Field Office Federalism

Abstract

This distinction between the legislature and magistracy may reflect four structural features of the Framers' era. First, the locus of state sovereignty was in state legislatures. They embodied whatever sovereignty a state possessed, whereas state executives and judges were not sovereign at all. Second, state legislatures exercised legislative will. They chose whether to enact laws, whereas state executives and courts were viewed as officers of general jurisdiction who enforced all applicable laws of the land. Third, state legislatures were multimember institutions, making sanctions for noncompliance extremely difficult. State executive and judicial officers, because they acted as individuals, could be sanctioned individually in a manner not possible for state legislatures. Finally, and perhaps most importantly, commandeering state legislatures had failed spectacularly under the Articles of Confederation. Commandeering of state executive and judicial officers, on the other hand, was not viewed as similarly futile. Part I of this Article discusses commandeering of state legislatures, executives, and courts under the Articles of Confederation, since a rudimentary understanding of the system in place prior to the adoption of our Constitution will prove useful. Part II examines the Founding Generation's views on federal attempts to compel states to legislate. Part III considers the Founding Generation's beliefs on conscripting state executives to enforce federal law. Part IV addresses whether the federal government may force state courts to administer federal law. Ultimately, I conclude that where Congress has legislative authority, it may commandeer state executives and state courts, but not state legislatures, to help implement its constitutional powers. In this sense, states can be the federal government's field offices.