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 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.
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.
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.
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.
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.
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.)
“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.”
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.
“[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.”
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.”
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.
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.
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