Not Available For Download

What Kind of Immunity? Federal Officers, State Criminal Law, and the Supremacy Clause

Posted: 15 Nov 2004  

Seth P. Waxman

Wilmer Cutler Pickering Hale and Dorr LLP

Trevor W. Morrison

New York University School of Law


When, if ever, may a State prosecute a federal officer for violating state criminal law while discharging his federal duties? Over the past decade, developments in the doctrines associated with federalism have redefined the constitutional status of federal attempts to regulate the States. The question posed here implicates the opposite, rarely examined, side of federalism's coin: the extent to which the Constitution constrains state attempts to regulate the federal government and its agents. It has been clear for over a century that federal officers enjoy some degree of immunity in this area, but the precise scope of, and basis for, that immunity - known as Supremacy Clause immunity - remain unclear.

This Article seeks clarity. Drawing on recent litigation arising out of the 1992 standoff between federal law enforcement officers and armed separatists at Ruby Ridge, Idaho, it argues that federal officers acting within the scope of their employment should be immune from state prosecution for any action taken that they reasonably believe is necessary and proper to the performance of their federal functions. State criminal law, in other words, must not be applied so as to chill federal officers in the discharge of their federal duties as they reasonably understand them. In articulating this standard, the Article draws on related doctrines like qualified immunity in the civil context and on principles of preemption as derived from foundational cases like McCulloch v. Maryland. In addition to supporting the Article's view of the proper scope of Supremacy Clause immunity as a default matter, these analogies confirm that the degree of immunity in this area is largely subject to congressional control. Congress, the Article suggests, could completely immunize federal officers from state prosecution for conduct taken in the discharge of their duties, or it could expose federal officers to the full force of state law. Either congressional choice would change what a reasonable federal officer would think about the scope of his federal authority vis-a-vis contrary state law, thus recalibrating the scope of his immunity.

At bottom, Supremacy Clause immunity is concerned with resolving conflicts between state and federal law. Where the application of state law threatens the effectuation of federal law or policy, the Supremacy Clause provides a federal trump. This attention to actual state-federal conflict, the Article suggests, should inform courts' approaches to a whole range of issues of overlapping federal and state power. Rather than making categorical judgments about the division of sovereign power, courts should instead be attentive to the extent of actual conflict between state law and federal functions.

Suggested Citation

Waxman, Seth P. and Morrison, Trevor W., What Kind of Immunity? Federal Officers, State Criminal Law, and the Supremacy Clause. Yale Law Journal, Vol. 112, p. 2195, 2003. Available at SSRN:

Seth P. Waxman

Wilmer Cutler Pickering Hale and Dorr LLP ( email )

2445 M Street, NW
Washington, DC 20037
United States
202-663-6800 (Phone)
202-663-6363 (Fax)

Trevor W. Morrison (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

Paper statistics

Abstract Views