In the 1992 case New York v. United States, the Supreme Court applied the anticommandeering doctrine to state legislatures. Just five years later, in the case Printz v. United States, the Court applied the doctrine to state executive officers. But the Court has yet to apply the doctrine to state judiciaries. Indeed, it has been careful to distinguish cases such as Testa v. Katt, which held that state courts of competent jurisdiction must enforce federal law. When the appropriate case arises, however, the Court should apply the anticommandeering doctrine to state courts. And, even if such a case does not arise, the applicability of the anticommandeering doctrine to state courts casts doubt upon the Court’s precedent McKnett v. Saint Louis and San Francisco Railway.
Consider a hypothetical. Congress passes a relatively mundane statute that regulates workers compensation of truck drivers, providing state courts with concurrent jurisdiction to hear claims. Then, state legislatures across the country implement jurisdiction-stripping legislation that precludes their courts from hearing such cases under both state and federal law. Congress, in response, amends the statute, which grants state courts both the power and the jurisdiction to hear the case so long as it involves interstate commerce.
Two main precedents would touch this case. The Court established in Mondou v. New York, New Haven, and Hartford Railroad Company that a state court of competent jurisdiction must hear claims arising under federal law. And the Court went one step further in McKnett, ruling that a state legislature cannot restrict jurisdiction in a way that “discriminate[s] against rights arising under federal laws.”
While the nondiscriminatory state statutes restricting state courts’ jurisdiction pass muster under McKnett, the subsequent federal legislation conferred upon state courts adequate jurisdiction. Mondou would thus compel state courts to hear cases that arise under the original federal statute.
The Supreme Court is then faced with the question of whether Congress can compel state courts to hear a federal claim. The statutory grant of jurisdiction appears to fall within Congress’s delegated powers. The statute itself is a clear-cut use of the Commerce Clause power. And Congress’s power under the Necessary and Proper Clause supports its jurisdictional grant to state courts; after all, granting state courts jurisdiction to hear such cases is certainly “convenient” and “useful”—it may even be “essential”—to the legislative scheme. Nor do the state laws restricting jurisdiction present a problem, as they are swiftly dispatched by the Supremacy Clause.
What is a judge to do? History weighs against this hypothetical legislation. The delegates at the Constitutional Convention fiercely debated whether there should exist a system of lower federal courts. What became known as the Madisonian Compromise resolved this impasse: Article III provides Congress the discretion to create lower federal courts. In coming to this conclusion, the delegates rejected a proposal that would have mandated that state courts hear federal claims. Instead, the Constitution passed the buck to Congress. If Congress deemed lower federal courts necessary—for instance, if state courts refused to enforce federal statutes—it had the power to create them.
Federalist 46, in fact, seemed to contemplate such potential resistance to federal law. Discussing the relative strengths and weaknesses of the federal and state governments, James Madison suggested that “should an unwarrantable measure of the federal government be unpopular in particular states. . . . [t]he disquietude of the people, their repugnance and perhaps refusal to co-operate with the officers of the union. . . the embarrassments created by legislative devices. . . would oppose in any state difficulties not to be despised.” States’ refusal to grant jurisdiction to their courts is one such legislative device.
The rejection of one proposal at a secret convention and the persuasive writings of a single individual, however, cannot serve as a legal justification to overturn the statute.
What about caselaw? It, too, undermines Congress’s position. Justice Thomas, in his Haywood v. Drown dissent, surveyed early precedent. Quoting Kent’s Commentaries, he concluded that there was “a very clear intimation given by the judges of the Supreme Court, that the state courts were not bound in consequence of any act of congress, to assume and exercise jurisdiction.” And even Mondou and McKnett noted that, in each case, Congress had not sought to “enlarge or regulate” state court jurisdiction.
But these cases, again, do not render the hypothetical statute unconstitutional. None of these precedents directly hold that such a federal jurisdiction-conferring act is unconstitutional; this would be a question of first impression. And Mondou and its progeny, despite their dicta, have generally pointed towards the obligation of state courts to hear cases under federal law.
This leaves the anticommandeering doctrine, which dates back to the 1842 case Prigg v. Pennsylvania. In that case, Pennsylvania law required significantly more procedure before the seizure of an alleged runaway slave than did the Federal Fugitive Slave Law. Justice Story suggested that the Constitution forbade Congress from compelling the states to provide assistance in carrying the national law into effect. This doctrine was furthered by New York v. United States and crystalized in Printz, where the Supreme Court held that Congress may not “compel the States to enact or enforce a federal regulatory program” or “conscript the State’s officers directly.”
Though the doctrine includes both state legislatures and state executives, the Supreme Court has not expanded the doctrine to state courts. In fact, both New York and Printz distinguished the duty of state courts to hear federal claims on the grounds that such a requirement is rooted in the Supremacy Clause.
But the rationale behind the doctrine—that the federal government may not coopt a branch of a state government for its own ends—could be applied to state judges as well. In the hypothetical case at hand, the federal government coopted the state courts for its own ends, violating principles of federalism. The anticommandeering doctrine thus provides a legal justification for striking down the statute, forcing Congress to rely on the federal district courts to implement the legislation.
Though the court has not been faced with this situation, the potential application of the anticommandeering doctrine to state courts drives a sharp wedge between Mondou and McKnett. On one hand, Mondou seems secure. The Court can still root the case in the Supremacy Clause: If the state court has jurisdiction, the Supremacy Clause requires that it take cognizance of federal rights. In contrast, McKnett appears to fall on the other side of the line. While not accomplished through a congressional act, McKnett effectively coopted state courts by forcing state legislatures to expand their courts’ jurisdiction to include federal claims. In this light, whether or not the Court finds itself in a position to extend the anticommandeering doctrine to state courts, it should reconsider McKnett.