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Judicial Review in Times of Emergency: From The Founding Through The Covid-19 Pandemic

[O]f course, Korematsu was wrong . . . . But you are kidding yourself if you think the same thing will not happen again.

– Justice Antonin Scalia1 1.Justice Antonin Scalia, Statement at University of Hawaii School of Law (Feb. 3, 2014), quoted in Debra Cassens Weiss, Scalia: Korematsu Was Wrong, but ‘You Are Kidding Yourself’ If You Think It Won’t Happen Again, A.B.A. J. (Feb. 4, 2014, 1:05 PM), https://www.abajournal.com/news/article/scalia_korematsu_was_wrong_but_you_are_kidding_yourself_if_you_think_it_won [https://perma.cc/D6YQ-CRND].Show More

Introduction

In the immediate wake of the assassination of President Abraham Lincoln and just ten days after newly sworn-in President Andrew Johnson issued an order calling for a military trial of the alleged conspirators in Lincoln’s killing, the government brought the accused before a tribunal composed of nine military officers at the Old Arsenal Penitentiary in Washington, D.C.2 2.Amanda L. Tyler, Habeas Corpus in Wartime: From the Tower of London to Guantanamo Bay 174–75 (2017) (detailing procedures and proceedings).Show More The President’s order empowered the commission to set its own rules of procedure.3 3.Id. at 175.Show More By the ensuing rules, a majority vote of the officers could sustain a guilty verdict, a two-thirds majority vote could sustain a death sentence, and the only avenue for appeal was to seek a pardon from the President.4 4.Id.Show More

Appearing for the prosecution, Representative John Bingham—who one year later would serve as primary drafter of the Fourteenth Amendment—argued that the due process guarantee set forth in the Fifth Amendment to the Constitution was “only the law of peace, not of war.”5 5.Id. at 175–76.Show More “[I]n war,” he asserted, “it must be, and is, to a great extent, inoperative and disregarded.”6 6.Id. at 176; see also Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment 89–98 (2013) (detailing the arguments of Bingham and others in relation to the applicability of the U.S. Constitution in times of war).Show More

Counsel for the accused conspirators argued that they deserved a jury trial in a proper court of law. Specifically, Maryland Senator Reverdy Johnson argued that fundamental liberties are “more peculiarly necessary to the security of personal liberty in war than in peace. All history tells us that war, at times, maddens the people, frenzies government, and makes both regardless of constitutional limitations of power. Individual safety, at such periods, is more in peril than at any other.”7 7.Magliocca, supra note 6, at 94.Show More It followed, in his view, that only members of the United States military could be tried by a military commission. Given that the courts were open and operating in the District, he contended, the defendants were entitled to a jury trial with the full panoply of procedural protections set forth in the Bill of Rights.8 8.Id.Show More

But Bingham was not finished. Bingham also cited as legal sanction for the military trials President Lincoln’s earlier declarations of martial law and suspension of habeas corpus that had followed under legislation enacted by the United States Congress in 1863.9 9.Id. at 95–96.Show More More generally, during wartime, he contended, “the rights of each citizen, as secured in time of peace, must yield to the wants, interests, and necessities of the nation.”10 10.Id. at 96.Show More

As every armchair Civil War historian knows, Bingham’s arguments prevailed on that occasion. The military commission proceeded to convict all eight defendants on various conspiracy-related charges,11 11.These included the charge of traitorously conspiring to commit murder, a crime not codified in federal law but one that had been announced by the military officers for the case at hand. Id. at 98–99.Show More sentencing four to death, three to life terms, and one to a six-year prison term.12 12.Id. at 99–102.Show More Days later, on July 7, 1865, the government hanged the four given capital sentences.13 13.Frank J. Williams & Nicole J. Benjamin, Military Trials of Terrorists: From the Lincoln Conspirators to the Guantanamo Inmates, 39 N. Ky. L. Rev. 609, 629 (2012).Show More This happened despite the filing by one of the condemned, Mary Surratt, of an overnight habeas petition reiterating Senator Johnson’s arguments, which was thwarted by the personal intervention of President Johnson.14 14.Tyler, supra note 2, at 177.Show More

Just one year later and with the Civil War effectively over, in Ex parte Milligan, the Supreme Court of the United States rejected the notion that military courts could try civilians in states “where the courts are open and their process unobstructed.”15 15.Ex parte Milligan, 71 U.S. (4 Wall.) 2, 31–32, 121 (1866).Show More In so doing, the Court rebuffed the government’s argument that the Bill of Rights constituted “peace provisions” that “like all other conventional and legislative laws and enactments, are silent amidst arms, and when the safety of the people becomes the supreme law.”16 16.Id. at 20 (replicating government’s argument).Show More Instead, Milligan championed the following proposition: “The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances.”17 17.Id. at 120–21. For more on Milligan and the trial of the Lincoln conspirators, see Martin S. Lederman, The Law(?) of the Lincoln Assassination, 118 Colum. L. Rev. 323, 394–457 (2018).Show More

It is an inspiring passage. But the track record over the course of American history seems to suggest otherwise. More often than not, Bingham’s arguments have prevailed when courts have reviewed government actions taken during times of war and emergency. Whether the courts expressly say the Constitution means something different in such times, or say the political branches deserve extra deference during such emergencies, or say that during such times the judiciary should stay its hand entirely, the result has been the same: For all practical purposes, the United States Constitution has meant something different in times of emergency. Whether deferring to President Lincoln’s blockade at the start of the Civil War,18 18.The Prize Cases, 67 U.S. (2 Black) 635, 670–71 (1863).Show More a state’s suspension of creditors’ remedies during the Great Depression,19 19.Home Bldg. & Loan Ass’n v. Blaisdell, 290 U.S. 398, 416, 447–48 (1934).Show More or President Roosevelt’s evacuation and mass incarceration of Japanese Americans in the West during World War II,20 20.See, e.g., Hirabayashi v. United States, 320 U.S. 81, 83, 85–89, 104–05 (1943); Korematsu v. United States, 323 U.S. 214, 215–18 (1944).Show More the Supreme Court has regularly permitted the political branches wide discretion to manage national emergencies, even in ways that would be viewed as flouting the Constitution during peacetime. All of this has been exacerbated, moreover, by the ever-expanding conceptions of war and emergency more generally.21 21.See, e.g., Mary L. Dudziak, War Time: An Idea, Its History, Its Consequences 5, 136 (2012) (exploring how the concept of wartime has expanded dramatically over the course of American history, particularly in the hands of politicians); Sanford Levinson, Constitutional Norms in a State of Permanent Emergency, 40 Ga. L. Rev. 699, 737 (2006) (exploring similar trends). This Article sometimes refers to “wars and emergencies”; to be clear, however, this Article conceives of wars as one subset of emergencies.Show More

It follows that studying emergencies has the potential to tell us something both about the judicial role and the Constitution itself. This is because such a study implicates a range of questions, including whether the Founding document, despite expressly accounting for the potential for war and emergency, is a compact the meaning of which turns on the state of national security.22 22.There are many wartime powers noted in the Constitution. See, e.g., U.S. Const. art. I, § 8, cl. 11 (empowering Congress “[t]o declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water”); id. cls. 12–14 (empowering Congress “[t]o raise and support Armies,” “[t]o provide and maintain a Navy,” and “[t]o make Rules for the Government and Regulation of the land and naval Forces”); id. cl. 15 (empowering Congress “[t]o provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions”); id. § 9, cl. 2 (referencing the power to suspend habeas corpus).Show More That is, was Bingham correct that it means something different in times of crisis versus when the country is at peace? And what of the judicial role? Does it differ depending on such circumstances?

Although Bingham’s arguments most often have prevailed historically, there have been a handful of Supreme Court decisions, like Milligan, pushing back on the idea that the political branches deserve extensive deference to manage crises. Consider, in addition to Milligan, Youngstown Sheet & Tube Co. v. Sawyer (The Steel Seizure Case), in which the Supreme Court told President Truman that he could not seize the country’s steel mills that were about to strike during the height of the Korean War.23 23.Youngstown Sheet & Tube Co. v. Sawyer (The Steel Seizure Case), 343 U.S. 579, 588–89 (1952).Show More The result is unsettled terrain, with many of the larger questions about the Constitution and judicial role in times of emergency having never been fully resolved.24 24.As explored below, Milligan and other examples of Supreme Court decisions that do not defer to the political branches have often come in the waning days of—or even after—the relevant emergency. See infra text accompanying notes 60–67.Show More Instead, well over two hundred years into our constitutional experiment, debates rage on as to the proper roles of the judiciary and our Founding document during such times.25 25.For a small selection of some of the relevant literature on point, see, e.g., Saikrishna Bangalore Prakash, The Sweeping Domestic War Powers of Congress, 113 Mich. L. Rev. 1337 (2015); Sanford Levinson & Jack M. Balkin, Constitutional Dictatorship: Its Dangers and Its Design, 94 Minn. L. Rev. 1789 (2010); Sanford Levinson, Constitutional Norms in a State of Permanent Emergency, 40 Ga. L. Rev. 699 (2006); Bruce Ackerman, The Emergency Constitution, 113 Yale L.J. 1029 (2004); Laurence H. Tribe & Patrick O. Gudridge, The Anti-Emergency Constitution, 113 Yale L.J. 1801 (2004); Michael Stokes Paulsen, The Civil War as Constitutional Interpretation, 71 U. Chi. L. Rev. 691 (2004); Mark Tushnet, Defending Korematsu?: Reflections on Civil Liberties in Wartime, 2003 Wis. L. Rev. 273; John Hart Ely, War and Responsibility: Constitutional Lessons of Vietnam and its Aftermath (1993).Show More

With the COVID-19 pandemic and the extensive litigation it has spurred targeting regulation of conduct deemed dangerous to public health, there is a new chapter to add to the mix. And it is a very interesting one. In several cases, an emerging Supreme Court majority has applied increasingly rigorous scrutiny to government regulations predicated upon public health, most notably where such rules have intersected with the exercise of religion, but also in the areas of property rights and separation of powers. It has done so, moreover, often in the context of its so-called “shadow docket”26 26.I believe the term originated with William Baude, Foreword: The Supreme Court’s Shadow Docket, 9 N.Y.U. J.L. & Liberty 1, 5 (2015). The rise of orders in such cases has been explored in detail by Stephen Vladeck. See, e.g., Stephen I. Vladeck, The Solicitor General and the Shadow Docket, 133 Harv. L. Rev. 123, 152–53 (2019). There is a debate over the appropriateness of the term “shadow docket,” but I will employ it here given that these are cases often without full briefing and argument in which, as the cases discussed below in Part II demonstrate, the Court has sometimes rendered highly consequential rulings that are not always clearly supported by existing precedent. This Article puts to the side the debate over whether the Court should be so active in this posture and whether it should be establishing new substantive law in these cases. Nonetheless, I tend to join camp with those who are critical of the Court on both fronts. See, e.g., id. at 156–60; see also Stephen Vladeck, The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic (forthcoming 2023) (arguing that the Court’s use of the shadow docket is fundamentally inconsistent with its role in the judicial process and risks serious long-term institutional harm to the Court).Show More—its emergency application docket that fast-tracks cases to the Court without the benefit of full briefing and argument. This being said, a Court majority has also deferred to government decisions made in the context of the pandemic in several other contexts, including when reviewing abortion and prison policies.

All the same, the Court’s propensity to be so active of late invites a revival of the debates over the role of the Constitution in times of emergency and the attendant role of the judiciary during the same. On one view, the Constitution means something different during times of emergency, insofar as the political branches effectively enjoy broader discretion to manage the country through such crises. On another view—and one that has controlled in some recent COVID-19-era decisions by the Supreme Court—any emergency context should not factor into how the Court assesses the constitutionality of government action. An example of this view may be found in Justice Gorsuch’s recent opinion voting to override a governor’s order setting capacity restrictions on religious worship to halt the spread of COVID-19.27 27.S. Bay United Pentecostal Church v. Newsom, 141 S. Ct. 716, 716 (2021).Show More There, he wrote, “[e]ven in times of crisis—perhaps especially in times of crisis—we have a duty to hold governments to the Constitution.”28 28.Id. at 718 (statement of Gorsuch, J.).Show More

This Article explores the role of judicial review during times of emergency, spanning American history up to and including the Court’s recent orders made in the context of the pandemic. It also surveys debates on either side of the competing visions of the Constitution and the judicial role during emergencies. Finally, the Article suggests that even if one has significant concerns over the processes by which the current Supreme Court has decided some of the recent pandemic cases and/or the underlying merits of the decisions rendered by the Court, there is much to welcome in recent opinions positing that emergencies do not automatically diminish the individual rights protections in the Constitution or, for that matter, the judicial role. All the same, the Article concludes by critiquing the inconsistency in the Court’s approach to its role during the pandemic. Further, it suggests that it is not so much a desire to revive the judicial role in times of emergency that is driving the searching review we have witnessed in some of the pandemic cases, but instead the proverbial tail that wags the dog. In short, many of the Justices seem far more driven by the particular merits of the cases than a consistent approach to judicial review in times of emergency. A better approach would transcend the merits of any given context to embrace a model of judicial review that remains consistent regardless of the underlying merits and, most of all, the existence—or not—of any kind of emergency.

  1.  Justice Antonin Scalia, Statement at University of Hawaii School of Law (Feb. 3, 2014), quoted in Debra Cassens Weiss, Scalia: Korematsu Was Wrong, but ‘You Are Kidding Yourself’ If You Think It Won’t Happen Again, A.B.A. J. (Feb. 4, 2014, 1:05 PM), https://www.abajournal.com/news/article/scalia_korematsu_was_wrong_but_you_are_kidding_yourself_if_you_think_it_won [https://perma.cc/D6YQ-CRND]. ↑
  2.  Amanda L. Tyler, Habeas Corpus in Wartime: From the Tower of London to Guantanamo Bay 174–75 (2017) (detailing procedures and proceedings). ↑
  3.  Id. at 175. ↑
  4.  Id. ↑
  5.  Id. at 175–76. ↑
  6.  Id. at 176; see also Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment 89–98 (2013) (detailing the arguments of Bingham and others in relation to the applicability of the U.S. Constitution in times of war). ↑
  7.  Magliocca, supra note 6, at 94. ↑
  8.  Id. ↑
  9.  Id. at 95–96. ↑
  10.  Id. at 96. ↑
  11.  These included the charge of traitorously conspiring to commit murder, a crime not codified in federal law but one that had been announced by the military officers for the case at hand. Id. at 98–99. ↑
  12.  Id. at 99–102. ↑
  13.  Frank J. Williams & Nicole J. Benjamin, Military Trials of Terrorists: From the Lincoln Conspirators to the Guantanamo Inmates, 39 N. Ky. L. Rev. 609, 629 (2012). ↑
  14.  Tyler, supra note 2, at 177. ↑
  15.  Ex parte Milligan, 71 U.S. (4 Wall.) 2, 31–32, 121 (1866). ↑
  16.  Id. at 20 (replicating government’s argument). ↑
  17.  Id. at 120–21. For more on Milligan and the trial of the Lincoln conspirators, see Martin S. Lederman, The Law(?) of the Lincoln Assassination, 118 Colum. L. Rev. 323, 394–457 (2018). ↑
  18.  The Prize Cases, 67 U.S. (2 Black) 635, 670–71 (1863). ↑
  19.  Home Bldg. & Loan Ass’n v. Blaisdell, 290 U.S. 398, 416, 447–48 (1934). ↑
  20.  See, e.g., Hirabayashi v. United States, 320 U.S. 81, 83, 85–89, 104–05 (1943); Korematsu v. United States, 323 U.S. 214, 215–18 (1944). ↑
  21.  See, e.g., Mary L. Dudziak, War Time: An Idea, Its History, Its Consequences 5, 136 (2012) (exploring how the concept of wartime has expanded dramatically over the course of American history, particularly in the hands of politicians); Sanford Levinson, Constitutional Norms in a State of Permanent Emergency, 40 Ga. L. Rev. 699, 737 (2006) (exploring similar trends). This Article sometimes refers to “wars and emergencies”; to be clear, however, this Article conceives of wars as one subset of emergencies. ↑
  22.  There are many wartime powers noted in the Constitution. See, e.g., U.S. Const. art. I, § 8, cl. 11 (empowering Congress “[t]o declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water”); id. cls. 12–14 (empowering Congress “[t]o raise and support Armies,” “[t]o provide and maintain a Navy,” and “[t]o make Rules for the Government and Regulation of the land and naval Forces”); id. cl. 15 (empowering Congress “[t]o provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions”); id. § 9, cl. 2 (referencing the power to suspend habeas corpus). ↑
  23.  Youngstown Sheet & Tube Co. v. Sawyer (The Steel Seizure Case), 343 U.S. 579, 588–89 (1952). ↑
  24.  As explored below, Milligan and other examples of Supreme Court decisions that do not defer to the political branches have often come in the waning days of—or even after—the relevant emergency. See infra text accompanying notes 60–67. ↑
  25.  For a small selection of some of the relevant literature on point, see, e.g., Saikrishna Bangalore Prakash, The Sweeping Domestic War Powers of Congress, 113 Mich. L. Rev. 1337 (2015); Sanford Levinson & Jack M. Balkin, Constitutional Dictatorship: Its Dangers and Its Design, 94 Minn. L. Rev. 1789 (2010); Sanford Levinson, Constitutional Norms in a State of Permanent Emergency, 40 Ga. L. Rev. 699 (2006); Bruce Ackerman, The Emergency Constitution, 113 Yale L.J. 1029 (2004); Laurence H. Tribe & Patrick O. Gudridge, The Anti-Emergency Constitution, 113 Yale L.J. 1801 (2004); Michael Stokes Paulsen, The Civil War as Constitutional Interpretation, 71 U. Chi. L. Rev. 691 (2004); Mark Tushnet, Defending Korematsu?: Reflections on Civil Liberties in Wartime, 2003 Wis. L. Rev. 273; John Hart Ely, War and Responsibility: Constitutional Lessons of Vietnam and its Aftermath (1993). ↑
  26.  I believe the term originated with William Baude, Foreword: The Supreme Court’s Shadow Docket, 9 N.Y.U. J.L. & Liberty 1, 5 (2015). The rise of orders in such cases has been explored in detail by Stephen Vladeck. See, e.g., Stephen I. Vladeck, The Solicitor General and the Shadow Docket, 133 Harv. L. Rev. 123, 152–53 (2019). There is a debate over the appropriateness of the term “shadow docket,” but I will employ it here given that these are cases often without full briefing and argument in which, as the cases discussed below in Part II demonstrate, the Court has sometimes rendered highly consequential rulings that are not always clearly supported by existing precedent. This Article puts to the side the debate over whether the Court should be so active in this posture and whether it should be establishing new substantive law in these cases. Nonetheless, I tend to join camp with those who are critical of the Court on both fronts. See, e.g., id. at 156–60; see also Stephen Vladeck, The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic (forthcoming 2023) (arguing that the Court’s use of the shadow docket is fundamentally inconsistent with its role in the judicial process and risks serious long-term institutional harm to the Court). ↑
  27.  S. Bay United Pentecostal Church v. Newsom, 141 S. Ct. 716, 716 (2021). ↑

  28.  Id. at 718 (statement of Gorsuch, J.). ↑

Dynamic Tort Law: Review of Kenneth S. Abraham & G. Edward White, Tort Law and the Construction of Change: Studies in the Inevitability of History

Rarely does a book—let alone one on torts—come along with true staying power. Tort Law and the Construction of Change is such a book. It stopped me in my tracks when I first read it, and it has been a book to which I have returned again and again while teaching torts and probing new research projects. With Tort Law and the Construction of Change, Professors Kenneth Abraham and G. Edward White, who have inspired generations of torts students and scholars,1 1.As UVA Law Dean Risa Goluboff remarked at the UVA Law book panel Festschrift for Professors Abraham and White:[They] have been anchors of this faculty for a long time, maybe longer than you realize. They have been on this faculty for a combined total of nearly 90 years, both of them spending most of their professional lives here . . . . Over the past 10 years or so, they have both taught torts to generations of UVA Law students among other things.Transcript of UVA Law Book Panel at 2 (Sept. 22, 2022) (on file with the Virginia Law Review) [hereinafter Transcript].Show More have truly energized and inspired this nearly twenty-year veteran in the field.

Abraham and White explore the past, present, and future of tort law through a historical, theoretical, and pragmatic lens seeking to excavate and explicate how doctrines evolve. Their central thesis is that “[c]ontinuity arises in part out of linking current decisions, even if they are innovative and constitute an expansion of liability, to the principles expressed or implied in prior precedents,”2 2.Kenneth S. Abraham & G. Edward White, Tort Law and the Construction of Change: Studies in the Inevitability of History 206 (2022).Show More and that “external pressure for change in established common law doctrines is almost always filtered through received doctrinal frameworks.”3 3.Id. at 213.Show More I pay tribute to their book in this Essay, with equal parts praise (Part I), quibbling (Part II), and prodding for roads not taken (Part III).4 4.Here, I build upon remarks I made at the UVA Law book panel. See Transcript, supra note 1, at 13 (“I have three points I want to make. The first is going to be some praise. There’s a lot that’s praiseworthy in the book. The second is going to be a quibble, and the third is going to be a thought about the future.”).Show More

  1.  As UVA Law Dean Risa Goluboff remarked at the UVA Law book panel Festschrift for Professors Abraham and White:

    [They] have been anchors of this faculty for a long time, maybe longer than you realize. They have been on this faculty for a combined total of nearly 90 years, both of them spending most of their professional lives here . . . . Over the past 10 years or so, they have both taught torts to generations of UVA Law students among other things.

    Transcript of UVA Law Book Panel at 2 (Sept. 22, 2022) (on file with the Virginia Law Review) [hereinafter Transcript]. ↑

  2.  Kenneth S. Abraham & G. Edward White, Tort Law and the Construction of Change: Studies in the Inevitability of History 206 (2022). ↑
  3.  Id. at 213. ↑
  4. Here, I build upon remarks I made at the UVA Law book panel. See Transcript, supra note 1, at 13 (“I have three points I want to make. The first is going to be some praise. There’s a lot that’s praiseworthy in the book. The second is going to be a quibble, and the third is going to be a thought about the future.”). ↑

Harmonizing Federal Immunities

When a federal employee is charged with a state crime based on conduct that was within their official responsibilities, the United States Constitution protects them from prosecution through Supremacy Clause immunity. This immunity was developed by the Supreme Court in a small set of cases from around the turn of the twentieth century, but no Supreme Court cases have mentioned it since. Generally, as lower courts have construed it, it is a highly protective standard. This Note questions that standard by attempting to re-align Supremacy Clause immunity with another federal immunity that also derives from the Supremacy Clause: federal tax immunity. Until the mid-twentieth century, federal tax immunity cases protected the federal government from almost any state-tax-related burdens, even indirect ones. But in 1937, the Supreme Court abruptly changed course and overruled a century of its previous precedents. As a result, federal tax immunity today has only a shadow of its previous force. In relating these two immunities to each other, this Note aims to shine light on Supremacy Clause immunity as a doctrine based on an outdated conception of the role of federal courts in our federalist system. It ties the Court’s shift in federal tax immunity to a broader philosophical transformation that also appeared in other doctrines, like those governing the application of the Tenth Amendment and preemption. And it shows that Supremacy Clause immunity as it currently stands is the sour note in an otherwise consistent harmony of federalist relationships.

Introduction

In two disconnected and hypothetical1 1.Only partially hypothetical, one is in Idaho. SeeIdaho v. Horiuchi, 253 F.3d 359, 363–64 (9th Cir. 2001).Show More locations, two government officers in performance of their duties run afoul of a state criminal law. One is an FBI sniper who takes an arguably unjustified shot at a fleeing man and kills an innocent bystander. The other is a state police officer who, facing the same situation, makes the same tragic error. Both officers are charged with a crime: involuntary manslaughter. Assuming all relevant facts are parallel between the two scenarios, does the law dictate that the state police officer should stand trial while the federal officer is held to be immune from prosecution? More generally, given the structure of our federalist system and the text, purpose, and history of the United States Constitution, how often should it be the case that a federal officer is immune from state criminal prosecution despite the fact that a state officer would be held to be culpable for doing the very same thing?

Courts tell us that this question is answered by the Constitution’s Supremacy Clause.2 2.U.S. Const. art. VI, cl. 2 (“This Constitution, and the Laws of the United States . . . shall be the supreme Law of the Land . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”).Show More But the Supreme Court has not been generous with its guidance. The concept of federal officer immunity from state criminal prosecution was first explored in In re Neagle,3 3.135 U.S. 1, 62 (1890).Show More but although that case is memorable for its remarkably dramatic set of facts,4 4.See id.at 45 (“As [the former Chief Justice] was about leaving the room, . . . he succeeded in drawing a bowie-knife, when his arms were seized by a deputy marshal and others present to prevent him from using it, and they were able to wrench it from him only after a severe struggle.”).Show More it is well over a century old and offers little in the way of specifics. After an initially rapid development, Supremacy Clause immunity has remained entirely untouched by the Supreme Court since 1920, and it has arisen in lower federal courts only sporadically during that intervening century. Though no clear legal standard has emerged, the doctrine has generally been construed to offer sweeping immunity to federal employees who commit state crimes, as long as their actions bore some relationship to their federal duties.5 5.The standard that has developed in lower courts is discussed in Subsection I.B, infra.Show More

Despite its infrequent appearance in federal courts, Supremacy Clause immunity may have unexpected contemporary significance. Scholars have pointed out that the historical periods when it is most likely to arise are times when there are strong political tensions between state and federal governments.6 6.See Seth P. Waxman & Trevor W. Morrison, What Kind of Immunity? Federal Officers, State Criminal Law, and the Supremacy Clause, 112 Yale L.J. 2195, 2232 (2003) (stating that Supremacy Clause immunity tends to arise “around historical moments of significant friction between the federal government and the States”).Show More In areas as disparate as electoral policy,7 7.Nick Corasaniti & Reid J. Epstein, A Voting Rights Push, as States Make Voting Harder, N.Y. Times (Jan. 11, 2022), https://www.nytimes.com/2022/01/11/us/politics/biden-voting-rights-state-laws.html [https://perma.cc/39MC-2PR7] (describing that eighteen states are passing laws containing “a host of new voting restrictions” while Democrats in Congress try to pass a bill prohibiting state laws with those very types of restrictions).Show More public health,8 8.See Nancy J. Knauer, The COVID-19 Pandemic and Federalism: Who Decides?, 23 N.Y.U. J. Legis. & Pub. Pol’y 1, 8 (2020) (arguing that the current federal-state collaborative approach to pandemic response “left the federal government ill-prepared to respond to the COVID-19 pandemic because of conflicting priorities”); James G. Hodge, Jr., Federal vs. State Powers in Rush to Reopen Amid Coronavirus Pandemic, Just Sec. (Apr. 27, 2020), https://www.justsecurity.org/69880/federal-vs-state-powers-in-rush-to-reopen-amid-corona‌virus-pandemic/ [https://perma.cc/62LX-4B2G] (“[T]he novel coronavirus is exposing a deep rift in American federalism as federal and state governments vie for primacy in remedying the nation’s ills.”).Show More immigration,9 9.SeeArizona v. United States, 567 U.S. 387, 416 (2012) (holding, in a suit filed by the United States seeking an injunction against the enforcement of Arizona law, that the law providing for state enforcement of federal immigration policy was preempted).Show More and law enforcement,10 10.Compare H.R. 1280, 117th Cong. § 102 (2021) (limiting defense of qualified immunity in suits against law enforcement officers), with Iowa Code § 670.4A (2023) (reinforcing defense of qualified immunity as a matter of Iowa state law).Show More now is such a time. It is thus unsurprising that a federal circuit court was recently presented with a Supremacy Clause immunity claim in a case that evokes the broader public debate about immunity from suit for law enforcement officers.11 11.See Virginia v. Amaya, No. 1:21-cr-91, 2021 WL 4942808 (E.D. Va. Oct. 22, 2021), appeal dismissed, 2022 WL 1259877 (4th Cir. Apr. 25, 2022). The Fourth Circuit dismissed the case after a newly elected attorney general ceased pursuing the appeal. Tom Jackman, Va. Attorney General Miyares Ends Prosecution of U.S. Park Police Officers in Ghaisar Case, Wash. Post (Apr. 22, 2022, 7:51 PM), https://www.washingtonpost.com/dc-md-va/2022/04/‌22/ghaisar-case-dismissed/ [https://perma.cc/89CT-6YD2].Show More And any abstract conjecture about the doctrine’s relevance is cemented by ongoing conversations about Georgia’s potential prosecution of former President Trump for attempting to illegally influence vote counts in the aftermath of the 2020 election, and the possibility that he will invoke Supremacy Clause immunity.12 12.SeeNorman Eisen et al., Fulton County, Georgia’s Trump Investigation: An Analysis of the Reported Facts and Applicable Law 216–52 (2022).Show More That prosecution, were it to occur, would also provide the most likely avenue for Supremacy Clause immunity to finally reappear in the Supreme Court.

This Note approaches Supremacy Clause immunity from a novel perspective. Others have compared it to qualified immunity and preemption,13 13.Waxman & Morrison, supra note 6, at 2241.Show More but no one has attempted to untangle the relationship between Supremacy Clause immunity and federal tax immunity, a doctrine based on the same clause of the Constitution and which serves the same purpose: protecting the functioning of the federal government from state obstruction. Since the seminal case McCulloch v. Maryland,14 14.17 U.S. (4 Wheat.) 316, 395 (1819).Show More the Court has spoken relatively frequently about federal tax immunity,15 15.See, e.g., Graves v. New Yorkex rel. O’Keefe, 306 U.S. 466, 477 (1939) (stating that federal immunity from state taxation extends to corporations owned and controlled by the government).Show More and the doctrine it has expounded provides helpful illumination for contemporary attempts to understand the scope of Supremacy Clause immunity. The comparison yields a surprising conclusion: viewed in light of federal tax immunity, the approach that lower courts have been taking to Supremacy Clause immunity appears decidedly anachronistic. In fact, Supremacy Clause immunity as it currently exists is entirely inconsistent with the understanding of the Supremacy Clause that underlies every related constitutional doctrine. Neagle arose at a time when the Court’s perception of its own power to override state laws was at its zenith.16 16.SeeStephen A. Gardbaum, The Nature of Preemption, 79 Cornell L. Rev. 767, 801 (1994) (characterizing the turn of the century as a “double shift in the direction of enhanced federal power” based on the Court’s overturning state laws as either preempted or unconstitutional under the Dormant Commerce Clause).Show More But in the last century, that has changed. As a result, the Court’s analysis of federal tax immunity has shifted dramatically, as has the doctrine of preemption.

These concurrent shifts demonstrate the Supreme Court’s adoption of a theory of government called “process federalism,”17 17.SeeWilliam Marshall, American Political Culture and the Failures of Process Federalism, 22 Harv. J.L. & Pub. Pol’y 139, 147–48 (1998); Ernest A. Young, Two Cheers for Process Federalism, 46 Vill. L. Rev. 1349, 1350 (2001).Show More which was proposed by Professor Herbert Wechsler in a highly influential mid-century Article.18 18.Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 Colum. L. Rev. 543, 546 (1954).Show More Wechsler’s analysis focused on the judiciary’s role in protecting states from the federal government, for example by invalidating federal actions as infringing on the powers of the states.19 19.Id.at 558–60.Show More He argued that the judiciary’s role in this area was limited.20 20.Id. at 560.Show More In his view, if the matter were left to Congress, states’ interests would naturally be accommodated based on their role in Congress’s structure and composition.21 21.Id.at 547.Show More Other scholars later related Wechsler’s theory to doctrines that pointed in the other direction, and concluded that courts should also decline to invalidate state action as obstructing the federal government without explicit congressional direction.22 22.Laurence H. Tribe, Intergovernmental Immunities in Litigation, Taxation, and Regulation: Separation of Powers Issues in Controversies About Federalism, 89 Harv. L. Rev. 682, 695, 712–13 (1976).Show More Otherwise the judiciary is inclined to be overprotective of the federal government and deaf to states’ concerns.

Jurisprudential shifts in both federal tax immunity and preemption reveal the Supreme Court’s wholesale embrace of this state-protective spin on process federalism. In each of these areas the Court previously nullified state action on a constitutional basis whenever it perceived a conflict between federal and state interests. But it now only invalidates the state law if it perceives congressional intent to do so.23 23.See discussion infra Section III.B.Show More Supremacy Clause immunity has escaped this treatment, and as it currently stands, it remains irreconcilable with the theoretical underpinnings of other Supremacy Clause-derived doctrines. In cases where federal officers claim Supremacy Clause immunity, federal judges still routinely refuse to enforce state criminal law based only on their own perceptions of conflict between federal and state interests, and without any reference to congressional intent. The legal standard these cases apply is no longer consistent with the Supreme Court’s understanding of the Supremacy Clause generally, even if it is reasonably derived from the scarce text of the Court’s century-old Supremacy Clause immunity cases.

This Note proceeds in four parts to propose a new approach to evaluating claims of Supremacy Clause immunity. Part I charts the origin of Supremacy Clause immunity in a string of turn-of-the-century Supreme Court cases and its subsequent development in circuit courts. Part II rejects an approach to Supremacy Clause immunity that has grown in influence in more recent cases and which has engendered some scholarly support: defining Supremacy Clause immunity through analogy to qualified immunity. Part III argues that a more appropriate comparison can be made to a closely analogous doctrine, federal tax immunity, and it describes the development of that doctrine and establishes its relationship to process federalism. Finally, Part IV applies the analysis to Supremacy Clause immunity and explores some of its implications.

  1. Only partially hypothetical, one is in Idaho. See Idaho v. Horiuchi, 253 F.3d 359, 363–64 (9th Cir. 2001). ↑
  2. U.S. Const. art. VI, cl. 2 (“This Constitution, and the Laws of the United States . . . shall be the supreme Law of the Land . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”). ↑
  3. 135 U.S. 1, 62 (1890). ↑
  4. See id. at 45 (“As [the former Chief Justice] was about leaving the room, . . . he succeeded in drawing a bowie-knife, when his arms were seized by a deputy marshal and others present to prevent him from using it, and they were able to wrench it from him only after a severe struggle.”). ↑
  5. The standard that has developed in lower courts is discussed in Subsection I.B, infra. ↑
  6. See Seth P. Waxman & Trevor W. Morrison, What Kind of Immunity? Federal Officers, State Criminal Law, and the Supremacy Clause, 112 Yale L.J. 2195, 2232 (2003) (stating that Supremacy Clause immunity tends to arise “around historical moments of significant friction between the federal government and the States”). ↑
  7. Nick Corasaniti & Reid J. Epstein, A Voting Rights Push, as States Make Voting Harder, N.Y. Times (Jan. 11, 2022), https://www.nytimes.com/2022/01/11/us/politics/biden-voting-rights-state-laws.html [https://perma.cc/39MC-2PR7] (describing that eighteen states are passing laws containing “a host of new voting restrictions” while Democrats in Congress try to pass a bill prohibiting state laws with those very types of restrictions). ↑
  8.  See Nancy J. Knauer, The COVID-19 Pandemic and Federalism: Who Decides?, 23 N.Y.U. J. Legis. & Pub. Pol’y 1, 8 (2020) (arguing that the current federal-state collaborative approach to pandemic response “left the federal government ill-prepared to respond to the COVID-19 pandemic because of conflicting priorities”); James G. Hodge, Jr., Federal vs. State Powers in Rush to Reopen Amid Coronavirus Pandemic, Just Sec. (Apr. 27, 2020), https://www.justsecurity.org/69880/federal-vs-state-powers-in-rush-to-reopen-amid-corona‌virus-pandemic/ [https://perma.cc/62LX-4B2G] (“[T]he novel coronavirus is exposing a deep rift in American federalism as federal and state governments vie for primacy in remedying the nation’s ills.”). ↑
  9.  See Arizona v. United States, 567 U.S. 387, 416 (2012) (holding, in a suit filed by the United States seeking an injunction against the enforcement of Arizona law, that the law providing for state enforcement of federal immigration policy was preempted). ↑
  10.  Compare H.R. 1280, 117th Cong. § 102 (2021) (limiting defense of qualified immunity in suits against law enforcement officers), with Iowa Code § 670.4A (2023) (reinforcing defense of qualified immunity as a matter of Iowa state law). ↑
  11.  See Virginia v. Amaya, No. 1:21-cr-91, 2021 WL 4942808 (E.D. Va. Oct. 22, 2021), appeal dismissed, 2022 WL 1259877 (4th Cir. Apr. 25, 2022). The Fourth Circuit dismissed the case after a newly elected attorney general ceased pursuing the appeal. Tom Jackman, Va. Attorney General Miyares Ends Prosecution of U.S. Park Police Officers in Ghaisar Case, Wash. Post (Apr. 22, 2022, 7:51 PM), https://www.washingtonpost.com/dc-md-va/2022/04/‌22/ghaisar-case-dismissed/ [https://perma.cc/89CT-6YD2]. ↑
  12. See Norman Eisen et al., Fulton County, Georgia’s Trump Investigation: An Analysis of the Reported Facts and Applicable Law 216–52 (2022). ↑
  13. Waxman & Morrison, supra note 6, at 2241. ↑
  14. 17 U.S. (4 Wheat.) 316, 395 (1819). ↑
  15. See, e.g., Graves v. New York ex rel. O’Keefe, 306 U.S. 466, 477 (1939) (stating that federal immunity from state taxation extends to corporations owned and controlled by the government). ↑
  16. See Stephen A. Gardbaum, The Nature of Preemption, 79 Cornell L. Rev. 767, 801 (1994) (characterizing the turn of the century as a “double shift in the direction of enhanced federal power” based on the Court’s overturning state laws as either preempted or unconstitutional under the Dormant Commerce Clause). ↑
  17. See William Marshall, American Political Culture and the Failures of Process Federalism, 22 Harv. J.L. & Pub. Pol’y
    139

    , 147–48 (1998); Ernest A. Young, Two Cheers for Process Federalism, 46 Vill. L. Rev. 1349, 1350 (2001). ↑

  18. Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 Colum. L. Rev. 543, 546 (1954). ↑
  19. Id. at 558–60. ↑
  20. Id. at 560. ↑
  21. Id. at 547. ↑
  22.  Laurence H. Tribe, Intergovernmental Immunities in Litigation, Taxation, and Regulation: Separation of Powers Issues in Controversies About Federalism, 89 Harv. L. Rev. 682, 695, 712–13 (1976). ↑

  23. See discussion infra Section III.B. ↑

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