One of my biggest pet peeves in constitutional law is the conclusory statement that the Supremacy Clause, standing on its own, gives courts the power of judicial review, and the authority to invalidate state laws that conflict with the federal constitution. Justice Alito made this assertion in his dissent in Whole Women’s Health (which I only got to today):

Under the Supremacy Clause, federal courts may strike down state laws that violate the Constitution or conflict with federal statutes, Art. VI, cl. 2, but in exercising this power, federal courts must take great care.

No, it doesn’t. The Supremacy Clause provides:

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, anything in the Constitution or laws of any State to the contrary notwithstanding.

Last time I checked, the word “court” appears nowhere in the Supremacy Clause. I drill my students on this point whenever someone says the Supremacy Clause gives courts this power. The text is silent about how it ought to be enforced.

This power, if it exists at all, comes from case law, not the Supremacy Clause. Ware v. Hylton (as far as I know) was the first time the Court set aside a state law, citing the Supremacy Clause. In this 1796 decision, the Court found that a Virginia statute that conflict with the Treaty of Paris could not be enforced. Granted the court didn’t actually strike down the law, but (another pet peeve), the entire notion of striking down laws is a myth. A declaration of unconstitutionality only means that the law cannot be enforced between the parties before the court. The Court doesn’t literally cut a page out of the state’s statute books.

The decision in Ware was seriatim, with separate opinions by Justices Chase, Patterson, Iredell (actually it was a reprint of his Circuit Court decision for the case), Wilson, and Cushing. (February 1796 was after the death of Chief Justice Rutledge and before the appointment of Chief Justice Ellsworth).

Justice Chase’s decision lays out the application of the supremacy clause to set aside a local law.

If doubts could exist before the establishment of the present national government, they must be entirely removed by the 6th article of the Constitution, which provides ‘That 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.‘ There can be no limitation on the power of the people of the United States. By their authority the State Constitutions were made, and by their authority the Constitution of the United States was established; and they had the power to change or abolish the State Constitutions, or to make them yield to the general government, and to treaties made by their authority. A treaty cannot be the Supreme law of the land, that is of all the United States, if any act of a State Legislature can stand in its way. If the Constitution of a State (which is the fundamental law of the State, and paramount to its Legislature) must give way to a treaty, and fall before it; can it be questioned, whether the less power, an act *237 of the State Legislature, must not be prostrate? It is the declared will of the people of the United States that every treaty made, by the authority of the United States, shall be superior to the Constitution and laws of any individual State; and their will alone is to decide. If a law of a State, contrary to a treaty, is not void, but voidable only by a repeal, or nullification by a State Legislature, this certain consequence follows, that the will of a small part of the United States may controul or defeat the will of the whole. The people of America have been pleased to declare, that all treaties made before the establishment of the National Constitution, or laws of any of the States, contrary to a treaty, shall be disregarded.

Justice Cushing made a similar observation:

And, indeed, it cannot be denied; the treaty having been sanctioned, in all its parts, by the Constitution of the United States, as the supreme law of the land. Then arises the great question, upon the import of the fourth article of the treaty: And to me, the plain and obvious meaning of it, goes to nullify, ab initio, all laws, or the impediments of any law, as far as they might have been designed to impair, or impede, the creditor’s right, or remedy, against his original debtor. …

A State may make what rules it pleases; and those rules must necessarily have place within itself. But here is a treaty, the supreme law, which overrules all State laws upon the subject, to all intents and purposes; and that makes the difference.

To effect the object intended, there is no want of proper and strong language; there is no want of power, the treaty being sanctioned as the supreme law, by the constitution of the United States, which nobody pretends to deny to be paramount and controlling to all state laws, and even state constitutions, wheresoever they interfere or disagree.

 

The Court has made other supremacy clause errors recently in Montgomery v. Louisiana and DirecTV v. Imburgia,