violence 
Prevention Act, P.L. 103-159, tit. I, 107 Stat. 1536, 18 U.S.C. 
Sec. 922s(imposing on chief law enforcement officer of each jurisdiction 
to ascertain whether prospective firearms purchaser his disqualifying 
record).
        \186\New York v. United States, 112 S.Ct. 2408 (1992).
```