William & Mary Bill of Rights Journal
States have often taken different approaches to polarizing issues such as the legalization of marijuana, voting rights, and gun safety. Generally, the federal government has stayed out of the fray honoring the concept of the “states as laboratories.” That is, until recently. With increasing debate among political leaders and diverging viewpoints among Department of Justice officials, clashes between federal officers and state governments have increased. But what happens to a federal officer caught in the crossfire, charged by a state prosecutor for breaking state criminal law while attempting to enforce federal law? The answer lies in the doctrine of Supremacy Clause immunity. As the issue has seldom arisen, scholarship and case law on the subject is limited. In light of the rise in federal-state disputes, and considering the competing constitutional concerns and the criminal charges federal officers could face, a solidified framework for handling these types of cases is desperately needed. Moreover, these cases often involve motions to dismiss under Federal Rule of Criminal Procedure 12(b)(6), which presents a unique procedural question: whether a judge or jury should decide disputed issues of material fact. We propose a framework wherein juries should decide disputed issues of material fact in Supremacy Clause immunity cases. Further, we propose a Supremacy Clause immunity test that more thoroughly defines when (1) a federal officer is authorized by federal law to take certain actions, and (2) when a federal officer’s actions are “necessary and proper.” While our proposals do not solve every foreseeable problem in a Supremacy Clause immunity case, they do prevent the issues associated with the patchwork approach adopted by Supremacy Clause immunity’s cousin—qualified immunity.