Supremacy Clause and Conflict

Supremacy Clause and Conflict

A state's power to define and punish crime is broad, but it operates beneath a rule of priority that favors valid federal law. Article VI states that rule: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."¹ The clause ranks the sources of law, so that a conflicting state constitution or statute gives way, and it binds state judges to apply that ranking in the cases before them.² Because the clause only sets priorities, it leaves open a prior question that the earlier sections of this chapter answered: the federal law must itself be one that Congress had power to enact.

The text builds that prior question into the ranking. Federal statutes rank as supreme law only when they are "made in Pursuance" of the Constitution, while the Constitution itself is supreme without qualification.³ A federal statute outside Congress's delegated powers therefore never reaches the top of the hierarchy, and a bare appeal to the Supremacy Clause does no more than raise the question whether the law is a valid exercise of national power.⁴ The condition keeps the scheme coherent. If a statute were supreme merely because Congress had passed it, the list of enumerated powers would limit nothing, since Congress could displace state law on any subject by announcing a federal rule. A conflict analysis thus runs in two stages, with the validity of the federal law first and the collision with the state law second.

Once the federal law is valid, the first route to displacement runs through McCulloch v. Maryland. Maryland taxed the branch of the Bank of the United States operating within the state, and the Court first held that Congress could incorporate the bank and then held that the state could not tax it.⁵ The rule the Court drew is that no state may, by taxation or otherwise, retard, impede, burden, or control the operations of constitutional laws that Congress enacts to carry its powers into execution.⁶ Several links explain it. A state's sovereignty reaches things that exist by its own authority, and the means Congress selects to execute powers conferred by the people of all the states are not among them. If one state could tax a federal instrument, it could do the same to the mail, the mint, patent rights, or judicial process, and the power to tax those means would let the state defeat federal operations and in effect transfer supremacy to itself.⁷ The asymmetry has its own reason. Congress answers to the people of every state when it taxes a state-chartered institution, whereas one state taxing a federal institution acts on something created by the people of all the states while answering only to its own voters.⁸

The Court marked the boundary of its holding in the same passage. The opinion did not reach a tax on the bank's real property in common with other real property in the state, or a tax on citizens' proprietary interest in the bank in common with similar property, and it condemned only a tax on the operations of the bank as an instrument of the government.⁹ The line follows the reason for the rule. A tax aimed at the operations hands the state a lever over what the federal government does, while a tax that treats federal property like everyone else's leaves those operations untouched and creates no dependence on the state. Contact with a federal institution does not, by itself, shelter anything from generally applicable state law.

A second route to displacement is a direct collision with a valid federal statute, and it asks a different question. In Gibbons v. Ogden, New York's grant of an exclusive right to navigate state waters with steamboats collided with acts of Congress regulating the coasting trade, and the state laws had to yield even though they were enacted under powers the states retain.¹⁰ McCulloch asks whether a state law burdens or controls federal operations, while Gibbons asks whether a state law and a federal statute can both be given effect, and in each case the state law yields. Neither route requires an advance federal veto. The Framers considered and rejected a power to negative state laws before they took effect, preferring to let them operate subject to later challenge under the Supremacy Clause.¹¹ In a criminal setting, that means a state prosecution proceeds until a court holds the statute displaced, and the defendant or the United States raises the displacement in the case.

McCulloch concerned a tax and announced no rule about criminal statutes, so what follows is an analogy from its reasoning. A criminal prosecution can obstruct a federal function as effectively as a tax can, because the threat of punishment controls what an agent will do. The same line therefore applies: a state criminal law that interferes with the operation of a valid federal program is displaced, and an ordinary criminal law that happens to reach a federal institution is not.

Decided cases show the displacement side in criminal settings. A federal court's writ of habeas corpus ad prosequendum, which calls for a state prisoner to be produced for a federal prosecution, overrides any contrary preference of the state, because a valid federal measure controls under the Supremacy Clause and the clause carries no principle of comity that a state governor could invoke to refuse the writ.¹² In Arizona v. United States the Court held preempted a state misdemeanor for failing to comply with federal alien-registration requirements, because Congress had occupied the field of alien registration and even complementary state regulation was impermissible.¹³ That decision shows that a state crime can fall without any direct clash, since preemption may be express, may rest on a field Congress has reserved to itself, or may rest on a conflict, and the inquiry looks to what Congress intended.¹⁴ The inquiry begins from an assumption that the historic police powers of the states are not superseded unless that was the clear and manifest purpose of Congress, which supports the survival of ordinary criminal statutes that do not conflict with federal purposes.¹⁵

Not every Justice accepts broad implied preemption. Concurring in Wyeth v. Levine, Justice Thomas reasoned that only federal laws made in pursuance of the Constitution, through its enumerated powers and its bicameralism and presentment procedures, are supreme, and that preemption should turn on whether state law conflicts with the text of federal law rather than on a statute's purposes and objectives.¹⁶ That view remains a concurrence, and the Arizona majority still treats a state law that stands as an obstacle to the full purposes and objectives of Congress as a conflict.¹⁷

On an exam, a stem in which a state statute collides with a federal one usually tests both stages. Students lose points when they assume that a federal statute wins automatically, because the clause ranks laws that Congress had power to enact and supplies no power of its own.¹⁸ A stem in which a state applies a general criminal or tax law to a federal institution tests the McCulloch limit, and the answer is that the state law applies unless it burdens or controls federal operations.