972
Souter, J., dissenting
will be the products of their obligations thus undertaken to support federal law, not of their own, or the States', unfettered choices.1 Madison in No. 44 supports this reading in
1 The Court offers two criticisms of this analysis. First, as the Court puts it, the consequences set forth in this passage (that is, rendering state officials "auxiliary" and "incorporat[ing]" them into the operations of the Federal Government) "are said . . . to flow automatically from the officers' oath," ante, at 912; from this, the Court infers that on my reading, state officers' obligations to execute federal law must follow "without the necessity for a congressional directive that they implement it," ibid. But neither Hamilton nor I use the word "automatically"; consequently, there is no reason on Hamilton's view to infer a state officer's affirmative obligation without a textual indication to that effect. This is just what Justice Stevens says, ante, at 948, and n. 8.
Second, the Court reads The Federalist No. 27 as incompatible with our decision in New York v. United States, 505 U. S. 144 (1992), and credits me with the imagination to devise a "novel principle of political science," ante, at 913, n. 5, "in order to bring forth disparity of outcome from parity of language," ibid.; in order, that is, to salvage New York, by concluding that Congress can tell state executive officers what to execute without at the same time having the power to tell state legislators what to legislate. But the Court is too generous. I simply realize that "parity of language" (i. e., all state officials who take the oath are "incorporated" or are "auxiliar[ies]") operates on officers of the three branches in accordance with the quite different powers of their respective branches. The core power of an executive officer is to enforce a law in accordance with its terms; that is why a state executive "auxiliary" may be told what result to bring about. The core power of a legislator acting within the legislature's subject-matter jurisdiction is to make a discretionary decision on what the law should be; that is why a legislator may not be legally ordered to exercise discretion a particular way without damaging the legislative power as such. The discretionary nature of the authorized legislative Act is probably why Madison's two examples of legislative "auxiliary" obligation address the elections of the President and Senators, see infra, at 973 (discussing The Federalist No. 44, p. 307 (J. Cooke ed. 1961) (J. Madison)), not the passage of legislation to please Congress.
The Court reads Hamilton's description of state officers' role in carrying out federal law as nothing more than a way of describing the duty of state officials "not to obstruct the operation of federal law," with the consequence that any obstruction is invalid. Ante, at 913. But I doubt that Hamilton's English was quite as bad as all that. Someone whose virtue
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