National Duties of State Officers
Commenting in The Federalist on the requirement that state officers, as well as members of the state legislatures, shall be bound by oath or affirmation to support the Constitution, Hamilton wrote: "Thus the legislatures, courts, and magistrates, of the respective members, will be incorporated into the operations of the national government as far as its just and constitutional authority extends; and it will be rendered auxiliary to the enforcement of its laws."172 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 . . ."173 Indeed, the Constitution itself lays many duties, both positive and negative, upon the different organs of state government,174 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 1789175 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.176 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.177clubjuris
172 No. 27, (J. Cooke ed. 1961), 175 (emphasis in original). See also, id. at No. 45, 312-313 (Madison).
173 1 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 404 (rev. ed. 1937).
174 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.
175 1 Stat. 73 (1789).
176 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).
177 1 Stat. 302 (1793).
With the rise of the doctrine of States Rights and of the equal sovereignty of the States with the National Government, the availability of the former as instruments of the latter in the execution of its power came to be questioned.178 In Prigg v. Pennsylvania,179 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,180 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 the Prigg case the Court, speaking by Justice Story, said that "while a difference of opinion has existed, and may exist still on the point, in different states, whether state magistrates are bound to act under it, none is entertained by this Court, that state magistrates may, if they choose, exercise that authority, unless prohibited by state legislation."181 Subsequent cases confirmed the point that Congress could authorize willing state officers to perform such federal duties.182 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.183 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."184clubjuris
178 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).
179 41 U.S. (16 Pet.) 539 (1842).
180 65 U.S. (24 How.) 66 (1861).
181 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 utilization of state courts to enforce federal law.
182 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).
183 Selective Draft Law Cases, 245 U.S. 366, 389 (1918). The Act was 40 Stat. 76 (1917).
184 41 Stat. 314, § 22. In at least two States, the practice was approved by state appellate courts. Carse v. Marsh, 189 Cal. 743, 210 Pac. 257 (1922); United States v. Richards, 201 Wis. 130, 229 N.W. 675 (1930). On this and other issues under the Act, see Hart, Some Legal Questions Growing Out of the President's Executive Order for Prohibition Enforcement, 13 VA. L. REV. 86 (1922).
In the Dennison case, however, it was held that while Congress could delegate it could not require performance of an obligation. The "duty" of state executives in the rendition of fugitives from justice was construed to be declaratory of a "moral duty." Said Chief Justice Taney for the Court: "The act does not provide any means to compel the execution of this duty, nor inflict any punishment for neglect or refusal on the part of the Executive of the State; nor is there any clause or provision in the Constitution which arms the Government of the United States with this power. Indeed, such a power would place every State under the control and dominion of the General Government, even in the administration of its internal concerns and reserved rights. And we think it clear that the Federal Government, under the Constitution, has no power to impose on a State officer, as such, any duty whatever, and compel him to perform it[.] . . . It is true," the Chief Justice conceded, "that in the early days of the Government, Congress relied with confidence upon the co-operation and support of the States, when exercising the legitimate powers of the General Government, and were accustomed to receive it, [but this, he explained, was] upon principles of comity, and from a sense of mutual and common interest, where no such duty was imposed by the Constitution."185
Eighteen years later, in Ex parte Siebold,186 the Court sustained the right of Congress, under Article I, § 4, cl. 1 of the Constitution, to impose duties upon state election officials in connection with a congressional election and to prescribe additional penalties for the violation by such officials of their duties under state law. While the doctrine of the holding was expressly confined to cases in which the National Government and the States enjoy "a concurrent power over the same subject matter," no attempt was made to catalogue such cases. Moreover, the outlook of Justice Bradley's opinion for the Court was decidedly nationalistic rather than dual-istic, as is shown by the answer made to the contention of counsel "that the nature of sovereignty is such as to preclude the joint cooperation of two sovereigns, even in a matter in which they are mutually concerned." To this Justice Bradley replied: "As a general rule, it is no doubt expedient and wise that the operations of the State and national governments should, as far as practicable, be conducted separately, in order to avoid undue jealousies and fears and conflicts of jurisdiction and power. But there is no reason for laying this down as a rule of universal application. It should never be made to override the plain and manifest dictates of the Constitution itself. We cannot yield to such a transcendental view of state sovereignty. The Constitution and laws of the United States are the supreme law of the land, and to these every citizen of every State owes obedience, whether in his individual or official capacity."187clubjuris
185 65 U.S. (24 How.) 66, 107-108 (1861).
186 100 U.S. 371 (1880).
Conflict thus developed early between these two doctrinal lines. But it was the Siebold line that was to prevail. Enforcement of obligations upon state officials through mandamus or through injunctions was readily available, even when the State itself was immune, through the fiction of Ex parte Young,188 under which a state official could be sued in his official capacity but without the immunities attaching to his official capacity. Although the obligations were, for a long period, in their origin based on the Federal Constitution, the capacity of Congress to enforce statutory obligations through judicial action was little doubted.189 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."190 That case is doubly important, inasmuch as the Court spoke not only to the extradition clause and the federal statute directly enforcing it, but it also enforced a purely statutory right on behalf of a Territory that could not claim for itself rights under the clause.191clubjuris
187 Id. at 392.
188 209 U.S. 123 (1908). See also Board of Liquidation v. McComb, 92 U.S. 531, 541 (1876).
189 Maine v. Thiboutot, 448 U.S. 1 (1980).
Even as the Court imposes new federalism limits upon Congress' 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."192
No doubt, there is tension between the exercise of Congress' power to impose duties on state officials193 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.194 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.
190 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").
191 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).
192 New York v. United States, 112 S. Ct. 2408, 2430 (1992). See also FERC v. Mississippi, 456 U.S. 742, 761-765 (1982); Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 695 (1979); Illinois v. City of Milwaukee, 406 U.S. 91, 106-108 (1972).
193 The practice continues. See P.L. 94-435, title III, 90 Stat. 1394, 15 U.S.C. § 15c (authorizing state attorneys general to bring parens patriae antitrust actions in the name of the State to secure monetary relief for damages to the citizens of the State); Medical Waste Tracking Act of 1988, P. L. 100-582, 102 Stat. 2955, 42 U.S.C. § 6992f (authorizing States to impose civil and possibly criminal penalties for violations of the Act); Brady Handgun Violence Prevention Act, P.L. 103-159, tit. I, 107 Stat. 1536, 18 U.S.C. § 922s (imposing on chief law enforcement officer of each jurisdiction to ascertain whether prospective firearms purchaser his disqualifying record).
194 New York v. United States, 112 S. Ct. 2408 (1992).