In eight federal circuits, a person’s right to sue a federal agency may be time-barred before it exists—an odd result made possible by the Wind River doctrine. This Note argues that the doctrine is wrong as a matter of interpretation, despite its widespread acceptance.
Note
Jettisoning “Jurisdictional”: Asserting the Substantive Nature of Supremacy Clause Immunity
Under the doctrine of Supremacy Clause immunity, federal officers generally cannot be prosecuted for state crimes committed while carrying out their duties. This much is well established. What has escaped the notice of the courts, however, is the nature of the immunity. Though they refer to it as “jurisdictional,” it is in fact substantive.
This is no small error. There is a difference between substantive and jurisdictional immunities, yet the current characterization of Supremacy Clause immunity glosses over it. And this distinction runs even deeper: Substantive immunities go to the merits of a case, which in turn relate to the legislature’s power to enact laws. Jurisdictional immunities, by contrast, implicate only a court’s power to rule on the merits.
The extent of this mischaracterization has been missed because it is so deeply seated. There are three contributors to this problem: the Supreme Court’s once-expansive conception of jurisdiction, the lack of a unifying theory of immunities, and the nature of Supremacy Clause immunity’s founding cases.
This mischaracterization presents fundamental semantic difficulties, as well as four practical risks of harm to the parties. First, a court may incorrectly raise the immunity sua sponte. Second, a court may improperly refuse to consider matters of equity or fairness in determining whether the immunity applies. Third, a court may unduly revisit a state judgment on the immunity’s applicability. Finally, double jeopardy would not protect the officer should a court dismiss the prosecution based on Supremacy Clause immunity.
In Defense of the Secular Purpose Status Quo
The secular purpose rule, one prong of the Supreme Court’s interpretation of the Establishment Clause of the First Amendment, requires that government action be justified by a primary, genuine secular purpose. Government actions supported only by religious beliefs, therefore, are unconstitutional. A debate about the morality of the secular purpose rule has emerged, with the main arguments tending to view religious beliefs as either permissible or impermissible. This Note argues that rather than decide purely for or against the secular purpose rule, courts should maintain the current status quo, which is underenforcement of the rule.
To justify this approach to resolving the secular purpose debate, this Note analyzes common arguments made for and against the rule, and distills each argument to its core animating political value. The arguments against the secular purpose rule are motivated by the value of political access, while arguments for the secular purpose rule are motivated by the value of political legitimacy. Underenforcement creates equilibrium between these political values.
Some may worry that underenforcement will change the underlying meaning of the secular purpose rule. But a constitutional requirement can retain its full meaning and be legally binding even if underenforced. Another possible objection is that underenforcement would be tantamount to nonenforcement. To respond to that objection, this Note attempts to canalize underenforcement by marking out situations in which the secular purpose rule should be fully enforced. When, for example, underenforcement would allow discrimination against vulnerable groups, the secular purpose rule should be enforced.