Congressional Power to Waive or Modify Supremacy Clause Immunity

In my essay on Friday, I analyzed the Federal Officer Removal Statute (FORS) and its relation to the principle that federal officers acting within the scope of their duties may have immunity from prosecution for state offenses simply in virtue of the Constitution's Supremacy Clause. In today's essay, I'll offer a few thoughts about where that principle comes from and what power Congress has to change it. To be clear, there is no chance that the Republican-controlled House, the just-barely Democratic-controlled Senate, and President Biden will agree on legislation changing the nature of any immunity concerning the prosecution of Donald Trump and his alleged co-conspirators. But it is possible that a future Congress could attempt to change the law governing Supremacy Clause immunity--either with respect to cases like Trump's or more broadly.

As a preliminary matter, I want to clarify a point I made on Friday. In order for a case to be removable from state to federal court under the FORS, the defendant: (a) must have been at the relevant time a federal officer who was acting under color of their federal office; and (b) must raise a colorable federal defense. In order for a federal officer to have Supremacy Clause immunity to satisfy (b), they must have been acting in a way that was necessary and proper to the carrying out of their official duties. I explained in my Friday post that while step (b) for removal overlaps substantially with the substantive immunity question, step (b) sets a lower threshold. That's a point that even the removal motion of former White House Chief of Staff Mark Meadows makes. Accordingly, it's possible that Meadows could succeed in having the case removed but that he could be denied immunity. If so, the case would proceed, potentially through trial and appeal, in federal court.

Meanwhile, in principle, Meadows or another defendant could raise Supremacy Clause immunity as a defense in state court. However, because the Supremacy Clause immunity showing is more demanding than the removal showing, failure of the removal motion would almost certainly entail failure of the immunity defense. 

There are other procedural complexities raised by the removal motion. One is whether a successful removal motion by Meadows removes the entire case or just the case against Meadows. The FORS says that "[t]he . . . criminal prosecution . . . may be removed" to federal court, which could be read to mean the entire prosecution, including against defendants who do not themselves satisfy the FORS criteria. But that "may" language could imply discretion in the federal district judge to allow only some defendants to remove. Intriguingly as well, another statutory provision states that a decision to send all or part of the case back to state court is not directly appealable within the federal system. So a whole lot depends on how Federal District Judge Jones (an Obama appointee, in case you're wondering) views the matter. We'll get a much better sense of that at the hearing a week from today.

In the meantime, let's talk about Supremacy Clause immunity from prosecution. In my essay on Friday, I discussed the 1890 case of In Re Neagle as the font of the immunity, but the core concept has deeper roots.

Consider McCulloch v. Maryland (1819), which is best known for upholding the power of Congress to create a bank and for broadly construing implied congressional powers more generally. The reason the Court had occasion to consider whether the Second Bank of the United States was validly chartered by the United States was because if it was (as the Court held it was), then it was an instrumentality of the United States and therefore immune to taxation by a state. Chief Justice John Marshall's statement that "the power to tax involves the power to destroy" may sound like anti-government agit-prop from Grover Norquist, but in context Marshall's point was sensible: except insofar as expressly granted (such as with respect to federal elections) states lack the power to control the federal government or its agents.

The immunity conferred by the Supremacy Clause that the Court recognized in Neagle is also a cousin to the decision in Tarble's Case (1871), where the Court held--also on Supremacy grounds--that state courts may not grant writs of habeas corpus ordering the release of persons held in federal custody.

To be sure, the holding of Tarble's is a bit puzzling. After all, Article III did not require Congress to create any lower federal courts, and the Supreme Court cannot hear habeas petitions in its original jurisdiction, because if it did, that would be an expansion of such jurisdiction forbidden by Marbury v. Madison. Thus, had Congress not created any lower federal courts, then no court would have had jurisdiction to issue writs of habeas corpus--in apparent violation of the Suspension Clause.

But there is an answer to the puzzle. In various respects the courts count on Congress to take actions to carry out its constitutional duties, even though failure to take such actions would not be subject to a judicial remedy. Thus, in Ex Parte Bollman (1807), SCOTUS said that federal court jurisdiction to entertain habeas corpus petitions existed only because Congress had authorized it by statute but also that Congress did so because "it must have felt with peculiar force the obligation of providing efficient means by which th[e] great constitutional privilege [of the writ] should receive life and activity . . . . "

That answer fits with Tarble's Case. Although some of the rhetoric of the case suggests that state courts could under no circumstances grant writs of habeas corpus on behalf of federal prisoners, the penultimate paragraph of the case suggests that the holding might be contingent on Congress having vested the power in federal courts, which, the Court said, "are clothed with the power to issue the writ of habeas corpus in all cases where a party is illegally restrained of his liberty by an officer of the United States."

That penultimate paragraph suggests that Congress had a choice how to carry out its duty under the Suspension Clause. Having vested habeas jurisdiction in federal court, the Supremacy Clause divested state courts of the power to grant the writ on behalf of a federal prisoner. But perhaps Congress could have, if it so chose, conferred the power to grant the writ on state courts. Haywood v. Drown (2009) indicates that congressional power to force open state courts is substantial. However, even if one takes a narrower view of congressional power to require state courts to exercise unwanted jurisdiction, that wouldn't call into question the general proposition that Congress has power to authorize actions by states (and private actors) to voluntarily do some things that would be impermissible if not authorized by Congress.

Consider that the federal government enjoys sovereign immunity against suits for money damages or their equivalent. Nonetheless, Congress can waive--and in various statutes has, to one extent or another, waived--its sovereign immunity. Among other things, doing so enables the government to find willing partners with which to enter into contracts by assuring them that, should a dispute arise over payment, they will have judicial recourse.

Congressional waivers of sovereign immunity typically authorize a wide range of parties, including states, to sue. In that sense, they provide a close parallel to a congressional waiver or modification of Supremacy Clause immunity for federal officers who might be subject to state criminal charges: an immunity that serves to protect the federal sovereign interest gives way when Congress determines it is in the national interest to allow otherwise impermissible cases to proceed. 

There is also case law that demonstrates congressional power to authorize states to exercise their own sovereign interests and thus displace the default set by the Constitution. The core theory of the Dormant Commerce Clause (DCC) is that some state regulations of interstate commerce--especially protectionist ones--infringe on a presumptive congressional policy of treating the United States as a free-trade zone. However, as the Supreme Court explained in Northeast Bancorp v. Governors, FRS (1985), "[w]hen Congress so chooses, state actions which it plainly authorizes are invulnerable to constitutional attack under the Commerce Clause." Accordingly, in that case the Court upheld a group of states' discriminatory banking regulations--which would plainly have violated the DCC absent federal legislation--on the ground that they were authorized by Congress. "Here, the commerce power of Congress is not dormant," then-Justice Rehnquist observed.

One might wonder whether Congress can waive or modify Supremacy Clause immunity of an individual officer, as opposed to waiving or modify the federal government's own sovereign immunity or the preemptive force of the DCC. Wonder no more. The answer is yes. Any Supremacy Clause immunity that federal officers enjoy as against state prosecution exists because federal officers carry out federal law and policy. Should the federal government--through Congress--decide that the national interest is better served by allowing some or all state criminal actions against federal officers, those federal officers should not be heard to complain.

As a parallel, think about proposed state-level legislation that would alter or eliminate the qualified immunity of state and local officers sued for civil rights violations. Such proposals might or might not be a good idea.  However, the officers' interests in asserting whatever immunity they have is entirely derivative of the interests of the states and localities for which they work and is thus subject to legislative waiver or modification--at least at the wholesale level and prospectively; individual officers would, of course, have due process interests if they were retrospectively stripped of immunity.

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The Georgia indictment is important chiefly because of the potential looming catastrophe of a second Trump presidency. It also tees up important questions of judicial federalism that would be worth addressing if and when the current crisis passes.