ARTICLE VI

PRIOR DEBTS, NATIONAL SUPREMACY, AND OATHS OF

OFFICE

CONTENTS

Page

Clause 1. Validity of Prior Debts and Engagements .............................................................. 1017

Prior Debts .......................................................................................................................... 1017

Clause 2. Supremacy of the Constitution, Laws and Treaties .............................................. 1017

National Supremacy ........................................................................................................... 1017

Marshall’s Interpretation of the National Supremacy Clause ................................ 1017

Task of the Supreme Court Under the Clause: Preemption ................................... 1018

The Operation of the Supremacy Clause .................................................................. 1019

Federal Immunity Laws and State Courts ........................................................ 1020

Priority of National Claims Over State Claims ................................................ 1020

Obligation of State Courts Under the Supremacy Clause ....................................... 1021

Supremacy Clause Versus the Tenth Amendment ................................................... 1022

Federal Instrumentalities and Personnel and State Police Power ......................... 1032

The Doctrine of Federal Exemption From State Taxation ...................................... 1034

McCulloch v. Maryland ........................................................................................ 1034

Applicability of Doctrine to Federal Securities ................................................. 1034

Taxation of Government Contractors ................................................................. 1036

Taxation of Salaries of Federal Employees ........................................................ 1038

Ad Valorem Taxes Under the Doctrine .............................................................. 1039

Federal Property and Functions ......................................................................... 1042

Federally Chartered Finance Agencies: Statutory Exemptions ....................... 1042

Royalties ................................................................................................................ 1043

Immunity of Lessees of Indian Lands ................................................................ 1044

Summation and Evaluation ........................................................................................ 1044

Clause 3. Oath of Office ............................................................................................................ 1045

Oath of Office ...................................................................................................................... 1045

Power of Congress in Respect to Oaths .................................................................... 1045

National Duties of State Officers ............................................................................... 1045

1015

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 have been no interpretations of 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 Chief Justice

John Marshall’s appointment to it, that the Supremacy Clause rendered null and void a state constitutional or statutory provision that

was inconsistent with a treaty executed by the Federal Government,1

it was left for Marshall 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 Marshall gave

the principle a vitality that 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 the general government. This is, we think, the unavoid1 Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796).

2 17 U.S. (4 Wheat.) 316 (1819).

3 22 U.S. (9 Wheat.) 1 (1824).

1017
able 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 New York statutes that granted 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.

Chief Justice Marshall wrote: “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 that have been

regulated by Congress, the Court’s primary task 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 Court’s

task is simplified, though, of course, there may still be doubtful areas in which interpretation will be necessary. Where Congress is

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

5 22 U.S. (9 Wheat.) at 210–11. See the Court’s discussion of Gibbons in Douglas v. Seacoast Products, Inc., 431 U.S. 265, 274–79 (1977).

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1018 ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC.
silent, however, the Court must itself decide 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 pursuant to one of its enumerated powers. The

Supremacy Clause operates whether the authority of Congress is

express or implied, and whether plenary or 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 a state is

participating, however, any of its legislation that is contrary to federal requirements is void under the Supremacy Clause.9

At the same time, however, the Supremacy Clause is not the

“source of any federal rights,” 10 and the Clause “certainly does not

create a cause of action.” 11 As such, individual litigants cannot sue

to enforce federal law through the Supremacy Clause, as such a

reading of the Clause would prevent Congress from limiting enforce6 Treatment of preemption principles and standards is set out under the Commerce Clause, which is the greatest source of preemptive authority.

7 Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 210–11 (1824). See also Cipollone v.

Liggett Group, Inc., 505 U.S. 504 (1992); Morales v. TWA, 504 U.S. 374 (1992); Maryland v. Louisiana, 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 that joined the system and enacted the requisite complying legislation. Although participation is voluntary, the underlying federal tax program induces state participation. See Steward

Machine Co. v. Davis, 301 U.S. 548, 585–98 (1937).

9 On the operation of federal spending programs upon state laws, see South Dakota v. Dole, 483 U.S. 203 (1987) (under highway funding programs). On the preemptive effect of federal spending laws, see Lawrence County v. Lead-Deadwood School

Dist., 469 U.S. 256 (1985). An early example of states being required to conform

their laws to the federal standards is King v. Smith, 392 U.S. 309 (1968). Private

parties may compel state acquiescence in federal standards to which they have agreed

by participation in the programs through suits under a federal civil rights law (42

U.S.C. § 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 &

Hosp. v. Halderman, 451 U.S. 1, 11, 17–18 (1981).

10 See Golden State Transit Corp. v. Los Angeles, 493 U.S. 103, 107 (1989).

11 See Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. ___, No. 14–15, slip

op. at 3 (2015).

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ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC. 1019
ment of federal laws to federal actors.12 Instead, without a statutory cause of action, those wishing to seek injunctive relief against

a state actor that refuses to comply with federal law must rely on

the inherent equitable power of courts, a judge-made remedy that

may be overridden by Congress.13

Federal Immunity Laws and State Courts.—The operation

of federal immunity acts 14 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 15 illustrates direct

federal preemption that is not contingent on state participation in

a federal program. Because Congress in pursuance of its paramount authority to provide for the national defense, as complemented by the Necessary and Proper Clause, is competent to compel testimony of persons that is needed in order to legislate, it is

competent to obtain such testimony over a witness’s selfincrimination claim by immunizing him from prosecution on evidence thus revealed not only in federal courts but in state courts

as well.16

Priority of National Claims Over State Claims.—

Anticipating his argument in McCulloch v. Maryland,

17 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.18 The principle was later extended to federal enactments providing that taxes due to the United States by an insolvent shall have priority in payment over taxes he owes to a state.19

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 authori12 Id.

13 Id. at 5–6.

14 Immunity laws operate to compel witnesses to testify even over selfincrimination claims by giving them an equivalent immunity from prosecution.

15 Adams v. Maryland, 347 U.S. 179 (1954).

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

United States, 364 U.S. 507, 510 (1960).

17 17 U.S. (4 Wheat.) 316 (1819).

18 United States v. Fisher, 6 U.S. (2 Cr.) 358 (1805).

19 Spokane County v. United States, 279 U.S. 80, 87 (1929). A state requirement that notice of a federal tax lien be filed in conformity with state law in a state

office in order to be accorded priority was held to be controlling only insofar as Congress by law had made it so. Remedies for collection of federal taxes are independent of legislative action of the states. United States v. Union Central Life Ins. Co.,

368 U.S. 291 (1961). See also United States v. Buffalo Savings Bank, 371 U.S. 228

(1963) (state may not avoid priority rules of a federal tax lien by providing that the

discharge of state tax liens are to be part of the expenses of a mortgage foreclosure

sale); United States v. Pioneer American Ins. Co., 374 U.S. 84 (1963) (Matter of federal law whether a lien created by state law has acquired sufficient substance and

has become so perfected as to defeat a later-arising or later-filed federal tax lien).

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1020 ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC.
ties.20 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.21

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

State, but according to the laws and treaties of the United States—

‘the supreme law of the land.’ ” 22 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 laws and treaties but also the interpretations

of their meanings by the United States Supreme Court.23 Although

states may not have to specially create courts competent to hear

federal claims or give courts authority specially,24 it violates the Supremacy Clause for a state court to refuse to hear a category of

20 Brownell v. Singer, 347 U.S. 403 (1954).

21 United States v. Oregon, 366 U.S. 643 (1961).

22 Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 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).

23 Cooper v. Aaron, 358 U.S. 1 (1958); see also James v. City of Boise, 577 U.S.

___, No. 15–493, slip op. at 2 (2016) (“The Idaho Supreme Court, like any other state

or federal court, is bound by this Court’s interpretation of federal law.”); DIRECTV,

Inc. v. Imburgia, 577 U.S. ___, No. 14–462, slip op. at 5 (2015) (holding that the

Supreme Court’s interpretation of a federal law is an “authoritative interpretation

of that Act,” requiring the “judges of every State” to “follow it.”). Moreover, the Court

has interpreted the Supremacy Clause to require that a state court, when reviewing

a prisoner’s collateral claims that are controlled by federal law, “has a duty to grant

the relief that federal law requires.” See Montgomery v. Louisiana, 577 U.S. ___,

No. 14–280, slip op. at 13 (2016) (quoting Yates v. Aiken, 484 U.S. 211, 218 (1988)).

For an extended discussion on Montgomery and the obligations of state collateral

review courts when reviewing substantive constitutional rules, see supra Article III:

Section 2. Judicial Power and Jurisdiction: Clause 1. Cases and Controversies; Grants

of Jurisdiction: Judicial Power and Jurisdiction-Cases and Controversies: The Requirements of a Real Interest: Retroactivity Versus Prospectivity.

24 In Haywood v. Drown, 556 U.S. ___, No. 07–10374, slip op. at 10 (2009), the

Court noted, “this case does not require us to decide whether Congress may compel

a State to offer a forum, otherwise unavailable under state law, to hear suits brought

pursuant to [a federal statute].”

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ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC. 1021
federal claims when the court entertains state law actions of a similar nature,25 or sometimes even when it does not entertain state

law actions of a similar nature.26 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,27 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,

28 which was first argued but not decided before Marshall’s death. Miln involved a New York statute that required 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, 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,

25 Howlett v. Rose, 496 U.S. 356 (1990); Felder v. Casey, 487 U.S. 131 (1988).

The Court’s re-emphasis upon “dual federalism” has not altered this principle. See,

e.g., Printz v. United States, 521 U.S. 898, 905–10 (1997).

26 See Haywood v. Drown, 556 U.S. ___, No. 07–10374, slip op. (2009), discussed

in Art. III, “Use of State Courts in Enforcement of Federal Law,” supra.

27 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).

28 36 U.S. (11 Pet.) 102 (1837).

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1022 ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC.
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.” 29 Justice Story,

in dissent, stated that Marshall had heard the previous argument

and reached the conclusion that the New York statute was unconstitutional.30

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.

31 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.32

Until recently, it appeared that in fact and in theory the Court

had repudiated this doctrine,33 but, in National League of Cities v.

Usery,

34 it revived part of this state police power limitation upon

the exercise of delegated federal power. However, the decision was

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.35 In United States

29 36 U.S. at 139.

30 36 U.S. at 161.

31 46 U.S. (5 How.) 504, 528 (1847).

32 46 U.S. at 573–74.

33 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).

34 426 U.S. 833 (1976).

35 On the doctrine of “dual federalism,” see the commentary by the originator of

the phrase, Professor Corwin. E. CORWIN, THE TWILIGHT OF THE SUPREME COURT—A HISTORY OF OUR CONSTITUTIONAL THEORY 10–51 (1934); THE COMMERCE POWER VERSUS STATES

RIGHTS 115–172 (1936); A CONSTITUTION OF POWERS IN A SECULAR STATE 1–28 (1951).

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

ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC. 1023
v. California,

36 upholding the validity of the application of a federal safety law to a state-owned railroad being operated as a nonprofit entity, the Court, speaking through Justice Stone, denied the

existence of an implied limitation upon Congress’s 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.” 37 Although 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.” 38

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.39 The culmination of this series had

been thought to be Maryland v. Wirtz,

40 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 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 Govern36 297 U.S. 175 (1936).

37 297 U.S. at 185.

38 297 U.S. at 184.

39 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’s 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 Dist. v. United States, 206 U.S. 405 (1925) (prohibition of state from diverting water from Great Lakes).

40 392 U.S. 183 (1968). Justices Douglas and Stewart dissented. Id. at 201.

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1024 ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC.
ment, 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.” 41

Wirtz was specifically reaffirmed in Fry v. United States,

42 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 that was to obtain majority approval in League of Cities,

43 in which he wrote for the Court: “[T]here

are attributes of sovereignty attaching to every state government

which may not be impaired by Congress, not because Congress 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.” 44 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.” 45 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 in41 392 U.S. at 195–97 (internal quotation marks omitted).

42 421 U.S. 542 (1975).

43 421 U.S. at 549. Essentially, the Justice was required to establish an affirmative constitutional barrier to congressional action. Id. at 552–53. 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. at 553. But whence the affirmative barrier? “[I]t is not the

Tenth Amendment by its terms. . . .” Id. at 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. at 557–59. But the difficulty with this construction is that the

equivalence that Justice Rehnquist sought to establish 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 (1923).

44 National League of Cities v. Usery, 426 U.S. 833, 845 (1976).

45 426 U.S. at 845.

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

ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC. 1025
tegral operations in areas of traditional governmental functions.” 46

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; 47 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; 48 Fry was distinguished on the bases that it upheld 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.” 49 Wirtz was overruled; it

permitted Congress to intrude into the conduct of integral and traditional state governmental functions and could not therefore stand.50

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.51 Second, it was held not to immunize

state conduct of a business operation, that is, proprietary activity

not like “traditional governmental activities.” 52 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 to continue to act in this field.53 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.54 Fifth, it was held not to apply at all to Congress’s enforcement powers under the Thirteenth, Fourteenth, and Fifteenth Amendments.55 Sixth, it apparently was to have no application to the ex46 426 U.S. at 852.

47 426 U.S. at 854.

48 426 U.S. at 854 n.18.

49 426 U.S. at 852–53.

50 426 U.S. at 853–55.

51 Hodel v. Virginia Surface Mining & Recl. Ass’n, 452 U.S. 264 (1981).

52 United Transp. Union v. Long Island R.R., 455 U.S. 678 (1982).

53 FERC v. Mississippi, 456 U.S. 742 (1982).

54 National League of Cities v. Usery, 426 U.S. 833, 854 n.18 (1976).

55 Fitzpatrick v. Bitzer, 427 U.S. 445 (1976); City of Rome v. United States, 446

U.S. 156, 178–80 (1980).

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1026 ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC.
ercise of Congress’s spending power with conditions attached.56

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.” 57 In his concurrence, Justice Blackmun

suggested his lack of agreement with “certain possible implications” of the opinion and recast it as a “balancing approach” that

“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.” 58

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

Antonio Metropolitan Transit Authority,

59 and seemingly returned

to 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.” 60 State autonomy is both limited and protected by the terms of the Constitution itself, hence—ordinarily, at least—exercise of Congress’s enu56 In Pennhurst State School & Hosp. v. Halderman, 451 U.S. 1, 17 n.13 (1981),

the Court suggested rather ambiguously that League of Cities may restrict the federal spending power, citing its reservation of the cases in League of Cities, 426 U.S.

852 n.17, but citing also spending clause cases indicating a rational basis standard

of review of conditioned spending. Earlier, the Court had summarily affirmed a decision holding that the spending power was not affected by the case. North Carolina

ex rel. Morrow v. Califano, 445 F. Supp. 532 (E.D.N.C. 1977) (three-judge court),

aff’d, 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, 505 U.S. 144, 167, 171–72, 185 (1992); South Dakota v. Dole, 483 U.S. 203,

210–12 (1987).

57 National League of Cities v. Usery, 426 U.S. 833, 846–51 (1976). The quotation in the text is at 853 (one of the elements distinguishing the case from Fry).

58 426 U.S. at 856.

59 469 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.

60 469 U.S. at 557.

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merated powers is not to be limited by “a priori definitions of state

sovereignty.” 61 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.” 62 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.” 63 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.64 “[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.” 65 While continuing to recognize that “Congress’s 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.” 66 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 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.’ ” 67

Further indication of what must be alleged in order to establish affirmative limits to commerce power regulation was provided

in South Carolina v. Baker.

68 The Court expansively interpreted Garcia as meaning that there must be an allegation of “some extraor61 469 U.S. at 548.

62 469 U.S. at 549.

63 469 U.S. at 548.

64 “Apart from the limitation on federal authority inherent in the delegated nature of Congress’s 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.” 469 U.S. at 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. at 551.

65 469 U.S. at 554.

66 469 U.S. at 556.

67 469 U.S. at 554.

68 485 U.S. 505 (1988).

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1028 ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC.
dinary defects in the national political process” before the Court will

intervene.69 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.” 70 Thus, the general rule is that

“limits on Congress’s 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.” 71

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.” 72 As the membership of the Court

changed, it appeared that the prediction was proving true.73 Confronted with the opportunity in New York v. United States,

74 to reexamine Garcia, the Court instead distinguished it,75 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.76 The line of analysis pursued by the Court makes clear, however, what the result will

be 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 in New York, one could inquire whether Congress acted

under a delegated power or one could ask whether Congress had

69 485 U.S. at 512.

70 485 U.S. at 513.

71 485 U.S. at 512.

72 Garcia v. San Antonio Metropolitan Transit Auth., 469 U.S. 528, 579–80 (1985).

73 The shift was pronounced in Gregory v. Ashcroft, 501 U.S. 452 (1991), in which

the Court, cognizant of the constraints of Garcia, chose to apply a “plain statement”

rule to construction of a statute seen to be intruding into the heart of state autonomy. Id. at 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. at 463–64.

74 505 U.S. 144 (1992).

75 The line of cases exemplified by Garcia was said to concern the authority of

Congress to subject state governments to generally applicable laws, those covering

private concerns as well as the states, necessitating no revisiting of those cases. 505

U.S. at 160.

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

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

responsibilities on the states, the provision sought to compel performance by requiring that any state that failed to provide for the permanent disposal of wastes generated within its borders must take title to, take possession of, and assume liability

for the wastes, 505 U.S. at 161, obviously a considerable burden.

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

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invaded a state province protected by the Tenth Amendment. But,

the Justice wrote, “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.” 77

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,” 78 but is a direct constraint on Article I powers when

an incident of state sovereignty is invaded.79 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.80 The “take title” provision, because it presented the

states with “an unavoidable command”, transformed state governments into “regional offices” or “administrative agencies” of the Federal Government, impermissibly undermined the accountability owing the people and was void.81 Whether viewed as lying outside

Congress’s 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.” 82

Federal laws of general applicability, therefore, are surely subject to examination under the New York test rather than under the

Garcia structural standard.

Expanding upon its anti-commandeering rule, the Court in Printz

v. United States 83 established “categorically” the rule that “[t]he Federal Government may not compel the States to enact or administer

a federal regulatory program.” 84 At issue in Printz was a provision

of the Brady Handgun Violence Prevention Act that required, pending the development by the Attorney General of a national system

77 505 U.S. at 156.

78 505 U.S. at 156 (quoting United States v. Darby, 312 U.S. 100, 124 (1941)).

79 505 U.S. at 156.

80 505 U.S. at 168–69.

81 505 U.S. at 175–77, 188.

82 505 U.S. at 177.

83 521 U.S. 898 (1997).

84 521 U.S. at 933 (internal quotation marks omitted) (quoting New York v. United

States, 505 U.S. 144, 188 (1992)).

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1030 ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC.
by which criminal background checks on prospective firearms purchasers could be conducted, the chief law enforcement officers of state

and local governments to conduct background checks to ascertain

whether applicants were ineligible to purchase handguns. Confronting the absence of any textual basis for a “categorical” rule, the Court

looked to history, which in its view demonstrated a paucity of congressional efforts to impose affirmative duties upon the states.85 More

important, the Court relied on the “structural Constitution” to demonstrate that the Constitution of 1787 had not taken from the states

“a residuary and inviolable sovereignty,” 86 that it had, in fact and

theory, retained a system of “dual sovereignty” 87 reflected in many

things but most notably in the constitutional conferral “upon Congress of not all governmental powers, but only discrete, enumerated ones,” which was expressed in the Tenth Amendment. Thus,

although it had earlier rejected the commandeering of legislative

assistance, the Court now made clear that administrative officers

and resources were also fenced off from federal power.

The scope of the rule thus expounded was unclear. Particularly,

Justice O’Connor in concurrence observed that Congress retained

the power to enlist the states through contractual arrangements and

on a voluntary basis. More pointedly, she stated that “the Court appropriately refrains from deciding whether other purely ministerial

reporting requirements imposed by Congress on state and local authorities pursuant to its Commerce Clause powers are similarly invalid.” 88

A partial answer was provided in Reno v. Condon,

89 in which

the Court upheld the Driver’s Privacy Protection Act of 1994 against

a charge that it offended the anti-commandeering rule of New York

and Printz. The Act in general limits disclosure and resale without

a driver’s consent of personal information contained in the records

of state motor vehicle departments, and requires disclosure of that

information for specified government record-keeping purposes. While

conceding that the Act “will require time and effort on the part of

state employees,” the Court found this imposition permissible because the Act regulates state activities directly rather than requiring states to regulate private activities.90

85 521 U.S. at 904–18. Notably, the Court expressly exempted from this rule the

continuing role of the state courts in the enforcement of federal law. Id. at 905–08.

86 521 U.S. at 919 (quoting THE FEDERALIST, No. 39 (Madison)).

87 521 U.S. at 918.

88 521 U.S. at 936 (citing 42 U.S.C. § 5779(a)) (requiring state and local law enforcement agencies to report cases of missing children to the Department of Justice).

89 528 U.S. 141 (2000).

90 528 U.S. at 150–51.

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ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC. 1031
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 National Bank v. Commonwealth.

91 “[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 from discharging their duties to the government that it becomes unconstitutional.” 92 In Davis v. Elmira Savings Bank,

93 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.” 94

Similarly, a state law, insofar as it forbids national banks to

use the word “saving” or “savings” in their business and advertising, is void because it conflicts with the Federal Reserve Act’s authorizing such banks to receive savings deposits.95 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 within the state.96 Also, Treasury Department regulations,

designed 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,

91 76 U.S. (9 Wall.) 353 (1870).

92 76 U.S. at 362.

93 161 U.S. 275 (1896).

94 161 U.S. at 283.

95 Franklin Nat’l Bank v. New York, 347 U.S. 273 (1954).

96 Reagan v. Mercantile Trust Co., 154 U.S. 413 (1894).

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1032 ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC.
override contrary state community property laws whereunder a onehalf interest in such property remains part of the estate of a decedent co-owner.97 Similarly, the Patent Office’s 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.98

The extent to which states may regulate contractors who furnish goods or services to the Federal Government is not as clearly

established as is the states’ 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.99 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.100 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.101

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

difficulties.102 The Court looked to a “functional” analysis of state

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

97 Free v. Bland, 369 U.S. 663 (1962).

98 Sperry v. Florida, 373 U.S. 379 (1963).

99 Penn Dairies v. Milk Control Comm’n, 318 U.S. 261 (1943).

100 Pacific Coast Dairy v. Department of Agriculture, 318 U.S. 285 (1943). See

also Paul v. United States, 371 U.S. 245 (1963).

101 Leslie Miller, Inc. v. Arkansas, 353 U.S. 187 (1956).

102 North Dakota v. United States, 495 U.S. 423 (1990). The difficulty is that

the case was five-to-four, with a single Justice concurring with a plurality of four to

reach the result. Id. at 444. Presumably, the concurrence agreed with the rationale

set forth here, disagreeing only in other respects.

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ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC. 1033
it deals.” 103 In determining whether a regulation discriminates against

the Federal Government, “the entire regulatory system should be

analyzed.” 104

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. Bank of the United States.

105

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.” 106 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.” 107 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.” 108 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.109 Thus,

not only was the decision of McCulloch v. Maryland reaffirmed but

the foundation was laid for the vast expansion 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. Charles103 495 U.S. at 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. at 448, 451–52.

104 495 U.S. at 435. 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. Justice Scalia,

concurring, was doubtful of this standard. Id. at 444.

105 22 U.S. (9 Wheat.) 738 (1824).

106 22 U.S. at 865.

107 22 U.S. at 865.

108 22 U.S. at 866.

109 22 U.S. at 867.

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

1034 ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC.
ton,

110 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.111 A modified version of this section remains on the

statute books today.112 The right of Congress to exempt legal tender notes to the same extent as bonds was sustained in Bank v.

Supervisors,

113 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.114 Similarly, the

assessment for an ad valorem property tax of an open account for

money due under a federal contract,115 and the inclusion of the value

of United States bonds owed by a decedent, in measuring an inheritance tax,116 were held valid, since neither tax would substantially

embarrass the power of the United States to secure credit.117 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 imposed on the banks

which were solely liable for payment thereof.118

Income from federal securities is also beyond the reach of the

state taxing power as the cases now stand.119 Nor can such a tax

110 27 U.S. (2 Pet.) 449 (1829), followed in New York ex rel. Bank of Commerce

v. New York City, 67 U.S. (2 Bl.) 620 (1863).

111 Ch. 73, 37th Cong., 3d Sess., 12 Stat. 709, 710 (1863).

112 31 U.S.C. § 3124. The exemption under the statute is no broader than that

which the Constitution requires. First Nat’l 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).

113 74 U.S. (7 Wall.) 26 (1868).

114 Hibernia Savings Society v. San Francisco, 200 U.S. 310, 315 (1906).

115 Smith v. Davis, 323 U.S. 111 (1944).

116 Plummer v. Coler, 178 U.S. 115 (1900); Blodgett v. Silberman, 277 U.S. 1, 12

(1928).

117 Accord, Rockford Life Ins. Co. v. Illinois Dep’t of Revenue, 482 U.S. 182 (1987)

(tax including in an investor’s net assets the value of federally-backed securities (“Ginnie Maes”) upheld, as it would have no adverse effect on Federal Government’s borrowing ability).

118 Society for Savings v. Bowers, 349 U.S. 143 (1955).

119 Northwestern Mut. Life Ins. Co. v. Wisconsin, 275 U.S. 136, 140 (1927).

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ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC. 1035
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.120

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.121 The designation of a tax is not controlling.122 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.123

Taxation of Government Contractors.—In the course of his

opinion in Osborn v. Bank of the United States,

124 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.” 125

Today, the question insofar as taxation is concerned is answered in the affirmative. Although the early cases looked toward

immunity,126 in James v. Dravo Contracting Co.,

127 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 Federal 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

120 Miller v. Milwaukee, 272 U.S. 713 (1927).

121 Provident Inst. v. Massachusetts, 73 U.S. (6 Wall.) 611 (1868); Society for

Savings v. Coite, 73 U.S. (6 Wall.) 594 (1868); Hamilton Company v. Massachusetts,

73 U.S. (6 Wall.) 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).

122 Macallen Co. v. Massachusetts, 279 U.S. 620, 625 (1929).

123 Northwestern Mutual Life Ins. Co. v. Wisconsin, 275 U.S. 136 (1927).

124 22 U.S. (9 Wheat.) 738 (1824).

125 22 U.S. at 867.

126 The dissent in James v. Dravo Contracting Co., 302 U.S. 134, 161 (1937),

observed that the Court was overruling “a century of precedents.” See, e.g., Panhandle Oil Co. v. Mississippi ex rel. Knox, 277 U.S. 218 (1928) (voiding a state privilege tax on dealers in gasoline as applied to sales by a dealer to the Federal Government for use by Coast Guard). It was in Panhandle that Justice Holmes uttered his

riposte to Chief Justice Marshall: “The power to tax is not the power to destroy while

this Court sits.” Id. at 223 (dissenting).

127 302 U.S. 134 (1937).

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1036 ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC.
is laid upon the governmental instrumentality, and there is only a

remote, if any, influence upon the exercise of the functions of government.’ ” 128 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.129 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 130 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.131

Although the decisions have not set an unwavering line,132 the Court

has 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.” 133 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.134 Of course, Congress may

128 302 U.S. at 150 (quoting Willcuts v. Bunn, 282 U.S. 216, 225 (1931)).

129 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).

130 Alward v. Johnson, 282 U.S. 509 (1931).

131 Trinityfarm Const. Co. v. Grosjean, 291 U.S. 466 (1934).

132 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, Inc. 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).

133 United States v. New Mexico, 455 U.S. 720, 735 (1982). See South Carolina

v. Baker, 485 U.S. 505, 523 (1988).

134 “[I]mmunity may not be conferred simply because the tax has an effect on

the United States, or even because the Federal Government shoulders the entire

economic burden of the levy.” United States v. New Mexico, 455 U.S. 720, 734 (1982).

Arizona Dep’t of Revenue v. Blaze Constr. Co., 526 U.S. 32 (1999) (the same rule

applies when the contractual services are rendered on an Indian reservation).

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

ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC. 1037
statutorily provide for immunity from taxation of federal contractors generally or in particular programs.135

Taxation of Salaries of Federal Employees.—Of a piece with

James v. Dravo Contracting Co. was Graves v. New York ex rel.

O’Keefe,

136 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.” 137 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.” 138

That question is academic, Congress’s having consented to state

taxation of its employees’ compensation as long as the taxation “does

not discriminate against the . . . employee, because of the source

of the . . . compensation.” 139 This principle, the Court has held, “is

135 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).

136 306 U.S. 466 (1939), followed in State Comm’n v. Van Cott, 306 U.S. 511

(1939). This case was overruled by implication in Dobbins v. Erie County, 41 U.S.

(16 Pet.) 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.

137 306 U.S. at 487.

138 306 U.S. at 492.

139 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

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

1038 ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC.
coextensive with the prohibition against discriminatory taxes embodied in the modern constitutional doctrine of intergovernmental

tax immunity.” 140

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 141 and confirmed a half century later with respect to railroads incorporated by Congress.142 Similarly, a property

tax may be levied against the lands under water that are owned by

a person holding a license under the Federal Water Power Act.143

However, when privately owned property erected by lessees on taxexempt 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 because it discriminates against the United States and its lessees, is void.144 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 used 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.145 Land connondiscriminatory 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 Dep’t of Treasury, 489 U.S. 803, 810–14 (1989). For application of the Act

to salaries of federal judges, see Jefferson County v. Acker, 527 U.S. 423 (1999) (upholding imposition of a local occupational tax).

140 Davis v. Michigan Dept. of the Treasury, 489 U.S. at 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, 503 U.S.

594 (1992) (similarly voiding a state tax on federal military retirement benefits but

not reaching state and local government retirees).

141 17 U.S. (4 Wheat.) 316, 426 (1819).

142 Thomson v. Union Pac. R.R., 76 U.S. (9 Wall.) 579, 588 (1870); Union Pacific

R.R. v. Peniston, 85 U.S. (18 Wall.) 5, 31 (1873).

143 Susquehanna Power Co. v. Tax Comm’n (No. 1), 283 U.S. 291 (1931).

144 Moses Lake Homes v. Grant County, 365 U.S. 744 (1961).

145 Phillips Chemical Co. v. Dumas School Dist., 361 U.S. 376, 383, 387 (1960).

In Offutt Housing Co. v. Sarpy County, 351 U.S. 253 (1956), a housing company

was held liable for county personal property taxes on the ground that the government had consented to state taxation of the company’s interest as lessee. Upon its

completion of housing accommodations at an Air Force Base, the company had leased

the houses and the furniture therein from the Federal Government.

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

ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC. 1039
veyed by 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.146 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; 147 but, in the case of reclamation entries, the tax may not be collected until the equitable title passes.148

In the pioneer case of Van Brocklin v. Tennessee,

149 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.150

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.151 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 same state

against a federal subcontractor, and computed on the value of materials and work in process in his possession, notwithstanding that

146 Baltimore Shipbuilding Co. v. Baltimore, 195 U.S. 375 (1904).

147 Northern Pacific R.R. v. Myers, 172 U.S. 589 (1899); New Brunswick v. United

States, 276 U.S. 547 (1928).

148 Irwin v. Wright, 258 U.S. 219 (1922).

149 117 U.S. 151 (1886).

150 Lee v. Osceola Imp. Dist., 268 U.S. 643 (1925).

151 United States v. Allegheny County, 322 U.S. 174 (1944).

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

1040 ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC.
title thereto had passed to the United States following his receipt

of installment payments.152

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 Allegheny County, the

Court maintained that in that 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. 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.153

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.154 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.155

152 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).

153 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).

154 United States v. Township of Muskegon, 355 U.S. 484 (1958).

155 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.

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

ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC. 1041
Federal Property and Functions.—Property owned by the

United States is, of course, wholly immune from state taxation.156

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.157 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.158

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.159 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,160 Congress enacted 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.” 161 In Pittman v. Home Owners’

Corp.,

162 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

Lumber Co.,

163 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.

156 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’n,

412 U.S. 363 (1973); United States v. Mississippi Tax Comm’n, 421 U.S. 599 (1975).

157 Mayo v. United States, 319 U.S. 441 (1943). A municipal tax on the privilege

of working within the city, levied at the rate of one percent of earnings, although

not deemed to be an income tax under state law, was sustained as such when collected from employees of a naval ordinance plant by reason of federal assent to that

type of tax expressed in the Buck Act. 4 U.S.C. §§ 105–110. Howard v. Commissioners, 344 U.S. 624 (1953).

158 Telegraph Co. v. Texas, 105 U.S. 460, 464 (1882).

159 Des Moines Bank v. Fairweather, 263 U.S. 103, 106 (1923); Owensboro Nat’l

Bank v. Owensboro, 173 U.S. 664, 669 (1899); First Nat’l Bank v. Adams, 258 U.S.

362 (1922); Michigan Nat’l Bank v. Michigan, 365 U.S. 467 (1961).

160 Baltimore Nat’l Bank v. Tax Comm’n, 297 U.S. 209 (1936).

161 Maricopa County v. Valley Bank, 318 U.S. 357, 362, (1943).

162 308 U.S. 21 (1939).

163 314 U.S. 95 (1941).

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

1042 ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC.
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.” 164 The Court rejected this argument and invalidated the tax, writing: “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.” 165

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.166 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.167

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.168 This proposition was soon overruled

in Fox Film Corp. v. Doyal,

169 where a privilege tax based on gross

income and applicable to royalties from copyrights was upheld. Like164 314 U.S. at 101.

165 314 U.S. at 102 (citations omitted).

166 Federal Land Bank v. Kiowa County, 368 U.S. 146 (1961).

167 Colorado Bank v. Bedford, 310 U.S. 41 (1940).

168 Long v. Rockwood, 277 U.S. 142 (1928).

169 286 U.S. 123 (1932).

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

ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC. 1043
wise a state may lay a franchise tax on corporations, measured by

the net income from all sources and applicable to income from copyright royalties.170

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 & Gulf R.R. v. Harrison,

171 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.172 A modified gross production tax imposed in lieu of all ad valorem taxes was invalidated in

two per curiam decisions.173 In Gillespie v. Oklahoma,

174 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.175 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’n 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.176

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 v. Mary170 Educational Films Corp. v. Ward, 282 U.S. 379 (1931).

171 235 U.S. 292 (1914).

172 Indian Oil Co. v. Oklahoma, 240 U.S. 522 (1916).

173 Howard v. Gipsy Oil Co., 247 U.S. 503 (1918); Large Oil Co. v. Howard, 248

U.S. 549 (1919).

174 257 U.S. 501 (1922).

175 Oklahoma v. Barnsdall Corp., 296 U.S. 521 (1936).

176 336 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, 72 U.S. (5 Wall.) 737 (1867); The New York Indians, 72 U.S. (5 Wall.) 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 County Comm’rs

v. Seber, 318 U.S. 705 (1943).

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

1044 ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC.
land 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 add to this oath such other oath of office as its

wisdom may require.177 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,178 and the same rule holds in the case of the states.179

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

177 McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 416 (1819).

178 Ex parte Garland, 71 U.S. (4 Wall.) 333, 337 (1867).

179 Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 323 (1867). See also Bond v.

Floyd, 385 U.S. 116 (1966), in which 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 to support to the United States Constitution.

Cl. 3—Oath of Office

ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC. 1045
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.” 180 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. . . .” 181 Indeed, the Constitution itself lays many

duties, both positive and negative, upon the different organs of state

government,182 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 183 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.184 Pursuant to the 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 officials and the rendition of fugitives from justice from one state to

another exclusively to the state executives.185

180 No. 27, (J. Cooke ed. 1961), 175 (emphasis in original). See also, id. at No.

45, 312–313 (Madison).

181 1 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 404 (rev. ed.

1937).

182 See 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.

183 1 Stat. 73 (1789).

184 See Warren, Federal Criminal Laws and the State Courts, 38 HARV. L. REV.

545 (1925); Holcomb, The States as Agents of the Nation, 3 SELECTED ESSAYS ON CONSTITUTIONAL LAW 1187 (1938); Barnett, Cooperation Between the Federal and State Governments, 7 ORE. L. REV. 267 (1928). See also J. CLARK, THE RISE OF A NEW FEDERALISM

(1938); E. CORWIN, COURT OVER CONSTITUTION 148–168 (1938).

185 1 Stat. 302 (1793).

Cl. 3—Oath of Office

1046 ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC.
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.186 In Prigg v. Pennsylvania,

187

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,

188 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 the 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 Prigg, 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.” 189 Subsequent cases confirmed the point that Congress could authorize willing state officers to perform such federal

duties.190 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.191 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 officials, but also by “any prosecuting attorney of any State or any subdivision thereof.” 192

186 For the development of opinion, especially on the part of state courts, adverse to the validity of such legislation, see 1 J. KENT, COMMENTARIES ON AMERICAN LAW

396–404 (1826).

187 41 U.S. (16 Pet.) 539 (1842).

188 65 U.S. (24 How.) 66 (1861).

189 41 U.S. (16 Pet.) 539, 622 (1842). See also Kentucky v. Dennison, 65 U.S. (24

How.) 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 use of state courts to enforce federal law.

190 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).

191 Selective Draft Law Cases, 245 U.S. 366, 389 (1918). The Act was 40 Stat.

76 (1917).

192 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

Cl. 3—Oath of Office

ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC. 1047
In Dennison, however, the Court held that, although 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.” Chief Justice Taney wrote 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.” 193

Eighteen years later, in Ex parte Siebold,

194 the Court sustained the right of Congress, under Article I, § 4, paragraph 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. Although 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 co-operation of two sovereigns, even in a matter in

which they are mutually concerned . . . .” 195 To this Justice Bradley replied: “As a general rule, it is no doubt expedient and wise

that the operations of the State and national governments should,

as far as practicable, be conducted separately, in order to avoid undue jealousies and jars and conflicts of jurisdiction and power. But

there is no reason for laying this down as a rule of universal appliAct, see Hart, Some Legal Questions Growing Out of the President’s Executive Order

for Prohibition Enforcement, 13 VA. L. REV. 86 (1922).

193 65 U.S. (24 How.) 66, 107–08 (1861).

194 100 U.S. 371 (1880).

195 100 U.S. at 391.

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1048 ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC.
cation. 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.” 196

Conflict thus developed early between these two doctrinal lines.

But it was the Siebold line that prevailed. 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,

197 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 United States Constitution, the capacity of Congress to enforce statutory obligations through

judicial action was little doubted.198 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.” 199 That case is doubly important,

because 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.200

Even as the Court imposes new federalism limits upon Congress’s powers to regulate 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 of federal courts to enforce federal law thus presupposes some authority

to order state officials to comply.” 201

196 100 U.S. at 392.

197 209 U.S. 123 (1908). See also Board of Liquidation v. McComb, 92 U.S. 531,

541 (1876).

198 Maine v. Thiboutot, 448 U.S. 1 (1980).

199 Puerto Rico v. Branstad, 483 U.S. 219, 227 (1987) (Dennison “rests upon a

foundation with which time and the currents of constitutional change have dealt

much less favorably”).

200 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).

201 New York v. United States, 505 U.S. 144, 179 (1992). See also FERC v. Mississippi, 456 U.S. 742, 761–765 (1982); Washington v. Washington State Commercial

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ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC. 1049
No doubt, there is tension between the exercise of Congress’s

power to impose duties on state officials 202 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.203 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.

Passenger Fishing Vessel Ass’n, 443 U.S. 658, 695 (1979); Illinois v. City of Milwaukee, 406 U.S. 91, 106–108 (1972).

202 The practice continues. See Pub. 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, Pub. 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, Pub. 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).

203 New York v. United States, 505 U.S. 144 (1992).

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1050 ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC.