Last week, I taught the Supreme Court's anti-commandeering cases in Constitutional Law. The precedent can be stated simply. New York v. United States held that Congress cannot compel state legislatures to enact legislation. Printz v. United States held that Congress cannot compel state executive branch officials to enforce federal law. And NFIB v. Sebelius held that Congress cannot compel people to engage in economic activity. However, Congress can compel state judges to enforce federal law. Article VI, Clause 2 maintains that "the Judges in every State shall be bound" by the supreme law of the land. In Printz, Justice Scalia acknowledged that since the framing, state judges have enforced federal law.
A student asked if Congress could commandeer state courts, as well as state judges. The answer to this question is complex. In my view, the answer should be no. I developed this thesis in a 2016 article in the Illinois Law Review, titled State Judicial Sovereignty. In short, if a state legislature creates a court of true general jurisdiction, then a state judge can hear any federal cause of action. But if a state legislature divests a state court of jurisdiction over some federal cause of action, the action cannot be heard. Congress cannot commandeer the state legislature to vest their courts with jurisdiction, and the Supremacy Clause does not empower the courts to establish that jurisdiction. Remember, state court jurisdiction comes from the state legislature, and not the Constitution.
Regrettably, the Supreme Court rejected my approach in Haywood v. Drown (2009). In this case, which most people have never heard of, New York divested its courts of jurisdiction to hear damage claims against correction officials. As a result, those courts would have lacked jurisdiction to hear Section 1983 suits against prison guards. Justice Stevens's majority opinion held that this jurisdictional statute was actually an attempt to immunize prison officials under Section 1983. Haywood was 5-4. Justice Thomas wrote the dissent, which was only joined in part by Chief Justice Roberts, and Justice Scalia and Alito. The quartet agreed that New York should prevail under longstanding precedent. But only Justice Thomas was willing to go a step further and say those precedents were wrong. In short, even if state judges are bound to enforce federal law, state legislatures have complete and total control over the jurisdiction of the state courts. If a plaintiff does not like those rules, he can bring a Section 1983 suit in federal court. It has long bothered me that Justice Scalia did not join all of Justice Thomas's dissent in Haywood, but such is life. (Update: I previously wrote the case was 8-1, which it sort of was for the issue I was talking about, but it is better to call it 5-4.)
