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ArtVI.C2.3.1 Early Doctrine on the Supremacy Clause

Article VI, Clause 2:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The balance of power between the federal government and the states continued to be a source of controversy after the Constitution’s ratification.1 But in a series of foundational decisions, the Supreme Court interpreted the Supremacy Clause as establishing a robust role for the national government in managing the nation’s affairs. In 1796, the Court held that the Treaty of Paris—which, as noted, prohibited impediments to the recovery of pre-war debts—superseded a Virginia statute allowing debtors to satisfy any obligations to British subjects by payment to the state treasury.2

Slightly more than two decades later, the Court again invoked the Supremacy Clause to resolve another hotly contested political dispute. In 1819, the Court held in McCulloch v. Maryland that a state tax on notes issued by the Second Bank of the United States impermissibly conflicted with federal law.3 The Bank had attracted criticism from skeptics of federal power, who challenged Congress’s authority to charter it. In McCulloch, the Court sustained the federal government’s power to charter the Bank under the Necessary and Proper Clause, while invalidating the state tax on the Bank’s notes under the Supremacy Clause. Writing for the Court, Chief Justice John Marshall explained that “the power to tax involves the power to destroy,” striking down the state tax because it unlawfully burdened the Bank’s operations.4

Five years after McCulloch, the Court employed similar reasoning in Gibbons v. Ogden, holding that federal coastal licenses displaced a state law conferring a monopoly on a steamboat company.5 After concluding that Congress had the authority to issue the licenses under the Commerce Clause, Chief Justice Marshall explained that the licenses superseded the relevant state law, which “interfere[d] with” federal policy.6 The early Court thus gave shape to the basic principle underlying the Supremacy Clause: where federal and state law clashed, federal law was supreme.7

See generally William Nisbet Chambers, Political Parties in a New Nation: The American Experience, 1776–1809 (1963) (discussing the key political controversies of the early republic, many of which involved the relative powers of the federal government and the states). back
See Ware v. Hylton, 3 U.S. 199, 235–39 (1796). back
17 U.S. 316 (1819). back
Id. at 327. This principle—that states cannot interfere with or control the operations of the federal government—has evolved into what is often called the “intergovernmental immunity” doctrine. For many years, the Supreme Court applied this doctrine to condemn state laws that “increase[d] the cost to the Federal Government of performing its functions.” United States v. Cnty. of Fresno, 429 U.S. 452, 460 (1977). But the Court later narrowed this rule. Today, a state law violates the intergovernmental immunity doctrine only if it regulates the federal government directly or discriminates against the federal government or those with whom the federal government deals. North Dakota v. United States, 495 U.S. 423, 435 (1990) (plurality op.); id. at 444 (Scalia, J., concurring in judgment) (noting that “[a]ll agree” with this aspect of the plurality opinion). In evaluating whether a state law discriminates against the federal government, courts assess whether the law singles out the federal government or its contractors or regulates them unfavorably on some basis related to their governmental status. See United States v. Washington, No. 21-404 (U.S. June 21, 2022). back
22 U.S. 1, 82–87 (1824). back
Id. at 82. back
The Supremacy Clause also served as the foundation for a mid-nineteenth century decision that occupies an inglorious place in the nation’s constitutional history. In its 1842 decision in Prigg v. Pennsylvania, the Supreme Court held that the federal Fugitive Slave Act—which allowed slaveholders to recover escaped slaves—superseded a Pennsylvania law that prohibited the “remov[al]” of African-Americans from the state for the purpose of enslavement. 41 U.S. 539 (1842). back