The Supremacy Clause Makes Federal Law Supreme Only When Made in Pursuance

Ask a cable news panel what the Supremacy Clause means and you will hear a single sentence: federal law beats state law. Full stop. Case closed. Next segment. It is a lovely sentence, short enough for a chyron, and it is wrong in the way that half-quotations are always wrong. The clause does not say federal law is supreme. It says federal law made "in Pursuance" of the Constitution is supreme. Those three words are the whole ballgame.

This post explains how the clause actually works: what it says, what Hamilton said it meant, how preemption operates, and the line of Supreme Court cases holding that Washington may not commandeer state governments to do its work. Then it explains why a family in any of the fifty states should care.

The words of Article VI, Clause 2

Here is the clause in full:

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, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Read it as a lawyer would, one element at a time.

1. What is supreme? Three things: the Constitution itself, federal laws "made in Pursuance thereof," and treaties made under the authority of the United States.
2. Supreme over what? Over anything "in the Constitution or Laws of any State to the Contrary."
3. Who must obey? "The Judges in every State." State courts are bound to apply valid federal law even when their own legislature says otherwise.

Notice the order. The Constitution comes first, and federal statutes qualify for supremacy only by being made in pursuance of it. A federal statute that exceeds the powers the Constitution grants is not made in pursuance of it, and it is not the supreme law of anything. The clause is a rule for resolving conflicts between valid laws. It is not a blank check that turns every act of Congress into gold.

What Hamilton told New York in Federalist 33

The Anti-Federalists saw the Supremacy Clause and the Necessary and Proper Clause together and raised the alarm: these two clauses, they said, would let Congress swallow the states whole. Hamilton answered them directly in Federalist 33, and his answer is the best evidence we have of how the clause was sold to the people who ratified it.

Hamilton conceded the obvious point: laws of a government, within its sphere, must be supreme, or they are not laws at all, just advice. Then he drew the line:

But it will not follow from this doctrine that acts of the large society which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such.

"Acts of usurpation." That is Alexander Hamilton, the most nationalist man in the founding generation, the fellow his enemies accused of wanting a monarch, telling New Yorkers that a federal law outside Congress's enumerated powers is not supreme law but usurpation. If Hamilton is too much of a states' rights radical for your taste, you are going to have a hard time finding a Founder who suits you.

Madison made the companion point in Federalist 45, describing federal powers as "few and defined" and state powers as "numerous and indefinite." We treat that essay at length in Few and Defined, the Promise About Federal Power in Madison's Federalist 45. Put the two essays together and the design is clear: a national government supreme within a limited field, and state governments supreme across the much larger field the Constitution leaves to them. The Tenth Amendment, ratified in 1791, made the arrangement explicit. See The Tenth Amendment Left Out One Word, Expressly, and the Omission Mattered for why its drafters chose the wording they did.

How preemption works in practice

When a valid federal law and a state law collide, the federal law wins. Courts call that preemption, and they recognize three basic kinds.

Two things keep this from becoming a federal free-for-all.

One: the federal law must be valid first. Preemption is the second question, never the first. A court asks whether Congress had the power to pass the law at all. Only if the answer is yes does the court ask whether it displaces the state law. A federal statute outside the enumerated powers preempts nothing, because under the clause's own words it is not the supreme law of the land.

Two: the presumption runs against preemption in fields the states have traditionally occupied. In areas like health, safety, family law and land use, the Supreme Court has long said it starts with the assumption that Congress did not mean to displace the states unless that purpose is clear. That presumption is a rule of interpretation, not a constitutional command, and the justices argue about how strong it should be. But it reflects the original structure: the states are not junior branch offices of the federal government.

The anti-commandeering trilogy

Preemption tells us when federal law can override state law. A separate question is whether federal law can draft state governments into service. The Supreme Court has answered that question three times in a generation, and the answer has been no each time.

New York v. United States (1992)

Congress wanted states to deal with low-level radioactive waste. The Low-Level Radioactive Waste Policy Amendments of 1985 offered incentives, which the Court upheld. But one provision went further: a state that failed to provide for disposal of its waste by a deadline would have to "take title" to the waste and become liable for it. In effect, Congress gave the states a choice between regulating the way Congress wanted or owning the waste.

Justice Sandra Day O'Connor, writing for the Court, struck down the take-title provision. Her rule was short: the federal government may not compel the states to enact or administer a federal regulatory program. Congress could regulate the waste directly. It could offer money with conditions. What it could not do was order state legislatures to legislate.

The opinion also made a point every conservative should keep at hand. The Court held that the state officials' consent did not save the provision, because the limits on federal power protect the people, not the officials. Federalism exists, O'Connor explained, to secure liberty by diffusing power. A governor cannot sign away his citizens' structural protections.

Printz v. United States (1997)

Next came the Brady Handgun Violence Prevention Act of 1993. Until a national instant background check system was running, the law required the chief law enforcement officer of each local jurisdiction to perform background checks on prospective handgun purchasers. Two sheriffs, Jay Printz of Ravalli County, Montana, and Richard Mack of Graham County, Arizona, sued.

Justice Antonin Scalia wrote for a five-justice majority. If Congress cannot order state legislatures to legislate, he reasoned, it cannot get around that rule by ordering state executive officers to execute. The Court held that the federal government may neither issue directives requiring the states to address particular problems nor command the states' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. Scalia's opinion walked through history (early Congresses did not press state executives into federal service as a matter of course), structure (the Constitution creates a system of dual sovereignty) and the separation of powers (a president cannot faithfully execute laws carried out by officers he does not control). The full story is in Printz v. United States and the sheriffs who refused to be drafted by Washington.

Murphy v. NCAA (2018)

The third case came from New Jersey. The Professional and Amateur Sports Protection Act of 1992 did not ban sports betting directly. It made it unlawful for a state to "authorize" sports gambling. When New Jersey repealed its own prohibitions, the sports leagues sued, arguing that the repeal was an authorization.

Justice Samuel Alito, writing for the Court, held that the anti-commandeering rule applies to a federal command telling a state what it may not legislate, just as it applies to a command telling a state what it must legislate. Congress could have regulated sports gambling directly. It could not dictate the contents of state law. The Court explained that the doctrine, however arcane it sounds, is simply the expression of a structural decision built into the Constitution: the decision to withhold from Congress the power to issue orders directly to the states.

The strongest objection, answered

Here is the best case on the other side, stated fairly. The anti-commandeering doctrine, critics argue, is judge-made. The words "anti-commandeering" appear nowhere in the Constitution. The Supremacy Clause expressly binds state judges to apply federal law, so the Framers obviously contemplated state officials doing federal work. Under the Articles of Confederation, the national government could only make requests of the states, and the whole point of 1787 was to give it real power. A doctrine that lets states refuse to help, the argument concludes, recreates the Confederation's weakness.

That argument fails on four counts.

1. It confuses judges with legislatures. The Supremacy Clause binds state judges because judges apply law to cases; that is what courts do. The clause conspicuously does not say that state legislatures shall pass federal programs or that state executives shall enforce them. The specific mention of judges is evidence against a general federal power to command everyone else.
2. It misreads 1787. The Framers did fix the Confederation's weakness, but not by turning states into federal agencies. They fixed it by letting the national government act directly on individuals, with its own tax collectors, its own courts and its own officers. Hamilton made that the centerpiece of Federalist 15 and 16. Direct federal power was the cure; commandeered state power was the disease.
3. It ignores accountability. If Washington can order a sheriff to run its program, voters cannot tell whom to blame. The federal official takes credit; the sheriff takes the heat. O'Connor said as much in New York: when the federal government compels states to regulate, the accountability of both state and federal officials is diminished.
4. The text supports structure, not just words. The Constitution creates two governments, each with its own officers, and the Tenth Amendment reserves to the states the powers not delegated. A doctrine that keeps one government from conscripting the other is not invented; it is inferred from the design, the same way the separation of powers is.

Why a family should care

This can sound like a fight between capitals. It is really a fight over who governs you and whom you can fire.

• Your sheriff answers to you. Under Printz, Washington cannot turn him into a federal employee without pay. That keeps local law enforcement local.
• Your legislature writes your laws. Under New York and Murphy, Congress cannot dictate what your legislature passes or forbids it to repeal. If Washington wants a policy, it has to enact and enforce that policy itself, in its own name, at its own cost, and face the voters for it.
• The protection cuts both ways, and that is the point. States of every political stripe have used anti-commandeering to decline to enforce federal policies they dislike. A conservative who wants the doctrine in one context has to live with it in another. That is not a bug. It is what principle looks like.

The Spending Clause is the soft spot. Congress can attach conditions to federal money, and states that take the money take the strings. But even there the Court has drawn a line. In NFIB v. Sebelius (2012), seven justices agreed that threatening a state's entire existing Medicaid funding to force it into the expansion went beyond encouragement into coercion. The same structural principle runs through all of it.

The case in brief

1. Article VI makes federal law supreme only when it is "made in Pursuance" of the Constitution; a law outside Congress's powers is not supreme law at all.
2. Hamilton in Federalist 33 called such laws "acts of usurpation," and Madison in Federalist 45 described federal powers as few and defined.
3. Preemption resolves conflicts between valid federal laws and state laws, and it begins only after the federal law's validity is settled.
4. New York (1992), Printz (1997) and Murphy (2018) hold that Washington may not order state legislatures to legislate or state officers to enforce federal programs.
5. Those rules protect accountability and liberty by keeping two governments separate, each answerable to the same people.

What you can do: read Article VI on the site's Constitution page, then ask your state attorney general's office which federal programs your state currently administers under federal funding conditions.