Commandeering and Constitutional Change

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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. …