Completing the Anticommandeering Doctrine

Eddie Soto*

The United States Supreme Court’s anticommandeering doctrine is inconsistent. The Court has held that the federal government lacks the power to compel state legislatures to enact a particular policy.¹ If the federal government wants federal policies enacted, it can enact them pursuant to the limited powers granted to it in Article I of the United States Constitution, a process funded by federal taxpayer dollars.² The Court has also held that the federal government lacks the power to compel state law enforcement officers to enforce federal policies.³ If the federal government wants federal policies enforced, it can enforce them pursuant to the executive powers granted to it in Article II of the Constitution, using institutions and officers funded by federal taxpayer dollars.⁴ Yet, the Court has also held not only that the federal government has the power to compel state courts to hear federal claims,⁵ but also that the default rule is that the Constitution compels state courts to do so.⁶ Thus, if the federal government wants federal claims adjudicated, it does not have to adjudicate them pursuant to the powers granted to it in Article III of the Constitution.⁷ Instead, it can effectively choose to mandate that state courts, funded by state taxpayers, open their doors to hear and decide federal claims.⁸ This Note aims to demonstrate that the current doctrine is both inconsistent, in that it treats the commandeering of state legislatures and executive officers differently than state judiciaries, and likely wrong as a matter of constitutional law, based on the original meaning of the Constitution’s provisions. If the anticommandeering doctrine applies to state legislatures and state executive officers, as the Court has correctly held, then it must also apply to state judiciaries.

In Part I lays out the Court’s current doctrine concerning the federal compulsion of States to carry out federal prerogatives. Part II argues that the doctrine is faithful to the Constitution insofar as it is applied to state policymakers and state law enforcement officers. Part III argues that the doctrine misunderstands the Constitution when applied to state courts, and explains how applying the anticommandeering principle to state courts would make the Court’s broader anticommandeering doctrine more consistent and more correct. In other words, by applying the anticommandeering doctrine to the third branch of tripartite state government, the Court would make the anticommandeering doctrine complete.

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*J.D., University of Notre Dame Law School, 2026; B.A. in Economics, Northwestern University, 2020. Thank you to my wife, Amanda, for her love and support throughout the writing process. Without her, this Note would have never reached this stage. Additionally, thank you to my friends and fellow editors of the Notre Dame Law Review for their support and edits, and to Professor A.J. Bellia for his guidance. Most importantly, thank you to our Lord and Savior, Jesus Christ, for His infinite love, and to His Mother, for whom this Law Review is named.

1 See New York v. United States, 505 U.S. 144, 149, 161 (1992).

2 U.S. CONST. art. I, § 7, cl. 2; id. § 8.

3 See Printz v. United States, 521 U.S. 898, 935 (1997).

4 U.S. CONST. art. II, § 3.

5 See Haywood v. Drown, 556 U.S. 729, 740 (2009).

6 The Haywood Court did not explicitly say that States are required to entertain all federal claims. The Court suggested that States are not obligated to do so, but that if they are clearly “competent,” id. at 735 (quoting Tafflin v. Levitt, 493 U.S. 455, 458 (1990)), which the Court held the New York trial courts were, then they must hear the federal claims. Id. at 735–36.

7 U.S. CONST. art. III, § 1.

8 See Haywood, 556 U.S. at 740–41.