432
Opinion of the Court
We next consider whether the judges have shown that the county's tax collection suits are "for a[n] act under color of office." 28 U. S. C. § 1442(a)(3) (emphasis added). The essence of the judges' colorable defense is that Jefferson County's Ordinance expressly declares it "unlawful" for them to "engage in [their] occupation" without paying the tax, Ordinance No. 1120, § 2, and thus subjects them to an impermissible licensing scheme. The judges accordingly see Jefferson County's enforcement actions as suits "for" their having "engage[d] in [their] occupation." The Solicitor General, in contrast, argues that there is no causal connection between the suits and the judges' official acts because "[t]he tax . . . was imposed only upon [the judges] personally and not upon the United States or upon any instrumentality of the United States." Brief for United States as Amicus Curiae 20. To choose between those readings of the Ordinance is to decide the merits of this case. Just as requiring a "clearly sustainable defense" rather than a colorable defense would defeat the purpose of the removal statute, Willingham, 395 U. S., at 407, so would demanding an airtight case on the merits in order to show the required causal connection. Accordingly, we credit the judges' theory of the case for purposes of both elements of our jurisdictional inquiry and conclude that the judges have made an adequate threshold showing that the suit is "for a[n] act under color of office." 28 U. S. C. § 1442(a)(3).
Justice Scalia maintains that the county's lawsuit was not grandly "for" the judges' performance of their official duties, but narrowly "for" their having refused to pay the tax. The judges' resistance to payment of the tax, he states, was neither required by the responsibilities of their offices nor undertaken in the course of job performance. See post, at 447. The county's lawsuit, however, was not simply "for" a refusal; it was "for" payment of a tax. The county asserted that the judges had failed to comply with the Ordinance; read literally, as the judges urge and as we accept
Page: Index Previous 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 NextLast modified: October 4, 2007