The Supremacy Clause

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.

—Gary S. Lawson

Introduction

The Supremacy Clause is a conflict-of-laws rule specifying that certain national acts take priority over any state act that conflicts with those national acts. In this respect, the Supremacy Clause represents a choice from among several strategies for dealing with federal-state conflicts that emerged during the constitutional drafting process. Case law has developed a complex body of doctrine for determining when federal-state conflicts arise and for carving out certain immunities that each level of government has against the other.

History Before 1787

Any federal system needs a strategy for dealing with potential conflicts between the national and local governments, and at least three strategies are available. First, each government could be given exclusive jurisdiction over its respective sphere, which would avoid altogether the possibility of direct conflict. Second, the governments could have concurrent jurisdiction, but one government could be given power to veto actions of the other, either in the event of actual conflict or in general classes of cases. Third, both governments could be allowed to act without mutual interference, but one government’s acts could be given primacy over the other’s in the event of actual conflict.

In the pre-Revolution era, some colonists urged the first approach to handle relations between the colonies and England: The English Parliament could regulate colonial trade, but local legislatures would have exclusive authority over other matters.¹ The Articles of Confederation tried a version of the third approach. Article XIII provided that “[e]very state shall abide by the determinations of the united states in congress assembled, on all questions which by this confederation are submitted to them.” Article II put a limit on this supremacy by ensuring that states retained a broad sphere of authority: “Each state retains its sovereignty, freedom and independence, and every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.” Moreover, it was not clear whether congressional acts were self-enforcing or required implementing state legislation. If states enacted laws contrary to “determinations of the united states in congress assembled,” those subsequent state laws might have prevailed under conventional rules of priority of legal acts.²

The federal Constitution would make the supremacy of the national government far clearer.

The Constitutional Convention

The Constitution proposed a federal system that would separate powers between the central government and the state governments. The Framers would consider all three strategies for conflict management.

First, the Constitution assigns the federal government exclusive power over certain areas, such as treaties,³ but it was unclear whether certain other federal powers, such as the bankruptcy or commerce powers, would be exclusive or concurrent.⁴ Some Framers favored the second strategy. The Virginia Plan proposed that “the National Legislature ought to be impowered . . . to negative all laws passed by the several States, contravening in the opinion of the National Legislature the articles of Union.”⁵ That proposal received initial approval from the delegates.⁶

James Madison of Virginia favored an even broader negative.⁷ He seconded the motion by Charles Pinckney of South Carolina to give Congress “authority to negative all Laws which they shd. judge to be improper.”⁸ Representatives from small states vigorously opposed this expanded national veto.⁹ Elbridge Gerry of Massachusetts insisted that Pinckney’s proposal would “enslave the States.”¹⁰ The strong veto was voted down 7 to 3.¹¹ The delegates also voted it down again later.¹²

The Framers ultimately settled on the third approach with respect to the Supremacy Clause: Certain types of federal law would be given primacy over conflicting state laws.

What eventually became the Supremacy Clause was introduced on June 15, 1787, as part of the New Jersey Plan.¹³ Although the New Jersey Plan never progressed, Luther Martin a month later put forth a variant of its supremacy clause, which was adopted unanimously.¹⁴ After some technical changes, the Supremacy Clause emerged in its final form.¹⁵ It was adopted with little debate or dissent.

The clause lists three types of law that are the “supreme Law of the Land”: the Constitution, federal statutes enacted pursuant to the Constitution, and past and future treaties. These federal laws are effective even if something in a state law is to the “Contrary,” and state court judges are “bound” by this supreme law regardless of what state law, including state constitutional law, provides. In particular, Founding-era state judges were now bound to enforce the 1783 Treaty of Peace with Great Britain, which provided guarantees against the confiscation of Loyalist property.¹⁶

The Ratification Debates

During the ratification process, some opponents of the Constitution feared that the Supremacy Clause—sometimes called the “Sweeping Clause”—would destroy the states as meaningful entities. For example, at the Pennsylvania ratifying convention, Robert Whitehill asserted that “Article 6, clauses 2 and 3 are concluding clauses that the state governments will be abolished.”¹⁷ Others worried about subordinating state laws to treaties that did not require ratification by the House of Representatives.¹⁸ Alexander Hamilton responded in Federalist No. 33 that the Supremacy Clause and the Necessary and Proper Clause were “only declaratory of a truth which would have resulted by necessary and unavoidable implication from the very act of constituting a federal government, and vesting it with certain specified powers.” He further explained that unconstitutional federal laws or treaties are not supreme law: “Acts of the larger society which are not pursuant to its constitutional powers but which are invasions of the residuary authorities of the smaller societies . . . will be merely acts of usurpation and will deserve to be treated as such.”

What is the Supreme Law of the Land?

The Supremacy Clause does not distinguish among the three named sources of federal law: the Constitution, laws of the United States, and treaties. All three are equally supreme over competing sources of state law. They also are supreme over lesser types of federal law, such as federal common law or federal regulations.¹⁹

The Supremacy Clause does not itself establish the supremacy of the Constitution over federal statutes or treaties.²⁰ In Marbury v. Madison (1803), Chief Justice John Marshall recognized that the principle of constitutional supremacy can be inferred from the Constitution’s structure: “Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation.”²¹ As a result, “the theory of every such government must be that an act of the legislature repugnant to the Constitution is void.”²² The Supremacy Clause merely added weight to these primary structural arguments. By “declaring what shall be the supreme law of the land, the constitution itself is first mentioned, and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank.”²³

Justice Joseph Story observed that this provision does not grant power to any federal actor. The Supremacy Clause does not preclude other strategies for dealing with potential national and state conflicts. It does not even allocate substantive power between the national and state governments.²⁴ Rather, the clause is only a conflict-of-laws rule. It decides which particular type of law prevails over another type of law.

The Supremacy Clause’s sequencing of the sources of federal law is at most modest evidence in favor of constitutional primacy. Marshall recognized this principle in Marbury.²⁵ If the sequencing mattered, it would also suggest that federal statutes must always take precedence over federal treaties. Vasan Kesavan has advanced this position, drawing on, among other things, other instances of the seeming sequencing in the Constitution.²⁶ But standard law has long been that federal statutes and treaties are equally supreme.²⁷ If a statute and treaty are in conflict, the latest enactment would control.²⁸

Modern law also treats federal administrative regulations as supreme over competing sources of state law.²⁹ One court of appeals held that a memorandum signed by the President could also override state law.³⁰ However, some scholars disagree as to whether this doctrine is consistent with the language of the Supremacy Clause. The text refers to “Laws of the United States . . . made in Pursuance” of the Constitution. Such laws are statutes enacted in accordance with the lawmaking procedures of Article I, Section 7. Administrative regulations and executive orders do not go through this process.³¹ Other scholars contend that federal “Laws” can include executive actions with binding effect.³² Whatever the correct originalist answer may be, current doctrine allows at least some administrative regulations to override state law; in fact, federal regulations have emerged as the most frequent source of federal-state conflicts.³³

When Does Federal Law “Preempt” State Law?

When a state law conflicts with a supreme federal law, the state law is preempted, meaning that the state law cannot be given legal effect in those instances of conflict. Until the early twentieth century, the U.S. Supreme Court would determine whether there was a straightforward conflict between a federal statute and a state law.³⁴ However, the Court changed course during the New Deal as the locus of reformist legislation shifted from the states to the federal government. The modern doctrine makes it easier to find federal preemption of state law. Even if there is no express conflict based on the text of the law, the Court will find that preemption occurs when Congress intended a federal statute to preempt a state law.³⁵

The Court has found evidence of such congressional intent in a federal statute’s express provision declaring that it does or does not preempt state law,³⁶ but such a clear statement of intent is not needed. The Court has held that state law is preempted “[w]hen Congress intends federal law to ‘occupy the field’” or “to the extent of any conflict with a federal statute.”³⁷ Conflicts can also result when it is impossible to comply with both state and federal law.³⁸ State law is also preempted when it “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”³⁹ Justice Clarence Thomas, however, has called for the Court to reconsider so-called implied preemption.⁴⁰

The Court has not adopted a clear test by which to determine when a state law sufficiently obstructs federal purposes. Rather, this decision “is a matter of judgment, to be informed by examining the federal statute as a whole and identifying its purpose and intended effects.”⁴¹ The Court generally presumes that federal law will not preempt laws that address matters of traditional state concern,⁴² although this presumption has proven difficult to apply and has sharply divided the Court.⁴³

Intergovernmental Immunity

Under the Supremacy Clause, states cannot regulate, interfere with, or control federal instrumentalities. This doctrine of intergovernmental immunity is generally traced to McCulloch v. Maryland (1819).⁴⁴ This landmark case held that states could not tax the Bank of the United States. The statute creating the bank did not specifically forbid state taxes, but the Court reasoned that “[i]t is of the very essence of supremacy to remove all obstacles to [the federal government’s] action within its own sphere.” Under this principle, Chief Justice John Marshall explained, “every power vested in subordinate [state] governments” must be “modified” so “as to exempt [the federal government’s] own operations from [the states’] own influence.”⁴⁵ The intergovernmental immunity found in McCulloch was not stated expressly in the Supremacy Clause; the Court inferred it from the broader principle of federal supremacy.

The Supreme Court has since qualified the widest implications of this principle. For example, states can tax the salaries of federal employees.⁴⁶ Modern law maintains that “a state law is thus no longer unconstitutional just because it indirectly increases costs for the Federal Government, so long as the law imposes those costs in a neutral, nondiscriminatory way.”⁴⁷ However, the courts will uphold even state legislation that discriminates against federal instrumentalities where Congress clearly and unambiguously waives its constitutional immunity.⁴⁸

Open Questions

• Under the Supremacy Clause, the “Judges in every State” are “bound” by the “supreme Law of the Land.” What about state executive and legislative branch officials?⁴⁹
• Under the so-called doctrine of judicial supremacy, a simple majority of the Supreme Court can declare what constitutes the “supreme Law of the Land” with finality.⁵⁰ Can this doctrine be supported by reference to the Supremacy Clause?⁵¹

1. Christopher D. Drahozal, The Supremacy Clause: A Reference Guide to the United States Constitution 4 (2004). ↩︎
2. Caleb Nelson, Preemption, 86 Va. L. Rev. 225, 247–50 (2000). ↩︎
3. Art. I, § 10, cl. 1; Art. II, § 2, cl. 2. ↩︎
4. Steven Gow Calabresi & Gary Lawson, The U.S. Constitution: Creation, Reconstruction, the Progressives, and the Modern Era 595–97 (2020). ↩︎
5. 1 Farrand’s 21. ↩︎
6. Id. at 54. ↩︎
7. Drahozal, supra at 13–14; Michael D. Ramsey, The Supremacy Clause, Original Meaning, and Modern Law, 74 Ohio St. L.J. 559, 577 (2014). ↩︎
8. 1 Farrand’s 164. ↩︎
9. Id. at 165–68. ↩︎
10. Id. at 165. ↩︎
11. Id. at 168. ↩︎
12. 2 Farrand’s 27–28. ↩︎
13. 1 Farrand’s 245. ↩︎
14. 2 Farrand’s 22. ↩︎
15. Drahozal, supra at 21–24, 68–70. ↩︎
16. Id. at 8–10. ↩︎
17. 2 DHRC 526. ↩︎
18. Drahozal, supra at 28–30. ↩︎
19. Jonathan Mitchell, Stare Decisis and Constitutional Text, 110 Mich. L. Rev. 1, 6 (2011). ↩︎
20. Gary Lawson, Rebel Without a Clause: The Irrelevance of Article VI to Constitutional Supremacy, 110 Mich. L. Rev. First Impressions 33 (2011). ↩︎
21. 5 U.S. (1 Cranch) 137, 177 (1803). ↩︎
22. Id. ↩︎
23. Id. at 180 (emphasis added). ↩︎
24. 2 Story’s Commentaries §§ 1836–42. ↩︎
25. Marbury, 5 U.S. (1 Cranch) at 180. ↩︎
26. Vasan Kesavan, The Three Tiers of Federal Law, 100 Nw. U. L. Rev. 1479, 1499–1502 (2006). ↩︎
27. Head Money Cases, 112 U.S. 580, 598–99 (1884). ↩︎
28. Cook v. United States, 288 U.S. 102, 118–19 (1933). ↩︎
29. Geier v. Am. Honda Motor Co., Inc., 529 U.S. 861 (2000). ↩︎
30. Ariz. Dream Act Coal. v. Brewer, 818 F.3d 901, 915 (9th Cir. 2016). ↩︎
31. David S. Rubenstein, The Paradox of Administrative Preemption, 38 Harv. J. L. & Pub. Pol’y 267 (2014). ↩︎
32. Joshua Hawkes & Mark Seidenfeld, A Positive Defense of Administrative Preemption, 22 Geo. Mason L. Rev. 63, 71–75, 77–78 (2014). ↩︎
33. David S. Rubenstein, Delegating Supremacy?, 65 Vand. L. Rev. 1125, 1128 (2012). ↩︎
34. Stephen A. Gardbaum, The Nature of Preemption, 79 Cornell L. Rev. 767, 783 (1994). ↩︎
35. Nelson, supra. ↩︎
36. Arizona v. United States, 567 U.S. 387, 399 (2012). ↩︎
37. Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372 (2000). ↩︎
38. PLIVA, Inc. v. Mensing, 564 U.S. 604, 618 (2011). ↩︎
39. Hines v. Davidowitz, 312 U.S. 52, 67 (1941). ↩︎
40. Kansas v. Garcia, 589 U.S. 191, 213 (2020) (Thomas, J., concurring); Wyeth v. Levine, 555 U.S. 555, 583 (2009) (Thomas, J., concurring). ↩︎
41. Crosby, 530 U.S. at 373. ↩︎
42. Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). ↩︎
43. Va. Uranium, Inc. v. Warren, 587 U.S. 761 (2019); PLIVA, 564 U.S. 604; Geier, 529 U.S. 861. ↩︎
44. 17 U.S. (5 Wheat.) 316 (1819). ↩︎
45. Id. at 427. ↩︎
46. Graves v. N.Y. ex rel. O’Keefe, 306 U.S. 466 (1939). ↩︎
47. United States v. Washington, 596 U.S. 832, 839 (2022). ↩︎
48. Id. ↩︎
49. Printz v. United States, 521 U.S. 898, 907 (1997). ↩︎
50. Cooper v. Aaron, 358 U.S. 1, 18–20 (1958). ↩︎
51. Josh Blackman, The Irrepressible Myth of Cooper v. Aaron, 107 Geo. L.J. 1135 (2019). ↩︎