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.


The crackdown is the executive decision to intensify the severity of enforcement of existing laws or regulations as to a selected class of offenders or offenses. Each year, federal, state, and local prosecutors and agencies carry out thousands of crackdowns on everything from trespassing to insider trading to minimum-wage violations at nail salons. Despite crackdowns’ ubiquity, legal scholarship has devoted little attention to the crackdown and to the distinctive legal and policy challenges that crackdowns can pose.

This Article offers an examination and a critique of the crackdown as a tool of public law. The crackdown can be a benign and valuable law enforcement technique. But crackdowns can also stretch statutory authority to the breaking point, threaten to infringe on constitutional values, generate unjust or absurd results, and serve the venal interests of the law enforcer at the expense of the interests of the public. Surveying a spectrum of crackdowns from the criminal and administrative contexts, and from local, state, and federal law, this Article explores the many ways that crackdowns may quietly subvert democratic values.

The obvious challenge, then, is to discourage the implementation of pathological crackdowns, while also preserving the needed flexibility to enforce the law, within the context of a legal and political system that imposes sparse restraints on the crackdown choice. This Article locates a foundation for tackling this challenge in the requirement of “faithful” execution in Article II’s Take Care Clause and its cognate clauses in the state constitutions. The crackdown decision should be faithful—to statutory text and context, to the interests of the public, and to constitutional and rule-of-law values. By elaborating the content of this obligation, this Article supplies a novel normative framework for evaluating the crackdown—and a much-needed legal platform for governing it. Cutting sharply against the grain of modern law, this Article calls for a broad rethinking of the principles and constraints that should frame the executive’s power to selectively and programmatically augment enforcement.

Sovereign Immunity and the Constitutional Text

Despite the opprobrium heaped on the Supreme Court’s modern doctrine of state sovereign immunity, there is a theory that makes sense of that doctrine, and also renders it consistent with the constitutional text. The theory is that sovereign immunity is a common law rule—a “backdrop”—that is not directly incorporated into the Constitution, but is shielded by the Constitution from most kinds of change.

That theory also has important implications for the future of sovereign immunity. The Supreme Court’s decision in Nevada v. Hall holds that state sovereign immunity need not be respected in another state’s courts. Last term, in Franchise Tax Board v. Hyatt, the Court nearly overruled Hall, and its future hangs by a single vote. The backdrop theory suggests that Hall is rightly decided, consistent with modern doctrine, and should not be overruled.