Commandeering and constitutional change.

• Author: Campbell, Wesley J.
• Position: Introduction through II. The Constitution B. The Oath Clause, p. 1104-1139

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...