Harmonizing Federal Immunities

*University of Virginia School of Law, J.D. expected 2023. For their advice on the substance, style, and execution of this Note, I am indebted to Professor Charles Barzun, Dean John C. Jeffries, Jr., Michelle Kallen, and Judge Toby Heytens. For their assistance in my development and understanding of this topic, I am grateful to Kendall Burchard, Joshua Matz, and Professor Caleb Nelson. This Note benefited greatly from the thoughtful attention of the Virginia Law Review Notes and Executive Departments, especially Jeffrey Horn, Laura Lowry, Natalia Heguaburo, and Lauren McNerney. Finally, for her support, assistance, advice, and many more things, I am thankful always to Annie Ranjan.Show More

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two immunities to each other, this Note aims to shine light on Supremacy Clause immunity as a doctrine based on an outdated conception of the role of federal courts in our federalist system.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. ↑