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." 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 . . ." Indeed, the Constitution itself lays many duties, both positive and negative, upon the different organs of state government, 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 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. 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.
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. In Prigg v. Pennsylvania, 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, 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." Subsequent cases confirmed the point that Congress could authorize willing state officers to perform such federal duties.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. 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."
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."
Eighteen years later, in Ex parte Siebold, 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."
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, 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. 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." 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.
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."
No doubt, there is tension between the exercise of Congress' power to impose duties on state officials 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. 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.
Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796).
17 U.S. (4 Wheat.) 316 (1819).
22 U.S. (9 Wheat.) 1 (1824).
17 U.S. (4 Wheat.) 436 (1819).
22 U.S. (9 Wheat.) 210-211 (1824). See the Court's discussion of Gibbons in Douglas v. Seacoast Products, 431 U.S. 265, 274-279 (1977).
Treatment of preemption principles and standards is set out under the Commerce Clause, which is the greatest source of preemptive authority.
Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 210-211 (1824). See, e.g., Cipollone v. Liggett Group, Inc., 112 S. Ct. 2608 (1992); Morales v. TWA, 112 S. Ct. 2031 (1992); Maryland v. Louisiana, 451 U.S. 725, 746 (1981); Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977).
By the Social Security Act of 1935, 49 Stat. 620, 42 U.S.C. § 301 et seq., Congress established a series of programs operative in those States which joined the system and enacted the requisite complying legislation. Although participation is voluntary, the federal tax program underlying in effect induces state participation. See Steward Machine Co. v. Davis, 301 U.S. 548, 585-598 (1937).
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).
Which operate to compel witnesses to testify even over self-incrimination claims by giving them an equivalent immunity.
Adams v. Maryland, 347 U.S. 179 (1954).
Ullmann v. United States, 350 U.S. 422, 434-436 (1956). See also Reina v. United States, 364 U.S. 507, 510 (1960).
17 U.S. (4 Wheat.) 316 (1819).
United States v. Fisher, 6 U.S. (2 Cr.) 358 (1805).
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).
Brownell v. Singer, 347 U.S. 403 (1954).
United States v. Oregon, 366 U.S. 643 (1961).
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).
Cooper v. Aaron, 358 U.S. 1 (1958).
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).
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).
36 U.S. (11 Pet.) 102 (1837).
Id. at 139.
Id. at 161.
46 U.S. (5 How.) 504 (1847).
Id. at 573-574.
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).
426 U.S. 833 (1976).
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).
297 U.S. 175 (1936).
Id. at 183-185.
California v. United States, 320 U.S. 577 (1944) (federal regulation of shipping terminal facilities owned by State); California v. Taylor, 353 U.S. 553 (1957) (Railway Labor Act applies on state-owned railroad); Case v. Bowles, 327 U.S. 92 (1946); Hubler v. Twin Falls County, 327 U.S. 103 (1946) (federal wartime price regulations applied to state transactions; Congress' power effectively to wage war); Board of Trustees v. United States, 289 U.S. 48 (1933) (State university required to pay federal customs duties on imported educational equipment); Oklahoma ex rel. Phillips v. Atkinson Co., 313 U.S. 508 (1941) (federal condemnation of state lands for flood control project); Sanitary Dist. v. United States, 206 U.S. 405 (1925) (prohibition of State from diverting water from Great Lakes).
392 U.S. 183 (1968). Justices Douglas and Stewart dissented. Id. at 201.
Id. at 195, 196-197.
421 U.S. 542 (1975).
Id. at 549. Essentially, the Justice was required to establish an affirmative constitutional barrier to congressional action. Id. at 552-553. That is, if one asserts only the absence of congressional authority, one's chances of success are dim because of the breadth of the commerce power. But when he asserts that, say, the First or Fifth Amendment bars congressional action concededly within its commerce power, one interposes an affirmative constitutional defense that has a chance of success. It was the Justice's view that the State was "asserting an affirmative constitutional right, inherent in its capacity as a State, to be free from such congressionally asserted authority." Id. 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 557-559. But the difficulty with this construction is that the equivalence sought to be established by Justice Rehnquist lies not between an individual asserting a constitutional limit on delegated powers and a State asserting the same thing but is rather between an individual asserting a lack of authority and a State asserting a lack of authority; this equivalence is evident on the face of the Tenth Amendment, which states that the powers not delegated to the United States "are reserved to the States respectively, or to the people." (emphasis supplied). The States are thereby accorded no greater interest in restraining the exercise of non-delegated power than are the people. See Massachusetts v. Mellon, 262 U.S. 447 (1823).
National League of Cities v. Usery, 426 U.S. 833, 845 (1976).
Id. at 852.
Id. at 854.
Id. at 854 n.18.
Id. at 852-853.
Id. at 853-855.
Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264 (1981).
United Transp. Union v. Long Island R.R., 455 U.S. 678 (1982).
FERC v. Mississippi, 456 U.S. 742 (1982).
National League of Cities v. Usery, 426 U.S. 833, 854 n.18 (1976).
Fitzpatrick v. Bitzer, 427 U.S. 445 (1976); City of Rome v. United States, 446 U.S. 156, 178-180 (1980).
In Pennhurst State School & Hospital v. Halderman, 451 U.S. 1, 17 n.13 (1981), the Court suggested rather ambiguously that League of Cities may restrict the federal spending power, citing its reservation of the cases in League of Cities, 426 U.S. 852 n.17, but citing also spending clause cases indicating a rational basis standard of review of conditioned spending. Earlier, the Court had summarily affirmed a decision holding that the spending power was not affected by the case. North Carolina ex rel. Morrow v. Califano, 445 F.Supp. 532 (E.D.N.C. 1977) (three-judge court), affd. 435 U.S. 962 (1978). No hint of such a limitation is contained in more recent decisions (to be sure, in the aftermath of League of Cities' demise). New York v. United States, 505 U.S. 144, 167, 171-72, 185 (1992); South Dakota v. Dole, 483 U.S. 203, 210-212 (1987).
National League of Cities v. Usery, 426 U.S. 833, 846-851 (1976). The quotation in the text is at 853 (one of the elements distinguishing the case from Fry).
Id. at 856.
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.
Id. at 557.
Id. at 548.
Id. at 549.
Id. at 548.
"Apart from the limitation on federal authority inherent in the delegated nature of Congress' Article I powers, the principal means chosen by the Framers to ensure the role of the States in the federal system lies in the structure of the Federal Government itself." Id. 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.
Id. at 554.
Id. at 556.
Id. at 554.
485 U.S. 505 (1988).
Id. at 512-513.
Id. at 512.
Garcia v. San Antonio Metropolitan Transit Auth., 469 U.S. 528, 579-580 (1985).
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 463-464.
505 U.S 144 (1992).
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.
Struck down was a provision of law providing for the disposal of radioactive wastes generated in the United States by government and industry. Placing various responsibilities on the States, the provision sought to compel performance by requiring that any State that failed to provide for the permanent disposal of wastes generated within its borders must take title to, take possession of, and assume liability for the wastes, id. at 505 U.S. at 161, obviously a considerable burden.
Id. at 156.
Id. (quoting United States v. Darby, 312 U.S. 100, 124 (1941)).
505 U.S. at 156.
Id. at 168-69.
Id. at 175-77, 188.
Id. at 177.
521 U.S. 898 (1997).
521 U.S. at 933 (internal quotation marks omitted) (quoting New York v. United States, 505 U.S. 144, 188 (1992)).
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.
521 U.S. at 919 (quoting THE FEDERALIST, No. 39 (Madison).
521 U.S. at 918.
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)).
528 U.S. 141 (2000).
528 U.S. at 150-51.
76 U.S. (9 Wall.) 353 (1870).
Id. at 362.
161 U.S. 275 (1896).
Id. at 283.
Franklin Nat'l Bank v. New York, 347 U.S. 273 (1954).
Reagan v. Mercantile Trust Co., 154 U.S. 413 (1894).
Free v. Bland, 369 U.S. 663 (1962).
Sperry v. Florida, 373 U.S. 379 (1963).
Penn Dairies v. Milk Control Comm'n, 318 U.S. 261 (1943).
Pacific Coast Dairy v. Department of Agriculture, 318 U.S. 285 (1943). See also Paul v. United States, 371 U.S. 245 (1963).
Leslie Miller, Inc. v. Arkansas, 353 U.S. 187 (1956).
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.
Id. 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, 451-452.
Id. That is, only when the overall effect, when balanced against other regulations applicable to similarly situated persons who do not deal with the government, imposes a discriminatory burden will they be invalidated. The concurring Justice was doubtful of this standard. Id. at 444 (Justice Scalia concurring).
22 U.S. (9 Wheat.) 738 (1824).
Id. at 865.
Id. at 866.
Id. at 867.
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).
12 Stat. 709, 710, 1 (1863).
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).
74 U.S. (7 Wall.) 26 (1868).
Hibernia Savings Society v. San Francisco, 200 U.S. 310, 315 (1906).
Smith v. Davis, 323 U.S. 111 (1944).
Plummer v. Coler, 178 U.S. 115 (1900); Blodgett v. Silberman, 277 U.S. 1, 12 (1928).
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, since it would have no adverse effect on Federal Government's borrowing ability).
Society for Savings v. Bowers, 349 U.S. 143 (1955).
Northwestern Mut. Life Ins. Co. v. Wisconsin, 275 U.S. 136, 140 (1927).
Miller v. Milwaukee, 272 U.S. 713 (1927).
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).
Macallen v. Massachusetts, 279 U.S. 620, 625 (1929).
Northwestern Mutual Life Ins. Co. v. Wisconsin, 275 U.S. 136 (1927).
22 U.S. (9 Wheat.) 738 (1824).
Id. at 867.
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).
302 U.S. 134 (1937).
Id. at 150 (quoting Willcuts v. Bunn, 282 U.S. 216, 225 (1931)).
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).
Alward v. Johnson, 282 U.S. 509 (1931).
Trinityfarm Const. Co. v. Grosjean, 291 U.S. 466 (1934).
United States v. Allegheny County, 322 U.S. 174 (1944) (voiding property tax that included in assessment the value of federal machinery held by private party); Kern-Limerick v. Scurlock, 347 U.S. 110 (1954) (voiding gross receipts sales tax applied to contractor purchasing article under agreement whereby he was to act as agent for Government and title to articles purchased passed directly from vendor to United States).
United States v. New Mexico, 455 U.S. 720, 735 (1982). See South Carolina v. Baker, 485 U.S. 505, 523 (1988).
"[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., 119 S. Ct. 957 (1999) (the same rule applies when the contractual services are rendered on an Indian reservation).
James v. Dravo Contracting Co., 302 U.S. 134, 161 (1937); Carson v. Roane-Anderson Co., 342 U.S. 232, 234 (1952); United States v. New Mexico, 455 U.S. 720, 737 (1982). Roane-Anderson held that a section of the Atomic Energy Act barred the collection of state sales and use taxes in connection with sales to private companies of personal property used by them in fulfilling their contracts with the AEC. Thereafter, Congress repealed the section for the express purpose of placing AEC contractors on the same footing as other federal contractors, and the Court upheld imposition of the taxes. United States v. Boyd, 378 U.S. 39 (1964).
306 U.S. 466 (1939), followed in State Comm'n v. Van Cott, 306 U.S. 511 (1939). This case overruled by implication 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.
Id. at 487.
Id. at 492.
4 U.S.C. § 111. The statute, part of the Public Salary Tax Act of 1939, was considered and enacted contemporaneously with the alteration occurring in constitutional law, exemplified by Graves. That is, in Helvering v. Gerhardt, 304 U.S. 405 (1938), the Court had overruled precedents and held that Congress could impose nondiscriminatory taxes on the incomes of most state employees, and the 1939 Act had as its primary purpose the imposition of federal income taxes on the salaries of all state and local government employees. Feeling equity required it, Congress included a provision authorizing nondiscriminatory state taxation of federal employees. Graves came down while the provision was pending in Congress. See Davis v. Michigan Dept. of the Treasury, 489 U.S. 803, 810-814 (1989). 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).
Id. 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).
17 U.S. (4 Wheat.) 316, 426 (1819).
Thomson v. Pacific R.R., 76 U.S. (9 Wall.) 579, 588, (1870); Union Pacific R.R. v. Peniston, 85 U.S. (18 Wall.) 5, 31 (1873).
Susquehanna Power Co. v. Tax Comm'n (No. 1), 283 U.S. 291 (1931).
Moses Lake Homes v. Grant County, 365 U.S. 744 (1961).
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.
Baltimore Shipbuilding Co. v. Baltimore, 195 U.S. 375 (1904).
Northern Pacific R.R. v. Myers, 172 U.S. 589 (1899); New Brunswick v. United States, 276 U.S. 547 (1928).
Irwin v. Wright, 258 U.S. 219 (1922).
117 U.S. 151 (1886).
Lee v. Osceola Imp. Dist., 268 U.S. 643 (1925).
United States v. Allegheny County, 322 U.S. 174 (1944).
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).
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).
United States v. Township of Muskegon, 355 U.S. 484 (1958).
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.
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).
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).
Telegraph Co. v. Texas, 105 U.S. 460, 464 (1882).
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).
Baltimore Nat'l Bank v. Tax Comm'n, 297 U.S. 209 (1936).
Maricopa County v. Valley Bank, 318 U.S. 357, 362, (1943).
308 U.S. 21 (1939).
314 U.S. 95 (1941).
Id. at 101.
Id. at 102.
Federal Land Bank v. Kiowa County, 368 U.S. 146 (1961).
Colorado Bank v. Bedford, 310 U.S. 41 (1940).
Long v. Rockwood, 277 U.S. 142 (1928).
286 U.S. 123 (1932).
Educational Films Corp. v. Ward, 282 U.S. 379 (1931).
235 U.S. 292 (1914).
Indian Oil Co. v. Oklahoma, 240 U.S. 522 (1916).
Howard v. Gipsy Oil Co., 247 U.S. 503 (1918); Large Oil Co. v. Howard, 248 U.S. 549 (1919).
257 U.S. 501 (1922).
Oklahoma v. Barnsdall Corp., 296 U.S. 521 (1936).
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).
McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 416 (1819).
Ex parte Garland, 71 U.S. (4 Wall.) 333, 337 (1867).
Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 323 (1867). See also Bond v. Floyd, 385 U.S. 116 (1966), where the Supreme Court held that antiwar statements made by a newly elected member of the Georgia House of Representatives were not inconsistent with the oath of office, pledging support to the federal Constitution.
No. 27, (J. Cooke ed. 1961), 175 (emphasis in original). See also, id. at No. 45, 312-313 (Madison).
1 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 404 (rev. ed. 1937).
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.
1 Stat. 73 (1789).
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).
1 Stat. 302 (1793).
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).
41 U.S. (16 Pet.) 539 (1842).
65 U.S. (24 How.) 66 (1861).
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.
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).
Selective Draft Law Cases, 245 U.S. 366, 389 (1918). The Act was 40 Stat. 76 (1917).
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).
65 U.S. (24 How.) 66, 107-108 (1861).
100 U.S. 371 (1880).
Id. at 392.
209 U.S. 123 (1908). See also Board of Liquidation v. McComb, 92 U.S. 531, 541 (1876).
Maine v. Thiboutot, 448 U.S. 1 (1980).
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").
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).
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).
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).
New York v. United States, 112 S. Ct. 2408 (1992).