It’s been a big year for the supremacy clause. The important but rarely newsworthy constitutional provision has found itself at the center of multiple major legal battles. In recent months, the Trump administration has leaned heavily on the clause to make extraordinary—and often dubious—claims about its own powers.
The clause declares that the Constitution, as well as the federal laws “made in pursuance thereof” and treaties signed under it, “shall be the supreme Law of the Land.” It further states that “judges in every state shall be bound thereby.” In other words, the supremacy clause does what its name suggests: It establishes that the Constitution is supreme over state legislatures and state courts, as is Congress when acting within its own spheres of authority.
The Trump administration has taken a much more aggressive view of the clause, wielding it as a tool to bludgeon Democratic-led state governments into compliance with its own policy agenda or, more accurately, self-serving desires. Naturally, this is not how the Constitution is meant to operate. There are also signs that the administration’s overreach could backfire.
The clause comes up most often in cases involving federal preemption. In short, when Congress enacts a constitutionally valid law, it narrows the states’ ability to regulate the same thing. A good example is environmental protection. The Clean Air Act and Clean Water Act limit states’ abilities to regulate some environmental issues while explicitly carving out other cases on which states can act. The Supreme Court has already heard a preemption case about climate litigation this term.
Earlier this year, the Trump administration sued New York City over its sanctuary jurisdiction policies. Like many other cities, counties, and states, New York City has a formal policy that forbids its local law enforcement agencies from cooperating with certain information requests from federal immigration officials. Trump and his allies have strenuously criticized these policies for hindering their mass deportation machine.
In court, the Trump administration also argued that these policies violate the supremacy clause because they are preempted by federal immigration laws. One law in particular, known as Section 1373, says that federal, state, and local agencies “may not prohibit, or in any way restrict,” federal, state, and local officials from sending the Department of Homeland Security, or receiving from it, information about immigration status and citizenship status.
Judge Ramon Reyes, a federal district court judge in New York, told the Trump administration that it was doubly wrong in a ruling last week. (It was actually triply wrong if you count standing, which I’ll skip here.) Reyes concluded that because the federal law in question did not regulate private actors—individuals, businesses, and the like—preemption did not apply. One important purpose of preemption is to break a tie when a person or business has to follow conflicting state and federal laws. Under the supremacy clause, the federal law wins. No such tie needed to be broken in this instance, he concluded.
Additionally, Reyes wrote, the Trump administration would lose even if its supremacy clause position was correct because that position would bring it into conflict with the Tenth Amendment’s anti-commandeering doctrine. That doctrine forbids the federal government from “commandeering” the states to enforce federal laws. States can voluntarily help the federal government enforce immigration laws, in other words, but they can’t be compelled to do it.
“If the challenged provisions were struck, while New York City would not be obligated to carry out federal immigration enforcement, they would be barred from prohibiting their agencies and employees from engaging in federal immigration enforcement,” Reyes wrote. He added that, “of course, there is nothing within federal law that obligates states to participate in federal immigration enforcement or compels states to comply therewith.”
The Trump administration might appeal this ruling, but it will be an uphill battle to ultimately prevail. The Supreme Court has favored a more rigid approach to the anti-commandeering doctrine in recent years, most notably in the 2018 case Murphy v. NCAA. In Murphy, the court struck down a near-total federal ban on sports betting because the law affirmatively prohibited states from enacting their own legalization regimes. Reyes extensively cited Murphy in his own ruling.
Trump attempted an even more audacious supremacy clause claim in California last week. The administration sued the state to stop it from counting mail ballots submitted in the upcoming midterm elections from what the Justice Department described as “likely noncitizens.” The administration claimed it had “sent relevant California officials a list of over 20,000 names” of “likely noncitizens” who had been sent a mail ballot.
There is good reason to doubt the underlying facts as presented by the Justice Department. The Trump administration, despite its most persistent efforts and frequent claims, has failed to identify or uncover any significant noncitizen voting in American elections. Similar allegations in neighboring Nevada also fell apart under scrutiny. DHS initially claimed, without evidence, that it had identified almost 16,000 noncitizen voters in the Silver State in July. It revised that number down to 185 names in August. In September, Nevada election officials announced that they had checked each name and found that they were all U.S. citizens.
In the California case, the Trump administration’s legal argument for preemption hinged on a provision known as Section 611(a). That provision generally makes it a federal crime for “any alien to vote in any election” for a federal candidate, with an exception for certain noncitizens who were raised in the United States under the mistaken belief that they were U.S. citizens. The Trump administration has brought a handful of criminal cases against defendants for violating the law in recent years. It also argues that Section 611(a) supports its supremacy clause claim, and thus its efforts to block the targeted 20,000 ballots from being counted.
There are a few flaws with this claim, including one big and obvious one: California law does not allow noncitizens to vote in federal elections. California’s Constitution only allows U.S. citizens to cast a ballot in state and federal elections. The California secretary of state’s office only allows U.S. citizens to become registered voters. While some cities like San Francisco allow noncitizens to vote in local Board of Education elections, the state does not conduct those elections. (Federal law does not affect them, either, so they aren’t relevant for the lawsuit.)
Where, then, is the supremacy clause claim? With sanctuary jurisdictions, the Trump administration was challenging a supposed clash between state and federal law. Here the laws do not even clash at all. Not to worry, the Trump administration said. The Justice Department instead claimed—again, without a shred of evidence—that California was intentionally allowing noncitizens to vote in federal elections anyway.
“Because California cannot pass a statute allowing noncitizens to vote in a federal election, it also cannot induce, encourage, promote, or knowingly facilitate noncitizen voting for a candidate who is running for a seat in the U.S. Senate or the U.S. House of Representatives,” the Justice Department argued in its complaint. “Nor can California allow a noncitizen to vote in the federal election when it has knowledge about the voter’s citizenship status, as noncitizens cannot vote in federal elections.”
California’s “actions” are preempted by federal law, the administration claimed—not a law or even a policy, but an “action” for which it provides no credible evidence. “The State knows that noncitizens might be registered to vote, and it knows the names of such individuals,” the complaint alleged. “But it still intends to count their vote without verifying the voter’s citizenship. California’s actions thus knowingly facilitate unlawful voting.”
In a better age, it would be considered shameful for the Justice Department to file a federal lawsuit of any kind—much less one intended to block lawful ballots from being counted—on conspiracy theories, let alone Trumpworld’s self-serving fantasies about widespread voter fraud. But both shame and competent lawyers are in short supply at Main Justice these days. By simply claiming that there are 20,000 noncitizen voters and demanding their ballots not be counted, the Trump administration is treating the supremacy clause as a nearly limitless source of power, apparently hoping a federal judge will infer it from the clause’s name instead of it substance.
This argument is even weaker in the context of a different federal court’s surprise ruling in Florida last month. In United States v. Cox, a Jamaican-born woman who unlawfully registered to vote had argued that Section 611—the provision invoked by DOJ in the California lawsuit—was unconstitutional as applied to her. Judge David Liebowitz, a federal district court judge, agreed with her interpretation.
“[Section] 611 is a voter qualification statute, and the Constitution does not authorize Congress to legislate voter qualifications for federal elections,” Liebowitz wrote. Except for a few limited cases not applicable here, he concluded, “Congress has no power to say who can vote or who cannot vote in federal elections—that foundational power is reserved for the States, and limits Congress.”
It may seem surprising that a law that criminalizes noncitizen voting could be unconstitutional. But two provisions of the Constitution suggest otherwise. The federal government does not actually run federal elections. The Constitution delegates that power to the states, though it allows Congress to regulate the “time, manner, and place” of those elections. It does not, however, allow Congress to set voter qualifications.
Under Article 1, for example, voters in House elections “shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.” In other words, if a state in the 1790s had only allowed free men with 10 acres of land to vote in state legislative elections, that would be the qualification for voting on federal representatives for that state, as well. Senators were not directly elected until the ratification of the Seventeenth Amendment in 1913, which also prescribes that voters “shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.”
Article 2, which sets the rules for presidential elections, does not include that language. But it broadly delegates the power to choose presidential and vice presidential electors to the states. States are not constitutionally obligated to allow Americans to vote for president; state legislatures can choose the Electoral College delegation themselves, and have. (No state has done so since the early nineteenth century.) Put simply, Liebowitz wrote, “in Presidential elections, the States have the prerogative to establish whatever rules for selecting electors they see fit.”
Liebowitz framed his ruling in originalist terms. He noted that the Framers intentionally decided against letting Congress set voter qualifications and voted to reject a proposal that would have done so. “James Madison also objected,” Liebowitz wrote, “and elsewhere argued that the power to qualify electors was ‘fundamental’ to the Republican form of government, and should not be entrusted to the federal government, lest it use that power to ‘subvert the Constitution.’” The Reconstruction Amendments altered the federal-state balance of power and limited the states’ ability to deny suffrage, he explained, but did not reverse this basic allocation of power.
The Justice Department argued that Congress could enact Section 611 pursuant to its powers over immigration and foreign affairs, where it typically enjoys broad discretion. But Liebowitz declined to agree. Section 611 was drafted as a voter-qualification law, he wrote, and while it may be possible for Congress to write a statute that achieves this goal in other ways, it did not do so here. He also declined to strike down the law in all circumstances, noting that it may be constitutional as applied for D.C. elections, where there is no state legislature to set qualifications and Congress itself has plenary authority.
Liebowitz’s ruling does not mean that noncitizens may vote in federal elections—no state permits it, and states retain the power to criminalize voter fraud in any case. Federal appeals courts may also reach a different conclusion. But it also underscores the risks that the Trump administration takes when it makes unsupported supremacy clause claims in court. An ill-advised defeat only limits its ability to act in the future.
