Module 15: Article VI: Debts, Supremacy and the Oath

The Text

Article VI has three paragraphs, and each answers a question the Convention could not leave open. The National Archives transcription of the engrossed Constitution reads:

"All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation."

"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 Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."

U.S. Const. art. VI, cls. 1 to 3 (National Archives transcription)

The first paragraph is about money owed. The second, the Supremacy Clause, says what happens when federal and state law collide. The third binds every officer in the country to the Constitution by oath and forbids a religious qualification for federal office.¹ Lessons on Article VI usually spend most of their time on the second paragraph, and this one will too. The three also work as a set. The first told creditors the new government was the old one's successor, the second made its laws binding on the States, and the third put state officers under an oath to make that work. The oath runs one way. Federal officers take no oath to support any state constitution, a point Madison took up in Federalist No. 44.

One more orientation point. The Supremacy Clause is a rule for resolving conflicts. It is not a grant of power. Congress, the President and the federal courts get their authority from Articles I, II and III and from the amendments. The Supremacy Clause tells everyone what to do once a valid federal law and a state law cannot both be followed. If the federal law was never within federal power, the clause adds nothing to it, and Hamilton said so in 1788.²

Clause 1: The Old Debts

The Revolution was fought on credit. The Continental Congress borrowed abroad, mostly in France and the Netherlands, and at home it paid soldiers and suppliers in certificates that promised money later. The Articles of Confederation had pledged the national honor to every one of those obligations: all bills of credit emitted, monies borrowed and debts contracted "by, or under the authority of Congress, before the assembling of the United States" were to be "a charge against the United States," for whose payment "the said United States, and the public faith are hereby solemnly pledged."³

The trouble was that Congress under the Articles could not tax. It could ask the States for money, and the States paid slowly or not at all. By 1787 the interest was in arrears and the certificates traded far below face value. A creditor in Amsterdam, a veteran in Massachusetts and a speculator in New York all wanted to know one thing about the proposed Constitution: whether a new government would consider itself bound by the old one's promises.

How the clause was drafted

The proposal began as a power, not a duty. On August 21 the Committee of Eleven reported that "The Legislature of the U. S. shall have power to fulfil the engagements which have been entered into by Congress, and to discharge as well the debts of the U. S. as the debts incurred by the several States during the late war, for the common defence and general welfare."⁴ The next day Oliver Ellsworth argued the words were unnecessary, since the United States "will hereafter be bound to fulfil them by their new agents." Randolph, Madison and Gerry disagreed. Madison pointed to "the attempts made by the Debtors to British subjects to shew that contracts under the old Government, were dissolved by the Revolution which destroyed the political identity of the Society." Gouverneur Morris then moved to turn the power into a command, "The Legislature shall discharge the debts & fulfil the engagements, of the U. States," and the Convention agreed with every State voting yes.⁵ On August 23 the Convention approved the clause in the form "The Legislature shall fulfil the engagements and discharge the debts of the U. S." together with the taxing power.⁶

Two days later the Convention reopened the question, and the argument ran along lines that anyone who has watched a county board argue over old bonds will recognize. George Mason objected that "shall" was "too strong" and that "It may be impossible to comply with it." He feared the word would "beget speculations and increase the pestilent practice of stock-jobbing," and he drew a line between original creditors and "those who purchased fraudulently of the ignorant and distressed," while saying he did not mean to include buyers in the open market. What he wanted was to "leave the door open for buying up the securities." Elbridge Gerry added that the public "ought to pay that value to some body." Morris answered that "shall" was the plainest word and "would create many friends to the plan."⁷

Edmund Randolph offered a way out. He moved to replace the whole clause with a statement that "All debts contracted & engagements entered into, by or under the authority of Congs. shall be as valid agst. the U. States under this constitution as under the Confederation." Dr. William Samuel Johnson of Connecticut supported it: "Changing the Government can not change the obligation of the U- S-." The motion carried ten States to one, with Pennsylvania opposed. Roger Sherman then moved to add language tying the taxing power expressly to payment of the old debts, and only Connecticut voted for it.⁷

Randolph's version left the old debts exactly as valid as they had been and promised nothing more. It did not say Congress must pay at face value, and it did not forbid buying up the paper at market price. On September 12 the Committee of Style kept the sense and changed the date marker, replacing "by or under the authority of Congress" with "before the Adoption of this Constitution."⁸

What Madison and Hamilton said it did

Madison called the clause "a declaratory proposition," inserted "among other reasons, for the satisfaction of the foreign creditors of the United States, who cannot be strangers to the pretended doctrine, that a change in the political form of civil society has the magical effect of dissolving its moral obligations."⁹ The clause did not create the debt. It stopped anyone from arguing the debt had been wiped out by a change of government.

What Congress then did with that promise took until 1790. In his Report on Public Credit, Hamilton added up the obligations. He put the foreign debt at $11,710,378 with arrears of interest included, and the domestic debt at $40,414,085, of which $27,383,917 was principal and $13,030,168 was interest owed through 1790. His total for the United States was $54,124,464, a figure that includes about $2 million he estimated for the part of the domestic debt not yet liquidated. He estimated the war debts of the individual States at about $25 million more.¹⁰ His argument for paying in full was that credit is built on keeping contracts: the answer to how a government secures credit was "by good faith, by a punctual performance of contracts."¹⁰

Whether the national government should also take over the States' war debts, called assumption, split Congress along regional lines. Madison, whose Virginia had paid down much of its own debt, opposed it. The impasse broke in the summer of 1790 in a bargain over assumption and the location of the permanent capital, which the American Battlefield Trust summarizes as the Compromise of 1790.¹¹ Clause 1 does not appear in that fight as a command. Each side invoked it for its own reading of what honor required, which is about as much weight as a "declaratory proposition" can bear.

After the First Congress settled the accounts, clause 1 faded from view. The Federal Circuit has described it as assuring creditors that adoption of the Constitution "would not erase existing obligations recognized under the Articles of Confederation." The few Supreme Court opinions that mention it concern a different question, whether the Northwest Ordinance of 1787 counted among the "engagements" the new government had to respect.¹² The clause remains in the text, and it is the reason a student can say that the Constitution continued the United States and did not start a new country that owed nothing.

The Problem the Supremacy Clause Solved

Under the Articles of Confederation, "Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled." The Articles also bound every State to "abide by the determinations of the United States in Congress assembled" and declared that the Articles "shall be inviolably observed by every State." The second set of promises ran into the first. Congress had no court to enforce its resolutions and no officer to carry them out. A State that disliked a congressional act or a treaty could simply pass a law to the contrary, and nothing in the Articles said which law won.¹³

The treaty that ended the war is the clearest example. The 1783 Treaty of Paris promised that British creditors would meet no lawful obstacle to collecting pre-war debts, and several States kept laws on their books that did exactly that. A Virginia wartime law letting its citizens pay such debts into the State's loan office, and so discharge them, was the issue in Ware v. Hylton, which reached the Supreme Court in 1796. The Court held that the treaty overrode the Virginia law, a decision generally treated as the first in which the Supreme Court held a state law overridden by federal law.¹⁴ That was nine years after the Convention. The delegates had seen the problem coming and wanted the answer written down before the next State tested it.

The Virginia Plan and its "negative"

The Virginia Plan, offered by Edmund Randolph on May 29, 1787, took a direct approach. Its sixth resolution would have empowered the national legislature "to negative all laws passed by the several States, contravening in the opinion of the National Legislature the articles of Union, or any treaties subsisting under the authority of the Union." In other words, Congress would read every state law and veto the ones it disliked.¹⁵ Madison wanted it. On July 17 he called a negative on state laws "essential to the efficacy & security of the Genl. Govt." and argued that the States could "pass laws which will accomplish their injurious objects before they can be repealed by the Genl. Legislre. or be set aside by the National Tribunals." He added that there could be no confidence in state courts "as guardians of the National authority and interests."¹⁶

Some delegates objected that a national veto would put the Union in the hands of the larger States. Charles Pinckney acknowledged that objection on August 23, saying it "had been removed by the equality established in the Senate." Luther Martin of Maryland asked, "Shall all the laws of the States be sent up to the Genl. Legislature before they shall be permitted to operate?" Roger Sherman thought the whole device unnecessary, "as the Courts of the States would not consider as valid any law contravening the Authority of the Union."¹⁶ Neither man was a nationalist, and neither wanted a body that read state laws before they could take effect. A rule that sent conflicts to the judges, after the fact and one case at a time, met that objection.

The Paterson plan's alternative

The delegates who wanted to preserve the States offered their own plan on June 15. William Paterson of New Jersey presented resolutions whose sixth read, in Madison's record, that "all Acts of the U. States in Congs. made by virtue & in pursuance of the powers hereby & by the articles of confederation vested in them, and all Treaties made & ratified under the authority of the U. States shall be the supreme law of the respective States so far forth as those Acts or Treaties shall relate to the said States or their Citizens, and that the Judiciary of the several States shall be bound thereby in their decisions, any thing in the respective laws of the Individual States to the contrary notwithstanding."¹⁷

That sentence is the ancestor of Article VI, clause 2. The Constitution Annotated, quoting the scholar who called it the "incubus" of the Supremacy Clause, treats it as the earliest version.¹⁸ Paterson's resolution went further than what survived. It added that if any State "shall oppose or prevent" the carrying out of such acts or treaties, "the federal Executive shall be authorized to call forth ye. power of the Confederated States" to compel obedience. The sentence about force did not survive into the Supremacy Clause. The first half did: federal law is supreme, and the judges of every State are bound.

July 17: Luther Martin's Motion

On July 17, 1787, the Convention voted down the congressional negative. Madison's notes give the tally: Massachusetts, Virginia and North Carolina in favor, and Connecticut, New Jersey, Pennsylvania, Delaware, Maryland, South Carolina and Georgia against. The vote was 3 to 7.¹⁶

Immediately after that vote, Luther Martin moved a substitute. His resolution said that "the Legislative acts of the U.S. made by virtue & in pursuance of the articles of Union, and all Treaties made & ratified under the authority of the U. S. shall be the supreme law of the respective States, as far as those acts or treaties shall relate to the said States, or their Citizens and inhabitants-& that the Judiciaries of the several States shall be bound thereby in their decisions, any thing in the respective laws of the individual States to the contrary notwithstanding." The Convention agreed to it "nem: con:," meaning no State objected.¹⁶

Martin had called the veto "improper & inadmissible." He then supplied the text that gave federal law priority in every state court. Martin's name is not among the signers of the Constitution, and he published his objections to it in 1788 as "Genuine Information."¹⁹ The Supremacy Clause was not a nationalist's project. Both camps could accept it, because it moved the sorting of state laws out of Congress and into the courts.

From the Committee of Detail to the Committee of Style

The Committee of Detail, which met after July 26, turned the resolution into Article VIII of its August 6 draft: "The Acts of the Legislature of the United States made in pursuance of this Constitution, and all treaties made under the authority of the United States shall be the supreme law of the several States, and of their citizens and inhabitants; and the judges in the several States shall be bound thereby in their decisions; any thing in the Constitutions or laws of the several States to the contrary notwithstanding."²⁰

Two changes followed. On August 23 John Rutledge moved to amend Article VIII to read: "This Constitution & the laws of the U. S. made in pursuance thereof, and all Treaties made under the authority of the U. S. shall be the supreme law of the several States and of their citizens and inhabitants; and the Judges in the several States shall be bound thereby in their decisions, any thing in the Constitutions or laws of the several States, to the contrary notwithstanding." It was "agreed to nem: contrad:," with no one against. Rutledge's insertion of "This Constitution" placed the Constitution itself at the head of the list. The committee's draft had made only acts of the legislature supreme. An act of a state convention or a state constitution could otherwise have claimed to stand even with it.²¹

The same afternoon, Charles Pinckney tried to revive the veto. He moved to give the national legislature power "To negative all laws passed by the several States interfering in the opinion of the Legislature with the general interests and harmony of the Union; provided that two thirds of the members of each House assent to the same." Sherman answered that it was "unnecessary; the laws of the General Government being Supreme & paramount to the State laws according to the plan, as it now stands." Madison proposed sending it to a committee. The vote on commitment failed 5 to 6, and Pinckney withdrew the motion.²¹ The veto never came back. Nothing in the Constitution lets Congress, or anyone else, review a state law before it takes effect.

The last change came from the Committee of Style, which reported on September 12. It moved the Supremacy Clause to Article VI, changed "supreme law of the several States, and of their citizens and inhabitants" to "supreme law of the land," and shortened "the judges in the several States" to "the judges in every State." The clause now ran as it does today.⁸ "Supreme law of the land" is the Committee of Style's phrase. It appears in no earlier draft.

The Ratification Fight Over the Clause

The Supremacy Clause drew heavy fire in the ratification debates. The Constitution Annotated sorts the opponents' complaints into several groups. Some Anti-Federalists said the clause would make the national government overbearing, with one writer warning of "one large system of lordly government." Brutus, writing in New York in October 1787, argued that the clause would let the federal government prevent States from levying taxes and so "absorb" their powers. Others had narrower objections. Treaties could displace state law with no vote in the House, since the President and Senate make them. And without a federal bill of rights, Patrick Henry, Elbridge Gerry and George Mason argued, the clause could override the liberties guaranteed in state constitutions.²² The demand for a federal bill of rights ran through the ratification debates, and the First Congress sent twelve amendments to the States in 1789.

Hamilton answered in Federalist No. 33. He began by describing the controversy: the Necessary and Proper Clause and the Supremacy Clause "have been the source of much virulent invective and petulant declamation against the proposed Constitution." His reply was that the Supremacy Clause adds nothing the idea of a federal government did not already contain. "A LAW, by the very meaning of the term, includes supremacy." If a federal law were not supreme over a conflicting state law, it would be advice.²

Then he set the limit that matters for every modern dispute about federal overreach. Hamilton wrote that acts of the larger society which are "not pursuant to its constitutional powers" and which "are invasions of the residuary authorities of the smaller societies" will not become the supreme law of the land. "These will be merely acts of usurpation, and will deserve to be treated as such." The clause, he pointed out, "expressly confines this supremacy to laws made pursuant to the Constitution," which he called "an instance of caution in the convention," since the limit "would have been to be understood, though it had not been expressed."² The same chapter of Federalist No. 33 says the clause "only declares a truth, which flows immediately and necessarily from the institution of a federal government," a line the Court quoted in Armstrong in 2015.²³

Federalist No. 27 made the practical argument for the State officers. Hamilton argued that the Constitution would reach the people through their own governments, because "all officers, legislative, executive, and judicial, in each State, will be bound by the sanctity of an oath." Thus the "legislatures, courts, and magistrates, of the respective members, will be incorporated into the operations of the national government as far as its just and constitutional authority extends; and will be rendered auxiliary to the enforcement of its laws." The words "as far as its just and constitutional authority extends" carry the same limit as "in Pursuance thereof." The oath, on his account, makes state officers auxiliary where federal authority is real. Where it is not real, the oath adds nothing.²⁴

Madison, in Federalist No. 44, argued from the opposite direction, asking what would have happened with no supremacy clause at all, or one that carved out the States' own constitutions. The new Congress would be "reduced to the same impotent condition with their predecessors." A treaty or national law might be valid in some States and ineffective in others, depending on each State's constitution. "In fine, the world would have seen, for the first time, a system of government founded on an inversion of the fundamental principles of all government; it would have seen the authority of the whole society every where subordinate to the authority of the parts; it would have seen a monster, in which the head was under the direction of the members."²⁵

Read together, the two essays give the clause a narrow job and a firm one. It does not enlarge federal power. Where federal power already exists, it settles who wins. Whether a particular federal law falls inside that power is a separate question, and nothing in Article VI answers it.

Reading the Clause Word by Word

"This Constitution." Rutledge's August 23 insertion put the Constitution first on the list. It binds state legislatures, state executives and state judges directly, and a state constitution cannot override it. Idaho's own Constitution says so in Article I, section 3: "The state of Idaho is an inseparable part of the American Union, and the Constitution of the United States is the supreme law of the land."²⁶

"The Laws of the United States which shall be made in Pursuance thereof." Not every act of Congress qualifies. The law must be made "in Pursuance" of the Constitution, which a reader of Federalist No. 33 will recognize as Hamilton's limit. A statute outside Congress's enumerated powers is not supreme, and a court can decline to apply it. This lesson does not cover how far federal agency regulations count as "Laws of the United States."

"All Treaties made, or which shall be made, under the Authority of the United States." The drafters used different words for treaties. A law must be made "in Pursuance" of the Constitution. A treaty must be made "under the Authority of the United States." Justice Holmes noticed the contrast in 1920: "Acts of Congress are the supreme law of the land only when made in pursuance of the Constitution, while treaties are declared to be so when made under the authority of the United States. It is open to question whether the authority of the United States means more than the formal acts prescribed to make the convention." He added: "We do not mean to imply that there are no qualifications to the treaty-making power; but they must be ascertained in a different way."²⁷ The treaty section below takes up what those qualifications turned out to be.

"And the Judges in every State shall be bound thereby." This is the part that puts state courts to work. Congress does not have to build a federal court in every county. The state judges who sit there already are under a duty to apply federal law. The judges section below covers how the Court read it.

"Any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." The clause names two things that cannot stand in the way: a state's constitution and its laws. That is the legacy of Rutledge's amendment, and it answered the third of Madison's concerns in Federalist No. 44, that States differ.

What the clause does not do

A federal law on the books is one thing, and a person's right to sue in a federal court to enforce it is another. The Supremacy Clause does not supply the second. In Armstrong v. Exceptional Child Center (2015), a case from Idaho, providers of Medicaid habilitation services sued Idaho Health and Welfare Department officials, arguing that the State reimbursed them at rates lower than a federal statute permitted. The Court held, 5 to 4, that they could not proceed. Justice Scalia wrote that the Supremacy Clause "instructs courts what to do when state and federal law clash, but is silent regarding who may enforce federal laws in court, and in what circumstances they may do so." The clause is not the "source of any federal rights" and does not create a cause of action.²³

That holding does not mean state officials are beyond the reach of federal law. The Court recognized that a court of equity may enjoin a state officer from violating federal law, a power that rests on the long history of judicial review of executive action and not on the Supremacy Clause. In Armstrong, however, the Court found that Congress had foreclosed that remedy for this particular Medicaid provision, since the statute left enforcement to the federal Secretary of Health and Human Services.²³

The same line shows up in Medina v. Planned Parenthood South Atlantic, decided June 26, 2025. South Carolina had removed a Planned Parenthood affiliate from its Medicaid program, and a patient sued under 42 U.S.C. § 1983, claiming the federal "free-choice-of-provider" provision gave her a right to see the provider she chose. Justice Gorsuch, writing for six Justices, held that the provision does not clearly confer an individual right that § 1983 can enforce. Medicaid, he wrote, offers States "a bargain": federal funds in exchange for compliance with conditions. A plaintiff must show that Congress used "rights-creating terms" with "an unmistakable focus" on individuals, a test the Court called "stringent" and "demanding." Justice Jackson dissented, joined by Justices Sotomayor and Kagan.²⁸ The holding concerns who may enforce the provision in court. The federal Secretary of Health and Human Services keeps the remedy of withholding a State's Medicaid funds.

State Judges and Federal Judges

State courts must apply federal law

Justice Joseph Story's opinion in Martin v. Hunter's Lessee (1816) gave the judges clause its first full explanation. The question was whether the Supreme Court could review a decision of Virginia's highest court on a question of federal law. Story began with the text. The clause makes it "imperative upon the state judges in their official, and not merely in their private, capacities." State judges "were not to decide merely according to the laws or constitution of the state, but according to the constitution, laws and treaties of the United States," which Story called "the supreme law of the land."²⁹

Story added a second argument, for review by the Supreme Court. If no one could review state judgments on federal questions, then "the laws, the treaties, and the constitution of the United States would be different in different states, and might, perhaps, never have precisely the same construction, obligation, or efficacy." The Court wanted "uniformity of decisions throughout the whole United States, upon all subjects within the purview of the constitution."²⁹ Virginia's Court of Appeals had refused to carry out the Supreme Court's mandate, holding that the Court's appellate power did not reach it. Story's opinion rejected that position.

A state court cannot refuse a federal claim because it dislikes the federal policy. In Testa v. Katt (1947), the Rhode Island courts declined to hear a buyer's suit under the federal Emergency Price Control Act on the theory that the Act was a "penal" law of another sovereign. The Supreme Court reversed. It said Rhode Island's courts could not treat the federal claim as foreign, because "the policy of the federal Act is the prevailing policy in every state."³⁰ In 2009 the Court applied the same rule to a New York statute that closed state courts to certain damage suits against corrections officers under 42 U.S.C. § 1983. The Idaho AG's office cited the case in 2010 for the statement that federal law "is as much the law of the several States as are the laws passed by their legislatures."³¹

Federal courts and the last word

The harder question is who says what the federal law is when state and federal officials disagree. The usual answer comes from Cooper v. Aaron (1958). Nine children had enrolled in Little Rock's Central High School under a desegregation plan approved by a federal court. Arkansas's Governor sent the National Guard to keep them out, the State had amended its constitution to direct the legislature to oppose Brown v. Board of Education, and the school board asked for a delay. The Supreme Court heard the case in a special session. The opinion, announced September 29, 1958, was signed by all nine Justices, who had issued the per curiam order two and a half weeks earlier.³²

The Court rested its answer on two sources. It first quoted Chief Justice Marshall in Marbury v. Madison: "It is emphatically the province and duty of the judicial department to say what the law is." It then drew the conclusion that "the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States." The Court added a sentence aimed at officials: "No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it."³²

Not every reader accepts the broadest reading of that passage, and a fair account notes the disagreement. One view holds that a Supreme Court interpretation of the Constitution is itself "the supreme law of the land," so that an officer in any branch or any State must follow it. Another view holds that a judgment binds the parties to the case and that other officials may reach their own reading of the Constitution until the courts require otherwise. Abraham Lincoln stated a version of the second view in 1861. He did "not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court" and did not deny that such decisions "must be binding in any case upon the parties to a suit as to the object of that suit," while such decisions are "entitled to very high respect and consideration in all parallel cases by all other departments of the Government." But he warned that if government policy on vital questions was "irrevocably fixed by decisions of the Supreme Court," the people "will have ceased to be their own rulers."³³

Both views agree on what happened in Little Rock. Arkansas officials were parties to a federal judgment, and the judgment bound them. The disagreement is about the reach of the principle outside the parties to a case, and the Court's statement in Cooper, signed by all nine Justices, is the one officials should know exists.

Preemption: Express, Field and Conflict

When people say a federal law "preempts" a state law, they mean the Supremacy Clause makes the state law give way. In Gibbons v. Ogden (1824), Chief Justice Marshall described the situation of state laws that "interfere with, or are contrary to the laws of Congress, made in pursuance of the constitution, or some treaty made under the authority of the United States." In every such case, "the act of Congress, or the treaty, is supreme; and the law of the State, though enacted in the exercise of powers not controverted, must yield to it."³⁴ Courts have since sorted the cases into three kinds, and Arizona v. United States (2012) states them as clearly as any opinion.³⁵

Express preemption

Congress can say so in the statute. "There is no doubt that Congress may withdraw specified powers from the States by enacting a statute containing an express preemption provision," the Arizona Court wrote. The task is reading the provision. In Chamber of Commerce v. Whiting (2011), the federal Immigration Reform and Control Act of 1986 expressly preempts "any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens." Arizona had passed a law that suspended or revoked the business licenses of employers who hired unauthorized workers. The Court held 5 to 3 that the licensing law fell within the clause's exception for licensing and was not expressly preempted.³⁶ The case shows that express preemption can be narrower than it looks. The words of the exception matter as much as the words of the ban.

Field preemption

Sometimes Congress says nothing about the States and still takes over a subject. The Court explained in Rice v. Santa Fe Elevator Corp. (1947) that the historic police powers of the States are not superseded "unless that was the clear and manifest purpose of Congress." Such a purpose "may be evidenced in several ways. The scheme of federal regulation may be so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it."³⁷ In Arizona the Court stated the field rule as follows: "the States are precluded from regulating conduct in a field that Congress, acting within its proper authority, has determined must be regulated by its exclusive governance." The Court held that Congress had occupied the field of alien registration, so that Arizona's own registration offense (section 3 of S.B. 1070) was preempted even though it copied federal standards. "Even complementary state regulation is impermissible" once Congress occupies a field.³⁵

The presumption in Rice leans toward state law in fields the States have traditionally regulated, such as health and safety. It is not an absolute rule. Immigration is a field where the Court has said the federal power is "broad, undoubted," resting partly on the power "to establish an uniform Rule of Naturalization" and partly on the national government's authority over foreign relations.³⁵

Conflict preemption

Conflict preemption comes in two forms, and both appear in one sentence of Arizona. A state law is preempted when "compliance with both federal and state regulations is a physical impossibility," and also when it "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress."³⁵ The second phrase comes from Hines v. Davidowitz (1941), in which Pennsylvania required aliens to register with the State and carry an identification card. Congress then enacted its own registration system. The Court held Pennsylvania's law preempted because it stood as an obstacle to the full purposes of Congress, and noted the field was one that "affects international relations."³⁸

Arizona applied the obstacle test to two more sections. It held section 5(C), which made it a state crime for an unauthorized alien to seek or hold work, an obstacle because Congress had chosen to impose criminal penalties on employers but "only civil penalties" on workers. Section 6, authorizing state officers to arrest without a warrant anyone they believed removable, was also an obstacle, because the federal scheme controls when arrests are appropriate during removal. The Court left section 2(B), the status-check provision, in place for now, saying it was improper to enjoin it before state courts had a chance to construe it. The opinion did not foreclose later challenges to how it is applied.³⁵ Justice Kennedy wrote for a majority of five in a case where Justice Kagan took no part. Justices Scalia, Thomas and Alito each wrote separately, concurring in part and dissenting in part.

Anti-Commandeering and the Tenth Amendment

The Supremacy Clause makes valid federal law override state law. A separate line of cases holds that Congress cannot order a State government to carry out federal policy. The two rules fit together once you see what each addresses. Supremacy applies when federal law regulates private people and state law points the other way. Anti-commandeering applies when Congress tries to use the State itself, its legislature or its officers, as the instrument.

The Tenth Amendment states the background: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."³⁹ The Court has said the amendment "states but a truism that all is retained which has not been surrendered," and it has used the Constitution's structure, not the amendment's text alone, to decide the commandeering cases.⁴⁰

New York v. United States (1992)

Congress passed the Low-Level Radioactive Waste Policy Amendments Act of 1985 to address a shortage of disposal sites. Each State was made responsible for disposing of waste generated inside its borders. The Act gave States three kinds of incentives to comply, the last of which was a "take title" provision. A State that failed to provide for disposal of its waste by a set date would, on the request of the waste's owner, take title to the waste and become liable for damages. New York and two of its counties sued, arguing that the provisions invaded the sovereignty the Tenth Amendment reserves to the States.⁴⁰

The Court upheld the Act's monetary and access incentives and held the take-title provision beyond Congress's powers. Justice O'Connor wrote: "While Congress has substantial powers to govern the Nation directly, including in areas of intimate concern to the States, the Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress' instructions." The Court said Congress could have regulated the waste market directly, or even preempted state regulation of it. It could also attach conditions to federal funds, or offer States the choice of regulating according to federal standards or having state law preempted. What it could not do was hand the State a choice between two commands, regulating on federal orders or taking title to the waste. Six Justices joined O'Connor's opinion in full. Justices White, Blackmun and Stevens joined only two of its parts and dissented in part.⁴⁰

Printz v. United States (1997)

The Brady Handgun Violence Prevention Act required local chief law enforcement officers to run background checks on handgun buyers until a national system took over. Jay Printz, the sheriff of Ravalli County, Montana, and Richard Mack, the sheriff of Graham County, Arizona, challenged the requirement. Justice Scalia, writing for a 5-to-4 majority, held that it was unconstitutional: "The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program."⁴¹ Justice Stevens dissented, joined by Justices Souter, Ginsburg and Breyer.

The majority drew a line between state judges and state executives, and the line comes from the clause itself. The Government had relied on Testa v. Katt, the case about Rhode Island's courts. The Court answered that Testa "stands for the proposition that state courts cannot refuse to apply federal law, a conclusion mandated by the terms of the Supremacy Clause ('the Judges in every State shall be bound [by federal law]'). As we have suggested earlier, that says nothing about whether state executive officers must administer federal law."⁴¹ The text of the Supremacy Clause names judges. It does not name sheriffs.

A disagreement over Federalist No. 27

Printz is also where the Justices argued over Hamilton's phrase that state "legislatures, courts, and magistrates" would be "incorporated into the operations of the national government" and "rendered auxiliary to the enforcement of its laws." Justice Souter, dissenting, read the passage as saying the national government could require state officers to act, when it exercised an otherwise valid power, and he cited Federalist No. 44 in support. Justice Scalia gave three answers. He observed that the passage presents these results as flowing automatically from the officers' oath to observe federal law, which describes a duty not to obstruct federal law and not a power to conscript. He read Hamilton and Madison as assuming that States would consent to help, an assumption the early Republic bore out. And he read No. 44's description of what state officers do, such as running elections, as a reason for the oath that does not mention executing federal statutes.⁴¹ A reader can weigh the two readings against the text of Federalist Nos. 27 and 44, both linked in the sources below.

Murphy v. NCAA (2018)

Murphy separated commandeering from preemption. The Professional and Amateur Sports Protection Act made it unlawful for a State to "authorize" sports gambling schemes. New Jersey wanted to legalize sports betting at casinos and racetracks and challenged the federal law. Justice Alito wrote for the Court that the provision was unconstitutional. The legislative powers granted to Congress "are sizable, but they are not unlimited," and "conspicuously absent from the list of powers given to Congress is the power to issue direct orders to the governments of the States. The anticommandeering doctrine simply represents the recognition of this limit on congressional authority."⁴²

The central move was a definition of preemption. The Court wrote that, "regardless of the language sometimes used by Congress and this Court, every form of preemption is based on a federal law that regulates the conduct of private actors, not the States." A federal law that told private operators they could not run sports books would preempt state law. A federal law that told the State it could not repeal its own prohibition was a command to the State, and it fell. Five other Justices joined Justice Alito's opinion in full, and Justice Breyer joined all but one part. Justice Ginsburg dissented, joined by Justice Sotomayor and in part by Justice Breyer.⁴²

Money is different

Congress can attach conditions to federal funds, and the Court treats those arrangements as bargains. In Medina (2025), Justice Gorsuch noted that the Constitution has no "Spending Clause" as such. The spending power traces to Article I, section 8, clause 1, which "does not expressly endow Congress with the power to regulate conduct. Nor does it include 'the power to issue direct orders to the governments of the States.'" A State that takes federal money agrees to follow the conditions, and the remedy for a State that does not is typically a loss of funds.²⁸ A State that chooses to administer a federal program on those terms is not being commandeered.

Treaties

Treaties are the one source of supreme law, besides the Constitution itself, that Congress does not enact as a statute. The President makes a treaty with the consent of two-thirds of the Senators present, and the clause then makes it "the supreme Law of the Land." The cases below ask what the treaty power can reach, whether it outranks the Constitution, and whether it binds a State court on its own force.

Can a treaty reach what Congress cannot? Missouri v. Holland (1920)

Congress passed the Migratory Bird Treaty Act in 1918 to give effect to a 1916 treaty between the United States and Great Britain that protected migratory birds on both sides of the Canadian border. Missouri sued a federal game warden to stop enforcement, arguing that the statute invaded rights the Tenth Amendment reserves to the States.²⁷ An earlier act of Congress regulating the killing of migratory birds, passed with no treaty behind it, had been held bad in two lower courts, and Missouri relied on that. Justice Holmes, writing for a 7-to-2 Court, said those decisions "cannot be accepted as a test of the treaty power." The Tenth Amendment alone did not answer the question, he wrote, because Article II expressly delegates the power to make treaties and Article VI declares them supreme: "If the treaty is valid there can be no dispute about the validity of the statute." And: "It is obvious that there may be matters of the sharpest exigency for the national well being that an act of Congress could not deal with but that a treaty followed by such an act could."

The opinion rested heavily on the facts. "Here a national interest of very nearly the first magnitude is involved. It can be protected only by national action in concert with that of another power. The subject matter is only transitorily within the State and has no permanent habitat therein." Holmes added: "We see nothing in the Constitution that compels the Government to sit by while a food supply is cut off and the protectors of our forests and our crops are destroyed." Justices Van Devanter and Pitney dissented without an opinion.²⁷

Holland has been read two ways since. One reading is that a treaty can give Congress legislative authority it would not otherwise have. The other is that Holland held only that the treaty power is itself a delegated power, so that where the United States validly makes a treaty, "the Tenth Amendment is no barrier," as the Court put it in 1957. The petitioner in a 2014 case asked the Court to limit or overrule Holland, and the Court stepped around the question.

Does a treaty override the Constitution? Reid v. Covert (1957)

Clarice Covert killed her husband, an Air Force sergeant, at a base in England, and Dorothy Smith killed hers, an Army officer, at a post in Japan. Both were civilians tried by court-martial under international agreements with the host countries. The Court held that the Constitution's protections applied to them. Justice Black announced the judgment, joined by the Chief Justice and Justices Douglas and Brennan. The Government had argued that the agreements supplied the power to try them. Black's answer was that "no agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution."⁴³

Black went to the text. "There is nothing in this language which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution." The opinion found nothing in the debates to the contrary and said that the Court "has regularly and uniformly recognized the supremacy of the Constitution over a treaty." As for Holland, it was consistent with that rule, because there the Court "carefully noted that the treaty involved was not inconsistent with any specific provision of the Constitution."⁴³ Justices Frankfurter and Harlan concurred in the result in separate opinions.

Does a treaty bind a State court? Medellín v. Texas (2008)

Many treaties are binding on the United States in international law and still do not operate as domestic law until Congress acts. The Court calls those treaties "non-self-executing." Medellín shows what follows. The International Court of Justice held in the Avena case that the United States had violated the Vienna Convention on Consular Relations by failing to tell 51 named Mexican nationals, Jose Medellín among them, that they could contact their consulate after arrest. President Bush then issued a memorandum saying the United States would comply by having state courts give effect to the decision. Texas courts refused to reopen Medellín's capital conviction.⁴⁴

Chief Justice Roberts, writing for five Justices, held that neither the Avena judgment nor the President's memorandum was directly enforceable federal law that overrode Texas's limits on successive habeas petitions. "A non-self-executing treaty, by definition, is one that was ratified with the understanding that it is not to have domestic effect of its own force." And "the responsibility for transforming an international obligation arising from a non-self-executing treaty into domestic law falls to Congress, not the Executive." Justice Stevens concurred in the judgment, making the vote 6 to 3. Justice Breyer dissented, joined by Justices Souter and Ginsburg.⁴⁴

Medellín cut against the argument that the Supremacy Clause lets the President bind the States by himself. It did not hold that treaties cannot bind States. A self-executing treaty, or one that Congress has implemented, does. The old rule is in Ware v. Hylton: a ratified treaty overrides a conflicting state law.

Bond v. United States (2014): the Court avoids the question

Carol Anne Bond spread two toxic chemicals on the car, mailbox and door knob of a woman who had had an affair with her husband. Federal prosecutors charged her under a statute implementing the Chemical Weapons Convention. The lower court relied on Holland to say that the statute was valid if the treaty was. The Supreme Court did not take up Holland. Chief Justice Roberts read the statute narrowly, saying that Congress does not normally intrude on the States' police power, and held that it did not reach Bond's local poisoning. Five Justices joined his opinion, and Justices Scalia, Thomas and Alito each concurred in the judgment in separate opinions.⁴⁵ The lesson for officials is practical. Federal statutes that implement treaties are read with the same caution against displacing state authority as other statutes.

Clause 3: The Oath

Article VI requires Senators and Representatives, state legislators, and "all executive and judicial Officers, both of the United States and of the several States" to be "bound by Oath or Affirmation, to support this Constitution." The oath runs to the Constitution, not to a person, a party or a government. State officers take it as well as federal ones. And "or Affirmation" lets an officer who objects to swearing satisfy the requirement another way.⁴⁶

The first act of the first Congress

Congress took the oath seriously enough that its first statute was about it. The Act of June 1, 1789, "An Act to regulate the Time and Manner of administering certain Oaths," provided that the oath required by the sixth article "shall be administered in the form following, to wit: 'I, A. B. do solemnly swear or affirm (as the case may be) that I will support the Constitution of the United States.'" The Senate's President was to administer it to Senators and the Speaker to Representatives, within three days of passage.⁴⁷ The 1789 oath is a single sentence. The oath that federal civil officers and members of the uniformed services take today, set in 5 U.S.C. § 3331, runs longer. It adds a promise to "support and defend" the Constitution "against all enemies, foreign and domestic," to "bear true faith and allegiance," and a statement that the taker accepts the obligation "freely, without any mental reservation or purpose of evasion."⁴⁸

Why the oath runs one way

Madison explained the asymmetry in Federalist No. 44. State officers swear to support the federal Constitution, but federal officers take no oath to support state constitutions. "The members of the federal government will have no agency in carrying the State constitutions into effect. The members and officers of the State governments, on the contrary, will have an essential agency in giving effect to the federal Constitution." In Madison's account, the election of the President and Senate depended on the state legislatures, and House elections would be run by state officers under state law. Because state officers would do much of the work that keeps the national government running, they had to be bound to it.²⁵

What the oath adds, and what Congress cannot add

Cooper v. Aaron used the oath as part of its answer to Arkansas: "Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, ¶ 3 'to support this Constitution.'" The Court's sentence about officers who "war against the Constitution" follows directly.³²

The oath clause also limits Congress. According to the Constitution Annotated, Chief Justice Marshall wrote in McCulloch that Congress may require no other oath of fidelity to the Constitution, though it may add other oaths of office, and a test oath cannot be made a qualification for holding office. The Court struck down such oaths in Ex parte Garland and Cummings v. Missouri in 1867. In Bond v. Floyd (1966), the Court held that a newly elected member of the Georgia House of Representatives could not be barred from his seat for antiwar statements that the legislature said were inconsistent with his oath.⁴⁶

The oath obligates an officer to support the Constitution. It does not turn every federal statute into a personal obligation, and it does not make an officer's reading of the Constitution a license to disregard what a court has decided. Officers have taken the oath on both sides of every constitutional dispute in American history. The disagreement among them is over what supporting the Constitution requires in a particular case, a subject that the sections on judges and nullification take up.

Clause 3: No Religious Test

England had long required officeholders to take communion in the established church, and the colonies carried the habit across the ocean. The Constitution Annotated notes that religious test oaths were common in the colonies as part of the legal framework supporting established churches, and that religious minorities protested them, some because they objected to oaths in general and others because the oaths favored specific religious views.⁴⁹ Many of the new State constitutions of the 1770s kept some form of test. Pennsylvania's, which required officeholders to affirm belief in one God and to "acknowledge the scriptures of the old and New testement to be given by a devine inspiration," drew a letter to the Convention on September 7, 1787 from Jonas Phillips, "one of the people called Jews of the City of Philadelphia," who wrote that no Jew could swear to the second half.⁵⁰

Pinckney's motion

The Convention's record on the question is short. On August 20, 1787, Charles Pinckney submitted a list of propositions to be referred to the Committee of Detail. One of them read: "No religious test or qualification shall ever be annexed to any oath of office under the authority of the U. S."⁵¹ Madison's notes do not mention the proposal again until August 30. On that day, when the Convention reached the draft article binding legislative, executive and judicial officers of the United States and the States by oath to support the Constitution, the delegates first added "or affirmation" after "oath." Then, in Madison's account, "Mr. PINKNEY moved to add to the art: 'but no religious test shall ever be required as a qualification to any office or public trust under the authority of the U. States.'" Roger Sherman thought it unnecessary, since the prevailing attitude of the time was "a sufficient security agst. such tests." Gouverneur Morris and General Charles Cotesworth Pinckney approved the motion. It "was agreed to nem: con:," with no State objecting. On the whole article, North Carolina alone voted no and Maryland was divided.⁵²

The Committee of Style on September 12 changed "under the authority of the U. States" to "under the United States" and put the clause at the end of Article VI.⁸ Luther Martin later wrote that the provision "was adopted by a great majority of the convention, and without much debate." He added that "some members" thought "a belief of the existence of a Deity, and of a state of future rewards and punishments would be some security for the good conduct of our rulers."⁵³ Martin's two sentences describe the situation accurately. The Convention did not spend a day on the clause, and a minority of delegates wanted a belief requirement.

What was said in the ratifying conventions

The ratification debates were louder. In Massachusetts, according to the report in Elliot's Debates, several delegates "urged that it was a departure from the principles of our forefathers, who came here for the preservation of their religion," while others argued that a test was improper. The Reverend Mr. Shute defended the ban at length.⁵⁴ In North Carolina in July 1788, William Lancaster objected that without a test the presidency might one day be held by a Catholic or a Muslim, and said every State had a disqualification of that sort and the Constitution should too.⁵⁵ South Carolina's convention proposed adding the word "other" before "religious test."⁵⁶ Defenders pointed to the oath itself. Madison wrote to Edmund Pendleton on October 28, 1787 that a test is "involved in the oath itself" to the extent it would do any work: a believer would be restrained by the oath, and an unbeliever "would subscribe it as he would take the oath, without any principle that could be affected by either."⁵⁷ Tench Coxe, in the fall of 1787, praised the clause and wrote that under the plan every place of power or profit was "open to the whole body of the people."⁵⁸

Oliver Ellsworth, a Convention delegate and later Chief Justice, defined the term in a newspaper essay: a religious test is "an act to be done, or profession to be made, relating to religion (such as partaking of the Sacrament according to certain rites and forms, or declaring one's belief of certain doctrines), for the purpose of determining whether his religious opinions are such that he is admissible to a public office."⁵⁹

What the clause covers, and what it does not

The text sets its own limits. The ban covers "any Office or public Trust under the United States," and so federal offices. It bars a test as a "Qualification," so it prohibits conditioning an office on religious belief or profession and says nothing on whether an officer may be religious or not. And it leaves the oath requirement in place: a federal officer still swears or affirms to support the Constitution.⁵⁹

Torcaso v. Watkins (1961): the States

The text of Article VI reaches only offices "under the United States." It was not until 1961 that the Supreme Court ruled that the Constitution barred religious tests for State office. The Maryland Declaration of Rights provided that "no religious test ought ever to be required as a qualification for any office of profit or trust in this State, other than a declaration of belief in the existence of God." Roy Torcaso was appointed a notary public by the Governor and refused a commission because he would not declare a belief in God. He sued, claiming the requirement violated the First and Fourteenth Amendments.⁶⁰

Justice Black wrote for the Court that it did. "This Maryland religious test for public office unconstitutionally invades the appellant's freedom of belief and religion and therefore cannot be enforced against him." The Court restated that "neither a State nor the Federal Government can constitutionally force a person 'to profess a belief or disbelief in any religion.' Neither can constitutionally pass laws or impose requirements which aid all religions as against non-believers, and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs." Justices Frankfurter and Harlan concurred in the result.⁶⁰

Torcaso rested on the First Amendment, applied to the States through the Fourteenth. Black's opinion left a question open in a footnote. Torcaso had also argued that Article VI's test ban applies to state offices, and the Court wrote that, "Because we are reversing the judgment on other grounds, we find it unnecessary to consider appellant's contention that this provision applies to state as well as federal offices."⁶⁰ The result in a state case comes from the First and Fourteenth Amendments, and the question of Article VI's own reach was left unanswered.

McDaniel v. Paty (1978): clergy

Tennessee's first constitution, in 1796, barred ministers from serving as legislators, and the provision was still in its constitution in 1977. Paul McDaniel, an ordained Baptist minister in Chattanooga, filed to run for delegate to a state constitutional convention and was disqualified. The Supreme Court of Tennessee upheld the exclusion. The U.S. Supreme Court reversed with no Justice dissenting, though only four joined the plurality opinion. Chief Justice Burger's plurality said the provision burdened McDaniel's free exercise of religion by making him choose between his ministry and a place in public life. Justices Brennan and Marshall, concurring in the judgment, found violations of both the Free Exercise and Establishment Clauses. Justice Stewart said Torcaso controlled the case. Justice White would have decided it under the Equal Protection Clause. Justice Blackmun took no part.⁶¹ The case shows that the principle in Torcaso reaches disqualifications based on religious status, and that the Court's own reasoning about it ran in four directions.

Davis v. Beason (1890): Idaho's test oath

The most direct Idaho connection to the religious test clause is a case that pointed the other way. Idaho Territory required an oath of voters. Under section 504 of the Revised Statutes of Idaho, as the Court's report prints it, a person registering to vote had to swear that he was not a bigamist or polygamist, that he was not "a member of any order, organization or association which teaches, advises, counsels, or encourages its members or devotees or any other persons to commit the crime of bigamy or polygamy," and that he did not and would not teach or encourage those practices.⁶² The University of Idaho Library's account of the period says the Territory adopted an anti-Mormon test oath in 1884, intended to disenfranchise members of the Church of Jesus Christ of Latter-day Saints and break their political power in southern Idaho.⁶³

Samuel D. Davis and others in Oneida County were indicted for conspiracy to obtain voter registration by taking the oath while members of the Church. Davis was convicted and sought release on habeas corpus. The Supreme Court, in an opinion by Justice Field, upheld the law. It wrote that bigamy and polygamy were crimes, and "to call their advocacy a tenet of religion is to offend the common sense of mankind." It said the First Amendment was "never intended or supposed" to be invoked "as a protection against legislation for the punishment of acts inimical to the peace, good order and morals of society," and it held the oath requirement lawful. Counsel for Davis had argued, among other points, that the oath violated Article VI's ban on religious tests. This lesson found no discussion of that clause in the Court's opinion.⁶²

Davis is one example in Idaho's history of a disqualification based on membership in a religious organization, and the Court has since limited it. In Romer v. Evans (1996), the Court wrote that "to the extent Davis held that persons advocating a certain practice may be denied the right to vote, it is no longer good law," citing Brandenburg v. Ohio, and said that to the extent the ruling allowed groups to be denied the vote because of their status, it "could not stand without surviving strict scrutiny, a most doubtful outcome."⁶⁴ Idaho's present Constitution no longer contains the old voter disqualification. Article VI, section 3 now disqualifies only certain felons and people confined in prison. Article I, section 4 still guarantees religious liberty and still contains language on polygamy. The University of Idaho Library essay says the anti-Mormon constitutional provision was not removed until 1982, and this lesson did not locate the repeal measure.⁶⁵

Nullification and Interposition

The Supremacy Clause has an old rival, the theory that a State can declare a federal law void within its borders. The idea has several names and several versions. This section describes what each claimed and what became of it, leaving the reader to compare the arguments with the record.

1798 and 1799

The Virginia Resolutions of December 1798 and the Kentucky Resolutions answered the Alien and Sedition Acts. Virginia's General Assembly said that "in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them."⁶⁶ Kentucky's resolutions of 1799 went further. They said "the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a nullification, by those sovereignties, of all unauthorized acts done under colour of that instrument, is the rightful remedy."⁶⁷

The authors of those resolutions saw them as responses to laws they considered unconstitutional. Several other state legislatures replied to Virginia, and Kentucky's 1799 text answers those replies directly, rejecting "the principle and construction contended for by sundry of the state legislatures, that the general government is the exclusive judge of the extent of the powers delegated to it," which it said would "stop nothing short of despotism."⁶⁷ The resolutions were statements of position, and this lesson found no court that adopted their theory.

1832: South Carolina

South Carolina's Ordinance of Nullification, adopted November 24, 1832, went to the practical step. It declared two federal tariff acts "null, void, and no law, nor binding upon this State, its officers or citizens," and forbade "any of the constituted authorities, whether of this State or of the United States," to enforce the duties within the State.⁶⁸ President Jackson answered with a proclamation on December 10. "I consider, then, the power to annul a law of the United States, assumed by one State, incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which it was founded, and destructive of the great object for which it was formed."⁶⁹ This lesson did not trace how the 1832 crisis ended. The Court's later opinions, quoted below, treat the theory as rejected.

Ableman v. Booth (1859)

The case that put the question to the Supreme Court came out of the Fugitive Slave Act of 1850. Sherman Booth was charged with helping a fugitive escape from a federal deputy marshal in Milwaukee in 1854. A justice of the Wisconsin Supreme Court issued a writ of habeas corpus and, on the ground that the federal act was unconstitutional, the state court freed him. Federal prosecutors later indicted and convicted him in federal court, and the Supreme Court took up the marshal's appeal.⁷⁰ Chief Justice Taney's opinion for a unanimous Court held that state courts had no power to release a prisoner held under federal authority. Taney also wrote that a federal court has a duty to protect the States from federal overreach: "if it appears that an act of Congress is not pursuant to and within the limits of the power assigned to the Federal Government, it is the duty of the courts of the United States to declare it unconstitutional and void."⁷⁰ Cooper later quoted Taney's statement that the oath requirement reflected the framers' "anxiety to preserve it [the Constitution] in full force, in all its powers, and to guard against resistance to or evasion of its authority, on the part of a State."³²

The federal law at issue was the Fugitive Slave Act, and Wisconsin's courts resisted it on constitutional grounds. A reader who finds that law abhorrent will find the result uncomfortable. The Court's reasoning applies the same way to any State and any federal law, whatever its content, and that is what a supremacy rule means.

A Marshall sentence

Cooper v. Aaron put the matter this way: "If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery." Cooper quoted Chief Justice Marshall for that sentence, from United States v. Peters (1809).³²

Idaho in 2010

Idaho has met the question in its own way. In January 2010 a proposed ballot initiative was filed with the Secretary of State. By the AG's description, it would have declared "as nullities and unenforceable in Idaho all federal statutes that do not specifically state the enumerated grant of power to Congress in the United States Constitution authorizing passage of said statute," set up a registry of nullified federal statutes, and given county sheriffs the authority to declare federal laws null. The AG's Certificate of Review of February 10, 2010, signed by Lawrence Wasden, concluded that the initiative was "clearly unconstitutional" under the Supremacy Clause and that "There are no alterations or revisions to this initiative that would render it constitutional." The certificate said the authority to declare federal law unconstitutional "lies exclusively with the Supreme Court of the United States and the federal courts created by Congress," and that "Both state and federal courts are constitutionally bound to declare void any state action that contradicts or interferes with the acts of Congress." Certificates of review under Idaho Code section 34-1809 are advisory only, and the petitioners were free to accept or reject them.³¹ This lesson could not confirm what became of the petition.

The word "exclusively" in that passage is broader than the rest of the certificate needs. State courts also rule on federal constitutional questions in the cases before them, subject to review by the Supreme Court under Martin v. Hunter's Lessee. The point of the certificate that matters here is narrower: a State legislature, a ballot measure or a county sheriff has no authority to declare a federal statute void and stop its enforcement.

Declining to help is a different thing

Nullification claims that a federal law has no force in the State. Declining to assist is a separate act. After Printz and Murphy, a State may refuse to use its own officers and resources to carry out a federal program, and Congress may not force it to. Idaho Code section 18-3315B, added in 2014 and amended in 2021, is an example of the second kind. It bars Idaho government entities from using personnel, funds or resources "to enforce, administer, or support the enforcement of" certain federal firearm rules enacted after the effective date if they conflict with Idaho's constitutional right to bear arms, and it makes an order to enforce them a breach of the oath of office. The statute does not purport to stop federal officers from enforcing federal law.⁷¹ Whether every part of that statute would survive a challenge is a question this lesson did not research, and it did not find a court decision about it. What Printz holds is that a State need not lend its officers to a federal program. It does not hold that a State may stop federal officers from doing their own work.

Myths and Misreadings

Landmark Cases

The cases below are the ones this lesson opened and read. Dates are decision dates by year, and the "Effect today" column states what the case does in current practice as far as this lesson could confirm.

Idaho and Article VI

Idaho's own supremacy clause and oaths

Idaho wrote supremacy into its Constitution from the start. Article I, section 3 reads: "The state of Idaho is an inseparable part of the American Union, and the Constitution of the United States is the supreme law of the land."²⁶ Legislators take the oath in Article III, section 25: "I do solemnly swear (or affirm, as the case may be) that I will support the constitution of the United States and the constitution of the state of Idaho, and that I will faithfully discharge the duties of senator (or representative, as the case may be) according to the best of my ability."⁷² Idaho Code section 59-401, added in 1983, sets the official oath for any officer elected or appointed to a state office, in almost the same words: "I do solemnly swear (or affirm, as the case may be) that I will support the Constitution of the United States, and the Constitution of the State of Idaho, and that I will faithfully discharge the duties of (insert office) according to the best of my ability."⁷³ Note the order: the federal Constitution is named first. Article VI of the U.S. Constitution requires that oath to "support this Constitution." The Idaho oath adds a second promise, to the Idaho Constitution.

Armstrong: an Idaho case about who may sue

The case that defined the limits of the Supremacy Clause as a source of rights came from Idaho. Providers of habilitation services under Idaho's Medicaid plan sued Idaho Health and Welfare Department officials, saying the State's reimbursement rates were lower than the federal Medicaid Act permits. In Armstrong v. Exceptional Child Center (2015), the Supreme Court held that the Supremacy Clause does not give them a cause of action and that Congress had foreclosed equitable relief for that provision.²³

Moyle and EMTALA

The Defense of Life Act, Idaho Code section 18-622, criminalizes most abortions in Idaho and permits an abortion necessary to prevent the death of the pregnant woman. The United States sued, arguing the Emergency Medical Treatment and Labor Act (EMTALA), which requires Medicare-funded hospitals to stabilize patients with emergency conditions, preempts the Idaho law to the extent it conflicts. A federal district court enjoined enforcement to that extent. The Supreme Court granted review before the Ninth Circuit ruled and stayed the injunction in January 2024. On June 26, 2024, it dismissed the writs as improvidently granted, vacated its stays, and so returned the case to the lower courts.⁷⁴

The separate writings show why. Justice Barrett, joined by the Chief Justice and Justice Kavanaugh, wrote that "the shape of these cases has substantially shifted since we granted certiorari": the Idaho Supreme Court had construed the Act, the Idaho Legislature had amended it, and the parties' positions had changed. Justice Kagan, joined by Justice Sotomayor, concurred and wrote that EMTALA requires stabilizing care in some emergencies where Idaho's law would not allow it. Justice Alito, joined by Justice Thomas and in part by Justice Gorsuch, dissented from the dismissal and would have reached the merits. Two questions were contested: whether EMTALA requires hospitals to perform abortions in some emergencies, and whether a statute enacted under the spending power that regulates private parties can preempt state law. The Court decided neither.⁷⁴

In March 2025 the Department of Justice announced that it intended to dismiss its case, according to a statement by the ACLU, which noted that St. Luke's Health System separately sought a restraining order to protect its ability to provide emergency care.⁷⁵ This lesson did not confirm how that litigation later ended, and a reader who needs the current status should check the docket in the case.

HB 83: the Idaho ICE Act and the Arizona decision

Idaho's House Bill 83, signed in March 2025, created state crimes of "illegal entry from foreign nation" and "illegal reentry by certain aliens." The federal court in Idaho Organization of Resource Councils v. Labrador (No. 1:25-cv-00178, D. Idaho) took Arizona v. United States as its guide. On April 29, 2025, it granted a preliminary injunction against enforcement of the two offenses statewide, finding that the plaintiffs were likely to succeed on their claim that federal law preempts them. The court rejected the State's argument that Arizona applied only to the field of alien registration, and it rejected the argument that the Idaho offenses "mirror federal objectives."⁷⁶ On January 23, 2026, the judge largely denied the State's motions to dismiss, dismissing the Commerce Clause claim and allowing the preemption and vagueness claims to go forward, and the injunction remained in effect, according to the Idaho Capital Sun.⁷⁷ Those are rulings at early stages. This lesson did not confirm any appeal or later decision, and the State's position that the Act supplements and mirrors federal law is one a court may yet address on a full record.

Firearms and the 2014 statute

Idaho Code section 18-3315B, added in 2014 and amended in 2021, is the Idaho example of the anti-commandeering approach discussed earlier. It bars state entities from using personnel, funds or resources to enforce certain federal firearm measures and treats an order to enforce them as a breach of the oath of office.⁷¹ This lesson found no court decision that tests it.

A test oath in Idaho's history

Davis v. Beason (1890) came from Oneida County in Idaho Territory. The case is the main example in this module of the religious-status disqualification the Convention's ban on religious tests was written to prevent, even though that clause covers federal office and the voters in Davis were registering under territorial law.⁶²

Where This Shows Up for Officials, Reporters and Citizens

The county board and "preemption"

Commissioner Renata Voss tells her board that a new state rule on culvert permits is "preempted by the Supremacy Clause." The clause does not govern a conflict between a county and its own State. That is a question of state law, which in Idaho is settled by Idaho Const. art. XII, § 2, letting a county make local regulations "not in conflict with its charter or with the general laws." The Supremacy Clause comes in only if the rule collides with federal law. A resolution or a motion that names the right source gets the right answer, and one that names the wrong source invites a correction on the record.⁷⁸

The sheriff and a federal request

A federal agency asks Sheriff Tom Halvorsen of an invented Cedar Flat County to take on a recurring task at the county jail. The task is voluntary under Printz: Congress may not order a county officer to carry out a federal program, and the sheriff may agree by contract, by policy set with the county board, or may decline. The answer may differ if the demand is aimed at private persons, not the county, or if the county has agreed to terms in return for money. What the oath requires of the sheriff is to support the Constitution. It does not decide whether a particular federal request is mandatory.⁴¹

The reporter and the word "preempted"

Reporter Priya Nandakumar covers a state law that a federal agency says conflicts with a federal rule. Before writing "preempted," she asks four things. Does the federal statute contain an express preemption clause, and what do its exceptions say? Is the area one the federal scheme occupies entirely? Is it impossible to obey both, or does the state law block the federal purpose? And has a court ruled, or is this one party's claim? An agency's letter saying a state law is preempted is a claim. A court order is a ruling. The distinction decides whether the sentence belongs in the lede.³⁵

The new officeholder

Marcus Oyelaran has just won a seat on a city council and is handed a card to read aloud. The card should match Idaho Code § 59-401 or the oath in Idaho Const. art. III, § 25 for legislators. It promises to support two constitutions and to discharge the office faithfully. It does not promise loyalty to a party or a person. If swearing is against his conscience, "or affirm" is already in the text. Any oath that adds a religious profession, or asks him to disclaim membership in a church, needs a source in law.⁷³

The citizen and the registration form

A resident is handed a volunteer application for a library board that asks, under "qualifications," what church she attends. The federal clause bars religious tests for federal office, and Torcaso extends the same principle to State offices through the First and Fourteenth Amendments. Idaho Const. art. I, § 4 adds that "no person shall be denied any civil or political right, privilege, or capacity on account of his religious opinions." The useful question to ask at the counter is what law authorizes the question.⁷⁹

Related Modules

• Module 1: From the Charters to Philadelphia (the Convention and the road to ratification)
• Module 2: Article I: Congress (the Necessary and Proper Clause and the spending power)
• Module 4: Article III: The Courts (judicial power and review)
• Module 5: Federalism and the States
• Module 6: Amending the Constitution
• Module 12: Reading the Constitution
• Module 13: The Preamble ("We the People")
• Module 14: Article IV: The States and the Union (full faith and credit, the Guarantee Clause)
• Module 16: Article VII: Ratification
• Module 24: The Tenth Amendment (reserved powers and anti-commandeering)
• Module 25: The Eleventh Amendment (state sovereign immunity)
• Module 28: The Fourteenth Amendment (incorporation against the States)
• Articles of Confederation, Lesson 1: Drafting and Ratifying the Articles of Confederation, 1775 to 1781
• Course index: The United States Constitution

Sources & Further Reading

Primary Sources

• National Archives, The Constitution of the United States: A Transcription
• National Archives, The Bill of Rights: A Transcription
• Articles of Confederation (Avalon Project)
• Madison's Notes, May 29, 1787 (Virginia Plan)
• Madison's Notes, June 15, 1787 (Paterson's plan)
• Madison's Notes, July 17, 1787 (the negative rejected; Martin's resolution)
• Madison's Notes, August 6, 1787 (Committee of Detail report)
• Madison's Notes, August 20, 1787 (Pinckney's propositions)
• Madison's Notes, August 22, 1787 (debts clause)
• Madison's Notes, August 23, 1787 (Rutledge's amendment; Pinckney's negative)
• Madison's Notes, August 25, 1787 (Randolph's debts motion)
• Madison's Notes, August 30, 1787 (oath and religious test)
• Madison's Notes, September 12, 1787 (Committee of Style report)
• Federalist No. 27 (Hamilton), No. 33 (Hamilton), No. 43 (Madison) and No. 44 (Madison)
• Hamilton, Report on Public Credit, January 1790 (Founders Online)
• Act of June 1, 1789, 1 Stat. 23 (GovInfo)
• Founders' Constitution, Art. VI, cl. 3: Luther Martin, Genuine Information, with Jonas Phillips's letter, Madison to Pendleton, the Massachusetts debate and Lancaster in North Carolina
• Virginia Resolutions of 1798 and Kentucky Resolutions of 1799 (Avalon Project)
• South Carolina Ordinance of Nullification, 1832 and Jackson's Proclamation to the People of South Carolina
• Lincoln's First Inaugural Address, 1861 (Avalon Project)

Cases

• Martin v. Hunter's Lessee, McCulloch v. Maryland, Gibbons v. Ogden and Ableman v. Booth (Cornell LII)
• Ware v. Hylton (Library of Congress)
• Missouri v. Holland, Reid v. Covert, Medellín v. Texas and Bond v. United States (Cornell LII)
• Hines v. Davidowitz, Rice v. Santa Fe Elevator, Arizona v. United States and Chamber of Commerce v. Whiting (Cornell LII)
• Testa v. Katt, Cooper v. Aaron, New York v. United States, Printz v. United States and Murphy v. NCAA (Cornell LII)
• Armstrong v. Exceptional Child Center and Medina v. Planned Parenthood South Atlantic (Cornell LII)
• Torcaso v. Watkins, McDaniel v. Paty, Davis v. Beason and Romer v. Evans (Cornell LII)
• Moyle v. United States (Cornell LII)

Reference and Secondary Sources

• Constitution Annotated, Article VI, including the Debts and Engagements Clause, the Supremacy Clause and the Convention, its ratification debate, oaths of office and the religious test clause
• 5 U.S.C. § 3331 (oath of office), Cornell LII
• American Battlefield Trust, Compromise of 1790
• ACLU statement on the Department of Justice's plan to dismiss the Idaho EMTALA case, March 2025
• KFF, Emergency Abortion Care and the Supreme Court (June 2024)
• Idaho Capital Sun, January 27, 2026: federal judge rejects Idaho's ask to dismiss HB 83 lawsuit
• Idaho Organization of Resource Councils v. Labrador, Memorandum Decision and Order (D. Idaho Apr. 29, 2025) (GovInfo)
• Luther Martin, Genuine Information XII (Teaching American History)
• University of Idaho Library, Idaho Test Oath (Digital Memories, Idaho Harvester)

Idaho Sources

• Idaho Const. art. I, § 3 (inseparable part of the Union)
• Idaho Const. art. I, § 4 (religious liberty)
• Idaho Const. art. III, § 25 (oath of legislators)
• Idaho Const. art. VI, § 3 (disqualification of certain persons)
• Idaho Const. art. XII, § 2 (local police regulations)
• Idaho Code § 59-401 (official oath)
• Idaho Code § 18-3315B (prohibition of regulation of certain firearms)
• Idaho AG, Certificate of Review, proposed initiative on enforcement of federal laws (Feb. 10, 2010)

Footnotes

1. U.S. Const. art. VI, as transcribed by the National Archives.
2. The Federalist No. 33 (Hamilton), Avalon Project.
3. Articles of Confederation, art. XII, Avalon Project; and the Constitution Annotated, Debts and Engagements Clause.
4. Madison's notes of the Convention, August 21 and 22, 1787 (Committee of Eleven report and debate), Avalon Project.
5. Madison's notes of the Convention, August 22, 1787, Avalon Project.
6. Madison's notes of the Convention, August 23, 1787, Avalon Project.
7. Madison's notes of the Convention, August 25, 1787, Avalon Project.
8. Madison's notes of the Convention, September 12, 1787 (Committee of Style report), Avalon Project.
9. The Federalist No. 43 (Madison), Avalon Project.
10. Alexander Hamilton, Report on Public Credit (January 1790), Founders Online. The totals are Hamilton's own estimates and include an allowance for claims not yet liquidated.
11. American Battlefield Trust, Compromise of 1790.
12. Constitution Annotated, Art. VI, Debts and Engagements Clause.
13. Articles of Confederation, Avalon Project.
14. Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796). Cornell LII.
15. Madison's notes of the Convention, May 29, 1787 (Virginia Plan), Avalon Project.
16. Madison's notes of the Convention, July 17, 1787, Avalon Project.
17. Madison's notes of the Convention, June 15, 1787 (Paterson's plan), Avalon Project.
18. Constitution Annotated, Supremacy Clause and the Constitutional Convention.
19. Luther Martin, Genuine Information XII, Teaching American History.
20. Madison's notes of the Convention, August 6, 1787 (Committee of Detail report), Avalon Project.
21. Madison's notes of the Convention, August 23, 1787 (Rutledge's amendment and Pinckney's negative), Avalon Project.
22. Constitution Annotated, Debate and Ratification of the Supremacy Clause.
23. Armstrong v. Exceptional Child Center, Inc., 575 U.S. 320 (2015). Cornell LII.
24. The Federalist No. 27 (Hamilton), Avalon Project.
25. The Federalist No. 44 (Madison), Avalon Project.
26. Idaho Const. art. I, § 3, Idaho Legislature.
27. Missouri v. Holland, 252 U.S. 416 (1920). Cornell LII.
28. Medina v. Planned Parenthood South Atlantic, No. 23-1275 (U.S. June 26, 2025). Cornell LII.
29. Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304 (1816). Cornell LII.
30. Testa v. Katt, 330 U.S. 386 (1947). Cornell LII.
31. Idaho AG, Certificate of Review of a proposed initiative on enforcement of federal laws (Feb. 10, 2010), Idaho AG. The AG's reading is one view of the clause, and the certificate is advisory.
32. Cooper v. Aaron, 358 U.S. 1 (1958). Cornell LII.
33. Abraham Lincoln, First Inaugural Address (March 4, 1861), Avalon Project.
34. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824). Cornell LII.
35. Arizona v. United States, 567 U.S. 387 (2012). Cornell LII.
36. Chamber of Commerce of the United States v. Whiting, 563 U.S. 582 (2011). Cornell LII.
37. Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947). Cornell LII.
38. Hines v. Davidowitz, 312 U.S. 52 (1941). Cornell LII.
39. The Bill of Rights, as transcribed by the National Archives.
40. New York v. United States, 505 U.S. 144 (1992). Cornell LII.
41. Printz v. United States, 521 U.S. 898 (1997). Cornell LII.
42. Murphy v. National Collegiate Athletic Assn., 584 U.S. 453 (2018). Cornell LII.
43. Reid v. Covert, 354 U.S. 1 (1957). Cornell LII.
44. Medellín v. Texas, 552 U.S. 491 (2008). Cornell LII.
45. Bond v. United States, 572 U.S. 844 (2014). Cornell LII.
46. Constitution Annotated, Oaths of Office Generally.
47. Act of June 1, 1789, ch. 1, 1 Stat. 23, GovInfo.
48. 5 U.S.C. § 3331, Cornell LII.
49. Constitution Annotated, Historical Background on the Religious Test Clause.
50. Jonas Phillips to the Convention (September 7, 1787), Founders' Constitution, Art. VI, cl. 3.
51. Madison's notes of the Convention, August 20, 1787 (Pinckney's propositions), Avalon Project.
52. Madison's notes of the Convention, August 30, 1787, Avalon Project.
53. Luther Martin, Genuine Information, Founders' Constitution, Art. VI, cl. 3.
54. Massachusetts ratifying convention debate on the religious test, Founders' Constitution, Art. VI, cl. 3.
55. North Carolina ratifying convention, remarks of Rev. David Caldwell and others, including Mr. Lancaster, Founders' Constitution, Art. VI, cl. 3.
56. South Carolina ratifying convention, Founders' Constitution, Art. VI, cl. 3.
57. James Madison to Edmund Pendleton (January 2, 1788), Founders' Constitution, Art. VI, cl. 3.
58. Tench Coxe, writing in the ratification debate, Founders' Constitution, Art. VI, cl. 3.
59. Constitution Annotated, Interpretation of the Religious Test Clause.
60. Torcaso v. Watkins, 367 U.S. 488 (1961). Cornell LII.
61. McDaniel v. Paty, 435 U.S. 618 (1978). Cornell LII.
62. Davis v. Beason, 133 U.S. 333 (1890). Cornell LII.
63. University of Idaho Library, "Idaho Test Oath," Digital Memories, Idaho Harvester.
64. Romer v. Evans, 517 U.S. 620 (1996). Cornell LII.
65. Idaho Const. art. VI, § 3, Idaho Legislature.
66. Virginia Resolutions of 1798, Avalon Project.
67. Kentucky Resolutions of 1799, Avalon Project.
68. South Carolina Ordinance of Nullification (1832), Avalon Project.
69. Andrew Jackson, Proclamation to the People of South Carolina (1832), Avalon Project.
70. Ableman v. Booth, 62 U.S. (21 How.) 506 (1859). Cornell LII.
71. Idaho Code § 18-3315B, Idaho Legislature.
72. Idaho Const. art. III, § 25, Idaho Legislature.
73. Idaho Code § 59-401, Idaho Legislature.
74. Moyle v. United States, Nos. 23-726 and 23-727 (U.S. June 26, 2024) (per curiam). Cornell LII. See also KFF for a summary.
75. ACLU, statement on the Department of Justice abandoning its Idaho EMTALA case (March 2025). This is an advocacy organization's account of the Department's announcement.
76. Idaho Organization of Resource Councils v. Labrador, No. 1:25-cv-00178 (D. Idaho Apr. 29, 2025), GovInfo.
77. Idaho Capital Sun, "Federal judge rejects Idaho's ask to dismiss lawsuit challenging state immigration law" (Jan. 27, 2026).
78. Idaho Const. art. XII, § 2, Idaho Legislature.
79. Idaho Const. art. I, § 4, Idaho Legislature.