Vanderbilt Law Review

Article Title

Separate but Not Sovereign: Reconciling Federal Commandeering of State Courts


Tonya M. Gray


"The question is not what power the federal government ought to have but what powers in fact have been given by the people." Determining the division of power between the states and the federal government has been a debated issue throughout constitutional jurisprudence. Indeed, "[n]o problem has plagued the nation's constitutional history more." In joining the union, the states relinquished power to the federal government. The states were not left without power, as the Tenth Amendment guarantees that powers not enumerated to the federal government or restricted from the states are retained by the states. The broad language of the Constitution, however, has resulted in an ongoing debate over what boundaries should be placed on the power given to the federal government.

Over one hundred years ago, the Supreme Court maintained the absolute sovereignty of both levels of government. In Texas v. White, Chief Justice Chase stated: "[I]t may be not unreasonably said that the preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the national government." Nevertheless, in 1947, the Supreme Court affirmatively asserted the federal government's authority over state courts. In Testa v. Katt, the Rhode Island Supreme Court had declined to resolve a case involving a federal penal statute, claiming that, based on state law, the action could not be heard by the Rhode Island courts. The Supreme Court reversed the state court decision and held that a state court may not refuse to adjudicate claims arising out of federal law. In doing so, the Supreme Court subjected state courts to "federal commandeering."s State courts no longer had the authority to determine what cases they would and would not hear; instead, the dockets of state courts were subject to federal direction. Nevertheless, in New York v. United States" and Printz v. United States, the Supreme Court removed both state legislatures and state executives from similar federal commandeering. Numerous scholars have analyzed and criticized the wisdom of these decisions, but have not subsequently reevaluated the meaning and precedential value of Testa. Now that state courts remain the sole branch of state government subject to federal commandeering, the Testa invasion of state sovereignty must be justified.

Part II of this Note surveys the role of state courts, the relevant constitutional provisions, and the sovereignty retained by the states after the creation of the federal government. Part III examines each of the three paramount decisions involving federal commandeering: Testa v. Katt, New York v. United States, and Printz v. United States. Part IV compares the characteristics of state courts to those of the other two state branches, state legislatures and state executives. Part V analyzes the merits of the Testa decision, concluding that the Supreme Court erred in its analysis. Part VI then proposes that it may be the source of the commandeering that distinguishes the Testa decision, rather than the state government branch that is the subject of commandeering. The question remains why state courts are treated differently given this country's dedication to treating the branches equally and to avoiding improper allocation of power among the branches. Part VII concludes that regardless of the unequal treatment of state courts which results from Testa v. Katt, Testa will likely remain a pillar of federalism and constitutionally derived doctrine.