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Commandeering and constitutional change.

ARTICLE CONTENTS

INTRODUCTION

I. CONFEDERATION IMPOST DEBATES

    A. The 1781 Impost Proposal
    B. The 1783 Compromise
    C. Defeat in New York

II. THE CONSTITUTION

    A. Ratification Debates
    B. The Oath Clause
    C. The Posse Comitatus

III. EARLY CONGRESSIONAL PRACTICE

    A. Federalist Ambitions
    B. Virginia's Disqualifying Act
    C. Federal Use of State Officers
    D. A Judicial Response

IV. COMMANDEERING AND CONSTITUTIONAL CHANGE


INTRODUCTION

The United States Constitution says little about who should enforce federal law. During the ratification debates, however, Federalists frequently remarked that the federal government would "make use of the State officers" for that purpose. (1) Indeed, one of the principal advantages of the proposed Federal Constitution over the Articles of Confederation, Alexander Hamilton argued in Federalist No. 27, was that the Constitution would not "only operate upon the States in their political or collective capacities" but would also "enable the [federal] government to employ the ordinary magistracy of each [state] in the execution of its laws" (2) With "all officers legislative, executive and judicial in each State ... bound by the sanctity of an oath" to observe federal law, Hamilton continued, "the Legislatures, Courts and Magistrates of the respective members will be incorporated into the operations of the national government ... and will be rendered auxiliary to the enforcement of its laws." (3) In other words, state officers would be duty bound to enforce federal law.

Over two centuries later, the Supreme Court rejected a federal power to require state executive officers to enforce federal law--a practice now known as commandeering-calling it "fundamentally incompatible with our constitutional system of dual sovereignty." (4) The Court dismissed Hamilton's remarks as unrepresentative of broader Founding-era constitutional understanding, explaining that Hamilton's statements reflected "the most expansive view of federal authority ever expressed, and from the pen of the most expansive expositor of federal power." (5)

Hamilton's opinions on federal power, of course, were not always consistent with the views of his colleagues. (6) But it would be deeply mistaken to discount his endorsement of commandeering. Hamilton was not trying to aggrandize federal power. Quite the opposite. He was offering a concession to those who feared greater centralized authority. After a bruising debate over federal power to collect tariffs-a controversy that had consumed continental politics for much of the 1780s-Hamilton was finally giving in. He was not about to repeat his prior political miscalculations, so he relented and gave the Anti-Federalists exactly what they wanted: an assurance that the federal government would commandeer state officers to enforce federal law.

The idea of using state officers to enforce federal law emerged well before 1787. While negotiations for an Anglo-American peace treaty were still ongoing in Europe, across the Atlantic a high-stakes controversy emerged over a proposal to amend the Articles of Confederation to give the Continental Congress the power to levy import duties on foreign goods. Proponents urged that the impost, as the tariff system was most commonly known, would provide the United States with revenue it desperately needed in order to repay its wartime debts. Leaders in Congress also recognized that collective-action failure plagued the existing system of state control over international trade regulations, thus limiting tariff revenues and preventing effective retaliation against onerous foreign duties and trade controls. (7)

For these reasons, most politicians in the 1780s agreed that Congress should have authority to establish an impost. Yet when it came to deciding how to collect the tax, deep divisions emerged. The nation's leading financial luminaries--Alexander Hamilton and Robert Morris-insisted on using "continental" officers accountable only to Congress. Others, though, worried that federal collectors would repeat the repressive colonial--era practices of their British counterparts, who often failed to appreciate local circumstances and whose appointments were seen as feeding the contemptible appetite of a corrupt patronage system. Instead, these skeptics proposed giving Congress the power to collect import duties using only state officers.

The dispute over how to collect the continental impost ultimately ended in gridlock, but its legacy endured, overshadowing much of the ratification process. The typical narrative of the Constitution's genesis is that political affairs reached a crisis point, fatally undermining the Articles of Confederation and leading to vastly expanded, though still limited, federal powers. The impost story confirms this account in part, but it also calls for an important revision. With respect to the administration of federal law, rather than escalating their demands for greater federal power, Federalists framed the Constitution as conceding ground to the opponents of centralization. Particularly in the pivotal ratification contests in New York and Virginia, Federalists assured Convention delegates and the public that the federal government would generally rely on state officers rather than create new federal positions. And not lost in this debate was the premise that carried over from the impost controversy: federal duties would be legally binding.

Anti-Federalist support for commandeering-a label not yet employed in the eighteenth century-continued into the First Congress, where the usual characters struggled over the pivotal issue of who would enforce federal law. Notwithstanding Federalist promises during ratification, however, the federal government placed very few federal responsibilities on state officers. Examining the causes of this apparent bait and switch reveals a largely untold story about the origins of the federal bureaucracy. Ironically, Anti-Federalists' political miscalculations played a pivotal role in undermining their efforts to have state agents administer and enforce federal law.

The current conception of the anticommandeering doctrine as a centerpiece of the Rehnquist Court's federalism revolution may make this account difficult to believe. Indeed, our conventional assumption that Anti-Federalists must have opposed commandeering is a central premise of one of the best scholarly articles on this topic. According to Michael Collins, Anti-Federalist support for commandeering would have contradicted "their usual rhetoric championing state and local prerogative against centralized power." (8) Commandeering is a type of centralized power, and thus "the absence of any outcry" from Anti-Federalists in opposition to commandeering, Collins asserts, "is itself strong evidence that such a prospect was not part of the perceived message of The Federalist." (9)

Collins's argument has intuitive appeal, but overwhelming historical evidence demonstrates that his conventional assumptions about Anti-Federalist attitudes are mistaken. Indeed, the prevailing historical account gets this important feature of the ratification story backward. Anti-Federalists were actually among the strongest supporters of commandeering both before and after ratification. Rather than considering duties imposed on state officials as contrary to federalism principles, many Anti-Federalists viewed the federal-administration issue through the prism of their recent colonial experience--an experience that had also heavily influenced debates over the continental impost. State officers were drawn from local communities and were sympathetic to local needs, whereas federal employees, like their British predecessors, would be unforgiving, unaccountable, and perhaps even tyrannical. Proponents of state power genuinely (though at times hyperbolically) feared that a burgeoning federal bureaucracy would quickly become a "swarm of harpies, who, under the denomination of revenue officers, [would] range through the country, prying into every man's house and affairs, and like a Macedonian phalanx bear down all before them." (10) Limits on federal power existed largely to protect individual rights, (11) and commandeering advanced that goal by malting law enforcement more accountable to local interests. Furthermore, Anti-Federalists feared that the absence of a federal commandeering power would lead to a bloated federal patronage system, thereby shifting popular loyalties toward the federal government and slowly undermining the importance of state governments.

Relying heavily on foundational assumptions about federal power supposedly underlying many Founding-era statements, prior scholars have offered conflicting accounts of the Founders' attitudes about commandeering's constitutionality. For instance, Sai Prakash argues that the Founders anticipated and accepted federal commandeering of state executive and judicial officers (though not state legislatures). (12) He points in particular to Hamilton's and Madison's assurances that the new federal government would rely on state officers, arguing that these promises implicitly embraced commandeering. Disagreeing, Michael Collins argues that Hamilton and Madison referred only to the federal use of state officers with state permission, and that commandeering was not part of the original constitutional design. (13) His scholarship focuses primarily on federal commandeering of state judges, (14) but most of his evidence and analysis applies equally to commandeering of state executive officers.

This Article departs significantly from these prior studies. A substantial body of evidence not mentioned by Prakash and Collins focuses more directly on the issue of commandeering. The topic came up in a few early congressional debates, and it was also addressed in an 1802 federal circuit court opinion (long hidden in a Louisville archive) that is the only known Founding-era judicial opinion to squarely address the commandeering question presented in Printz v. United States. These sources provide a clearer picture of what many of the Founders thought about commandeering's constitutionality. While Founding-era views were not unanimous, historical evidence strongly supports commandeering's constitutionality.

In addition to explaining what the Founders thought about commandeering, this Article also aims to reorient our understanding of how they approached the topic, including what they thought was at stake and which arguments they used to defend their views. For instance, the Oath Clause played a central yet unappreciated role in early debates about commandeering. Debates over financial compensation for state officials also offer revealing insights into Anti-Federalist support for commandeering. For example, perhaps the most persuasive modern critique of commandeering is that it would allow the federal government to impose administrative obligations without having to pay for them, thereby weakening political accountability. Yet Anti-Federalists seem not to have shared this concern. They instead worried that federal payments to state officers would render those officers reliant on federal income and would thus shift their loyalties away from state and local governments. Therefore, while many Anti-Federalists adamantly supported commandeering, they simultaneously took steps to ensure that the federal government would not pay for those additional burdens.

Finally, the existing literature fails to appreciate the relatively quick shift in views about commandeering between the late 1780s and the early nineteenth century. Although explicit and implicit endorsements of commandeering were common during ratification, no one asserted that such a power would violate federalism principles. By the early nineteenth century, however, commandeering's constitutionality was "liable to question, and [had], in fact, been seriously questioned" on exactly this ground. (16) Thus, the early intellectual history of anticommandeering exemplifies the dynamic nature of constitutional law in the early republic and illustrates how the rapidly changing political climate of the 1790s enabled novel constitutional principles to supplant ideas that had been broadly accepted just a few years prior. Views about commandeering have remained unstable ever since.

This Article is divided into four chronological parts. Part I describes the impost debates under the Articles of Confederation. When supporters of a stronger national government pushed for a new federal power to levy nationwide tariffs, a heated debate began over whether state or continental officers should collect the taxes. This controversy set the stage for the ratification showdown discussed in Part II, which reexamines the Federalists' ratification promises. Part III turns to the earliest congressional debates about commandeering and describes the impact of state legislation on congressional decisionmaking. It also explores the earliest-known judicial opinion to examine commandeering.

While federal power to commandeer state officers was generally accepted at the Founding, several factors combined in the late eighteenth and early nineteenth centuries to make its constitutionality far more contested. And shifts in commandeering doctrine did not stop there. The Supreme Court explicitly rejected the constitutionality of commandeering in the middle of the nineteenth century, shifted gears in the twentieth century, and then returned to an anticommandeering approach during the Rehnquist Court's federalism revolution. Part IV explores these developments and considers how the historical evidence presented throughout this Article might impact our understanding of the Constitution's original meaning. For those who privilege the Founders' understandings of federalism principles or their intentions and expectations about how the Constitution would operate in practice, this account undermines the Court's modern anticommandeering doctrine. At the very least, historical evidence suggests that commandeering of state executive and judicial officers should not be categorically unconstitutional.

I. CONFEDERATION IMPOST DEBATES

The Articles of Confederation had many vices, but when James Madison prepared his famous list in the spring of 1787, the inability of the continental government to raise revenue topped them all. The refusal of states to turn over the taxes demanded by the continental government, he wrote, "may be considered as not less radically and permanently inherent in, than it is fatal to the object of, the present System." (17) Indeed, the requisitions system had largely fallen apart, with most states lapsing on their obligatory payments (18) and Congress failing to service many of its foreign debts. (19)

As these defects emerged earlier in the decade, nationalists took swift action, pushing for a new congressional power to levy tariffs directly rather than relying on state legislatures for revenue. The idea of a federal impost power received broad support, but deep-seated divisions emerged over the proper method of collection. Nationalists insisted on hiring federal officers to collect the impost, but they met staunch (and ultimately unmovable) opposition.

Given the horrendous condition of government finances, the impost controversy became a defining issue in American politics. As Henry Knox later observed, "The insurrections of Massachusetts, and the opposition to the impost by New York, have been the corrosive means of rousing america to an attention to her liberties." (20) Although unmentioned in prior scholarship about commandeering, the impost controversy also formed the backdrop for subsequent ratification-era debates about federal use of state officers.

A. The 1781 Impost Proposal

Still in the midst of war, the Continental Congress formally requested in 1781 that each state "vest a power in Congress, to levy" a tariff of five percent on many foreign imports. (21) As Jack Rakove has noted, the proposal's language-phrased as a constitutional guarantee of independent federal authority-was "apparently designed to obviate the possibility that the states could repeal their acts of authorization as they might any piece of legislation."= Most histories of this episode recount that a majority of states quickly assented, with (in James Madison's words) only the "obstinacy of Rhode Island" blocking the unanimous endorsement necessary to create a new congressional power under the Articles of Confederation. (23) But this nationalist-driven narrative is only partly true. (24) Some state legislatures quickly granted Congress the power to appoint and supervise impost collectors, yet not all states were so generous. (25) The method of collecting the impost proved controversial in many parts of the country, and impost supporters worried that bills moving through the various state legislatures might be "vitiated by the limitations with which they are clogged." (26) Massachusetts, for example, gave its own legislature the power to appoint impost collectors. (27) Meanwhile, Connecticut's legislature gave Congress authority to appoint collectors, but it also made them "liable to be suspended or removed from said office in case of misconduct therein by this Assembly." (28) Georgia's legislature chose not even to address the impost until 1783, at which point it voted by a wide margin to postpone further consideration of the idea until the next session. (29)

Objections to the impost varied, but as the conditions imposed by Massachusetts and Connecticut suggest, a common theme was that congressional power to appoint and supervise federal collectors might give way to tyranny and corruption. In a letter to Congress justifying its rejection of the impost, Rhode Island's legislature explained that "the recommendation proposed to introduce into [Rhode Island] and the other states, officers unknown and unaccountable to them, and so is against the constitution of this State." (30) A writer in Massachusetts concurred, warning that nationalists were trying to prevent "the same persons that collect the State taxes" from also collecting federal revenue. If "the collectors of the Continental tax must not be the civil officers of the State, but the officers of Congress," the writer warned, states would be forced to "shamefully submit to [tax collection] by collectors, whom the Congress, or the minister of Congress, or the deputy of the minister shall be pleased to appoint." (31) Similar worries cropped up in Virginia, where in October 1782 the legislature rescinded its previous approval of the impost. (32) Arriving later to the scene in Richmond, Edmund Pendleton reported "a fix'd Aversion in some Gent[lemen] to putting an independent Revenue into the hands of Congress, which say they, is necessary for no other purpose than to give them the appointment of a number of Officers dependent on them, [and] so to gain an undue Influence in the States." (33) In light of these objections, Rhode Island Congressman David Howell remarked that the impost would be more palatable if "each state retain[ed] the power of choosing the officers of the revenue to be collected within its jurisdiction." (34)

Skepticism about centralized appointments was nothing new; indeed, critiques of the corrupt British political system had often focused on the monarchy's patronage power. As Gordon Wood has observed, Americans thought that the power to appoint officers was "the dynamo that converted royal energy into effective, although subtle, governmental power,"3s and thus constituted "the most insidious and powerful "weapon of eighteenth-century despotism." (36) Thomas Paine's Common Sense, for instance, described the "self-evident" fact that the Crown "derives its whole consequence merely from being the giver of places and pensions." (37) "[T]hough we have been wise enough to shut and lock a door against absolute Monarchy," Paine colorfully opined, "we at the same time have been foolish enough to put the Crown in possession of the key."38 Corrupt royal patronage was also on the Declaration of Independence's list of grievances. (39) "The royal governors, as the Crown's vicegerents," Wood explains, "had continually sought to use their authority as the source of honor and privilege in the community to build webs of influence that could match those in effect in England." (40) Of course, the number of appointments was limited, but the monarchy exercised its power to maximum effect, especially by granting lucrative and prestigious posts to influential citizens. (41) The colonists had also complained that royal patronage led to appointments of officers from outside the community who failed to appreciate local circumstances and who were more likely to commit abuses. (42) No wonder state legislatures were apprehensive about unleashing a newly minted corps of continental officers to administer the impost. "Such fears," Jack Rakove observes, "were directly evocative of the convictions that had led the Americans into revolution." (43)

B. The 1783 Compromise

Faced with the defeat of their 1781 proposal, supporters of the impost initially held fast to the idea of using only federally appointed and supervised collectors. "The United States have a common interest in an uniform and equally energetic collection," Congress explained in its formal reply to Rhode Island. (44) Appointing federal officers was therefore "an essential part" of the program, without which "it might in reality operate as a very unequal tax." (45) Rhode Island's legislature, however, refused to reconsider its decision. (46)

Resuming their efforts in 1783, delegates in the Continental Congress agreed that it was "indispensibly necessary to the restoration of public credit, and to the punctual and honorable discharge of the public debts" to provide Congress "with a power to levy for the use of the United States" a system of import duties. (47) Again, though, the choice of how to collect the impost proved contentious. Eliphalet Dyer of Connecticut, for example, "expressed a strong dislike to a collection by officers appointed under Congress & supposed the States would never be brought to consent to it." (48) Robert Morris, the Confederation's Superintendent of Finance, offered a lengthy rebuttal. "lilt is indispensable that all the Collectors be appointed by the authority of the United States," he urged, primarily because "[e]xperience has shewn that Taxes heretofore laid in the States have not been collected." Employing tax collectors who "consider the Circumstances of the People" when performing their duties, Morris argued, would condone "favor and Partiality." In fact, the independence of federal collectors from local pressures was "the strongest Reason why the Collectors should be appointed by and amenable to Congress." (49)

Alexander Hamilton offered an additional rationale for making tax collectors accountable only to Congress. According to Madison's notes on the congressional debates, Hamilton "signified that as the energy of the federal Govt. was evidently short of the degree necessary for pervading & uniting the States it was expedient to introduce the influence of officers deriving their emoluments from & consequently interested in supporting the power of, Congress." (50) In other words, Hamilton thought that congressional appointments would serve as the basis for a federal patronage system, thus spawning a nationwide network of individuals loyal to Congress. This proposal was quite audacious given the staunch colonial opposition to royal appointments. Madison wryly commented in his notes that Hamilton's remark was "imprudent & injurious to the cause ... it was meant to serve." (51) After all, the prospect of a federal patronage system, Madison wrote, "was the very source of jealousy which rendered the States averse to a revenue under the collection as well as appropriation of Congress. All the members of Congress who concurred in any degree with the States in this jealousy smiled at the disclosure." (52) Madison's colleagues from Virginia commented privately that "Mr. Hamilton had let out the secret." (53)

Hamilton's speech was imprudent, but it hardly should have been surprising. As one scholar writes, Hamilton "repeatedly insisted on the necessity of creating among the nation's leadership a class of influentials tied to the federal government and capable of counterbalancing the influentials currently tied to the states." (54) Just the previous summer, for instance, Hamilton had written in a New York newspaper that "[t]he reason of allowing Congress to appoint its own officers of the customs, collectors of taxes, and military officers of every rank, is to create in the interior of each state a mass of influence in favour of the Foederal Government." (55) The weakness of the Confederation government, he argued, made it imprudent to worry that Congress "will ever become formidable to the general liberty." (56) These views, as well as their frosty reception in Congress, later informed Hamilton's strategy during ratification.

In the end, though, Congress rejected Hamilton's uncompromising position and recommended that "the collectors of the said duties shall be appointed by the states, within which their offices are to be respectively exercised, but when so appointed, shall be amendable to, and removable by the United States in Congress assembled, alone." (57) In making this proposal-widely known as the Impost of 1783-Congress noted that it had "not been unmindful of the objections which heretofore frustrated the unanimous adoption" of the 1781 impost plan. "If the strict maxims of national credit alone were to be consulted," the delegates explained, collection of the revenue would have been placed entirely under the authority of Congress. (58)

Neither side was particularly happy with the compromise. Hamilton, who along with Madison had been on the committee that drafted the proposal, voted in protest against it. Although he urged New York's legislature to accept the compromise, Hamilton also worried privately that "it will in a great measure fail in the execution." (59) Meanwhile, Rhode Island's delegates reported back to their governor: "It would have been less exceptionable to us, had the Officers for collecting the Revenues been under the Controul as well as the Appointment of the State. ..." (60) Nevertheless, they suggested that "a Deviation so far as relates to the Controul of the Officers may be made [by the state legislature], with a probability of its being acquiesced in by Congress." (61)

C. Defeat in New York

Although Congress had reached a compromise, the proposal still needed unanimous state approval. This time around, the stiffest opposition came from New York, though again modern scholars have generally adopted the Federalist narrative and overlooked the substantial diversity of opinion in other states. (62) Signs of trouble in New York were apparent from the outset. In March 1783, just a month before announcement of the new proposal, New York's assembly rejected by a single vote a bill to curtail the state's prior endorsement of the 1782 plan. The narrowly defeated measure would have given the state veto power over congressional appointments of revenue officers assigned to work in New York. (63)

Leading the charge against the federal impost power was Abraham Yates, Jr.64- a vocal supporter of New York's powerful governor, George Clinton. In a series of publications, Yates raised the specter of a large federal bureaucracy, including "all the collectors, deputy collectors, comptrollers, clerks, tide-waiters, and searchers, for the collection and after management of a vast revenue." (65) Why was a large federal bureaucracy so inherently dangerous? Yates tied his argument to the recent colonial opposition to British revenue agents. "The power of collecting and managing the British revenues, ... being vested in the crown," he observed, "has proved a source of corruption, and a means of extending the influence of prerogative; and however unquestionable the virtue of our present rulers, are they not men? ... Will not a court interest soon be created and intriguing and caballing for offices ensue [under the new government]?" (66) "[T]rusting the means of undue influence and inordinate power in the hands of Congress," another commenter admonished, "will be productive of the same consequences as we have seen in Great-Britain." (67)

For Yates, the 1783 compromise was insufficient to calm these fears. Simply giving states the "pitiful privilege" of appointing federal revenue officers, he argued, "is too thin a covering to deceive even children in politics. If they are only accountable to Congress, they are only the servants of that body: After a man has climbed the ladder of preferment, he kicks it down as no longer useful." (68) In other words, so long as Congress had the power to fire revenue officers, those officers would effectively be congressional agents. Yates also warned that merchants would thereafter be "subjected to the power and caprice of every petty officer of the customs; and over whom neither yourselves nor your state will have any controul; for they are to be amendable to Congress only." (69) In a revealing passage, he then asked rhetorically: "How degrading this idea to a sovereign and independent state?" (70)

Opponents of the impost were not united in offering a counterproposal, but they did agree that additional federal power was needed and should include commandeering of some sort. (71) Following the usual practice under the Articles of Confederation, George Clinton apparently thought that Congress should use requisitions-that is, legally binding demands that state legislatures turn over impost revenue. (72) Understandably, this view was not widely endorsed. As Alexander Hamilton later remarked in Federalist No. 15, "though in theory [congressional] resolutions ... are laws, constitutionally binding on the members of the Union, yet in practice they are mere recommendations, which the States observe or disregard at their option." (73) Another idea was to give the Continental Congress the power to impose duties on state officers directly, thus making those officers (contrary to the 1783 compromise) not federal officers dependent on Congress "alone" but rather state officers with federal duties74 But nobody seems to have fleshed out how Congress might ensure compliance from uncooperative state officers, and ensuring compliance from uncooperative states was a perilous endeavor. (75) Still, opponents of the 1783 impost proposal thought that state sovereignty militated in favor of commandeering, thereby avoiding the need for potentially intrusive federal officers. That priority is hardly surprising, though, given that commandeering of state legislatures was the default means of exercising many continental powers under the Articles of Confederation.

New York faced the ire of the cosmopolitan press, but some New Yorkers were incredulous that their efforts to secure a state-based collection system were being labeled obstructionist. In an extended essay originally printed in the New-York Journal, one writer pointed out that "the acts passed by the several states, in consequence of the [congressional] recommendation, vary as much from each other as from the terms of the resolutions upon which they are founded." (76) Indeed, states had limited their authorization bills in various ways. (77) New Jersey, for instance, withheld congressional power to make appointments if the state refused. (78) Meanwhile, the three southernmost states prohibited impost collectors from holding other state or federal positions. (79) And most state authorization bills either included a detailed list of protected individual rights (80) (most of which later appeared in the Federal Bill of Rights) or simply ensured, in the words of Maryland's bill, that the "ordinances, regulations and arrangements" that Congress found "proper or necessary for the faithful and punctual payment and collection of the said duties" must "not be repugnant to the constitution of this state." (81)

New York's legislature eventually granted Congress the power to levy an impost, but the state's acceptance was contingent on amendments widely acknowledged to "render it inadmissible by Congress." (82) In particular, the legislature stipulated that it would maintain supervision over the collectors, and that duties collected within New York would be payable in the state's paper currency. (83) According to a congressional committee's evaluation, the sole authority of Congress to supervise collectors "must be considered as an essential part of the plan." (84) Failure to provide that authority would "destroy the equality of the tax, and might, in a great measure, defeat the revenue." (85) Therefore, the committee resolved that New York's nominal acceptance "so essentially varies from the system of impost recommended by the United States in Congress ... that the said act is not, and cannot be considered as a compliance with the same." (86)

In 1787, Mexander Hamilton joined the New York Assembly and spearheaded what became the final effort to approve the impost under the Articles of Confederation. On February 15, by a single-vote majority, the assembly gave Congress the power to levy an impost. (87) Yet again, however, the legislature refused to turn over sole authority to supervise the collectors. In fact, the assembly rejected by a vote of thirty-eight to nineteen a proposal to make the collectors "accountable to, and removeable by the United States in Congress assembled." (88) Hamilton vehemently protested. All the other states that had accepted the 1783 compromise, he argued, were "conscious of energy in their own administration" and would refuse to accept a plan "which left the collection of the duties in the hands of each state, and of course subject to all the inequalities which a more or less vigorous system of collection would produce." (89) "If any state should incline to evade the payment of the duties, having the collection in its own hands," he warned, "nothing would be easier than to effect it, and without materially sacrificing appearances."90 Hamilton's comments were impassioned but ultimately unavailing. Following his speech, New York's assemblymen again rejected the 1783 compromise, this time by a vote of thirty-six to twenty-one. (91)

National leaders had reached a precipice. Before the impost's final defeat, the central government had already become imperiled. "Congress have kept the Vessel from sinking," Madison remarked to Jefferson in 1785, "but it has been by standing constantly at the pump, not by stopping the leaks which have endangered her." (92) "The failure of the impost coupled with the dissolution of the public debt," James Ferguson writes, "seemed to portend an immediate and perhaps final decline of the central government." (93) And along with that demise, Madison feared, would go the fate of the American democratic experiment. The "unfavorable balance" of trade stemming from the "anarchy of our commerce," he explained in 1786, had prompted an exodus of hard currency, thus furnishing "pretexts for the pernicious substitution of paper money, for indulgences to debtors, for postponements of taxes. In fact most of our political evils may be traced up to our commercial ones, as most of our moral may to our political." (94) In no uncertain terms, the young Republic was in crisis.

II. THE CONSTITUTION

As events unfolded, Federalists adeptly used the national crisis to their advantage, pushing for a broad reform agenda that culminated in a sweeping proposal to replace the Articles of Confederation. After the failure of the impost plan, delegates from every state except Rhode Island gathered in Philadelphia, ostensibly to propose amendments to the Articles of Confederation. Records from the Constitutional Convention are mostly silent with respect to commandeering of state executive and judicial officers, but a couple of rejected proposals mentioned the idea. The New Jersey Plan, for instance, called for bringing certain federal cases in "the Common law Judiciarys of the State in which any offence ... shall have been committed." (95) Roger Sherman apparently drafted a separate proposal that "the laws of the United States ought, as far as may be consistent with the common interests of the Union, to be carried into execution by the judiciary and executive officers of the respective states, wherein the execution thereof is required." (96) These proposals were undoubtedly meant to appease skeptics who were worried about expanding the size of the federal government. In the end, however, the convention delegates left for future Congresses to decide what means were "necessary and proper" for administering federal laws. (97) As Jerry Mashaw notes, "The Constitution provided a legislature, a Supreme Court, and two Other discussions touched on legislative requisitions. See Clark, supra note 75, at 1843-53. executive officers. Administration was missing." (98)

Though little discussed in Philadelphia in the summer of 1787, the topic of federal administration came up often during the ratification debates. The typical narrative of the Constitution's genesis is one of Federalist advancement, with Hamilton and Madison consistently advocating for greater federal power. Anti-Federalist assemblymen framed the debate in this way from the very outset of the ratification contest. The rhetorical jousting started when a group of Anti-Federalists dramatically boycotted the Pennsylvania legislative session in an effort to deny the legislature a quorum and thus block the delegates from convening a ratification convention. (99) Repeating an argument they had won several times before, the absentee legislators explained to their constituents: "You can ... best determine ... whether a continental collector assisted by a few faithful soldiers will be more eligible than your present collectors of taxes." (100) But Federalists did not take the bait. As they set out from Philadelphia to sell their new proposal to the public, Federalists retreated in an important way, consistently arguing that the Framers had adopted the basic Anti-Federalist position with respect to the administration of federal law. The impost controversy, in other words, critically shaped the subsequent ratification-era debates about federal use of state officers.

A. Ratification Debates

Shortly after the Constitutional Convention adjourned, publishers began printing a series of essays opposing ratification. Federalists labeled the authors of these essays Anti-Federalists-a term they intended to be disparaging,l01 These Anti-Federalist writers were generally opposed to the proposed constitution-at least without amendments-but they were by no means a homogenous or cohesive group)102 Nonetheless, common themes run through many of their writings. Given the earlier opposition to the impost under the Articles of Confederation, it is no surprise that the administration of federal law quickly emerged as a major rallying point for Anti-Federalist opposition.

Anti-Federalists frequently volleyed attacks on the federal power to lay and collect taxes, a power they said would lead to an oppressive cadre of federal collectors. An author who used the pseudonym Brutus-perhaps New York politician Robert Yates, (103) who was the nephew of New York's leading opponent of the impost, Abraham Yates-warned that the "great latitude" of the power to lay and collect taxes "opens a door to the appointment of a swarm of revenue and excise officers to pray [sic] upon the honest and industrious part of the community." (104) "[I]t will be the policy of this government to multiply officers in every department," the dissenters at Pennsylvania's ratification convention explained, and therefore "judges, collectors, tax-gatherers, excisemen and the whole host of revenue officers will swarm over the land, devouring the hard earnings of the industrious. Like the locusts of old, impoverishing and desolating all before them." (105) Anti-Federalists particularly worried that nationally appointed collectors would abuse their positions with impunity, seeking safe haven in federal courts. (106)

This Anti-Federalist critique, of course, merely repeated arguments frequently made during the impost controversy. This time, though, Alexander Hamilton adopted a different response. Rather than reiterating the critical importance of having federal officers enforce federal law, Hamilton instead emphasized the role that state officers would play in collecting federal taxes. If feasible, Hamilton assured the readers of his Federalist essays, the federal government "will make use of the State officers and State regulations, for collecting the additional imposition. This will best answer the views of revenue, because it will save expence in the collection, and will best avoid any occasion of disgust to the State governments and to the people." (107) Similarly, James Madison wrote that "the eventual collection [of taxes] under the immediate authority of the Union, will generally be made by the officers, and according to the rules, appointed by the several States." (108)

In addition to worrying about abuses of power by tax collectors, Anti-Federalists also feared that a burgeoning federal bureaucracy would undermine support for state governments. Echoing earlier concerns about royal patronage, one prominent Anti-Federalist pamphleteer warned that federal collection of taxes would lead to a bureaucratic "system of influence." (109) Hamilton responded, but again he significantly changed his tune, avoiding his prior rhetoric about creating a large corps of individuals loyal to the federal government. If the federal government wanted to expand its influence, Hamilton now explained in Federalist No. 36, it would try to "employ the State officers as much as possible, and to attach them to the Union by an accumulation of their emoluments." (110) In other words, an ambitious federal government would likely try to co-opt the loyalties of state collection agents by giving them generous compensation for performing federal duties. But, he asserted, this scheme would actually increase the influence of states, because the federal government would become reliant on state officers. (111) Hamilton was going out of his way to highlight the active role that state officers would play in the new government.

Debates about the judiciary repeated the same themes. For instance, George Mason, a leading Anti-Federalist in Virginia, warned his colleagues that the Constitution would "absorb and destroy the Judiciaries of the several states" by replacing them with federal courts. (112) Responding directly to Mason's objection, Oliver Elsworth observed that "all the cases, except the few in which [the federal Supreme Court] has original and not appellate jurisdiction, may in the first instance be had in the state courts and those trials be final except in cases of great magnitude." (113) Edmund Pendleton, Virginia's highest judicial officer, reiterated that argument at the ratification convention in Richmond. "For the sake of oeconomy," he stated, Congress might appoint state courts as inferior federal courts. "There is no inconsistency, impropriety, or danger," Pendleton argued, "in giving the State Judges the Federal cognizance." (114)

Responding to some of these statements, modern proponents of the anticommandeering rule have rightly pointed out that Federalist promises regarding federal use of state officers do not necessarily presuppose that the federal government may commandeer those officers. (115) Perhaps, as Michael Collins argues, the Founders shared an implicit understanding that federal use of state officers required state permission, or at least was subject to state refusal. According to Collins, Federalists were "reluctant to mention the coercion word in connection with their suggestions, lest Anti-Federalist sensibilities be offended" by assertions of federal power. (116) Moreover, he posits, "the absence of any outcry" from Anti-Federalists in opposition to commandeering "is itself strong evidence that such a prospect was not part of the perceived message of The Federalist." (117) Collins acknowledges that some proponents of states' rights had previously pushed for commandeering, but he argues that these steps were otherwise unwanted concessions offered as "a quid pro quo for the Constitution's noninclusion of any reference to lower federal courts." (118) Once the Framers explicitly referred to inferior federal courts in Article III, Collins asserts, the proponents of states' rights surely must have abandoned their support for commandeering. (119)

Collins, however, misappraises the Anti-Federalists' priorities. During the impost controversy, defenders of state autonomy had insisted that hiring federal collectors posed a greater threat to state sovereignty than commandeering state collectors. With the impost controversy coloring the entire debate, it was unnecessary for Federalists to explain that state officers would be compelled to enforce federal law. And surely contemporaries would not have thought that Federalist silence signaled a tacit denial of federal commandeering power.

Less clear was the availability of enforcement mechanisms to compel state officials to perform their legal duties. The legacy of the impost controversy strongly suggested that state officials would be legally obliged to enforce federal law, but as Hamilton once explained, "If there be no penalty annexed to disobedience, the resolutions or commands which pretend to be laws will in fact amount to nothing more than advice or recommendation." (120) Federalists said little in the ratification debates about what penalties might attach if state officers disobeyed federal commands. In one respect, though, the Constitution itself facilitated state-officer compliance, and Federalists and Anti-Federalists alike often pointed to that provision when referring to the federal commandeering power.

B. The Oath Clause

By itself, evidence about implicit assumptions should not be dispositive of the Constitution's original meaning. Direct acknowledgments of commandeering authority, however, arose during discussions about the Oath Clause. That provision declares that "Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution." (121) Today we think of this Clause as requiring federal and state officers to swear allegiance to the United States. (122) For instance, current federal law requires officeholders to swear or affirm to "support and defend the Constitution of the United States against all enemies, foreign and domestic"--a phrasing that elides an implication of affirmative legal duties. (123) Indeed, understanding the federal oath as merely an oath of allegiance is so well ingrained that none of the existing literature identifies the Oath Clause as having any relevance to the Founders' views about commandeering. (124) Yet it was commonly thought at the Founding that an oath to "support" the Constitution implied that state officers would have to execute federal laws. Some Founders took the expansive view that a state officer's duty to enforce federal laws stemmed from the oath itself and therefore operated even without congressional direction. Others viewed the Oath Clause as affirming the duty of state officers to execute federal laws when specifically directed by Congress. Either way, though, ratification-era commentaries about the Oath Clause are inconsistent with the idea that commandeering is "fundamentally incompatible with our constitutional system of dual sovereignty." (125)

In the late 1780s, most state constitutions required that state and local officers take two oaths: an oath of allegiance and an oath of office. (126) An oath of allegiance generally required those officers to remain faithful to the state, whereas an oath of office was a promise to perform official duties. The Federal Constitution, however, required only that all legislative, executive, and judicial officers "shall be bound by Oath or Affirmation, to support this Constitution." (127) When referring to federal officers, the Founders understood that the federal oath incorporated the guarantees of an oath of allegiance and an oath of office. (128) The Oath Clause, however, applied to officers "both of the United States and of the several States." (129) Thus, as a textual matter, it is easy to see why some Founders thought that the Oath Clause implied that state and local officers would have affirmative federal duties.

Indeed, some members of the Founding generation suggested that the Oath Clause implied a presumptive duty to enforce all federal laws, even without direction from Congress. "All the state officers," Anti-Federalist James Winthrop stated, "are ... bound by oath to support this constitution." Combined with the Supremacy Clause, he asserted, this provision "cannot be understood otherwise than as binding the state judges and other officers, to execute the continental laws in their own proper departments within the state." (130) Prakash dismisses Winthrop's argument out of hand, stating that "state executives and legislatures are only bound to the Constitution and not to federal law." (131) Many Founders, however, thought that the Oath Clause also applied to federal laws passed pursuant to valid constitutional authority. (132)

Several weeks after Winthrop's editorial, Hamilton articulated in Federalist No. 27 what seems to be a slightly different understanding of the Oath Clause. The Constitution, he wrote, would give the federal government power "to employ the ordinary magistracy of each [state] in the execution of its laws." (133) Like Winthrop, Hamilton derived that power from the combined effect of the Supremacy Clause and the Oath Clause:
   [T]he laws of the confederacy, as to the enumerated and legitimate
   objects of its jurisdiction, will become the SUPREME LAW of the
   land; to the observance of which, all officers legislative,
   executive and judicial in each State, will be bound by the sanctity
   of an oath. Thus the Legislatures, Courts and Magistrates of the
   respective members will be incorporated into the operations of the
   national government, as far as its just and constitutional
   authority extends; and will be rendered auxiliary to the
   enforcement of its laws. (134)


According to Hamilton, the Oath Clause was not an independent source of authority for the government to legislate on particular topics. All national laws would still have to fit within "enumerated and legitimate" federal powers, such as taxation, coinage, and commerce. But within these areas, the Oath Clause implied (and would help effectuate) federal authority to commandeer state officers. (135)

Madison also mentioned the Oath Clause in the context of commandeering, though his views are decidedly less clear. In Federalist No. 44, he briefly explained each of the constitutional provisions "by which efficacy is given to all the rest." (136) The list of enabling provisions included the Necessary and Proper Clause, the Supremacy Clause, the federal executive and judicial branches, and the Oath Clause. (137) In his discussion of the Oath Clause, Madison explained why federal officers did not have a comparable duty to swear an oath to support state constitutions. State officials must take the federal oath, he argued, because they "will have an essential agency in giving effect to the Foederal Constitution." (138) Federal officials, by contrast, would not be required to enforce state laws. As an example, Madison commented that federal elections "will probably, for ever be conducted by the officers and according to the laws of the States." (139) Like Hamilton, Madison was taking advantage of every available opportunity to emphasize the active role states would play in the federal system. His example of "essential agency," however, was a constitutional duty of state officials rather than a duty imposed by Congress. Therefore, Federalist No. 44 does not reveal Madison's views regarding statutory commandeering. (140)

As just shown, the Oath Clause occasionally came up during the ratification debates as a textual clue to how the new government would operate. The Clause's role was relatively minor, though, because no one was openly questioning federal power to commandeer state executive and judicial officers. The argument enjoyed greater prominence during the First Congress, when such doubts began to appear. During ratification, however, the Anti-Federalists did question one form of federal power in a way that subtly revealed Founding-era attitudes and assumptions about commandeering. The issue surfaced during debates about the posse comitatus.
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Title Annotation:Introduction to II. The Constitution B. The Oath Clause, p. 1104-1139
Author:Campbell, Wesley J.
Publication:Yale Law Journal
Date:Mar 1, 2013
Words:7938
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