Supreme Court of the United States

Western State v. Northeast State

Case No. 15–16, 100 M.S.Ct. 109

The Chief Justice delivered the opinion of a unanimous Court.

Before us in this case is a challenge by the Western State to an action taken by the governor of the Northeastern State. We are asked to decide whether the Northeastern State’s executive ban on funding interstate travel to the Western State is a violation of the Extradition Clause. See U.S. Const., art. IV, sec. 2, cl. 2.

We find that the challenged executive order has no particular connection to interstate fugitives. In short, the Western State assumes too much. Moreover, an appropriate remedy already exists under our caselaw. We therefore sustain the governor’s actions.[1]


In October 2015, then-governor ben1204 issued Executive Order 005 (hereinafter “Order 5”). That action constituted a “ban on state-paid travel to the Western State,” implemented in response to the latter’s perceived intolerance to homosexuals.[2]

Approximately two days later, the Attorney General of the Western State, acting in his official capacity, filed this action. The Western State requested an injunction against enforcement of the Executive Order, arguing two things. First, the Western State asserted that Order 5 infringed upon the Extradition Clause, which requires that anyone currently in one State be “delivered up” to another to face criminal charges. U.S. Const., art. IV, sec. 2, cl. 2. In the alternative, Petitioner argues that Order 5 “is in animus” to the Western State, and as such fails to give Full Faith and Credit to its laws as required by the Constitution. See U.S. Const., art. IV, sec. 1. Regrettably, the Northeastern State has not defended its action. Nevertheless, that does not absolve this Court of responsibility in rendering an accurate decision.


The Extradition Clause provides that,

A person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime.

It is difficult to see a connection between this requirement and Order 5. Indeed, that no such overlap exists is clear from the language of the Clause. Specifically, it says that a fugitive will be “delivered up to be removed to” the state that seeks to charge him or her for a crime (emphasis added). For virtually all of this Court’s history, we have recognized that “[i]t cannot be presumed that any clause in the Constitution is intended to be without effect . . .” Marbury v. Madison, 5 U.S. 137, 174 (1803). We have reiterated this principle as recently as the current Term. In re: the Controlled Substances Act, 100 M.S.Ct. 102 (2015). That being the case, we must assume that the phrase “to be removed” is not superfluous. This would only be the case where the Constitution intended to create an obligation to make the fugitive available and nothing more. It is the only reasonable interpretation of the Clause’s language. “To be removed to” the requesting State means not only that the fugitive has not been removed at the time the obligation is created, but also that it is not to be done by the State under obligation.

A hypothetical will make this clearer. Assume a Fugitive is wanted for a crime committed in the Western State. That State has reason to believe that Fugitive is in the Northeastern State. Western State notifies the Northeastern. Under the Petitioner’s interpretation, the Northeastern State would have to pay to transport Fugitive back to the Western State. But this would mean that Fugitive was not “delivered up to be removed” to the Western State, but instead was simply delivered to the Western State. In other words, the phrase “to be removed” would be meaningless, a result that is to our legal system what division by zero is in mathematics. The more appropriate interpretation, therefore, is that in our hypothetical, the Northeastern State would only have to make Fugitive available to whatever representative the Western State chose to send to retrieve him. In other words, the Northeastern State would have to “deliver up” Fugitive “to be removed” at a future time, namely when the representative of Western State should arrive.

This is the only internally consistent reading of the Clause, and is also consistent with the history of interstate extradition in the United States. In the mid-17th century, governments in New England pledged themselves to grant warrants requested by the other settlements “for the apprehending of any [fugitive] and the delivery of him into the hands of the officer or other person who pursueth him.” Winthrop’s History of Massachusetts, vol. 2, 121, 126 (quoted in Kentucky v. Dennison, 65 U.S. 66, 100–101 (1861), rev’d on other grounds, Puerto Rico v. Branstad, 483 U.S. 219 (1987)). Moreover, the first Extradition Act, passed in 1793, makes this plainer still:

. . .it shall be the duty of the Executive authority of the State or Territory to which [the fugitive] shall have fled to cause him or her to be arrested and secured, and notice of the arrest to be given to the Executive authority making such demand, or to the agent of such authority appointed to receive the fugitive, and to cause the fugitive to be delivered to such agent when he shall appear. . .

Quoted in Dennison, 65 U.S. at 105 (emphasis added). This wording was passed by Congress almost immediately after the adoption of the Constitution, and thus there is absolutely no reason to think that the same body that adopted the Constitution somehow envisioned a different interpretation of the Extradition Clause than what they enacted such a short time later.

This reading is fatal to Petitioner’s challenge. If the requirement is only to make a fugitive available, then nothing in Order 5 interferes with either state’s Constitutional obligations. A fugitive from the Western State in the Northeastern State will still be made available to be turned over to whichever agent of the Western State is sent to collect him without implicating Order 5.

At most, Petitioner has shown that Order 5 would prevent the Northeastern State from going to retrieve a fugitive who is in the Western State. But there has been no showing that the Western State is harmed by this. The Western State is not being forced into violating an obligation that would then subject it to some sanction or harm. Having an individual who has been charged with a crime in another State is not sufficient to show otherwise. Not only does this ignore the differences in state laws (something that Petitioner accuses the Northeastern State of doing), but it ignores the basic tenants of our criminal justice system that an individual is innocent until proven guilty. Moreover, Petitioner has not suggested that having someone already convicted of a crime in another state, who has served his or her prison term, would somehow cause harm. Nothing in American jurisprudence would support this contention. And if that is the case, then clearly there can be no harm to the Western (or any other) State by having someone who has only been accused of a crime within its borders.

One final point makes this all the clearer. To hold otherwise would in turn create an obligation on the States to seek out any and all fugitives that go into other States. This we decline to do. Such a decision goes too far into the realms of policy, in terms of law enforcement priorities and budgeting, to be suitable for a decision from this Court. One final point warrants discussion. Petitioner seeks a general remedy when more specific ones are available. Should a specific conflict arise, we have previously made it clear that federal judges may order a State to turn over a fugitive to another state. Branstad, supra. Thus even if Petitioner’s interpretation were correct, the Western State would still have a specific remedy via federal court order in the event that the Northeastern State (or any other, for that matter) refused to comply with its obligations. But we wish to be clear about just what those obligations are, and they do not include a requirement to send an individual into the territory of another State.

In view of the above, it is clear from the language and history of the Extradition Clause that Order 5 does not impinge upon the obligations created by the Constitution.


Petitioner makes a second argument, namely that Order 5 represents a violation of the Full Faith and Credit Clause. This too is inconsistent with the Constitution, as is made plain by the language of this Clause.

Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.

U.S. Const., art. IV, sec. 1 (emphasis added). Petitioner has not pointed to any public acts, records, or judicial proceedings that would be disregarded by Order 5. There is nothing to suggest by that Order that the Northeastern State would fail to head an indictment in the Western State or otherwise comply with its obligations under the Extradition Clause. See part II, supra. Petitioner’s argument instead seems to focus on a dislike of the Northeastern State’s motivations, namely a disagreement over social policy. But again, nothing in Order 5 suggests that the Northeastern State would fail to heed a court order, marriage license, driver’s license, or any other official act from the Western State. Petitioner has cited none, and this Court will not go digging in the proverbial weeds to try to find some theoretical scenario under which the Northeastern State could fail to give Full Faith and Credit to the Western State. This would in essence require us to assume a violation and then rule accordingly, which would be completely improper to do.

* * *

For the foregoing reasons, we find Petitioner’s challenge to Order 5 to be without merit. The Petition is dismissed.

It is so ordered.

[1]It of course should be emphasized that we rule only on the challenge before us, and do not make any broader ruling on the Northeastern State’s policy.
[2]The Court makes no finding as to whether this is an accurate description of Western State law.
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