There is an unresolved question whether the state enforcement of federal law is compatible with the structure of government that the Constitution creates for the United States. Commentators have advanced two diametrically opposed positions to justify the state enforcement of federal law. The “federal delegation” position maintains that federal executive power is the only executive power that can perform federal executive functions. Proponents of this position argue that, when state officers enforce federal law, they exercise federal executive power at the pleasure of the President. This federal delegation position, however, has not been adequately defended. There is no clear reason why the President has the authority to delegate federal power outside Article II. The “state power” position, by contrast, asserts that state executive power is sufficient to enforce federal law. Proponents of this position argue that, when state officers enforce federal law, they exercise state executive power. This position of state officers enforcing federal law, however, also fails to withstand challenge. In recent decades, courts and commentators have suggested that only the President and validly appointed and commissioned federal officers have the authority to perform at least certain federal executive functions. In light of this view, there is a serious unanswered question whether the states’ executive powers are sufficient to enforce federal law. The Supreme Court has not addressed the specific question whether the states have the power to perform federal executive functions.
This Note maintains that the Constitution creates a structure of government for the United States that neither the federal delegation nor the state power position fully captures. The Constitution’s arrangement of political power cannot be fully understood without resort to background law. At the time of the American Founding, one of the most important sources of background law was the law of nations. The law of nations provided rules not only for the formation of sovereign states, but also for the exercise and transfer of sovereign power. Under the law of nations, a sovereign state was formed only when people transferred sovereignty, or coercive authority, to some government institution(s). The powers transferred to a sovereign state, including the legislative, executive, and judicial powers, were necessary to perform the functions of the state. This is because a sovereign state was bound by nature to exercise its powers to fulfill its obligations. Under the law of nations, a sovereign state could transfer or alienate its powers to another, but only if it expressly received the authority to do so. Together, these principles of sovereignty help to illuminate the position of state officers within the Constitution’s overall structure.
State Officers and the Enforcement of Federal Law,
Notre Dame L. Rev.
Available at: https://scholarship.law.nd.edu/ndlr/vol99/iss2/7