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

917

1Ware 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).

PRIOR DEBTS, NATIONAL SUPREMACY, AND OATHS OF

OFFICE

ARTICLE VI

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
918 ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC.

Cl. 2—Supremacy of the Constitution, Laws, Treaties

4 4 Wheat. (17 U.S.) 436 (1819).

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).

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.

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

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
ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC. 919

Cl. 2—Supremacy of the Constitution, Laws, Treaties

6Treatment of preemption principles and standards is set out under the commerce clause, which is the greatest source of preemptive authority. 7Gibbons 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. § 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). 9On 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. § 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). 10Which 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).

whether the effect of the federal legislation is to oust state jurisdiction. 6

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

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
920 ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC.

Cl. 2—Supremacy of the Constitution, Laws, Treaties

12 Ullmann v. United States, 350 U.S. 422, 434–436 (1956). See also Reina v.

United States, 364 U.S. 507, 510 (1960). 13 4 Wheat. (17 U.S.) 316 (1819). 14 United States v. Fisher, 2 Cr. (6 U.S.) 358 (1805). 15Spokane 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).

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

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

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
ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC. 921

Cl. 2—Supremacy of the Constitution, Laws, Treaties

18Martin 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). 22 11 Pet. (36 U.S.) 102 (1837).

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.

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,
922 ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC.

Cl. 2—Supremacy of the Constitution, Laws, Treaties

23 Id., 139. 24 Id., 161. 25 5 How. (46 U.S.) 504 (1847). 26 Id., 573–574. 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).

whereas the Court found that no such conflict existed in this case.

But the Court was unwilling to rest its decision on that distinction.

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

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

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
ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC. 923

Cl. 2—Supremacy of the Constitution, Laws, Treaties

29On 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.

by a closely divided Court and subsequent interpretations closely

cabined the development and then overruled the case.

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
924 ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC.

Cl. 2—Supremacy of the Constitution, Laws, Treaties

34 Id., 195, 196–197. 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).

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

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-
ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC. 925

Cl. 2—Supremacy of the Constitution, Laws, Treaties

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. 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).

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

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
926 ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC.

Cl. 2—Supremacy of the Constitution, Laws, Treaties

46FERC v. Mississippi, 456 U.S. 742 (1982). 47 National League of Cities v. Usery, 426 U.S. 833, 854 n. 18 (1976). 48Fitzpatrick 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) (threejudge 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. 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.

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.

The Court overruled National League of Cities in Garcia v. San

Antonio Metropolitan Transit Auth., 52 and seemingly returned to
ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC. 927

Cl. 2—Supremacy of the Constitution, Laws, Treaties

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.

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, § 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
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60 Id., 554. 61 485 U.S. 505 (1988). 62 Id., 512–513. 63 Id., 512. 64Garcia v. San Antonio Metropolitan Transit Auth., 469 U.S. 528, 579–580

(1985). 65The 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, § 4. Id., 463–464. 66 112 S.Ct. 2408 (1992). 67The 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.,

2420.68Struck down was a provision of law providing for the disposal of radioactive

wastes generated in the United States by government and industry. Placing various

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

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

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 reexamine 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
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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. 69 Id., 2417. 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.

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

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

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. 72The ‘‘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

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
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75 9 Wall. (76 U.S.) 353 (1870). 76 Id., 362. 77 161 U.S. 275 (1896). 78 Id., 283. 79Franklin Nat. Bank v. New York, 347 U.S. 273 (1954). 80 Reagan v. Mercantile Trust Co., 154 U.S. 413 (1894).

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

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
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81Free v. Bland, 369 U.S. 663 (1962). 82Sperry v. Florida, 373 U.S. 379 (1963). 83Penn Dairies v. Milk Control Comm., 318 U.S. 261 (1943). 84Pacific Coast Dairy v. Dept. of Agriculture, 318 U.S. 285 (1943). See also Paul

v. United States, 371 U.S. 245 (1963). 85Leslie Miller, Inc. v. Arkansas, 353 U.S. 187 (1956). 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

to implement the federal borrowing power (Art. I, § 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 coowner. 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

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. § 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

Most recently, the Court has done little to clarify the doctrinal

difficulties. 86 The Court looked to a ‘‘functional’’ analysis of state
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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). 89 9 Wheat. (22 U.S.) 738 (1824). 90 Id., 865. 91 Ibid. 92 Id., 866. 93 Id., 867.

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.’’ 87In determining whether a regulation discriminates against the Federal Government, ‘‘the entire regulatory system should be analyzed.’’ 88

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
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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. § 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.

§ 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). 99Smith v. Davis, 323 U.S. 111 (1944). 100Plummer 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).

of the principle of immunity that was to follow in the succeeding

decades.

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-
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102Society for Savings v. Bowers, 349 U.S. 143 (1955). 103 Northwestern Mutual L. Ins. Co. v. Wisconsin, 275 U.S. 136, 140 (1927). 104Miller v. Milwaukee, 272 U.S. 713 (1927). 105Provident 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). 106Macallen v. Massachusetts, 279 U.S. 620, 625 (1929). 107 Northwestern Mutual L. Ins. Co. v. Wisconsin, 275 U.S. 136 (1927). 108 9 Wheat. (22 U.S.) 738 (1824). 109 Id., 867. 110The 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).

posed on the banks which were solely liable for payment thereof. 102

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

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-
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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). 115Trinityfarm 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

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
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economic burden of the levy.’’ United States v. New Mexico, 455 U.S. 720, 734

(1982). 119 James v. Dravo Contracting Co., 302 U.S. 134, 161 (1937); Carson v. RoaneAnderson 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). 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.

Of course, Congress may statutorily provide for immunity from

taxation of federal contractors generally or in particular programs. 119

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

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
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123 4 U.S.C. § 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).125 4 Wheat. (17 U.S.) 316, 426 (1819). 126Thomson 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). 127Susquehanna Power Co. v. Tax Comm. (No. 1), 283 U.S. 291 (1931). 128Moses Lake Homes v. Grant County, 365 U.S. 744 (1961). 129Phillips 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

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

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
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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). 134Lee v. Osceola Imp. Dist., 268 U.S. 643 (1925). 135 United States v. Allegheny County, 322 U.S. 174 (1944).

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

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
ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC. 939

Cl. 2—Supremacy of the Constitution, Laws, Treaties

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).

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).

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.

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

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

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
940 ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC.

Cl. 2—Supremacy of the Constitution, Laws, Treaties

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). 141Mayo 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. §§ 105–110. Howard v. Commissioners, 344 U.S. 624 (1953). 142Telegraph Co. v. Texas, 105 U.S. 460, 464 (1882). 143Des 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). 145Maricopa County v. Valley Bank, 318 U.S. 357, 362, (1943). 146 308 U.S. 21 (1939). 147 314 U.S. 95 (1941).

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

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.
ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC. 941

Cl. 2—Supremacy of the Constitution, Laws, Treaties

148 Id., 101. 149 Id., 102. 150Fed. Land Bank v. Kiowa County, 368 U.S. 146 (1961). 151 Colorado Bank v. Bedford, 310 U.S. 41 (1940). 152Long v. Rockwood, 277 U.S. 142 (1928). 153 286 U.S. 123 (1932).

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

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

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.
942 ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC.

Cl. 2—Supremacy of the Constitution, Laws, Treaties

154 Educational Films Corp. v. Ward, 282 U.S. 379 (1931). 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). 159Oklahoma 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).

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

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

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
ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC. 943

Cl. 3—Oath of Office

161McCulloch 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.

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
944 ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC.

Cl. 3—Oath of Office

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. 166See Article I, § 3, cl. 1; § 4, cl. 1; 10; Article II, § 1, cl. 2; Article III, 2, cl.

2; Article IV, §§ 1, 2; Article V; Amendments 13, 14, 15, 17, 19, 25, and 26. 167 1 Stat. 73 (1789). 168See 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.

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.

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-
ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC. 945

Cl. 3—Oath of Office

169 1 Stat. 302 (1793). 170For 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). 175Selective Draft Law Cases, 245 U.S. 366, 389 (1918). The Act was 40 Stat.

76 (1917).

cials and the rendition of fugitives from justice from one State to

another exclusively to the state executives. 169

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
946 ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC.

Cl. 3—Oath of Office

176 41 Stat. 314, § 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). 177 24 How. (65 U.S.) 66, 107–108 (1861). 178 100 U.S. 371 (1880).

officials, but also by ‘‘any prosecuting attorney of any State or any

subdivision thereof.’’ 176

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

Eighteen years later, in Ex parte Siebold, 178 the Court sustained the right of Congress, under Article I, § 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
ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC. 947

Cl. 3—Oath of Office

179 Id., 392. 180 209 U.S. 123 (1908). See also Board of Liquidation v. McComb, 92 U.S. 531,

541 (1876). 181Maine v. Thiboutot, 448 U.S. 1 (1980). 182Puerto 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).

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

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

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
948 ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC.

Cl. 3—Oath of Office

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).

185The practice continues. See P.L. 94–435, title III, 90 Stat. 1394, 15 U.S.C.

§ 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. § 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. § 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).

of federal courts to enforce federal law thus presupposes some authority to order state officials to comply.’’ 184

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.