Supreme Court of the United States

United States v. Central State

Case №17–12, 101 M.S. Ct 104

Justice WaywardWit delivered the opinion of the Court in which BSDDC, RestrepoMU, and Notevenalongname, JJ., join. Chief Justice Raskolnik concurred in the judgment only, in which RestrepoMU, J., joins. Justice Wildorca dissents in part.

I. Background

On October 24th, 2017, Governor IGotzDaMastaPlan of the State of Great Lakes (formerly Central State) formally executed and put into effect Executive Order 043 entitled “Protection of Civil Rights”. This order required “[A]ll state and local agencies […] not to provide any information or assistance to the U.S. Immigration and Customs Enforcement or the U.S. Drug Enforcement Administration.” Shortly thereafter, Attorney General of the United States /u/SolidOrangeGangsta filed for writ of certiorari to “review the constitutionality and lawfulness of EO043 of the Central State” and to request an immediate injunction on said “law” [sic].

The question presented by Petitioner is whether any State possesses the ability to refuse the directives of the Federal Government as it relates to the authority of the same pursuant to Article I, Section 8, Clause 4 of the Constitution. This provision of the Constitution, in part, empowers Congress to “establish an uniform Rule of Naturalization.” US Const. art . I, § 8, cl. 4.

The Court finds this question overbroad. It need not and should not consider the full breadth of when and if a State possesses this ability in any context as it relates to the Federal Government’s authority. Today, we decide only whether the State possesses the ability in the instant context.

We hold that it does not.

II. The Tenth Amendment — A Line of Bold and Blur

The heart of this case revolves around the nature of dual sovereignty under the Tenth Amendment. The Tenth Amendment provides the States significant protection against an overzealous Federal Government. It should be understood that Federalism and State authority are historically and constitutionally important in this country. This issue has struck at the heart of political debate in this country since before its formation, and it persists to this day. There has never been a hard and fast rule, and this Court is disinterested in providing one at this time. To that end, the line frequently approached and occasionally crossed is both bold and blurred. Where the Federal Government chooses to act, what powers do States have to undermine those actions with their own? Historically, we have held that States have very little authority to do so, so long as the Federal Government is operating within its constitutional authority.See, Arizona v. United States, 567 U.S. ___ (2012); Reno v. Condon, 528 U.S. 141 (2000). Conversely, we have held that commandeering of state officials and coercive means to accomplish such a commandeering to be unconstitutional pursuant to the Tenth Amendment See, New York v. United States, 505 U.S. 144 (1992). We need not stray from those positions to come to today’s judgment.

In balancing the constitutionality of a federal mandate and a conflicting assertion of authority by the State, we must look at the context of the respective authority for both the Federal and State Government. In evaluating that context, we must look at the constitutional basis for the claimed authority as well as the scope of the action. See, generally, US. Const. amend X. It cannot be said that the Federal Government, pursuant to the Supremacy Clause, can force the States to do anything it pleases. See, Printz v. United States, 521 U.S. 898 (1997);Shelby County v. Holder, 570 U.S. 2 (2013). Conversely, it cannot be said that the States may unilaterally undermine and refuse mandates from the Federal Government they simply disagree with. Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000); Cooper v. Aaron, 358 U.S. 1 (1958)). Such is the nature of a blurred line of gradual transition of authority and responsibility. Such is the nature of dual sovereignty and our nation’s constitutional federalism. Insofar as these conflicts necessarily exist, the Court does not make decisions about where authority should rest for effective or ideal governance. Rather the Court makes decisions about where, pursuant to constitutional interpretation, authority may or may not rest no matter how inefficient or ineffective. We do so by analyzing the context of the dispute between the parties and the nature of the authority vested in the same.

III. If not now…

In the instant case, the context as set by the Executive Order, is the full breadth of any information and assistance sharing between state and local authorities within Great Lakes and that of the Federal Government as it relates to the U.S. Immigration and Customs Enforcement or the U.S. Drug Enforcement Administration. The Tenth Amendment may entitle the State to withhold certain information or certain types of “assistance” when it would amount to the commandeering of state agencies and officials. However, there is absolutely no authority for the State to refuse the sharing of any information or assistance with the Federal Government in all circumstances, no matter how mundane, as it relates to the U.S. Immigration and Customs Enforcement or the U.S. Drug Enforcement Administration. As much as the State wills itself to be, it is not and cannot unilaterally decide to be an independent nation, see Texas v. White, 74 U.S. 700 (1869), and it certainly may not do so on a partial basis unilaterally whenever it decides that a Federal Government action is not satisfactory. A State is simply not empowered to say, “I do not agree with the mission of these federal agencies, and therefore I will actively seek to undermine their properly asserted authority.” Pursuant to principles of stare decisis we are disinclined to overturn this Court’s constitutional holdings going back to 1819. See In Re: Pub.L. B.074 (The Police Reform Act of 2015), 100 M.S. Ct. 112 (2016); Printz, supra; McCulloch v. Maryland, 17 U.S. 316 (1819).. State action may not impede valid constitutional exercises of power by the Federal Government, and a refusal to cooperate and share information is tantamount to creating those impediments when that refusal is as broad as written in this case.

State and local law enforcement officers are not Federal authorities. Neither this decision nor 8 U.S.C. §1373 asks or mandates them to act in that capacity. The law in question does not commandeer State officials to act in the place of Federal authorities. What it requires is information sharing and assistance, a concept that may be distinguished from coercion and commandeering. A distinction can be made between mandating information sharing and information acquisition in the first place. A distinction can be made between rendering reasonable degrees of assistance (the relative degrees of which we do not parse today) and a complete coopting of the resources of the local authorities.

IV. Then when?

Executive Order 043’s validity or invalidity should not be read as a final determinant of the relative enforceability of 8 U.S.C. §1373. There may be circumstances where the State may rightfully and appropriately refuse to share information. That might include the possibility of information “sharing” requirements that cause the state to expend significant resources in acquiring information it does not already acquire. There may be circumstances where the State may rightfully and appropriately refuse to share assistance. That might include situations where such assistance would cause the State to violate an individual’s constitutional rights otherwise protected, or when the Federal government commandeers or attempts to conscript the State’s resources to perform its own duties. See In Re: Pub.L. B.074 (The Police Reform Act of 2015), supra. This list is of course not an exhaustive one, and the Court today does not provide firm guidelines for when a refusal similar to that of Executive Order 043 might be appropriately limited. Rather the Court provides examples to demonstrate that such a circumstance is quite likely to exist given a different factual context.

The instant case in not such a circumstance. While the Court might imagine a circumstance wherein the State’s Executive Order or legal action otherwise might be appropriately targeted in this area, it is neither our obligation nor our inclination to draft the same on the State’s behalf. The State may neither rightfully nor appropriately refuse to share information or assistance in a blanket fashion barring a specific and appropriately limited circumstance to justify its refusal. If the State can be said to have made an attempt at such a justification in its Executive Order and subsequent legal arguments, that attempt was and is woefully inadequate.

V.

Now, therefore, this Executive Order must be struck and considered void until such time that it is narrowly and appropriately tailored to the circumstances where the State may exercise authority in such a way that it does not impede valid constitutional exercises of power by the Federal Government.

It is so ordered.

Chief Justice Raskolnik concurring in the judgment only, in which RestrepoMU, J., joins.

I agree with the Court’s ultimate ruling, that Central State Executive Order 43 (“EO43”) is constitutionally void. But I write separately because I do not share in the Court’s reasoning, and worry that the Court has strayed into issues that are not ultimately at issue.

I.

EO43, titled “Protection of Civil Rights,” was signed by then-governor IGotzDaMastaPlan on October 27, 2017. The governor gave little explanation for this decision, with no background or policy goals stated in the Order itself or in its announcement.

Regardless, EO43’s purpose is plain. It forbids any state or local agency from

provid[ing] any information or assistance to the U.S. Immigration and Customs Enforcement or the U.S. Drug Enforcement Administration.

The same day that it was signed, Attorney General SolidOrangeGangsta filed this petition on behalf of the United States.

The question presented to us by the Attorney General is straightforward enough.

Does any State have the ability to circumvent the Federal Government, specifically as it relates to the Federal Governments as set per the US Constitution Article I, Section 8, Clause 4.

The cited provision of the Constitution sets out, as relevant here, the federal monopoly on immigration and naturalization. Petitioner then cites 8 USC §1373, which states that no governmental agency or official “prohibit or restrict any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.”

Ultimately, the question is whether a State may override federal law in the manner that the Central State has attempted with EO43. It could not be clearer that it may not, and it is equally clear in my mind that the Tenth Amendment is not what makes this so. The facts of this case are slightly different from most state-federal conflicts on this issue. We are not presented here with a State trying to formulate its own immigration laws per se, especially because the Order’s scope is not limited to Immigration and Customs Enforcement. Instead, the governor has sought to use state officials to impede federal law enforcement more generally.

Thus the question is broader than the single constitutional provision cited by Petitioners. Instead, we must consider a broader one: may a state actively seek to impede federal law enforcement?

II.

The answer to this question requires that we look at the fundamental structures of our government. Much of the argument that could be made in response to EO43 was in fact discussed by the Founders when they sought to determine some new form of government to surpass the failing Articles of Confederation. I will not belabor the point, as I expect much of this is well known, but seek only to provide enough background to show how this case must be decided, and why I cannot join with the Court in this instance.

To start, federal law must supersede that of a State or any subdivision thereof. U.S. Const., Art. VI, Cl. 2. Some of this Court’s earliest rulings reinforce this fact.

The States have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by Congress to carry into execution the powers vested in the general government. This is, we think, the unavoidable consequence of that supremacy which the Constitution has declared.

McCulloch v. Maryland, 4 Wheat. (17 U.S.) 436 (1819). States are free to provide things within their power provided that they do not seek to impede lawful federal actions.

That a State may not actively interfere with a lawful federal endeavor flows naturally from these principles. After all, it wound render the Supremacy Clause an absurdity if federal law was supreme only where States chose not to contradict it.

Congress thus recognized this power when it passed statutes that, for example, forbid any government entity from itself forbidding cooperation or information sharing with immigration agents. See, e.g., 8 USC §1373.

Therefore the question before us is not whether a State may choose not to cooperate with federal law enforcement or not, but whether the State may override Congressional prerogative on this point via an executive order.

This is not the first time that a State has tried to brush off federal law. By the time the Affordable Care Act was passed in March 2010, some 36 states had passed or were considering laws attempting to in some way reject it. See, e.g., Lisa Lambert et al., Factbox: States and Healthcare Reform, REUTERS, March 22, 2010. This was nothing new, going back to the Kentucky and Virginia Resolutions, written in 1789 and 1790, whereby the legislatures of Kentucky and Virginia sought to fight the Alien and Sedition Acts, and of course the Nullification Crisis of 1832–1833. This Court, too, has seen resistance and attempts to undermine decisions, such as States’ repeated resistance to complying with Brown v. Board of Education, 347 U.S. 483 (1954).

But these historical events share more than their objective, they also are peers in result: they all failed. The Kentucky and Virginia Resolutions were roundly rejected by the remaining State legislatures. The 1832 Nullification Crisis too was rejected by the rest of the Union, with James Madison writing that nullification was impermissible since it

would allow a single state to immunize itself from constitutional restrictions, thereby making at least a temporary de facto amendment to the Constitution without the consent of any other state, far less the three-fourths required by the amendment procedure.

Quoted in Ryan Card, Can States “Just Say No” to Federal Health Care Reform? The Constitutional and Political Implications of State Attempts to Nullify Federal Law, 2010 BYU L. Rev. 1795 (2010) (hereinafter “Card”) at 18. The later attempts by southern States to nullify the Fourteenth Amendment after the Brown ruling were similarly criticized. Card at 19–20. Moreover, this Court affirmed that States could not choose to simply disregard federal court orders or Constitutional provisions. Cooper v. Aaron, 358 U.S. 1 (1958). See also Bush v. Orleans Parish Sch. Bd., 365 U.S. 569 (1961) (per curiam).

From this history and precedent, it is clear that a State may not, whether by statute or an executive order from its governor, seek simply to ignore federal law because it believes it to be improper or unconstitutional. As the Maryland Legislature declared in response to the 1789–90 Resolutions by Virginia and Kentucky, “no State government . . . is competent to declare an act of the Federal Government unconstitutional.” Card at 16.

III.

As a result, I cannot but conclude that it is unnecessary for this Court to decide whether the federal government is acting within its authority to then find EO43 to be unconstitutional. The matter is far simpler: the federal government has said that no government (be it federal, state, or local) may order that information not be shared with law enforcement. 8 U.S.C. §1373. A State may not unilaterally decide not to comply with a federal command simply because it disagrees with the policy behind it or even believes it to be unconstitutional. Simply put, it is not for the State legislatures to say whether a federal law is constitutional or not. And make no mistake, that is the only way a federal law may be invalid: the Constitution is the limiting factor. Even where the States may be said to have authority that the federal government does not, that is so because the Constitution so requires. If a State believes that a federal law or action oversteps the limits provided to it, it is free to seek judicial review.

It is also for these reasons that Respondent’s reliance on New York v. United States, 505 U.S. 144 (1992), is misplaced. In that case, as Respondent correctly points out, this Court ruled that the federal government may not order state employees to act on its behalf. But even assuming arguendo that the federal law that EO43 seeks to attack is an impermissible extension of federal power, the State may not simply declare this to be so on its own. For all the powers left to the States by the Constitution, simply choosing to go their own way has resulted in at best the opprobrium of their sister States and at worse a war that cost hundreds of thousands of lives. Our system allows for challenges to the constitutionality of a federal action, but state executive orders are not it.

Justice Wildorca dissenting in part.

I dissent in part with the opinion pronounced by the Court, that Executive Order 043 entitled “Protection of Civil Rights” by Governor IGotzDaMastaPlan of the State of Great Lakes (formerly Central State), is unconstitutional and void. The question before us arises upon the entire architecture of these United States’ Constitution, where I acknowledge the accuracy of the opinion’s holding, I will not acquiesce but rather fully protest to the principles contained in the opinion just delivered, it would be improper not to present the points as to which I differ.

I agree in all that is said in relation and by virtue of the Tenth Amendment of the Constitution of the United States, the majority opinion rightly calls attention to the necessary protection for States against an obtrusive (“overzealous”) Federal Government; however, Justice WaywardWit states: “this Court is disinterested in providing [a solution to the problem] at this time”. Nevertheless I intend to provide contrast to this attitude.

The majority opinion claims “the Court does not make decisions about where authority should rest for effective or ideal governance”, however it does decide where it “may or may not rest”. The opinion correctly determines precedent in McCulloch v. Maryland, 17 U.S. 316 (1819) holding that “the States have no power … to retard, impede, burthen, or in any manner control the operations of the constitutional laws enacted by Congress to carry into effect the powers vested in the national Government.” Despite this, the power of the States to disagree with the Federal Government remains paramount. James Madison asserted in Federalist 45, the powers of the federal government are “few and defined.” “The Constitution created a Federal Government of limited powers,” Gregory v. Ashcroft, 501 U.S. 452 (1991) (slip op., at 3); and while the Tenth Amendment makes explicit that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The preponderant powers of these United States are left to the States and the people, and in matters concerning the present case, Chief Justice William H. Rehnquist explained that “States historically have been sovereign” in law enforcement.[1]

The Court was not asked to demarcate the limits of commandeering or whether the sharing of information and assistance constitutes this, however, it does attempt to in a self-effacing manner. Even if the Court was not presently asked to bound these, courts will be required to grapple with the reach and underlying justifications for the anti-commandeering principle. In Can the States Keep Secrets from the Federal Government?, 161 U. PA. L. REV. 103, 160–61 (2012) by Robert A. Mikos contends that the sharing of information and assistance by the States with the Federal Government creates constitutional harms and argues that it should be deemed prohibited. The distinction between demands for information and demands for other types of enforcement services has therefore no obvious basis; since “this distinction fails to account for the bulk of what law enforcement agents actually do — gather and report information about regulated activity … Most fundamentally, the distinction allows the federal government to transform state law enforcement officials into the unwitting tools of federal law enforcement — the very harm the anti-commandeering rule is designed to prevent.”[2] The Court held in New York v. United States, 505 U.S. 144 (1992) that Congress cannot compel the States to enact or enforce a federal regulatory program (which the U.S. Immigration and Customs Enforcement and the U.S. Drug Enforcement Administration are examples of). Justice Emeritus Trips_93 reminds us in his Amicus Curiae[3]“that states must assist the federal government in carrying out immigration law is clearly a violation of the anti-commandeering principle laid out in Printz.”[4] Once again I remind the Court of what was held in New York, supra; “It matters not whether policymaking is involved, and no case-by-case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.” I then look at City of New York v. United States, 179 F.3d 29, 34–35 (2d Cir. 1999), the Court here holds that the prohibition of sharing information with the Federal Government by a State stands, even when its officials consent to such sharing; “Where Congress exceeds its authority relative to the States, … the departure from the constitutional plan cannot be ratified by the ‘consent’ of State officials…. State officials thus cannot consent to the enlargement of the powers of Congress beyond those enumerated in the Constitution.”).[5]

The majority’s opinion determines that the Court can decide where, “pursuant to constitutional interpretation, authority may or may not rest” when it comes to State and Federal powers. The Court here has then wrongly decided where it rests. Local and State non-cooperation with federal enforcement schemes is justified; since “federal cooperation laws significantly boost federal power at the expense of local sovereignty interests, [thus harming] the underlying federalism values of promoting democracy, preventing tyranny, and encouraging innovation among local governments.”[6] In Printz, supra the Court reserved judgment on the constitutionality of federal laws that “require only the provision of information to the Federal Government.” To require the sharing of information would be unconstitutional due to their larger intrusiveness of state sovereignty than the commandeering laws prohibited by New York and Printz. If the Federal Government required the sharing of information, States would be left with no policymaking discretion.

This Court should not implicitly agree that the sharing of information with the Federal Government and its assistance by the State when it states that “a refusal to cooperate and share information is tantamount to creating those impediments when that refusal is as broad as written in this case” and that therefore “these impediments impede valid constitutional exercises of power by the Federal Government”. I disagree that these are valid constitutional exercises of power; if this were the case local governments would not be able to clearly proclaim that they are not involved with immigration law enforcement[7] as stated before, local governments facing this constraint experience substantial harm to federalism values as a result. The United States has continuously treasured state sovereignty in its form of government not as an end in itself but rather concentrated on the beneficial and practical effects that state sovereignty has generated when correctly calibrated (and balanced) inside our system of federalism. These effects are the intended by “federalism values.”[8] Local governance is an example of democratic rule in the United States and the governments that have adopted noncooperation laws fully elucidate the goals of democratic rule; through their local level, these governments conclude that to best serve their communities the non-involvement of their state officials in (appropriately for this case) immigration law enforcement.

Just as the Honourable Justice Emeritus Trips_93 declares in his brief, the Court should have held 8 U.S.C. §1373 as unconstitutional.[9] Where 8 U.S.C. §1373 states: “Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.” This would be an inflexible exercise by the Federal Government of managing State and local government employees. Huyen Pham states in her article “[f]ederal preemption of the non-cooperation laws would intrude significantly on local police powers and upend decisions made by local governments. The result would be federally directed policies that do not reflect local preferences and values.”[10] Federal preemption would also result in further harm to democratic rule. If what the Court implies in this opinion were right, this preemption would be particularly intrusive of local government sovereignty; local government officials and employees are granted access to these databases due to their positions of representatives of their local government. To enable the Federal Government to insert itself between the state and local government and its residents would be to obtain information that does not pertain it.

It is because of this I believe EO043 a valid exercise of state power (where it concerns the ability to pass non-cooperation laws regarding information) and this Court’s decision to imply that the requirement to share information and assistance of State government with the Federal Government as a non-impediment of constitutional application would be to ignore its mammoth harms to the dual sovereignty and federal nature of our country.

I dissent.

[1] United States v. Morrison, 529 U.S. 598 (2000).

[2] Robert A. Mikos, Can the States Keep Secrets from the Federal Government?, 161 U. PA. L. REV. 103, 107–8 (2012).

[3] Brief for the Court as Amicus Curiae, In Re: Central State EO043, 101 M.S.Ct. U.S. 104 (2017).

[4] Printz v. United States, 521 U.S. 898 (1997).

[5] See New York, 505 U.S. at 182.

[6] Huyen Pham, The Constitutional Right Not to Cooperate? Local Sovereignty and the Federal Immigration Power, 74 U. CIN. L. REV. 1373, 1382–84 (2006).

[7] For example state ordinances that instead of affirming the will not to cooperate with immigration law enforcement but rather the prohibition of state officials from inquiring about immigration status in the first place.

[8] The Constitutional Right Not to Cooperate?, 1396.

[9] Brief for the Court, 8 U.S.C. §1373 is unconstitutional.

[10] The Constitutional Right Not to Cooperate?, 1398.