OCTOBER TERM, 1996
Syllabus
PRINTZ, SHERIFF/CORONER, RAVALLI COUNTY, MONTANA
v.
UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
No. 95-1478. Argued December 3, 1996-Decided June 27,1997*
Brady Handgun Violence Prevention Act provisions require the
Attorney General to establish a national system for instantly
checking prospective handgun purchasers' backgrounds, note
following 18 U. S. C. § 922, and command the "chief law enforcement
officer" (CLEO) of each local jurisdiction to conduct such checks
and perform related tasks on an interim basis until the national
system becomes operative, § 922(s). Petitioners, the CLEOs for
counties in Montana and Arizona, filed separate actions challenging
the interim provisions' constitutionality. In each case, the
District Court held that the background-check provision was
unconstitutional, but concluded that it was severable from the
remainder of the Act, effectively leaving a voluntary
background-check system in place. The Ninth Circuit reversed,
finding none of the interim provisions unconstitutional.
Held:
1. The Brady Act's interim provision commanding CLEOs to conduct
background checks, § 922(s)(2), is unconstitutional. Extinguished
with it is the duty implicit in the background-check requirement
that the CLEO accept completed handgun-applicant statements (Brady
Forms) from firearms dealers, §§ 922(s)(I)(A)(i)(III) and (IV). Pp.
904-933.
(a) Because there is no constitutional text speaking to the
precise question whether congressional action compelling state
officers to execute federal laws is unconstitutional, the answer to
the CLEOs' challenge must be sought in historical understanding and
practice, in the Constitution's structure, and in this Court's
jurisprudence. Pp. 904-905.
(b) Relevant constitutional practice tends to negate the
existence of the congressional power asserted here, but is not
conclusive. Enactments of the early Congresses seem to contain no
evidence of an assumption that the Federal Government may command
the States' executive power in the absence of a particularized
constitutional authorization. The early enactments establish, at
most, that the Constitution
*Together with No. 95-1503,
Mack v.
United States,
also on certiorari to the same court.
899
was originally understood to permit imposition of an obligation
on state
judges to enforce federal prescriptions related to
matters appropriate for the judicial power. The Government
misplaces its reliance on portions of The Federalist suggesting
that federal responsibilities could be imposed on state officers.
None of these statements necessarily implies-what is the critical
point here-that Congress could impose these responsibilities
without the States' consent. They appear to rest on the
natural assumption that the States would consent, see FERC v.
Mississippi, 456 U. S. 742, 796, n. 35
(O'CONNOR, J., concurring in judgment and dissenting in part).
Finally, there is an absence of executivecommandeering federal
statutes in the country's later history, at least until very recent
years. Even assuming that newer laws represent an assertion of the
congressional power challenged here, they are of such recent
vintage that they are not probative of a constitutional tradition.
Pp. 905-918.
(c) The Constitution's structure reveals a principle that
controls these cases: the system of "dual sovereignty." See,
e.
g., Gregory v.
Ashcroft, 501 U. S. 452, 457.
Although the States surrendered many of their powers to the new
Federal Government, they retained a residuary and inviolable
sovereignty that is reflected throughout the Constitution's text.
See,
e. g., Lane County v.
Oregon, 7 Wall. 71, 76.
The Framers rejected the concept of a central government that would
act upon and through the States, and instead designed a system in
which the State and Federal Governments would exercise concurrent
authority over the people. The Federal Government's power would be
augmented immeasurably and impermissibly if it were able to impress
into its service-and at no cost to itself-the police officers of
the 50 States. Pp. 918-922.
(d) Federal control of state officers would also have an effect
upon the separation and equilibration of powers between the three
branches of the Federal Government itself. The Brady Act
effectively transfers the President's responsibility to administer
the laws enacted by Congress, Art. II, §§ 2 and 3, to thousands of
CLEOs in the 50 States, who are left to implement the program
without meaningful Presidential control. The Federal Executive's
unity would be shattered, and the power of the President would be
subject to reduction, if Congress could simply require state
officers to execute its laws. Pp. 922-923.
(e) Contrary to the contention of JUSTICE STEVENS' dissent, the
Brady Act's direction of the actions of state executive officials
is not constitutionally valid under Art. I, § 8, as a law
"necessary and proper" to the execution of Congress's Commerce
Clause power to regulate handgun sales. Where, as here, a law
violates the state sovereignty principle, it is not a law "proper
for carrying into Execution" delegated
900
Syllabus
powers within the Necessary and Proper Clause's meaning. Cf.
New York v.
United States, 505 U. S. 144, 166. The
Supremacy Clause does not help the dissent, since it makes "Law of
the Land" only "Laws of the United States which shall be made in
Pursuance [of the Constitution]." Art. VI, cl. 2. pp. 923-925.
(f) Finally, and most conclusively in these cases, the Court's
jurisprudence makes clear that the Federal Government may not
compel the States to enact or administer a federal regulatory
program. See,
e. g.,
New York, supra, at 188. The
attempts of the Government and JusTICE STEVENS' dissent to
distinguish
New York-on grounds that the Brady Act's
background-check provision does not require state legislative or
executive officials to make policy; that requiring state officers
to perform discrete, ministerial federal tasks does not diminish
the state or federal officials' accountability; and that the Brady
Act is addressed to individual CLEOs while the provisions
invalidated in
New York were directed to the State
itself-are not persuasive. A "balancing" analysis is inappropriate
here, since the whole
object of the law is to direct the
functioning of the state executive, and hence to compromise the
structural framework of dual sovereignty; it is the very
principle of separate state sovereignty that such a law
offends. See,
e. g., New York, supra, at 187. Pp.
925-933.
2. With the Act's background-check and implicit receipt-of-forms
requirements invalidated, the Brady Act requirements that CLEOs
destroy all Brady Forms and related records, § 922(s)(6)(B)(i), and
give would-be purchasers written statements of the reasons for
determining their ineligibility to receive handguns, §
922(s)(6)(C), require no action whatsoever on the part of CLEOs
such as petitioners, who are not voluntary participants in
administration of the federal scheme. As to them, these provisions
are not unconstitutional, but simply inoperative. Pp. 933-934.
3. The Court declines to address the severability question
briefed and argued by the parties: whether firearms dealers remain
obliged to forward Brady Forms to CLEOs, §§ 922(s)(1)(A)(i)(III)
and (IV), and to wait five business days thereafter before
consummating a firearms sale, § 922(s)(1)(A)(ii). These provisions
burden only dealers and firearms purchasers, and no plaintiff in
either of those categories is before the Court. P. 935.
66 F.3d
1025, reversed.
SCALIA, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and O'CONNOR, KENNEDY, and THOMAS, JJ., joined.
O'CONNOR, J.,
post, p. 935, and THOMAS, J.,
post, p.
936, filed concurring opinions. STEVENS, J., filed a dissenting
opinion, in which SOUTER, GINSBURG, and
901
BREYER, JJ., joined,
post, p. 939. SOUTER, J., filed a
dissenting opinion,
post, p. 970. BREYER, J., filed a
dissenting opinion, in which STEVENS, J., joined,
post, p.
976.
Stephen P. Halbrook argued the cause for petitioners in
both cases and filed briefs for petitioner in No. 95-1478.
David
T. Hardy filed briefs for petitioner in No. 95-1503.
Acting Solicitor General Dellinger argued the cause for the
United States in both cases. With him on the brief were Assistant
Attorney General Hunger, Deputy Solicitor General Kneedler, Paul R.
Q. Wolfson, Mark B. Stern, and Stephanie R. Marcus.t
tBriefs of
amici curiae urging reversal were filed for
the State of Colorado et al. by
Gale A. Norton, Attorney
General of Colorado,
Stephen K. Erkenbrack, Chief Deputy
Attorney General,
Timothy M. Tymkovich, Solicitor General,
Richard A. Westfall, Special Deputy Solicitor General,
Paul Farley, Deputy Attorney General, and
David B.
Kopel, and by the Attorneys General for their respective States
as follows:
Alan G.
Lance of Idaho,
Carla J.
Stovall of Kansas,
Joseph P. Mazurek of Montana,
Don Stenberg of Nebraska,
Mark W Barnett of South
Dakota,
James S.
Gilmore of Virginia, and
William
U. Hill of Wyoming; for the Gun Owners Foundation by
James
H. Jeffries III and
James H. Wentzel; for the Law
Enforcement Alliance of America by
James H. Warner; for the
Council of State Governments et al. by
D. Bruce La Pierre;
and for the National Rifle Association of America by
Robert
Dowlut and
Stefan B. Tahmassebi.
Briefs of
amici curiae urging affirmance were filed for
the American Federation of Labor and Congress of Industrial
Organizations by
Jonathan P. Hiatt, David M. Silberman, and
Laurence Gold; for the Coalition to Stop Gun Violence et al.
by
Donald B. Verrilli, Jr.; for Handgun Control, Inc., et
al. by
Eric J.
Mogilnicki, James S.
Campbell,
Jeffrey P. Singdahlsen, Kathleen M. Miller, and
Dennis A.
Henigan; and for Senator Herb Kohl et al. by
Andrew J.
Pincus.
Briefs of
amici curiae were filed for the State of
Maryland et al. by J.
Joseph Curran, Jr., Attorney General
of Maryland,
Andrew H. Baida and
John B. Howard, Jr.,
Assistant Attorneys General, and
Richard Adams Cordray, and
by the Attorneys General for their respective States as follows:
Richard Blumenthal of Connecticut,
Robert A.
Butterworth of Florida,
Margery S.
Bronster of
Hawaii,
Thomas J.
Miller of Iowa,
Frank J.
Kelley of Michigan,
Hubert H. Humphrey III of
Minnesota,
Mike Moore of Mississippi,
Frankie Sue Del
Papa of Nevada,
Michael F.
Easley of North
Carolina,
Theodore R. Kulongoski of Oregon,
Jeffrey B.
Pine of
902
JUSTICE SCALIA delivered the opinion of the Court.
The question presented in these cases is whether certain interim
provisions of the Brady Handgun Violence Prevention Act, Pub. L.
103-159, 107 Stat. 1536, commanding state and local law enforcement
officers to conduct background checks on prospective handgun
purchasers and to perform certain related tasks, violate the
Constitution.
I
The Gun Control Act of 1968 (GCA), 18 U. S. C. § 921
et
seq., establishes a detailed federal scheme governing the
distribution of firearms. It prohibits firearms dealers from
transferring handguns to any person under 21, not resident in the
dealer's State, or prohibited by state or local law from purchasing
or possessing firearms, § 922(b). It also forbids possession of a
firearm by, and transfer of a firearm to, convicted felons,
fugitives from justice, unlawful users of controlled substances,
persons adjudicated as mentally defective or committed to mental
institutions, aliens unlawfully present in the United States,
persons dishonorably discharged from the Armed Forces, persons who
have renounced their citizenship, and persons who have been
subjected to certain restraining orders or been convicted of a
misdemeanor offense involving domestic violence. §§ 922(d) and
(g).
In 1993, Congress amended the GCA by enacting the Brady Act. The
Act requires the Attorney General to establish a national instant
background-check system by November 30,1998, Pub. L. 103-159, as
amended, Pub. L. 103322, 103 Stat. 2074, note following 18 U. S. C.
§ 922, and immediately puts in place certain interim provisions
until that system becomes operative. Under the interim provisions,
a firearms dealer who proposes to transfer a handgun
Rhode Island, and
James E. Doyle of Wisconsin; for the
Association of the Bar of the City of New York by
Michael A.
Cardozo; and for the Pacific Legal Foundation by
Sharon L.
Browne.
903
must first: (1) receive from the transferee a statement (the
Brady Form), § 922(s)(1)(A)(i)(I), containing the name, address,
and date of birth of the proposed transferee along with a sworn
statement that the transferee is not among any of the classes of
prohibited purchasers, § 922(s)(3); (2) verify the identity of the
transferee by examining an identification document, §
922(s)(1)(A)(i)(II); and (3) provide the "chief law enforcement
officer" (CLEO) of the transferee's residence with notice of the
contents (and a copy) of the Brady Form, §§ 922(s)(1)(A)(i)(III)
and (IV). With some exceptions, the dealer must then wait five
business days before consummating the sale, unless the CLEO earlier
notifies the dealer that he has no reason to believe the transfer
would be illegal. § 922(s)(1)(A)(ii).
The Brady Act creates two significant alternatives to the
foregoing scheme. A dealer may sell a handgun immediately if the
purchaser possesses a state handgun permit issued after a
background check, § 922(s)(1)(C), or if state law provides for an
instant background check, § 922(s)(1)(D). In States that have not
rendered one of these alternatives applicable to all gun
purchasers, CLEOs are required to perform certain duties. When a
CLEO receives the required notice of a proposed transfer from the
firearms dealer, the CLEO must "make a reasonable effort to
ascertain within 5 business days whether receipt or possession
would be in violation of the law, including research in whatever
State and local recordkeeping systems are available and in a
national system designated by the Attorney General." § 922(s)(2).
The Act does not require the CLEO to take any particular action if
he determines that a pending transaction would be unlawful; he may
notify the firearms dealer to that effect, but is not required to
do so. If, however, the CLEO notifies a gun dealer that a
prospective purchaser is ineligible to receive a handgun, he must,
upon request, provide the would-be purchaser with a written
statement of the reasons for that determination. § 922(s)(6)(C).
Moreover, if the
904
CLEO does not discover any basis for objecting to the sale, he
must destroy any records in his possession relating to the
transfer, including his copy of the Brady Form. § 922(s)(6)(B)(i).
Under a separate provision of the GCA, any person who "knowingly
violates [the section of the GCA amended by the Brady Act] shall be
fined under this title, imprisoned for not more than 1 year, or
both." § 924(a)(5).
Petitioners Jay Printz and Richard Mack, the CLEOs for Ravalli
County, Montana, and Graham County, Arizona, respectively, filed
separate actions challenging the constitutionality of the Brady
Act's interim provisions. In each case, the District Court held
that the provision requiring CLEOs to perform background checks was
unconstitutional, but concluded that that provision was severable
from the remainder of the Act, effectively leaving a voluntary
background-check system in place. 856 F. Supp. 1372 (Ariz. 1994);
854 F. Supp. 1503 (Mont. 1994). A divided panel of the Court of
Appeals for the Ninth Circuit reversed, finding none of the Brady
Act's interim provisions to be unconstitutional.
66 F.3d
1025 (1995). We granted certiorari. 518 U. S. 1003 (1996).
II
From the description set forth above, it is apparent that the
Brady Act purports to direct state law enforcement officers to
participate, albeit only temporarily, in the administration of a
federally enacted regulatory scheme. Regulated firearms dealers are
required to forward Brady Forms not to a federal officer or
employee, but to the CLEOs, whose obligation to accept those forms
is implicit in the duty imposed upon them to make "reasonable
efforts" within five days to determine whether the sales reflected
in the forms are lawful. While the CLEOs are subjected to no
federal requirement that they prevent the sales determined to be
unlawful (it is perhaps assumed that their state-law duties will
require prevention or apprehension), they are empowered to grant,
in effect, waivers of the federally prescribed
905
5-day waiting period for handgun purchases by notifying the gun
dealers that they have no reason to believe the transactions would
be illegal.
Petitioners here object to being pressed into federal service,
and contend that congressional action compelling state officers to
execute federal laws is unconstitutional. Because there is no
constitutional text speaking to this precise question, the answer
to the CLEOs' challenge must be sought in historical understanding
and practice, in the structure of the Constitution, and in the
jurisprudence of this Court. We treat those three sources, in that
order, in this and the next two sections of this opinion.
Petitioners contend that compelled enlistment of state executive
officers for the administration of federal programs is, until very
recent years at least, unprecedented. The Government contends, to
the contrary, that "the earliest Congresses enacted statutes that
required the participation of state officials in the implementation
of federal laws," Brief for United States 28. The Government's
contention demands our careful consideration, since early
congressional enactments "provid[e] 'contemporaneous and weighty
evidence' of the Constitution's meaning,"
Bowsher v.
Synar, 478 U. S. 714, 723-724 (1986) (quoting
Marsh
v.
Chambers, 463 U. S. 783, 790 (1983)). Indeed, such
"contemporaneous legislative exposition of the Constitution ... ,
acquiesced in for a long term of years, fixes the construction to
be given its provisions."
Myers v.
United States,
272 U. S. 52, 175
(1926) (citing numerous cases). Conversely if, as petitioners
contend, earlier Congresses avoided use of this highly attractive
power, we would have reason to believe that the power was thought
not to exist.
The Government observes that statutes enacted by the first
Congresses required state courts to record applications for
citizenship, Act of Mar. 26, 1790, ch. 3, § 1, 1 Stat. 103, to
transmit abstracts of citizenship applications and other
naturalization records to the Secretary of State, Act of June
18,
906
1798, ch. 54, § 2, 1 Stat. 567, and to register aliens seeking
naturalization and issue certificates of registry, Act of Apr. 14,
1802, ch. 28, §2, 2 Stat. 154-155. It may well be, however, that
these requirements applied only in States that authorized their
courts to conduct naturalization proceedings. See Act of Mar. 26,
1790, ch. 3, § 1, 1 Stat. 103;
Holmgren v.
United
States, 217 U. S.
509, 516-517 (1910) (explaining that the Act of March 26, 1790,
"conferred authority upon state courts to admit aliens to
citizenship" and refraining from addressing the question "whether
the States can be required to enforce such naturalization laws
against their consent");
United States v.
Jones,
109 U. S. 513,
519-520 (1883) (stating that these obligations were imposed "with
the consent of the States" and "could not be enforced against the
consent of the States").l Other statutes of that era apparently or
at least arguably required state courts to perform functions
unrelated to naturalization, such as resolving controversies
between a captain and the crew of his ship concerning the
seaworthiness of the vessel, Act of July 20, 1790, ch. 29, § 3, 1
Stat. 132, hearing the claims of slave owners who had apprehended
fugitive slaves and issuing certificates authorizing the slave's
forced removal to the State from which he had fled, Act of Feb. 12,
1793, ch. 7, § 3, 1 Stat. 302-305, taking
1 The dissent is wrong in suggesting,
post, at 950, n. 9,
that the
Second Employers' Liability Cases, 223
U. S.
1 (1912),
eliminate the possibility that the duties imposed on
state courts and their clerks in connection with naturalization
proceedings were contingent on the State's voluntary assumption of
the task of adjudicating citizenship applications. The Second
Employers' Liability Cases stand for the proposition that a
state court must entertain a claim arising under federal law "when
its ordinary jurisdiction as prescribed by local laws is
appropriate to the occasion and is invoked in conformity with those
laws."
Id., at 56-57. This does not necessarily conflict
with
Holmgren and
Jones, as the States obviously
regulate the "ordinary jurisdiction" of their courts. (Our
references throughout this opinion to "the dissent" are to the
dissenting opinion of JUSTICE STEVENS, joined by JUSTICE SOUTER,
JUSTICE GINSBURG, and JUSTICE BREYER. The separate dissenting
opinions of JUSTICE SOUTER and JusTICE BREYER will be referred to
as such.)
907
proof of the claims of Canadian refugees who had assisted the
United States during the Revolutionary War, Act of Apr. 7, 1798,
ch. 26, § 3, 1 Stat. 548, and ordering the deportation of alien
enemies in times of war, Act of July 6, 1798, ch. 66, § 2, 1 Stat.
577-578.
These early laws establish, at most, that the Constitution was
originally understood to permit imposition of an obligation on
state
judges to enforce federal prescriptions, insofar as
those prescriptions related to matters appropriate for the judicial
power. That assumption was perhaps implicit in one of the
provisions of the Constitution, and was explicit in another. In
accord with the so-called Madisonian Compromise, Article III, § 1,
established only a Supreme Court, and made the creation of lower
federal courts optional with the Congress-even though it was
obvious that the Supreme Court alone could not hear all federal
cases throughout the United States. See C. Warren, The Making of
the Constitution 325-327 (1928). And the Supremacy Clause, Art. VI,
cl. 2, announced that "the Laws of the United States ... shall be
the supreme Law of the Land; and the Judges in every State shall be
bound thereby." It is understandable why courts should have been
viewed distinctively in this regard; unlike legislatures and
executives, they applied the law of other sovereigns all the time.
The principle underlying so-called "transitory" causes of action
was that laws which operated elsewhere created obligations in
justice that courts of the forum State would enforce. See,
e. g.,
McKenna v.
Fisk, 1 How. 241, 247-249
(1843). The Constitution itself, in the Full Faith and Credit
Clause, Art. IV; § 1, generally required such enforcement with
respect to obligations arising in other States. See
Hughes
v.
Fetter, 341
U. S. 609 (1951).
For these reasons, we do not think the early statutes imposing
obligations on state courts imply a power of Congress to impress
the state executive into its service. Indeed, it can be argued that
the numerousness of these statutes, contrasted with the utter lack
of statutes imposing obligations
908
on the States' executive (notwithstanding the attractiveness of
that course to Congress), suggests an assumed
absence of
such power.2 The only early federal law the Government has brought
to our attention that imposed duties on state executive officers is
the Extradition Act of 1793, which re-
2 Bereft of even a single early, or indeed even
pre-20th-century, statute compelling state executive officers to
administer federal laws, the dissent is driven to claim that early
federal statutes compelled state judges to perform executive
functions, which implies a power to compel state executive officers
to do so as well. Assuming that this implication would follow
(which is doubtful), the premise of the argument is in any case
wrong. None of the early statutes directed to state judges or court
clerks required the performance of functions more appropriately
characterized as executive than judicial (bearing in mind that the
line between the two for present purposes is not necessarily
identical with the line established by the Constitution for federal
separation-of-powers purposes, see
Sweezy v.
New
Hampshire, 354 U.
S. 234, 255 (1957)). Given that state courts were entrusted
with the quintessentially adjudicative task of determining whether
applicants for citizenship met the requisite qualifications, see
Act of Mar. 26, 1790, ch. 3, § 1, 1 Stat. 103, it is unreasonable
to maintain that the ancillary functions of recording, registering,
and certifying the citizenship applications were unalterably
executive rather than judicial in nature.
The dissent's assertion that the Act of July 20, 1790, ch. 29, §
3, 1 Stat. 132-133, which required state courts to resolve
controversies between captain and crew regarding seaworthiness of a
vessel, caused state courts to act "like contemporary regulatory
agencies,"
post, at 950-951, is cleverly true-because
contemporary regulatory agencies have been allowed to perform
adjudicative ("quasi-judicial") functions. See 5 U. S. C. § 554;
Humphrey's Executor v.
United States, 295 U. S. 602 (1935). It
is foolish, however, to mistake the copy for the original, and to
believe that 18thcentury courts were imitating agencies, rather
than 20th-century agencies imitating courts. The Act's requirement
that the court appoint "three persons in the neighbourhood ... most
skilful in maritime affairs" to examine the ship and report on its
condition certainly does not change the proceeding into one
"supervised by a judge but otherwise more characteristic of
executive activity,"
post, at 951; that requirement is not
significantly different from the contemporary judicial practice of
appointing expert witnesses, see,
e. g., Fed. Rule Evid.
706. The ultimate function of the judge under the Act was purely
adjudicative; he was, after receiving the report, to "adjudge and
determine ... whether the said ship or vessel is fit to proceed on
the intended voyage ... " 1 Stat. 132.
909
quired the "executive authority" of a State to cause the arrest
and delivery of a fugitive from justice upon the request of the
executive authority of the State from which the fugitive had fled.
See Act of Feb. 12, 1793, ch. 7, § 1, 1 Stat. 302. That was in
direct implementation, however, of the Extradition Clause of the
Constitution itself, see Art. IV, § 2.3
Not only do the enactments of the early Congresses, as far as we
are aware, contain no evidence of an assumption that the Federal
Government may command the States' executive power in the absence
of a particularized constitutional authorization, they contain some
indication of precisely the opposite assumption. On September 23,
1789-the day before its proposal of the Bill of Rights, see 1
Annals of Congress 912-913-the First Congress enacted a law aimed
at obtaining state assistance of the most rudimentary and necessary
sort for the enforcement of the new Government's laws: the holding
of federal prisoners in state jails at federal expense.
Significantly, the law issued not a command to the States'
executive, but a recommendation to their legislatures. Congress
"recommended to the legislatures of the several States to pass
laws, making it expressly the duty of the keepers of their gaols,
to receive and safe keep therein all prisoners committed under the
authority of the United States," and offered to pay 50 cents per
month for each prisoner. Act of Sept. 23, 1789, 1 Stat. 96.
Moreover, when Georgia refused
3 Article IV, § 2, cl. 2, provides:
"A Person charged in any State with Treason, Felony, or other
Crime, who shall flee from Justice, and be found in another State,
shall on Demand of the executive Authority of the State from which
he fled, be delivered up, to be removed to the State having
Jurisdiction of the Crime."
To the extent the legislation went beyond the substantive
requirement of this provision and specified procedures to be
followed in complying with the constitutional obligation, we have
found that that was an exercise of the congressional power to
"prescribe the Manner in which such Acts, Records and Proceedings,
shall be proved, and the Effect thereof," Art. IV, § 1. See
California v.
Superior Court of Cal., San Bernardino
Cty., 482 U. S.
400, 407 (1987).
910
to comply with the request, see L. White, The Federalists 402
(1948), Congress's only reaction was a law authorizing the marshal
in any State that failed to comply with the Recommendation of
September 23, 1789, to rent a temporary jail until provision for a
permanent one could be made, see Resolution of Mar. 3, 1791, 1
Stat. 225.
In addition to early legislation, the Government also appeals to
other sources we have usually regarded as indicative of the
original understanding of the Constitution. It points to portions
of The Federalist which reply to criticisms that Congress's power
to tax will produce two sets of revenue officers-for example,
"Brutus's" assertion in his letter to the New York Journal of
December 13, 1787, that the Constitution "opens a door to the
appointment of a swarm of revenue and excise officers to prey upon
the honest and industrious part of the community, eat up their
substance, and riot on the spoils of the country," reprinted in 1
Debate on the Constitution 502 (B. Bailyn ed. 1993). "Publius"
responded that Congress will probably "make use of the State
officers and State regulations, for collecting" federal taxes, The
Federalist No. 36, p. 221 (C. Rossiter ed. 1961) (A. Hamilton)
(hereinafter The Federalist), and predicted that "the eventual
collection [of internal revenue] under the immediate authority of
the Union, will generally be made by the officers, and according to
the rules, appointed by the several States," id., No. 45, at 292
(J. Madison). The Government also invokes The Federalist's more
general observations that the Constitution would "enable the
[national] government to employ the ordinary magistracy of each
[State] in the execution of its laws," id., No. 27, at 176 (A.
Hamilton), and that it was "extremely probable that in other
instances, particularly in the organization of the judicial power,
the officers of the States will be clothed with the correspondent
authority of the Union," id., No. 45, at 292 (J. Madison). But none
of these statements necessarily implies-what is the critical point
here-that Congress could impose these responsibil-
911
ities
without the consent of the States. They appear to
rest on the natural assumption that the States would consent to
allowing their officials to assist the Federal Government, see
FERC v.
Mississippi, 456 U. S. 742, 796, n. 35
(1982) (O'CONNOR, J., concurring in judgment in part and dissenting
in part), an assumption proved correct by the extensive mutual
assistance the States and Federal Government voluntarily provided
one another in the early days of the Republic, see generally White,
supra, at 401-404, including voluntary
federal
implementation of state law, see,
e. g., Act of Apr. 2,
1790, ch. 5, § 1, 1 Stat. 106 (directing federal tax collectors and
customs officers to assist in enforcing state inspection laws).
Another passage of The Federalist reads as follows:
"It merits particular attention ... that the laws of the
Confederacy as to the enumerated and legitimate
objects of its jurisdiction will become the SUPREME LAW of the
land; to the observance of which all officers, legislative,
executive, and judicial in each State will be bound by the sanctity
of an oath. Thus, the legislatures, courts, and magistrates, of the
respective members will be incorporated into the operations of the
national government as far as its just and constitutional
authority extends; and will be rendered auxiliary to the
enforcement of its laws." The Federalist No. 27, at 177 (A.
Hamilton) (emphasis in original).
The Government does not rely upon this passage, but JusTICE
SOUTER (with whose conclusions on this point the dissent is in
agreement, see
post, at 947-948) makes it the very
foundation of his position; so we pause to examine it in some
detail. JUSTICE SOUTER finds "[t]he natural reading" of the phrases
"'will be incorporated into the operations of the national
government'" and "'will be rendered auxiliary to the enforcement of
its laws'" to be that the National Government will have "authority
... , when exercising an other-
912
wise legitimate power (the commerce power, say), to require
state 'auxiliaries' to take appropriate action."
Post, at
971, 975. There are several obstacles to such an interpretation.
First, the consequences in question ("incorporated into the
operations of the national government" and "rendered auxiliary to
the enforcement of its laws") are said in the quoted passage to
flow
automatically from the officers' oath to observe "the
laws of the Confederacy as to the
enumerated and
legitimate objects of its jurisdiction." 4 Thus, if the
passage means that state officers must take an active role in the
implementation of federal law, it means that they must do so
without the necessity for a congressional directive that they
implement it. But no one has ever thought, and no one asserts in
the present litigation, that that is the law. The second problem
with JUSTICE SOUTER'S reading is that it makes state
legislatures subject to federal direction. (The passage in
question, after all, does not include legislatures merely
incidentally, as by referring to "all state officers"; it refers to
legislatures
specifically and
first of all.) We have
held, however, that state legislatures are
not subject to
federal direction.
New York v.
United States,
505 U. S. 144
(1992).5
4 Both the dissent and JUSTICE SOUTER dispute that the
consequences are said to flow automatically. They are wrong. The
passage says that (1) federal laws will be supreme, and (2) all
state officers will be oathbound to observe those laws, and
thus (3) state officers will be "incorporated" and "rendered
auxiliary." The reason the progression is automatic is that there
is
not included between (2) and (3): "(2a) those laws will
include laws compelling action by state officers." It is the mere
existence of all federal laws that is said to make state officers
"incorporated" and "auxiliary."
5JUSTICE SOUTER seeks to avoid incompatibility with
New
York (a decision which he joined and purports to adhere to), by
saying,
post, at 975, that the passage does not mean "any
conceivable requirement may be imposed on any state official," and
that "the essence of legislative power ... is a discretion not
subject to command," so that legislatures, at least, cannot be
commanded. But then why were legislatures mentioned in the passage?
It seems to us assuredly
not a "natural reading" that being
"rendered auxiliary to the enforcement of [the National
Government's]
913
These problems are avoided, of course, if the calculatedly vague
consequences the passage recites-"incorporated into the operations
of the national government" and "rendered auxiliary to the
enforcement of its laws" -are taken to refer to nothing more (or
less) than the duty owed to the National Government, on the part of
all state officials, to enact, enforce, and interpret state
law in such fashion as not to obstruct the operation of federal
law, and the attendant reality that all state actions constituting
such obstruction, even legislative Acts, are
ipso facto
invalid.6 See
Silkwood v.
KerrMcGee Corp., 464 U. S. 238, 248 (1984)
(federal pre-emption of conflicting state law). This meaning
accords well with the context of the passage, which seeks to
explain why the new system of federal law directed to individual
citizens, unlike the old one of federal law directed to the States,
will "bid much fairer to avoid the necessity of using force"
against the States, The Federalist No. 27, at 176. It also
reconciles the
laws" means impressibility into federal service for "courts and
magistrates" but something quite different for "legislatures."
Moreover, the novel principle of political science that JUSTICE
SOUTER invokes in order to bring forth disparity of outcome from
parity of language-namely, that "the essence of legislative power
... is a discretion not subject to command,"
ibid.-seems to
us untrue. Perhaps legislatures are inherently uncommandable as to
the outcome of their legislation, but they are commanded all the
time as to what subjects they shall legislate upon-commanded, that
is, by the people, in constitutional provisions that require, for
example, the enactment of annual budgets or forbid the enactment of
laws permitting gambling. We do not think that state legislatures
would be betraying their very "essence" as legislatures (as opposed
to their nature as sovereigns, a nature they share with the other
two branches of Government) if they obeyed a federal command to
enact laws, for example, criminalizing the sale of marijuana.
6 If JUSTICE SOUTER finds these obligations too insignificant,
see
post, at 972-973, n. 1, then perhaps he should subscribe
to the interpretations of "essential agency" given by Madison, see
infra, at 914-915, and n. 8, or by Story, see n. 8,
infra. The point is that there is
no necessity to
give the phrase the problematic meaning which alone enables him to
use it as a basis for deciding this case.
914
passage with Hamilton's statement in The Federalist No. 36, at
222, that the Federal Government would in some circumstances do
well "to employ the State officers as much as possible, and to
attach them to the Union by an accumulation of their emoluments"
-which surely suggests inducing state officers to come aboard by
paying them, rather than merely commandeering their official
services.7
JUSTICE SOUTER contends that his interpretation of The
Federalist No. 27 is "supported by No. 44," written by Madison,
wherefore he claims that "Madison and Hamilton" together stand
opposed to our view.
Post, at 971, 975. In fact, The
Federalist No. 44 quite clearly contradicts JUSTICE SOUTER'S
reading. In that Number, Madison justifies the requirement that
state officials take an oath to support the Federal Constitution on
the ground that they "will have an essential agency in giving
effect to the federal Constitution." If the dissent's reading of
The Federalist No. 27 were correct (and if Madison agreed with it),
one would surely have expected that "essential agency" of state
executive officers (if described further) to be described as their
responsibility to execute the laws enacted under the Constitution.
Instead, however, The Federalist No. 44 continues with the
following description:
"The election of the President and Senate will depend, in all
cases, on the legislatures of the several States. And the election
of the House of Representatives will equally depend on the same
authority in the first instance; and will, probably, forever be
conducted by the officers and according to the laws of the
States." Id., at 287 (emphasis added).
7 JUSTICE SOUTER deduces from this passage in No. 36 that
although the Federal Government may commandeer state officers, it
must compensate them for their services. This is a mighty leap,
which would create a constitutional jurisprudence (for determining
when the compensation was adequate) that would make takings cases
appear clear and simple.
915
It is most implausible that the person who labored for that
example of state executive officers' assisting the Federal
Government believed, but neglected to mention, that they had a
responsibility to execute federallaws.8 If it was indeed Hamilton's
view that the Federal Government could direct the officers of the
States, that view has no clear support in Madison's writings, or as
far as we are aware, in text, history, or early commentary
elsewhere.9
8JUSTICE SOUTER'S discussion of this passage omits to mention
that it
contains an example of state executives' "essential
agency"-and indeed implies the opposite by observing that
"other numbers of The
Federalist give examples" of
the "essential agency" of state executive officers.
Post, at
973 (emphasis added). In seeking to explain the curiousness of
Madison's
not mentioning the state executives' obligation to
administer federal law, JUSTICE SOUTER says that in speaking of "an
essential agency in giving effect to the federal Constitution," The
Federalist No. 44, Madison "was not talking about executing
congressional statutes; he was talking about putting the National
Constitution into effect,"
post, at 973, n. 2. Quite so,
which is our very point.
It is interesting to observe that Story's Commentaries on the
Constitution, commenting upon the same issue of why state officials
are required by oath to support the Constitution, uses the same
"essential agency" language as Madison did in The Federalist No.
44, and goes on to give more numerous examples of state executive
agency than Madison did; all of them, however, involve not state
administration of federal law, but merely the implementation of
duties imposed on state officers by the Constitution itself: "The
executive authority of the several states may be often called upon
to exert Powers or allow Rights given by the Constitution, as in
filling vacancies in the senate during the recess of the
legislature; in issuing writs of election to fill vacancies in the
house of representatives; in officering the militia, and giving
effect to laws for calling them; and in the surrender of fugitives
from justice." 2 Story, Commentaries on the Constitution of the
United States 577 (1851).
9Even if we agreed with JUSTICE SOUTER'S reading of The
Federalist No. 27, it would still seem to us most peculiar to give
the view expressed in that one piece, not clearly confirmed by any
other writer, the determinative weight he does. That would be
crediting the most expansive view of federal authority ever
expressed, and from the pen of the most expansive expositor of
federal power. Hamilton was "from first to last the most
nationalistic of all nationalists in his interpretation of the
clauses of our
916
To complete the historical record, we must note that there is
not only an absence of executive-commandeering statutes in the
early Congresses, but there is an absence of them in our later
history as well, at least until very recent years. The Government
points to the Act of August 3, 1882, ch. 376, §§ 2, 4, 22 Stat.
214, which enlisted state officials "to take charge of the local
affairs of immigration in the ports within such State, and to
provide for the support and relief of such immigrants therein
landing as may fall into distress or need of public aid"; to
inspect arriving immigrants and exclude any person found to be a
"convict, lunatic, idiot," or indigent; and to send convicts back
to their country of origin "without compensation." The statute did
not, however,
mandate those duties, but merely empowered the
Secretary of the Treasury "to
enter into contracts with such
State ... officers as
may be designated for that purpose
by the governor of any State." (Emphasis added.)
The Government cites the World War I selective draft law that
authorized the President "to utilize the service of any or all
departments and any or all officers or agents of the United States
and of the several States, Territories, and the District of
Columbia, and subdivisions thereof, in the execution of this Act,"
and made any person who refused to comply
federal Constitution." C. Rossiter, Alexander Hamilton and the
Constitution 199 (1964). More specifically, it is widely recognized
that "The Federalist reads with a split personality" on matters of
federalism. See D. Braveman, W. Banks, & R. Smolla,
Constitutional Law: Structure and Rights in Our Federal System
198-199 (3d ed. 1996). While overall The Federalist reflects a
"large area of agreement between Hamilton and Madison," Rossiter,
supra, at 58, that is not the case with respect to the subject at
hand, see Braveman, supra, at 198-199. To choose Hamilton's view,
as JUSTICE SOUTER would, is to turn a blind eye to the fact that it
was Madison's-not Hamilton's-that prevailed, not only at the
Constitutional Convention and in popular sentiment, see Rossiter,
supra, at 44-47, 194, 196; 1 Records of the Federal Convention 366
(M. Farrand ed. 1911), but in the subsequent struggle to fix the
meaning of the Constitution by early congressional practice, see
supra, at 905-910.
917
with the President's directions guilty of a misdemeanor. Act of
May 18, 1917, ch. 15, § 6, 40 Stat. 80-81 (emphasis added).
However, it is far from clear that the authorization "to utilize
the service" of state officers was an authorization to compel the
service of state officers; and the misdemeanor provision surely
applied only to refusal to comply with the President's
authorized directions, which might not have included
directions to officers of States whose Governors had not
volunteered their services. It is interesting that in implementing
the Act President Wilson did not commandeer the services of state
officers, but instead requested the assistance of the States'
Governors, see Proclamation of May 18, 1917, 40 Stat. 1665
("call[ing] upon the Governor of each of the several States ... and
all officers and agents of the several States ... to perform
certain duties"); Registration Regulations Prescribed by the
President Under the Act of Congress Approved May 18, 1917, pt. 1, §
7 ("[T]he governor [of each State] is
requested to act under
the regulations and rules prescribed by the President or under his
direction" (emphasis added)), obtained the consent of each of the
Governors, see Note, The President, the Senate, the Constitution,
and the Executive Order of May 8, 1926, 21 Ill. L. Rev. 142, 144
(1926), and left it to the Governors to issue orders to their
subordinate state officers, see Selective Service Regulations
Prescribed by the President Under the Act of May 18, 1917, § 27
(1918); J. Clark, The Rise of a New Federalism 91 (1965). See
generally Note, 21 Ill. L. Rev., at 144. It is impressive that even
with respect to a wartime measure the President should have been so
solicitous of state independence.
The Government points to a number of federal statutes enacted
within the past few decades that require the participation of state
or local officials in implementing federal regulatory schemes. Some
of these are connected to federal funding measures, and can perhaps
be more accurately described as conditions upon the grant of
federal funding than
918
as mandates to the States; others, which require only the
provision of information to the Federal Government, do not involve
the precise issue before us here, which is the forced participation
of the States' executive in the actual administration of a federal
program. We of course do not address these or other currently
operative enactments that are not before us; it will be time enough
to do so if and when their validity is challenged in a proper case.
For deciding the issue before us here, they are of little
relevance. Even assuming they represent assertion of the very same
congressional power challenged here, they are of such recent
vintage that they are no more probative than the statute before us
of a constitutional tradition that lends meaning to the text. Their
persuasive force is far outweighed by almost two centuries of
apparent congressional avoidance of the practice. Compare
INS v.
Chadha, 462 U. S. 919 (1983), in
which the legislative veto, though enshrined in perhaps hundreds of
federal statutes, most of which were enacted in the 1970's and the
earliest of which was enacted in 1932, see id., at 967-975 (White,
J., dissenting), was nonetheless held unconstitutional.
III
The constitutional practice we have examined above tends to
negate the existence of the congressional power asserted here, but
is not conclusive. We turn next to consideration of the structure
of the Constitution, to see if we can discern among its "essential
postulate[s],"
Principality of Monaco v.
Mississippi,
292 U. S. 313,
322 (1934), a principle that controls the present cases.
A
It is incontestible that the Constitution established a system
of "dual sovereignty."
Gregory v.
Ashcroft, 501 U. S. 452, 457
(1991);
Tafflin v.
Levitt, 493 U. S. 455, 458
(1990). Although the States surrendered many of their powers to
919
the new Federal Government, they retained "a residuary and
inviolable sovereignty," The Federalist No. 39, at 245 (J.
Madison). This is reflected throughout the Constitution's text,
Lane County v.
Oregon, 7 Wall. 71, 76 (1869);
Texas v.
White, 7 Wall. 700, 725 (1869), including
(to mention only a few examples) the prohibition on any involuntary
reduction or combination of a State's territory, Art. IV, § 3; the
Judicial Power Clause, Art. III, § 2, and the Privileges and
Immunities Clause, Art. IV, § 2, which speak of the "Citizens" of
the States; the amendment provision, Article V, which requires the
votes of three-fourths of the States to amend the Constitution; and
the Guarantee Clause, Art. IV, § 4, which "presupposes the
continued existence of the states and ... those means and
instrumentalities which are the creation of their sovereign and
reserved rights,"
Helvering v.
Gerhardt, 304 U. S.
405, 414-415 (1938). Residual state sovereignty was also implicit,
of course, in the Constitution's conferral upon Congress of not all
governmental powers, but only discrete, enumerated ones, Art. I, §
8, which implication was rendered express by the Tenth Amendment's
assertion that "[t]he powers not delegated to the United States by
the Constitution, nor prohibited by it to the States, are reserved
to the States respectively, or to the people."
The Framers' experience under the Articles of Confederation had
persuaded them that using the States as the instruments of federal
governance was both ineffectual and provocative of federal-state
conflict. See The Federalist No. 15. Preservation of the States as
independent political entities being the price of union, and "[t]he
practicality of making laws, with coercive sanctions, for the
States as political bodies" having been, in Madison's words,
"exploded on all hands," 2 Records of the Federal Convention of
1787, p. 9 (M. Farrand ed. 1911), the Framers rejected the concept
of a central government that would act upon and through the States,
and instead designed a system in which the State and
920
Federal Governments would exercise concurrent authority over the
people-who were, in Hamilton's words, "the only proper objects of
government," The Federalist No. 15, at 109. We have set forth the
historical record in more detail elsewhere, see
New York v.
United States, 505 U. S., at 161-166, and need not repeat it
here. It suffices to repeat the conclusion: "the Framers explicitly
chose a Constitution that confers upon Congress the power to
regulate individuals, not States."
Id., at 166.10 The great
innovation of this design was that "our citizens would have two
political capacities, one state and one federal, each protected
from incursion by the other"-"a legal system unprecedented in form
and design, establishing two orders of government, each with its
own direct relationship, its own privity, its own set of mutual
rights and obligations to the people who sustain it and are
governed by it."
U. S.
Term Limits, Inc. v.
Thornton, 514
U. S. 779,838 (1995) (KENNEDY, J., concurring). The
Constitution thus contemplates that a State's government will
represent and remain accountable to its own citizens. See
New
York, supra, at 168-169;
United States v.
Lopez,
514 U. S. 549,
576-577 (1995) (KENNEDY, J., concurring). Cf.
Edgar v.
MITE Corp., 457 U. S. 624, 644 (1982)
("[T]he State has no legitimate interest in protecting
nonresident[s]"). As Madison expressed it: "[T]he local or
municipal authorities form distinct and independent portions of the
supremacy, no more subject, within their respective spheres, to the
general au-
10 The dissent, reiterating JUSTICE STEVENS'S dissent in
New
York, 505 U. S., at 210-213, maintains that the Constitution
merely
augmented the pre-existing power under the Articles
to issue commands to the States with the additional power to make
demands directly on individuals. See
post, at 945. That
argument, however, was squarely rejected by the Court in
New
York, supra, at 161-166, and with good reason. Many of
Congress's powers under Art. I, § 8, were copied almost verbatim
from the Articles of Confederation, indicating quite clearly that
"[w]here the Constitution intends that our Congress enjoy a power
once vested in the Continental Congress, it specifically grants
it." Prakash, Field Office Federalism, 79 Va. L. Rev. 1957, 1972
(1993).
921
thority than the general authority is subject to them, within
its own sphere." The Federalist No. 39, at 245.11
This separation of the two spheres is one of the Constitution's
structural protections of liberty. "Just as the separation and
independence of the coordinate branches of the Federal Government
serve to prevent the accumulation of excessive power in anyone
branch, a healthy balance of power between the States and the
Federal Government will reduce the risk of tyranny and abuse from
either front."
Gregory, 501 U. S., at 458. To quote Madison
once again:
llJUSTICE BREYER'S dissent would have us consider the benefits
that other countries, and the European Union, believe they have
derived from federal systems that are different from ours. We think
such comparative analysis inappropriate to the task of interpreting
a constitution, though it was of course quite relevant to the task
of writing one. The Framers were familiar with many federal
systems, from classical antiquity down to their own time; they are
discussed in Nos. 18-20 of The Federalist. Some were (for the
purpose here under discussion) quite similar to the modern
"federal" systems that JUSTICE BREYER favors. Madison's and
Hamilton's opinion of such systems could not be clearer. The
Federalist No. 20, after an extended critique of the system of
government established by the Union of Utrecht for the United
Netherlands, concludes:
"I make no apology for having dwelt so long on the contemplation
of these federal precedents. Experience is the oracle of truth; and
where its responses are unequivocal, they ought to be conclusive
and sacred. The important truth, which it unequivocally pronounces
in the present case, is that a sovereignty over sovereigns, a
government over governments, a legislation for communities, as
contradistinguished from individuals, as it is a solecism in
theory, so in practice it is subversive of the order and ends of
civil polity .... "
Id., at 138.
Antifederalists, on the other hand, pointed specifically to
Switzerlandand its then-400 years of success as a "confederate
republic" -as proof that the proposed Constitution and its federal
structure was unnecessary. See Patrick Henry, Speeches given before
the Virginia Ratifying Convention, 4 and 5 June, 1788, reprinted in
The Essential Antifederalist 123, 135-136 (w. Allen & G. Lloyd
ed. 1985). The fact is that our federalism is not Europe's. It is
"the unique contribution of the Framers to political science and
political theory."
United States v.
Lopez, 514 U. S. 549, 575 (1995)
(KENNEDY, J., concurring) (citing Friendly, Federalism: A Forward,
86 Yale L. J. 1019 (1977)).
922
"In the compound republic of America, the power surrendered by
the people is first divided between two distinct governments, and
then the portion allotted to each subdivided among distinct and
separate departments. Hence a double security arises to the rights
of the people. The different governments will control each other,
at the same time that each will be controlled by itself." The
Federalist No. 51, at 323.
See also The Federalist No. 28, at 180-181 (A. Hamilton). The
power of the Federal Government would be augmented immeasurably if
it were able to impress into its service-and at no cost to
itself-the police officers of the 50 States.
B
We have thus far discussed the effect that federal control of
state officers would have upon the first element of the "double
security" alluded to by Madison: the division of power between
State and Federal Governments. It would also have an effect upon
the second element: the separation and equilibration of powers
between the three branches of the Federal Government itself. The
Constitution does not leave to speculation who is to administer the
laws enacted by Congress; the President, it says, "shall take Care
that the Laws be faithfully executed," Art. II, § 3, personally and
through officers whom he appoints (save for such inferior officers
as Congress may authorize to be appointed by the "Courts of Law" or
by "the Heads of Departments" who are themselves Presidential
appointees), Art. II, § 2. The Brady Act effectively transfers this
responsibility to thousands of CLEOs in the 50 States, who are left
to implement the program without meaningful Presidential control
(if indeed meaningful Presidential control is possible without the
power to appoint and remove). The insistence of the Framers upon
unity in the Federal Executive-to ensure both vigor and
accountability-is well known. See The Federalist No. 70 (A.
Hamilton); 2 Documentary History of the Rati-
923
fication of the Constitution 495 (M. Jensen ed. 1976) (statement
of James Wilson); see also Calabresi & Prakash, The President's
Power to Execute the Laws, 104 Yale L. J. 541 (1994). That unity
would be shattered, and the power of the President would be subject
to reduction, if Congress could act as effectively without the
President as with him, by simply requiring state officers to
execute its laws.12
C
The dissent of course resorts to the last, best hope of those
who defend ultra vires congressional action, the Necessary and
Proper Clause. It reasons,
post, at 941, that the power to
regulate the sale of handguns under the Commerce Clause, coupled
with the power to "make all Laws which shall be necessary and
proper for carrying into Execution the foregoing Powers," Art. I, §
8, conclusively establishes the Brady Act's constitutional
validity, because the Tenth Amendment imposes no limitations on the
exercise of
delegated powers but merely prohibits the
exercise of powers
"not delegated to the United States."
What destroys the dissent's Necessary and Proper Clause argument,
however, is not the Tenth Amendment but the Necessary and Proper
Clause itselfP When a "La[w] ... for carrying into Execu-
12 There is not, as the dissent believes,
post, at 960,
"tension" between the proposition that impressing state police
officers into federal service will massively augment
federal
power, and the proposition that it will also sap the power of the
Federal
Presidency. It is quite possible to have a more
powerful Federal Government that is, by reason of the destruction
of its Executive unity, a less efficient one. The dissent is
correct,
post, at 959-960, that control by the unitary
Federal Executive is also sacrificed when States voluntarily
administer federal programs, but the condition of voluntary state
participation significantly reduces the ability of Congress to use
this device as a means of reducing the power of the Presidency.
13 This argument also falsely presumes that the Tenth Amendment
is the exclusive textual source of protection for principles of
federalism. Our system of dual sovereignty is reflected in numerous
constitutional provisions, see
supra, at 919, and not only
those, like the Tenth Amendment, that speak to the point
explicitly. It is not at all unusual for our
924
tion" the Commerce Clause violates the principle of state
sovereignty reflected in the various constitutional provisions we
mentioned earlier,
supra, at 919, it is not a "La[w] ...
proper for carrying into Execution the Commerce Clause," and
is thus, in the words of The Federalist, "merely [an] ac[t] of
usurpation" which "deserve[s] to be treated as such." The
Federalist No. 33, at 204 (A. Hamilton). See Lawson & Granger,
The "Proper" Scope of Federal Power: A Jurisdictional
Interpretation of the Sweeping Clause, 43 Duke L. J. 267, 297-326,
330-333 (1993). We in fact answered the dissent's Necessary and
Proper Clause argument in
New York: "[E]ven where Congress
has the authority under the Constitution to pass laws requiring or
prohibiting certain acts, it lacks the power directly to compel the
States to require or prohibit those acts .... [T]he Commerce
Clause, for example, authorizes Congress to regulate interstate
commerce directly; it does not authorize Congress to regulate state
governments' regulation of interstate commerce." 505 U. S., at
166.
The dissent perceives a simple answer in that portion of Article
VI which requires that "all executive and judicial Officers, both
of the United States and of the several States, shall be bound by
Oath or Affirmation, to support this Constitution," arguing that by
virtue of the Supremacy Clause this makes "not only the
Constitution, but every law enacted by Congress as well," binding
on state officers, including laws requiring state-officer
enforcement.
Post, at 944. The Supremacy Clause, however,
makes "Law of the Land" only "Laws of the United States which shall
be made in Pursuance [of the Constitution]," Art. VI, cl. 2, so the
Supremacy
resolution of a significant constitutional question to rest upon
reasonable implications. See,
e. g., Myers v.
United
States, 272 U. S.
52 (1926) (finding by implication from Art. II, §§ 1, 2, that
the President has the exclusive power to remove executive
officers);
Plaut v.
Spendthrift Farm, Inc., 514 U. S.
211 (1995) (finding that Article III implies a lack of
congressional power to set aside final judgments).
925
Clause merely brings us back to the question discussed earlier,
whether laws conscripting state officers violate state sovereignty
and are thus not in accord with the Constitution.
IV
Finally, and most conclusively in the present litigation, we
turn to the prior jurisprudence of this Court. Federal
commandeering of state governments is such a novel phenomenon that
this Court's first experience with it did not occur until the
1970's, when the Environmental Protection Agency promulgated
regulations requiring States to prescribe auto emissions testing,
monitoring and retrofit programs, and to designate preferential bus
and carpool lanes. The Courts of Appeals for the Fourth and Ninth
Circuits invalidated the regulations on statutory grounds in order
to avoid what they perceived to be grave constitutional issues, see
Maryland v.
EPA, 530 F.2d
215, 226 (CA4 1975);
Brown v.
EPA, 521 F.2d
827, 838-842 (CA9 1975); and the District of Columbia Circuit
invalidated the regulations on both constitutional and statutory
grounds, see
District of Columbia v.
Train, 521 F.2d
971, 994 (1975). After we granted certiorari to review the
statutory and constitutional validity of the regulations, the
Government declined even to defend them, and instead rescinded some
and conceded the invalidity of those that remained, leading us to
vacate the opinions below and remand for consideration of mootness.
EPA v.
Brown, 431 U. S. 99 (1977)
(per curiam).
Although we had no occasion to pass upon the subject in
Brown, later opinions of ours have made clear that the
Federal Government may not compel the States to implement, by
legislation or executive action, federal regulatory programs. In
Hodel v.
Virginia Surface Mining &
Reclamation
Assn., Inc., 452
U. S. 264 (1981), and
FERC v.
Mississippi,
456 U. S. 742
(1982), we sustained statutes against constitutional challenge only
after assuring ourselves that they did not require the States to
enforce federal law. In
926
Hodel we cited the lower court cases in
EPA v.
Brown, supra, but concluded that the Surface Mining Control
and Reclamation Act of 1977 did not present the problem they raised
because it merely made compliance with federal standards a
precondition to continued state regulation in an otherwise
pre-empted field,
Hodel, supra, at 288. In
FERC, we
construed the most troubling provisions of the Public Utility
Regulatory Policies Act of 1978 to contain only the "command" that
state agencies "consider" federal standards, and again only as a
precondition to continued state regulation of an otherwise
pre-empted field. 456 U. S., at 764-765. We warned that "this Court
never has sanctioned explicitly a federal command to the States to
promulgate and enforce laws and regulations," id., at 761-762.
When we were at last confronted squarely with a federal statute
that unambiguously required the States to enact or administer a
federal regulatory program, our decision should have come as no
surprise. At issue in
New York v.
United States,
505 U. S. 144
(1992), were the so-called "take title" provisions of the Low-Level
Radioactive Waste Policy Amendments Act of 1985, which required
States either to enact legislation providing for the disposal of
radioactive waste generated within their borders, or to take title
to, and possession of, the waste-effectively requiring the States
either to legislate pursuant to Congress's directions, or to
implement an administrative solution.
Id., at 175-176. We
concluded that Congress could constitutionally require the States
to do neither.
Id., at 176. "The Federal Government," we
held, "may not compel the States to enact or administer a federal
regulatory program."
Id., at 188.
The Government contends that
New York is distinguishable
on the following ground: Unlike the "take title" provisions
invalidated there, the background-check provision of the Brady Act
does not require state legislative or executive officials to make
policy, but instead issues a final directive to state CLEOs. It is
permissible, the Government asserts,
927
for Congress to command state or local officials to assist in
the implementation of federal law so long as "Congress itself
devises a clear legislative solution that regulates private
conduct" and requires state or local officers to provide only
"limited, non-policymaking help in enforcing that law." "[T]he
constitutional line is crossed only when Congress compels the
States to make law in their sovereign capacities." Brief for United
States 16.
The Government's distinction between "making" law and merely
"enforcing" it, between "policymaking" and mere "implementation,"
is an interesting one. It is perhaps not meant to be the same as,
but it is surely reminiscent of, the line that separates proper
congressional conferral of Executive power from unconstitutional
delegation of legislative authority for federal
separation-of-powers purposes. See
A. L. A. Schechter Poultry
Corp. v.
United States, 295 U. S. 495,530 (1935);
Panama Refining Co. v.
Ryan, 293 U. S. 388, 428-429
(1935). This Court has not been notably successful in describing
the latter line; indeed, some think we have abandoned the effort to
do so. See
FPC v.
New England Power Co., 415 U. S. 345, 352-353
(1974) (Marshall, J., concurring in result); Schoenbrod, The
Delegation Doctrine: Could the Court Give it Substance?, 83 Mich.
L. Rev. 1223, 1233 (1985). We are doubtful that the new line the
Government proposes would be any more distinct. Executive action
that has utterly no policymaking component is rare, particularly at
an executive level as high as a jurisdiction's chief law
enforcement officer. Is it really true that there is no
policymaking involved in deciding, for example, what "reasonable
efforts" shall be expended to conduct a background check? It may
well satisfy the Act for a CLEO to direct that (a) no background
checks will be conducted that divert personnel time from pending
felony investigations, and (b) no background check will be
permitted to consume more than onehalf hour of an officer's time.
But nothing in the Act
requires a CLEO to be so
parsimonious; diverting at least
928
some felony-investigation time, and permitting at least
some background checks beyond one-half hour would certainly
not be unreasonable. Is this decision whether to devote maximum
"reasonable efforts" or minimum "reasonable efforts" not
preeminently a matter of policy? It is quite impossible, in short,
to draw the Government's proposed line at "no policymaking," and we
would have to fall back upon a line of "not too much policymaking."
How much is too much is not likely to be answered precisely; and an
imprecise barrier against federal intrusion upon state authority is
not likely to be an effective one.
Even assuming, moreover, that the Brady Act leaves no
"policymaking" discretion with the States, we fail to see how that
improves rather than worsens the intrusion upon state sovereignty.
Preservation of the States as independent and autonomous political
entities is arguably less undermined by requiring them to make
policy in certain fields than (as Judge Sneed aptly described it
over two decades ago) by "reduc[ing] [them] to puppets of a
ventriloquist Congress,"
Brown v. EPA, 521 F. 2d, at 839. It
is an essential attribute of the States' retained sovereignty that
they remain independent and autonomous within their proper sphere
of authority. See
Texas v.
White, 7 Wall., at 725. It
is no more compatible with this independence and autonomy that
their officers be "dragooned" (as Judge Fernandez put it in his
dissent below, 66 F. 3d, at 1035) into administering federal law,
than it would be compatible with the independence and autonomy of
the United States that its officers be impressed into service for
the execution of state laws.
The Government purports to find support for its proffered
distinction of
New York in our decisions in
Testa v.
Katt, 330 U. S. 386 (1947), and
FERC v.
Mississippi, 456 U. S. 742 (1982). We
find neither case relevant.
Testa stands for the proposition
that state courts cannot refuse to apply federal law-a conclusion
mandated by the terms of the Supremacy Clause ("the Judges in every
State shall be bound [by federal
929
law]"). As we have suggested earlier,
supra, at 907, that
says nothing about whether state executive officers must administer
federal law. Accord,
New York, 505 U. S., at 178179. As for
FERC, it stated (as we have described earlier) that "this
Court never has sanctioned explicitly a federal command to the
States to promulgate and enforce laws and regulations," 456 U. S.,
at 761-762, and upheld the statutory provisions at issue precisely
because they did not commandeer state government, but merely
imposed preconditions to continued state regulation of an otherwise
pre-empted field, in accord with
Hodel, 452 U. S., at 288,
and required state administrative agencies to apply federal law
while acting in a judicial capacity, in accord with
Testa,
see
FERC, supra, at 759-771, and n. 24.14
The Government also maintains that requiring state officers to
perform discrete, ministerial tasks specified by Congress does not
violate the principle of
New York because it
14 The dissent points out that
FERC cannot be construed
as merely following the principle recognized in
Testa that
state courts must apply relevant federal law because "[a]lthough
the commission was serving an adjudicative function, the
commissioners were unquestionably not 'judges' within the meaning
of [the Supremacy Clause]."
Post, at 969. That is true
enough. But the answer to the question of which state officers
must apply federal law (only" 'judges' within the meaning of
[the Supremacy Clause]") is different from the answer to the
question of which state officers
may be required by statute
to apply federal law (officers who conduct adjudications similar to
those traditionally performed by judges). It is within the power of
the States, as it is within the power of the Federal Government,
see
Crowell v.
Benson, 285 U. S. 22 (1932), to
transfer some adjudicatory functions to administrative agencies,
with opportunity for subsequent judicial review. But it is also
within the power of Congress to prescribe, explicitly or by
implication (as in the legislation at issue in
FERC), that
those adjudications must take account of federal law. The existence
of this latter power should not be unacceptable to a dissent that
believes distinguishing among officers on the basis of their title
rather than the function they perform is "empty formalistic
reasoning of the highest order,"
post, at 952. We have no
doubt that
FERC would not have been decided the way it was
if nonadjudicative responsibilities of the state agency were at
issue.
930
does not diminish the accountability of state or federal
officials. This argument fails even on its own terms. By forcing
state governments to absorb the financial burden of implementing a
federal regulatory program, Members of Congress can take credit for
"solving" problems without having to ask their constituents to pay
for the solutions with higher federal taxes. And even when the
States are not forced to absorb the costs of implementing a federal
program, they are still put in the position of taking the blame for
its burdensomeness and for its defects. See Merritt, Three Faces of
Federalism: Finding a Formula for the Future, 47 Vand. L. Rev.
1563, 1580, n. 65 (1994). Under the present law, for example, it
will be the CLEO and not some federal official who stands between
the gun purchaser and immediate possession of his gun. And it will
likely be the CLEO, not some federal official, who will be blamed
for any error (even one in the designated federal database) that
causes a purchaser to be mistakenly rejected.
The dissent makes no attempt to defend the Government's basis
for distinguishing
New York, but instead advances what seems
to us an even more implausible theory. The Brady Act, the dissent
asserts, is different from the "take title" provisions invalidated
in
New York because the former is addressed to
individuals-namely, CLEOs-while the latter were directed to the
State itself. That is certainly a difference, but it cannot be a
constitutionally significant one. While the Brady Act is directed
to "individuals," it is directed to them in their official
capacities as state officers; it controls their actions, not as
private citizens, but as the agents of the State. The distinction
between judicial writs and other government action directed against
individuals in their personal capacity, on the one hand, and in
their official capacity, on the other hand, is an ancient one,
principally because it is dictated by common sense. We have
observed that "a suit against a state official in his or her
official capacity is not a suit against the official but rather is
a suit against
931
the official's office .... As such, it is no different from a
suit against the State itself."
Will v.
Michigan Dept. of
State Police, 491
U. S. 58, 71 (1989). And the same must be said of a directive
to an official in his or her official capacity. To say that the
Federal Government cannot control the State, but can control all of
its officers, is to say nothing of significance.15 Indeed, it
merits the description "empty formalistic reasoning of the highest
order,"
post, at 952. By resorting to this, the dissent not
so much distinguishes
New York as disembowels it.16
Finally, the Government puts forward a cluster of arguments that
can be grouped under the heading: "The Brady Act serves very
important purposes, is most efficiently ad-
15 Contrary to the dissent's suggestion,
post, at
955-956, n. 16, and 965, the distinction in our Eleventh Amendment
jurisprudence between States and municipalities is of no relevance
here. We long ago made clear that the distinction is peculiar to
the question of whether a governmental entity is entitled to
Eleventh Amendment sovereign immunity, see
Monell v.
New
York City Dept. of Social Servs., 436 U. S. 658, 690, n. 55
(1978); we have refused to apply it to the question of whether a
governmental entity is protected by the Constitution's guarantees
of federalism, including the Tenth Amendment, see
National
League of Cities v.
Usery, 426 U. S. 833, 855-856, n. 20
(1976) (overruled on other grounds by
Garcia v.
San
Antonio Metropolitan Transit Authority, 469 U. S. 528 (1985));
see also
Garcia, supra (resolving Tenth Amendment issues in
suit brought by local transit authority).
16The dissent's suggestion,
post, at 964, n. 27, that
New York v.
United States, 505 U. S. 144 (1992),
itself embraced the distinction between congressional control of
States (impermissible) and congressional control of state officers
(permissible) is based upon the most egregious wrenching of
statements out of context. It would take too much to reconstruct
the context here, but by examining the entire passage cited, id.,
at 178-179, the reader will readily perceive the distortion. The
passage includes, for example, the following:
"Additional cases cited by the United States discuss the power
of federal
courts to order state officials to comply with
federal law .... Again, however, the text of the Constitution
plainly confers this authority on the federal courts .... The
Constitution contains no analogous grant of authority to Congress."
Id., at 179.
932
ministered by CLEOs during the interim period, and places a
minimal and only temporary burden upon state officers." There is
considerable disagreement over the extent of the burden, but we
need not pause over that detail. Assuming
all the mentioned
factors were true, they might be relevant if we were evaluating
whether the incidental application to the States of a federal law
of general applicability excessively interfered with the
functioning of state governments. See,
e. g., Fry v.
United States, 421 U. S. 542, 548
(1975);
National League of Cities v.
Usery, 426 U. S. 833, 853 (1976)
(overruled by
Garcia v.
San Antonio Metropolitan Transit
Authority, 469 U.
S. 528 (1985));
South Carolina v.
Baker, 485 U. S. 505, 529 (1988)
(REHNQUIST, C. J., concurring in judgment). But where, as here, it
is the whole
object of the law to direct the functioning of
the state executive, and hence to compromise the structural
framework of dual sovereignty, such a "balancing" analysis is
inappropriateP It is the very
principle of separate state
sovereignty that such a law offends, and no comparative assessment
of the various interests can overcome that fundamental defect. Cf.
Bowsher, 478 U. S., at 736 (declining to subject principle
of separation of powers to a balancing test);
Chadha, 462 U.
S., at 944-946 (same);
Plaut v.
Spendthrift Farm,
Inc., 514 U. S.
17The dissent observes that "Congress could require private
persons, such as hospital executives or school administrators, to
provide arms merchants with relevant information about a
prospective purchaser's fitness to own a weapon," and that "the
burden on police officers [imposed by the Brady Act] would be
permissible if a similar burden were also imposed on private
parties with access to relevant data."
Post, at 961. That is
undoubtedly true, but it does not advance the dissent's case. The
Brady Act does not merely require CLEOs to report information in
their private possession. It requires them to provide information
that belongs to the State and is available to them only in their
official capacity; and to conduct investigation in their official
capacity, by examining databases and records that only state
officials have access to. In other words, the suggestion that
extension of this statute to private citizens would eliminate the
constitutional problem posits the impossible.
933
211, 239-240 (1995) (holding legislated invalidation of final
judgments to be categorically unconstitutional). We expressly
rejected such an approach in
New York, and what we said
bears repeating:
"Much of the Constitution is concerned with setting forth the
form of our government, and the courts have traditionally
invalidated measures deviating from that form. The result may
appear 'formalistic' in a given case to partisans of the measure at
issue, because such measures are typically the product of the era's
perceived necessity. But the Constitution protects us from our own
best intentions: It divides power among sovereigns and among
branches of government precisely so that we may resist the
temptation to concentrate power in one location as an expedient
solution to the crisis of the day." 505 U. S., at 187.
We adhere to that principle today, and conclude categorically,
as we concluded categorically in
New York: "The Federal
Government may not compel the States to enact or administer a
federal regulatory program."
Id., at 188. The mandatory
obligation imposed on CLEOs to perform background checks on
prospective handgun purchasers plainly runs afoul of that rule.
V
What we have said makes it clear enough that the central
obligation imposed upon CLEOs by the interim provisions of the
Brady Act-the obligation to "make a reasonable effort to ascertain
within 5 business days whether receipt or possession [of a handgun]
would be in violation of the law, including research in whatever
State and local recordkeeping systems are available and in a
national system designated by the Attorney General," 18 U. S. C. §
922(s)(2)-is unconstitutional. Extinguished with it, of course, is
the duty implicit in the background-check requirement that the CLEO
accept notice of the contents of, and a copy of, the completed
Brady
934
Form, which the firearms dealer is required to provide to him,
§§ 922(s)(1)(A)(i)(III) and (IV).
Petitioners also challenge, however, two other provisions of the
Act: (1) the requirement that any CLEO "to whom a [Brady Form] is
transmitted" destroy the form and any record containing information
derived from it, § 922(s)(6)(B)(i), and (2) the requirement that
any CLEO who "determines that an individual is ineligible to
receive a handgun" provide the would-be purchaser, upon request, a
written statement of the reasons for that determination, §
922(s)(6)(C). With the background-check and implicit
receipt-of-forms requirements invalidated, however, these
provisions require no action whatsoever on the part of the CLEO.
Quite obviously, the obligation to destroy all Brady Forms that he
has received when he has received none, and the obligation to give
reasons for a determination of ineligibility when he never makes a
determination of ineligibility, are no obligations at all. These
two provisions have conceivable application to a CLEO, in other
words, only if he has chosen, voluntarily, to participate in
administration of the federal scheme. The present petitioners are
not in that position.18 As to them, these last two challenged
provisions are not unconstitutional, but simply inoperative.
18We note, in this regard, that both CLEOs before us here assert
that they are prohibited from taking on these federal
responsibilities under state law. That assertion is clearly correct
with regard to Montana law, which expressly enjoins any "county ...
or other local government unit" from "prohibit[ing] ... or
regulat[ing] the purchase, sale or other transfer (including delay
in purchase, sale, or other transfer), ownership, [or] possession
... of any ... handgun," Mont. Code Ann. § 45-8-351(1) (1995). It
is arguably correct with regard to Arizona law as well, which
states that "[a] political subdivision of this state shall not ...
prohibit the ownership, purchase, sale or transfer of firearms,"
Ariz. Rev. Stat. Ann. § 133108(B) (1989). We need not resolve that
question today; it is at least clear that Montana and Arizona do
not require their CLEOs to implement the Brady Act, and CLEOs
Printz and Mack have chosen not to do so.
935
There is involved in this Brady Act conundrum a severability
question, which the parties have briefed and argued: whether
firearms dealers in the jurisdictions at issue here, and in other
jurisdictions, remain obliged to forward to the CLEO (even if he
will not accept it) the requisite notice of the contents (and a
copy) of the Brady Form, §§ 922(s)(1)(A)(i)(III) and (IV); and to
wait five business days before consummating the sale, §
922(s)(1)(A)(ii). These are important questions, but we have no
business answering them in these cases. These provisions burden
only firearms dealers and purchasers, and no plaintiff in either of
those categories is before us here. We decline to speculate
regarding the rights and obligations of parties not before the
Court. Cf.,
e. g., New York, supra, at 186-187 (addressing
severability where remaining provisions at issue affected the
plaintiffs).
***
We held in
New York that Congress cannot compel the
States to enact or enforce a federal regulatory program. Today we
hold that Congress cannot circumvent that prohibition by
conscripting the States' officers directly. The Federal Government
may neither issue directives requiring the States to address
particular problems, nor command the States' officers, or those of
their political subdivisions, to administer or enforce a federal
regulatory program. It matters not whether policymaking is
involved, and no case-bycase weighing of the burdens or benefits is
necessary; such commands are fundamentally incompatible with our
constitutional system of dual sovereignty. Accordingly, the
judgment of the Court of Appeals for the Ninth Circuit is
reversed.
It is so ordered.
JUSTICE O'CONNOR, concurring.
Our precedent and our Nation's historical practices support the
Court's holding today. The Brady Act violates the
936
Tenth Amendment to the extent it forces States and local law
enforcement officers to perform background checks on prospective
handgun owners and to accept Brady Forms from firearms dealers. See
ante, at 922. Our holding, of course, does not spell the end
of the objectives of the Brady Act. States and chief law
enforcement officers may voluntarily continue to participate in the
federal program. Moreover, the directives to the States are merely
interim provisions scheduled to terminate November 30, 1998. Note
following 18 U. S. C. § 922. Congress is also free to amend the
interim program to provide for its continuance on a contractual
basis with the States if it wishes, as it does with a number of
other federal programs. See,
e. g.,
23 U. S. C. § 402
(conditioning States' receipt of federal funds for highway safety
program on compliance with federal requirements).
In addition, the Court appropriately refrains from deciding
whether other purely ministerial reporting requirements imposed by
Congress on state and local authorities pursuant to its Commerce
Clause powers are similarly invalid. See,
e. g., 42 U. S. C.
§ 5779(a) (requiring state and local law enforcement agencies to
report cases of missing children to the Department of Justice). The
provisions invalidated here, however, which directly compel state
officials to administer a federal regulatory program, utterly fail
to adhere to the design and structure of our constitutional
scheme.
JUSTICE THOMAS, concurring.
The Court today properly holds that the Brady Act violates the
Tenth Amendment in that it compels state law enforcement officers
to "administer or enforce a federal regulatory program." See
ante, at 935. Although I join the Court's opinion in full, I
write separately to emphasize that the Tenth Amendment affirms the
undeniable notion that under our Constitution, the Federal
Government is one of enumerated, hence limited, powers. See,
e. g.,
McCulloch v.
937
Maryland, 4 Wheat. 316, 405 (1819) ("This government is
acknowledged by all to be one of enumerated powers"). "[T]hat those
limits may not be mistaken, or forgotten, the constitution is
written."
Marbury v.
Madison, 1 Cranch 137, 176
(1803). Accordingly, the Federal Government may act only where the
Constitution authorizes it to do so. Cf.
New York v.
United States, 505 U. S. 144 (1992).
In my "revisionist" view, see
post, at 941 (STEVENS, J.,
dissenting), the Federal Government's authority under the Commerce
Clause, which merely allocates to Congress the power "to regulate
Commerce ... among the several States," does not extend to the
regulation of wholly intrastate, point-of-sale transactions. See
United States v.
Lopez, 514 U. S. 549, 584 (1995)
(concurring opinion). Absent the underlying authority to regulate
the intrastate transfer of firearms, Congress surely lacks the
corollary power to impress state law enforcement officers into
administering and enforcing such regulations. Although this Court
has long interpreted the Constitution as ceding Congress extensive
authority to regulate commerce (interstate or otherwise), I
continue to believe that we must "temper our Commerce Clause
jurisprudence" and return to an interpretation better rooted in the
Clause's original understanding.
Id., at 601 (concurring
opinion); see also
Camps Newfound/Owatonna, Inc. v.
Town
of Harrison, 520
U. S. 564, 620 (1997) (THOMAS, J., dissenting).
Even if we construe Congress' authority to regulate interstate
commerce to encompass those intrastate transactions that
"substantially affect" interstate commerce, I question whether
Congress can regulate the particular transactions at issue here.
The Constitution, in addition to delegating certain enumerated
powers to Congress, places whole areas outside the reach of
Congress' regulatory authority. The First Amendment, for example,
is fittingly celebrated for preventing Congress from "prohibiting
the free exercise" of religion or "abridging the freedom of
speech." The Second
938
Amendment similarly appears to contain an express limitation on
the Government's authority. That Amendment provides: "A well
regulated Militia, being necessary to the security of a free State,
the right of the people to keep and bear arms, shall not be
infringed." This Court has not had recent occasion to consider the
nature of the substantive right safeguarded by the Second
Amendment.1 If, however, the Second Amendment is read to confer a
personal right to "keep and bear arms," a colorable argument
exists that the Federal Government's regulatory scheme, at least as
it pertains to the purely intrastate sale or possession of
firearms, runs afoul of that Amendment's protections.2 As the
parties did
lOur most recent treatment of the Second Amendment occurred in
United States v.
Miller, 307 U. S. 174 (1939), in
which we reversed the District Court's invalidation of the National
Firearms Act, enacted in 1934. In
Miller, we determined that
the Second Amendment did not guarantee a citizen's right to possess
a sawed-off shotgun because that weapon had not been shown to be
"ordinary military equipment" that could "contribute to the common
defense."
Id., at 178. The Court did not, however, attempt
to define, or otherwise construe, the substantive right protected
by the Second Amendment.
2 Marshaling an impressive array of historical evidence, a
growing body of scholarly commentary indicates that the "right to
keep and bear arms" is, as the Amendment's text suggests, a
personal right. See,
e. g., J. Malcolm, To Keep and Bear
Arms: The Origins of an Anglo-American Right 162 (1994); S.
Halbrook, That Every Man Be Armed, The Evolution of a
Constitutional Right (1984); Van Alstyne, The Second Amendment and
the Personal Right to Arms, 43 Duke L. J. 1236 (1994); Amar, The
Bill of Rights and the Fourteenth Amendment, 101 Yale L. J. 1193
(1992); Cottrol & Diamond, The Second Amendment: Toward an
Afro-Americanist Reconsideration, 80 Geo. L. J. 309 (1991);
Levinson, The Embarrassing Second Amendment, 99 Yale L. J. 637
(1989); Kates, Handgun Prohibition and the Original Meaning of the
Second Amendment, 82 Mich. L. Rev. 204 (1983). Other scholars,
however, argue that the Second Amendment does not secure a personal
right to keep or to bear arms. See,
e. g., Bogus, Race,
Riots, and Guns, 66 S. Cal. L. Rev. 1365 (1993); Williams, Civic
Republicanism and the Citizen Militia: The Terrifying Second
Amendment, 101 Yale L. J. 551 (1991); Brown, Guns, Cowboys,
Philadelphia Mayors, and Civic Republicanism: On Sanford Levinson's
The Embarrassing Second Amendment, 99 Yale L. J. 661 (1989); Cress,
An Armed Community: The
939
not raise this argument, however, we need not consider it here.
Perhaps, at some future date, this Court will have the opportunity
to determine whether Justice Story was correct when he wrote that
the right to bear arms "has justly been considered, as the
palladium of the liberties of a republic." 3 J. Story, Commentaries
§ 1890, p. 746 (1833). In the meantime, I join the Court's opinion
striking down the challenged provisions of the Brady Act as
inconsistent with the Tenth Amendment.
JUSTICE STEVENS, with whom JUSTICE SOUTER, JUSTICE GINSBURG, and
JUSTICE BREYER join, dissenting.
When Congress exercises the powers delegated to it by the
Constitution, it may impose affirmative obligations on executive
and judicial officers of state and local governments as well as
ordinary citizens. This conclusion is firmly supported by the text
of the Constitution, the early history of the Nation, decisions of
this Court, and a correct understanding of the basic structure of
the Federal Government.
These cases do not implicate the more difficult questions
associated with congressional coercion of state legislatures
addressed in
New York v.
United States, 505 U. S. 144 (1992). Nor
need we consider the wisdom of relying on local officials rather
than federal agents to carry out aspects of a federal program, or
even the question whether such officials may be required to perform
a federal function on a permanent basis. The question is whether
Congress, acting on behalf of the people of the entire Nation, may
require local law enforcement officers to perform certain duties
during the interim needed for the development of a federal gun
control program. It is remarkably similar to the question, heavily
debated by the Framers of the Constitution, whether Congress could
require state agents to collect federal taxes. Or the question
Origins and Meaning of the Right to Bear Arms, 71 J. Am. Rist.
22 (1984). Although somewhat overlooked in our jurisprudence, the
Amendment has certainly engendered considerable academic, as well
as public, debate.
940
whether Congress could impress state judges into federal service
to entertain and decide cases that they would prefer to ignore.
Indeed, since the ultimate issue is one of power, we must
consider its implications in times of national emergency. Matters
such as the enlistment of air raid wardens, the administration of a
military draft, the mass inoculation of children to forestall an
epidemic, or perhaps the threat of an international terrorist, may
require a national response before federal personnel can be made
available to respond. If the Constitution empowers Congress and the
President to make an appropriate response, is there anything in the
Tenth Amendment, "in historical understanding and practice, in the
structure of the Constitution, [or] in the jurisprudence of this
Court,"
ante, at 905, that forbids the enlistment of state
officers to make that response effective? More narrowly, what basis
is there in any of those sources for concluding that it is the
Members of this Court, rather than the elected representatives of
the people, who should determine whether the Constitution contains
the unwritten rule that the Court announces today?
Perhaps today's majority would suggest that no such emergency is
presented by the facts of these cases. But such a suggestion is
itself an expression of a policy judgment. And Congress' view of
the matter is quite different from that implied by the Court
today.
The Brady Act was passed in response to what Congress described
as an "epidemic of gun violence." H. R. Rep. No. 103-344, p. 8
(1993). The Act's legislative history notes that 15,377 Americans
were murdered with firearms in 1992, and that 12,489 of these
deaths were caused by handguns.
Ibid. Congress expressed
special concern that "[t]he level of firearm violence in this
country is, by far, the highest among developed nations."
Ibid. The partial solution contained in the Brady Act, a
mandatory background check before a
941
handgun may be purchased, has met with remarkable success.
Between 1994 and 1996, approximately 6,600 firearm sales each month
to potentially dangerous persons were prevented by Brady Act
checks; over 70% of the rejected purchasers were convicted or
indicted felons. See U. S. Dept. of Justice, Bureau of Justice
Statistics Bulletin, A National Estimate: Presale Firearm Checks 1
(Feb. 1997). Whether or not the evaluation reflected in the
enactment of the Brady Act is correct as to the extent of the
danger and the efficacy of the legislation, the congressional
decision surely warrants more respect than it is accorded in
today's unprecedented decision.
I
The text of the Constitution provides a sufficient basis for a
correct disposition of these cases.
Article I, § 8, grants Congress the power to regulate commerce
among the States. Putting to one side the revisionist views
expressed by JUSTICE THOMAS in his concurring opinion in
United
States v.
Lopez, 514 U. S. 549, 584
(1995), there can be no question that that provision adequately
supports the regulation of commerce in handguns effected by the
Brady Act. Moreover, the additional grant of authority in that
section of the Constitution "[t]o make all Laws which shall be
necessary and proper for carrying into Execution the foregoing
Powers" is surely adequate to support the temporary enlistment of
local police officers in the process of identifying persons who
should not be entrusted with the possession of handguns. In short,
the affirmative delegation of power in Article I provides ample
authority for the congressional enactment.
Unlike the First Amendment, which prohibits the enactment of a
category of laws that would otherwise be authorized by Article I,
the Tenth Amendment imposes no restriction on the exercise of
delegated powers. U sing language
942
that plainly refers only to powers that are
"not"
delegated to Congress, it provides:
"The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to
the States respectively, or to the people." U. S. Const., Arndt.
10.
The Amendment confirms the principle that the powers of the
Federal Government are limited to those affirmatively granted by
the Constitution, but it does not purport to limit the scope or the
effectiveness of the exercise of powers that are delegated to
Congress.1 See
New York v.
United States, 505 U. S.,
at 156 ("In a case ... involving the division of authority between
federal and state governments, the two inquiries are mirror images
of each other"). Thus, the Amendment provides no support for a rule
that immunizes local officials from obligations that might be
imposed on ordinary citizens.2 Indeed, it would be more reasonable
to infer
1 Indeed, the Framers repeatedly rejected proposed changes to
the Tenth Amendment that would have altered the text to refer to
"powers not
expressly delegated to the United States." 3 W.
Crosskey & W. Jeffrey, Politics and the Constitution in the
History of the United States 36 (1980). This was done, as Madison
explained, because "it was impossible to confine a Government to
the exercise of express powers; there must necessarily be admitted
powers by implication, unless the constitution descended to recount
every minutia." 1 Annals of Congo 790 (Aug. 18, 1789); see
McCulloch V.
Maryland, 4 Wheat. 316, 406-407
(1819).
2 Recognizing the force of the argument, the Court suggests that
this reasoning is in error because-even if it is responsive to the
submission that the Tenth Amendment roots the principle set forth
by the majority today-it does not answer the possibility that the
Court's holding can be rooted in a "principle of state sovereignty"
mentioned nowhere in the constitutional text. See
ante, at
923-924. As a ground for invalidating important federal
legislation, this argument is remarkably weak. The majority's
further claim that, while the Brady Act may be legislation
"necessary" to Congress' execution of its undisputed Commerce
Clause authority to regulate firearms sales, it is nevertheless not
"proper" because it violates state sovereignty, see ibid., is
wholly circular, and provides no traction for its argument.
Moreover, this reading of the term
943
that federal law may impose greater duties on state officials
than on private citizens because another provision of the
Constitution requires that "all executive and judicial Officers,
both of the United States and of the several States, shall be bound
by Oath or Affirmation, to support this Constitution." Art. VI, cl.
3.
It is appropriate for state officials to make an oath or
affirmation to support the Federal Constitution because, as
explained in The Federalist, they "have an essential agency in
giving effect to the federal Constitution." The Federalist No. 44,
p. 312 (E. Bourne ed. 1947) (J. Madison).3 There can be no conflict
between their duties to the State and those owed to the Federal
Government because Article VI unambiguously provides that federal
law "shall be the supreme Law of the Land," binding in every State.
U. S. Const., Art.
"proper" gives it a meaning directly contradicted by Chief
Justice Marshall in
McCulloch v.
Maryland, 4 Wheat.
316 (1819). As the Chief Justice explained, the Necessary and
Proper Clause by "[i]ts terms purport[s] to enlarge, not to
diminish the powers vested in the government. It purports to be an
additional power, not a restriction on those already granted."
Id., at 420; see also
id., at 418-419 (explaining
that "the only possible effect" of the use of the term "proper" was
"to present to the mind the idea of some choice of means of
legislation not straitened and compressed within ... narrow
limits").
Our ruling in
New York that the Commerce Clause does not
provide Congress the authority to require States to enact
legislation-a power that affects States far closer to the core of
their sovereign authoritydoes nothing to support the majority's
unwarranted extension of that reasoning today.
3 "It has been asked why it was thought necessary, that the
State magistracy should be bound to support the federal
Constitution, and unnecessary that a like oath should be imposed on
the officers of the united states, in favor of the State
constitutions.
"Several reasons might be assigned for the distinction. I
content myself with one, which is obvious and conclusive. The
members of the federal government will have no agency in carrying
the State constitutions into effect. The members and officers of
the State governments, on the contrary, will have an essential
agency in giving effect to the federal Constitution." The
Federalist No. 44, at 312 (J. Madison).
944
VI, cl. 2. Thus, not only the Constitution, but every law
enacted by Congress as well, establishes policy for the States just
as firmly as do laws enacted by state legislatures.
The reasoning in our unanimous opinion explaining why state
tribunals with ordinary jurisdiction over tort litigation can be
required to hear cases arising under the Federal Employers'
Liability Act applies equally to local law enforcement officers
whose ordinary duties parallel the modest obligations imposed by
the Brady Act:
"The suggestion that the act of Congress is not in harmony with
the policy of the State, and therefore that the courts of the State
are free to decline jurisdiction, is quite inadmissible, because it
presupposes what in legal contemplation does not exist. When
Congress, in the exertion of the power confided to it by the
Constitution, adopted that act, it spoke for all the people and all
the States, and thereby established a policy for all. That policy
is as much the policy of Connecticut as if the act had emanated
from its own legislature, and should be respected accordingly in
the courts of the State. As was said by this court in
Claflin v. Houseman, 93 U. S. 130, 136,
137:
"'The laws of the United States are laws in the several States,
and just as much binding on the citizens and courts thereof as the
State laws are. The United States is not a foreign sovereignty as
regards the several States, but is a concurrent, and, within its
jurisdiction, paramount sovereignty.'" Second Employers'
Liability Cases, 223 U. S. 1, 57 (1912).
See also
Testa v.
Katt, 330 U. S. 386, 392
(1947).
There is not a clause, sentence, or paragraph in the entire text
of the Constitution of the United States that supports the
proposition that a local police officer can ignore a command
contained in a statute enacted by Congress pursuant to an express
delegation of power enumerated in Article 1.
945
II
Under the Articles of Confederation the National Government had
the power to issue commands to the several sovereign States, but it
had no authority to govern individuals directly. Thus, it raised an
army and financed its operations by issuing requisitions to the
constituent members of the Confederacy, rather than by creating
federal agencies to draft soldiers or to impose taxes.
That method of governing proved to be unacceptable, not because
it demeaned the sovereign character of the several States, but
rather because it was cumbersome and inefficient. Indeed, a
confederation that allows each of its members to determine the ways
and means of complying with an overriding requisition is obviously
more deferential to state sovereignty concerns than a national
government that uses its own agents to impose its will directly on
the citizenry. The basic change in the character of the government
that the Framers conceived was designed to enhance the power of the
National Government, not to provide some new, unmentioned immunity
for state officers. Because indirect control over individual
citizens ("the only proper objects of government") was ineffective
under the Articles of Confederation, Alexander Hamilton explained
that "we must
extend the authority of the Union to the
persons of the citizens." The Federalist No. 15, at 101 (emphasis
added).
Indeed, the historical materials strongly suggest that the
founders intended to enhance the capacity of the Federal Government
by empowering it-as a part of the new authority to make demands
directly on individual citizens-to act through local officials.
Hamilton made clear that the new Constitution, "by extending the
authority of the federal head to the individual citizens of the
several States, will enable the government to employ the ordinary
magistracy of each in the execution of its laws." The Federalist
No. 27, at 180. Hamilton's meaning was unambiguous; the Federal
Government was to have the power to demand that local officials
946
implement national policy programs. As he went on to explain:
"It is easy to perceive that this will tend to destroy, in the
common apprehension, all distinction between the sources from which
[the State and Federal Governments] might proceed; and will give
the federal government the same advantage for securing a due
obedience to its authority which is enjoyed by the government of
each State."
Ibid.4
More specifically, during the debates concerning the
ratification of the Constitution, it was assumed that state agents
would act as tax collectors for the Federal Government. Opponents
of the Constitution had repeatedly expressed fears that the new
Federal Government's ability to impose taxes directly on the
citizenry would result in an overbearing presence of federal tax
collectors in the States.5 Federalists rejoined that this problem
would not arise because, as Hamilton explained, "the United States
... will make use of the State officers and State regulations for
collecting" certain
4 The notion that central government would rule by directing the
actions of local magistrates was scarcely a novel conception at the
time of the founding. Indeed, as an eminent scholar recently
observed: "At the time the Constitution was being framed ...
Massachusetts had virtually no administrative apparatus of its own
but used the towns for such purposes as tax gathering. In the 1830s
Tocqueville observed this feature of government in New England and
praised it for its ideal combination of centralized legislation and
decentralized administration." S. Beer, To Make a Nation: The
Rediscovery of American Federalism 252 (1993). This may have
provided a model for the expectation of "Madison himself ... [that]
the new federal government [would] govern through the state
governments, rather in the manner of the New England states in
relation to their local governments."
Ibid.
5 See,
e. g., 1 Debate on the Constitution 502 (B. Bailyn
ed. 1993) (statement of "Brutus" that the new Constitution would
"ope[n] a door to the appointment of a swarm of revenue and excise
officers to prey upon the honest and industrious part of the
community"); 2 id., at 633 (statement of Patrick Henry at the
Virginia Convention that "the salaries and fees of the swarm of
officers and dependants on the Government will cost this Continent
immense sums" and noting that "[d]ouble sets of [tax] collectors
will double the expence").
947
taxes.
Id., No. 36, at 235. Similarly, Madison made clear
that the new central Government's power to raise taxes directly
from the citizenry would "not be resorted to, except for
supplemental purposes of revenue ... and that the eventual
collection, under the immediate authority of the Union, will
generally be made by the officers ... appointed by the several
States."
Id., No. 45, at 318.6
The Court's response to this powerful historical evidence is
weak. The majority suggests that "none of these statements
necessarily implies ... Congress could impose these
responsibilities without the consent of the States."
Ante,
at 910-911 (emphasis deleted). No fair reading of these materials
can justify such an interpretation. As Hamilton explained, the
power of the Government to act on "individual citizens"-including
"employ[ing] the ordinary magistracy" of the States-was an answer
to the problems faced by a central Government that could act only
directly "upon the States in their political or collective
capacities." The Federalist, No. 27, at 179-180. The new
Constitution would avoid this problem, resulting in "a regular and
peaceable execution of the laws of the Union."
Ibid.
This point is made especially clear in Hamilton's statement that
"the legislatures, courts, and magistrates, of the respective
members, will be incorporated into the operations of the national
government
as far as its just and constitutional authority
extends; and
will be rendered auxiliary to the enforcement
of its laws." Ibid. (second emphasis added). It is hard to
imagine a more unequivocal statement that state
6 Antifederalists acknowledged this response, and recognized the
likelihood that the Federal Government would rely on state
officials to collect its taxes. See,
e. g., 3 J. Elliot,
Debates on the Federal Constitution 167168 (2d ed. 1891) (statement
of Patrick Henry). The wide acceptance of this point by all
participants in the framing casts serious doubt on the majority's
efforts, see
ante, at 915-916, n. 9, to suggest that the
view that state officials could be called upon to implement federal
programs was somehow an unusual or peculiar position.
948
judicial and executive branch officials may be required to
implement federal law where the National Government acts within the
scope of its affirmative powers.7
The Court makes two unpersuasive attempts to discount the force
of this statement. First, according to the majority, because
Hamilton mentioned the Supremacy Clause without specifically
referring to any "congressional directive," the statement does not
mean what it plainly says.
Ante, at 912. But the mere fact
that the Supremacy Clause is the source of the obligation of state
officials to implement congressional directives does not remotely
suggest that they might be " 'incorporat[ed] into the operations of
the national government,'" The Federalist No. 27, at 177 (A.
Hamilton), before their obligations have been defined by Congress.
Federal law establishes policy for the States just as firmly as
laws enacted by state legislatures, but that does not mean that
state or federal officials must implement directives that have not
been specified in any law.8 Second, the majority suggests that
interpreting this passage to mean what it says would conflict with
our decision in
New York v.
United States. Ante, at
912. But since the
New York opinion did not mention The
Federalist No. 27, it does not affect either the relevance or the
weight of the historical evidence provided by No. 27 insofar as it
relates to state courts and magistrates.
Bereft of support in the history of the founding, the Court
rests its conclusion on the claim that there is little evidence the
National Government actually exercised such a power in
7 Hamilton recognized the force of his comments, acknowledging
but rejecting opponents' "sophist[ic]" arguments to the effect that
this position would "tend to the destruction of the State
governments." The Federalist No. 27, at 180, n.
8 Indeed, the majority's suggestion that this consequence flows
"automatically" from the officers' oath,
ante, at 912
(emphasis deleted), is entirely without foundation in the quoted
text. Although the fact that the Court has italicized the word
"automatically" may give the reader the impression that it is a
word Hamilton used, that is not so.
949
the early years of the Republic. See
ante, at 907-908.
This reasoning is misguided in principle and in fact. While we have
indicated that the express consideration and resolution of
difficult constitutional issues by the First Congress in particular
"provides 'contemporaneous and weighty evidence' of the
Constitution's meaning since many of [its] Members ... 'had taken
part in framing that instrument,'"
Bowsher v.
Synar,
478 U. S. 714,
723-724 (1986) (quoting
Marsh v.
Chambers, 463 U. S. 783, 790
(1983)), we have never suggested that the failure of the early
Congresses to address the scope of federal power in a particular
area or to exercise a particular authority was an argument against
its existence. That position, if correct, would undermine most of
our post-New Deal Commerce Clause jurisprudence. As JUSTICE
O'CONNOR quite properly noted in
New York, "[t]he Federal
Government undertakes activities today that would have been
unimaginable to the Framers." 505 U. S., at 157.
More importantly, the fact that Congress did elect to rely on
state judges and the clerks of state courts to perform a variety of
executive functions, see
ante, at 905-909, is surely
evidence of a contemporary understanding that their status as state
officials did not immunize them from federal service. The
majority's description of these early statutes is both incomplete
and at times misleading.
For example, statutes of the early Congresses required in
mandatory terms that state judges and their clerks perform various
executive duties with respect to applications for citizenship. The
First Congress enacted a statute requiring that the state courts
consider such applications, specifying that the state courts
"shall administer" an oath of loyalty to the United States,
and that "the clerk of such court
shall record such
application." Act of Mar. 26, 1790, ch. 3, § 1, 1 Stat. 103
(emphasis added). Early legislation passed by the Fifth Congress
also imposed reporting requirements relating to naturalization on
court clerks, specifying that failure to perform those duties would
result in a fine. Act of June 18,
950
1798, ch. 54, § 2, 1 Stat. 567 (specifying that these
obligations
"shall be the duty of the clerk" (emphasis
added)). Not long thereafter, the Seventh Congress mandated that
state courts maintain a registry of aliens seeking naturalization.
Court clerks were required to receive certain information from
aliens, record those data, and provide certificates to the aliens;
the statute specified fees to be received by local officials in
compensation. Act of Apr. 14, 1802, ch. 28, § 2, 2 Stat. 154155
(specifying that these burdens
"shall be the duty of such
clerk" including clerks "of a ... state" (emphasis added)).9
Similarly, the First Congress enacted legislation requiring
state courts to serve, functionally, like contemporary regula-
9 The majority asserts that these statutes relating to the
administration of the federal naturalization scheme are not proper
evidence of the original understanding because over a century
later, in
Holmgren v.
United States, 217 U. S. 509 (1910),
this Court observed that that case did not present the question
whether the States can be required to enforce federal laws "against
their consent," id., at 517. The majority points to similar
comments in
United States v.
Jones, 109 U. S. 513, 519-520
(1883). See
ante, at 906.
Those cases are unpersuasive authority. First, whatever their
statements in dicta, the naturalization statutes at issue there, as
made clear in the text, were framed in quite mandatory terms. Even
the majority only goes so far as to say that "[i]t may well be"
that these facially mandatory statutes in fact rested on voluntary
state participation.
Ibid. Any suggestion to the contrary is
belied by the language of the statutes themselves.
Second, both of the cases relied upon by the majority rest on
nowrejected doctrine. In
Jones, the Court indicated that
various duties, including the requirement that state courts of
appropriate jurisdiction hear federal questions, "could not be
enforced against the consent of the States." 109 U. S., at 520.
That view was unanimously resolved to the contrary thereafter in
the
Second Employers' Liability Cases, 223 U. S. 1, 57 (1912), and
in
Testa v.
Katt, 330 U. S. 386 (1947).
Finally, the Court suggests that the obligation set forth in the
latter two cases that state courts hear federal claims is
"voluntary" in that States need not create courts of ordinary
jurisdiction. That is true, but unhelpful to the majority. If a
State chooses to have no local law enforcement officials it may
avoid the Brady Act's requirements, and if it chooses to have no
courts it may avoid
Testa. But neither seems likely.
951
tory agencies in certifying the seaworthiness of vessels. Act of
July 20,1790, ch. 29, §3, 1 Stat. 132-133. The majority casts this
as an adjudicative duty,
ante, at 907, but that
characterization is misleading. The law provided that upon a
complaint raised by a ship's crew members, the state courts were
(if no federal court was proximately located) to appoint an
investigative committee of three persons "most skilful in maritime
affairs" to report back. On this basis, the judge was to determine
whether the ship was fit for its intended voyage. The statute sets
forth, in essence, procedures for an expert inquisitorial
proceeding, supervised by a judge but otherwise more characteristic
of executive activity.lO
The Court assumes that the imposition of such essentially
executive duties on state judges and their clerks sheds no light on
the question whether executive officials might have an immunity
from federal obligations.
Ibid. Even assuming that the
enlistment of state judges in their judicial role for federal
purposes is irrelevant to the question whether executive officials
may be asked to perform the same function-a claim disputed below,
see
infra, at 968-970-the majority's analysis is badly
mistaken.
We are far truer to the historical record by applying a
functional approach in assessing the role played by these early
state officials. The use of state judges and their clerks to
perform executive functions was, in historical context, hardly
unusual. As one scholar has noted, "two centuries ago, state and
local judges and associated judicial personnel
10 Other statutes mentioned by the majority are also wrongly
miscategorized as involving essentially judicial matters. For
example, the Fifth Congress enacted legislation requiring state
courts to serve as repositories for reporting what amounted to
administrative claims against the United States Government, under a
statute providing compensation in land to Canadian refugees who had
supported the United States during the Revolutionary War. Contrary
to the majority's suggestion, that statute did not amount to a
requirement that state courts adjudicate claims, see
ante,
at 908, n. 2; final decisions as to appropriate compensation were
made by federal authorities, see Act of Apr. 7, 1798, ch. 26, §3, 1
Stat. 548.
952
performed many of the functions today performed by executive
officers, including such varied tasks as laying city streets and
ensuring the seaworthiness of vessels." Caminker, State Sovereignty
and Subordinacy: May Congress Commandeer State Officers to
Implement Federal Law?, 95 Colum. L. Rev. 1001, 1045, n. 176
(1995). And, of course, judges today continue to perform a variety
of functions that may more properly be described as executive. See,
e. g.,
Forrester v.
White, 484 U. S. 219, 227 (1988)
(noting "intelligible distinction between judicial acts and the
administrative, legislative, or executive functions that judges may
on occasion be assigned by law to perform"). The majority's
insistence that this evidence of federal enlistment of state
officials to serve executive functions is irrelevant simply because
the assistance of "judges" was at issue rests on empty formalistic
reasoning of the highest order.ll
The Court's evaluation of the historical evidence, furthermore,
fails to acknowledge the important difference between
11 Able to muster little response other than the bald claim that
this argument strikes the majority as "doubtful,"
ante, at
908, n. 2, the Court proceeds to attack the basic point that the
statutes discussed above called state judges to serve what were
substantially executive functions. The argument has little force.
The majority's view that none of the statutes referred to in the
text required judges to perform anything other than
"quintessentially adjudicative tasks[s]," ibid., is quite wrong.
The evaluation of applications for citizenship and the acceptance
of Revolutionary War claims, for example, both discussed above, are
hard to characterize as the sort of adversarial proceedings to
which common-law courts are accustomed. As for the majority's
suggestion that the substantial administrative requirements imposed
on state-court clerks under the naturalization statutes are merely
"ancillary" and therefore irrelevant, this conclusion is in
considerable tension with the Court's holding that the minor burden
imposed by the Brady Act violates the Constitution. Finally, the
majority's suggestion that the early statute requiring state courts
to assess the seaworthiness of vessels is essentially adjudicative
in nature is not compelling. Activities of this sort, although they
may bear some resemblance to traditional common-law adjudication,
are far afield from the classical model of
adversariallitigation.
953
policy decisions that may have been influenced by respect for
state sovereignty concerns, and decisions that are compelled by the
Constitution.12 Thus, for example, the decision by Congress to give
President Wilson the authority to utilize the services of state
officers in implementing the World War I draft, see Act of May 18,
1917, ch. 15, § 6, 40 Stat. 80-81, surely indicates that the
National Legislature saw no constitutional impediment to the
enlistment of state assistance during a federal emergency. The fact
that the President was able to implement the program by
respectfully "request[ing]" state action, rather than bluntly
commanding it, is evidence that he was an effective statesman, but
surely does not indicate that he doubted either his or Congress'
power to use mandatory language if necessary.13 If there were merit
to the Court's appraisal of this incident, one would assume that
there would have been some contemporary comment on the supposed
constitutional concern that hypothetically might have motivated the
President's choice of language.14
12 Indeed, an entirely appropriate concern for the prerogatives
of state government readily explains Congress' sparing use of this
otherwise "highly attractive,"
ante, at 905, 908, power.
Congress' discretion, contrary to the majority's suggestion,
indicates not that the power does not exist, but rather that the
interests of the States are more than sufficiently protected by
their participation in the National Government. See
infra,
at 956-957.
13 Indeed, the very commentator upon whom the majority relies
noted that the "President might, under the act, have issued orders
directly to every state officer, and this would have been, for war
purposes, a justifiable Congressional grant of all state powers
into the President's hands." Note, The President, The Senate, The
Constitution, and the Executive Order of May 8, 1926,21 U. Ill. L.
Rev. 142, 144 (1926).
14 Even less probative is the Court's reliance on the decision
by Congress to authorize federal marshals to rent temporary jail
facilities instead of insisting that state jailkeepers house
federal prisoners at federal expense. See
ante, at 909-910.
The majority finds constitutional significance in the fact that the
First Congress (apparently following practice appropriate under the
Articles of Confederation) had issued a request to state
legisla-
954
The Court concludes its review of the historical materials with
a reference to the fact that our decision in
INS v. Chadha,
462 U. S. 919
(1983), invalidated a large number of statutes enacted in the
1970's, implying that recent enactments by Congress that are
similar to the Brady Act are not entitled to any presumption of
validity. But in Chadha, unlike these cases, our decision rested on
the Constitution's express bicameralism and presentment
requirements, id., at 946, not on judicial inferences drawn from a
silent text and a historical record that surely favors the
congressional understanding. Indeed, the majority's opinion
consists almost entirely of arguments
against the
substantial evidence weighing in opposition to its view; the
Court's ruling is strikingly lacking in affirmative support. Absent
even a modicum of textual foundation for its judicially crafted
constitutional rule, there should be a presumption that if the
Framers had actually intended such a rule, at least one of them
would have mentioned it.15
tures rather than a command to state jailkeepers, see Resolution
of Sept. 29, 1789, 1 Stat. 96, and the further fact that it chose
not to change that request to a command 18 months later, see
Resolution of Mar. 3, 1791, 1 Stat. 225. The Court does not point
us to a single comment by any Member of Congress suggesting that
either decision was motivated in the slightest by constitutional
doubts. If this sort of unexplained congressional action provides
sufficient historical evidence to support the fashioning of
judge-made rules of constitutional law, the doctrine of judicial
restraint has a brief, though probably colorful, life
expectancy.
15 Indeed, despite the exhaustive character of the Court's
response to this dissent, it has failed to find even an iota of
evidence that any of the Framers of the Constitution or any Member
of Congress who supported or opposed the statutes discussed in the
text ever expressed doubt as to the power of Congress to impose
federal responsibilities on local judges or police officers. Even
plausible rebuttals of evidence consistently pointing in the other
direction are no substitute for affirmative evidence. In short, a
neutral historian would have to conclude that the Court's
discussion of history does not even begin to establish a prima
facie case.
955
III
The Court's "structural" arguments are not sufficient to rebut
that presumption. The fact that the Framers intended to preserve
the sovereignty of the several States simply does not speak to the
question whether individual state employees may be required to
perform federal obligations, such as registering young adults for
the draft, 40 Stat. 80-81, creating state emergency response
commissions designed to manage the release of hazardous substances,
42 U. S. C. §§ 11001, 11003, collecting and reporting data on
underground storage tanks that may pose an environmental hazard, §
6991a, and reporting traffic fatalities, 23 U. S. C. § 402(a), and
missing children, 42 U. S. C. § 5779(a), to a federal agency.
16
16 The majority's argument is particularly peculiar because
these cases do not involve the enlistment of
state officials
at all, but only an effort to have federal policy implemented by
officials of
local government. Both Sheriffs Printz and Mack
are county officials. Given that the Brady Act places its interim
obligations on chief law enforcement officers (CLEO's), who are
defined as "the chief of police, the sheriff, or an equivalent
officer," 18 U. S. C. § 922(s)(8), it seems likely that most cases
would similarly involve local government officials.
This Court has not had cause in its recent federalism
jurisprudence to address the constitutional implications of
enlisting nonstate officials for federal purposes. (We did pass
briefly on the issue in a footnote in
National League of
Cities v.
Usery, 426 U. S. 833, 855, n. 20
(1976), but that case was overruled in its entirety by
Garcia v.
San Antonio Metropolitan Transit Authority,
469 U. S. 528
(1985). The question was not called to our attention in
Garcia itself.) It is therefore worth noting that the
majority's decision is in considerable tension with our Eleventh
Amendment sovereign immunity cases. Those decisions were designed
to "accor[d] the States the respect owed them as members of the
federation."
Puerto Rico Aqueduct and Sewer Authority v.
Metcalf &
Eddy, Inc., 506 U. S. 139, 146
(1993). But despite the fact that "political subdivisions exist
solely at the whim and behest of their State,"
Port Authority
TransHudson Corp. v.
Feeney, 495 U. S. 299, 313 (1990)
(Brennan, J., concurring in part and concurring in judgment), we
have "consistently refused to
956
As we explained in
Garcia v.
San Antonio Metropolitan
Transit Authority, 469 U. S. 528 (1985):
"[T]he principal means chosen by the Framers to ensure the role of
the States in the federal system lies in the structure of the
Federal Government itself. It is no novelty to observe that the
composition of the Federal Government was designed in large part to
protect the States from overreaching by Congress."
Id., at
550-551. Given the fact that the Members of Congress are elected by
the people of the several States, with each State receiving an
equivalent number of Senators in order to ensure that even the
smallest States have a powerful voice in the Legislature, it is
quite unrealistic to assume that they will ignore the sovereignty
concerns of their constituents. It is far more reasonable to
presume that their decisions to impose modest burdens on state
officials from time to time reflect a considered judgment that the
people in each of the States will benefit therefrom.
Indeed, the presumption of validity that supports all
congressional enactments 17 has added force with respect to
pol-
construe the Amendment to afford protection to political
subdivisions such as counties and municipalities."
Lake Country
Estates, Inc. v.
Tahoe Regional Planning Agency,
440 U. S. 391,
401 (1979); see also
Hess v.
Port Authority Trans-Hudson
Corporation, 513
U. S. 30, 47 (1994). Even if the protections that the majority
describes as rooted in the Tenth Amendment ought to benefit state
officials, it is difficult to reconcile the decision to extend
these principles to local officials with our refusal to do so in
the Eleventh Amendment context. If the federal judicial power may
be exercised over local government officials, it is hard to see why
they are not subject to the legislative power as well.
17 "Whenever called upon to judge the constitutionality of an
Act of Congress-'the gravest and most delicate duty that this Court
is called upon to perform,'
Blodgett v.
Holden,
275 U. S. 142,
148 (1927) (Holmes, J.)the Court accords 'great weight to the
decisions of Congress.'
Columbia Broadcasting System, Inc.
v.
Democratic National Committee, 412 U. S. 94, 102 (1973).
The Congress is a coequal branch of Government whose Members take
the same oath we do to uphold the Constitution of the United
States. As Justice Frankfurter noted in
Joint Anti-Fascist
Refugee Committee v.
McGrath, 341 U. S. 123, 164 (1951)
(concurring opinion),
957
icy judgments concerning the impact of a federal statute upon
the respective States. The majority points to nothing suggesting
that the political safeguards of federalism identified in
Garcia need be supplemented by a rule, grounded in neither
constitutional history nor text, flatly prohibiting the National
Government from enlisting state and local officials in the
implementation of federal law.
Recent developments demonstrate that the political safeguards
protecting Our Federalism are effective. The majority expresses
special concern that were its rule not adopted the Federal
Government would be able to avail itself of the services of state
government officials "at no cost to itself."
Ante, at 922;
see also
ante, at 930 (arguing that "Members of Congress can
take credit for 'solving' problems without having to ask their
constituents to pay for the solutions with higher federal taxes").
But this specific problem of federal actions that have the effect
of imposing so-called "unfunded mandates" on the States has been
identified and meaningfully addressed by Congress in recent
legislation.18 See Un-
we must have 'due regard to the fact that this Court is not
exercising a primary judgment but is sitting in judgment upon those
who also have taken the oath to observe the Constitution and who
have the responsibility for carrying on government.'''
Rostker v.
Goldberg, 453 U. S. 57, 64
(1981).
18 The majority also makes the more general claim that requiring
state officials to carry out federal policy causes States to
"tak[e] the blame" for failed programs.
Ante, at 930. The
Court cites no empirical authority to support the proposition,
relying entirely on the speculations of a law review article. This
concern is vastly overstated.
Unlike state legislators, local government executive officials
routinely take action in response to a variety of sources of
authority: local ordinance, state law, and federal law. It
doubtless may therefore require some sophistication to discern
under which authority an executive official is acting, just as it
may not always be immediately obvious what legal source of
authority underlies a judicial decision. In both cases, affected
citizens must look past the official before them to find the true
cause of their grievance. See
FERC v.
Mississippi,
456 U. S. 742,
785 (1982) (O'CONNOR, J., concurring in part and dissenting in
part) (legislators differ from judges
958
funded Mandates Reform Act of 1995, Pub. L. 104-4, 109 Stat.
48.
The statute was designed "to end the imposition, in the absence
of full consideration by Congress, of Federal mandates on State ...
governments without adequate Federal funding, in a manner that may
displace other essential State ... governmental priorities." 2 U.
S. C. § 1501(2) (1994 ed., Supp. II). It functions,
inter
alia, by permitting Members of Congress to raise an objection
by point of order to a pending bill that contains an "unfunded
mandate," as defined by the statute, of over $50 million.19 The
mandate may not then be enacted unless the Members make an explicit
decision to proceed anyway. See Recent Legislation, Unfunded
Mandates Reform Act of 1995, 109 Harv. L. Rev. 1469 (1996)
(describing functioning of statute). Whatever the ultimate impact
of the new legislation, its passage demonstrates that
because legislators have "the power to choose subjects for
legislation"). But the majority's rule neither creates nor alters
this basic truth.
The problem is of little real consequence in any event, because
to the extent that a particular action proves politically
unpopular, we may be confident that elected officials charged with
implementing it will be quite clear to their constituents where the
source of the misfortune lies. These cases demonstrate the point.
Sheriffs Printz and Mack have made public statements, including
their decisions to serve as plaintiffs in these actions, denouncing
the Brady Act. See,
e. g., Shaffer, Gun Suit Shoots Sheriff
into Spotlight, Arizona Republic, July 5, 1994, p. B1; Downs, Most
Gun Dealers Shrug off Proposal to Raise License Fee, Missoulian,
Jan. 5, 1994. Indeed, Sheriff Mack has written a book discussing
his views on the issue. See R. Mack & T. Walters, From My Cold
Dead Fingers: Why America Needs Guns (1994). Moreover, we can be
sure that CLEO's will inform disgruntled constituents who have been
denied permission to purchase a handgun about the origins of the
Brady Act requirements. The Court's suggestion that voters will be
confused over who is to "blame" for the statute reflects a gross
lack of confidence in the electorate that is at war with the basic
assumptions underlying any democratic government.
19 Unlike the majority's judicially crafted rule, the statute
excludes from its coverage bills in certain subject areas, such as
emergency matters, legislation prohibiting discrimination, and
national security measures. See 2 U. S. C. § 1503 (1994 ed., Supp.
II).
959
unelected judges are better off leaving the protection of
federalism to the political process in all but the most
extraordinary circumstances.20
Perversely, the majority's rule seems more likely to damage than
to preserve the safeguards against tyranny provided by the
existence of vital state governments. By limiting the ability of
the Federal Government to enlist state officials in the
implementation of its programs, the Court creates incentives for
the National Government to aggrandize itself. In the name of
State's rights, the majority would have the Federal Government
create vast national bureaucracies to implement its policies. This
is exactly the sort of thing that the early Federalists promised
would not occur, in part as a result of the National Government's
ability to rely on the magistracy of the States. See,
e. g.,
The Federalist No. 36, at 234-235 (A. Hamilton); id., No. 45, at
318 (J. Madison).21
With colorful hyperbole, the Court suggests that the unity in
the Executive Branch of the Federal Government "would be shattered,
and the power of the President would be sub-
20 The initial signs are that the Act will play an important
role in curbing the behavior about which the majority expresses
concern. In the law's first year, the Congressional Budget Office
identified only five bills containing unfunded mandates over the
statutory threshold. Of these, one was not enacted into law, and
three were modified to limit their effect on the States. The fifth,
which was enacted, was scarcely a program of the sort described by
the majority at all; it was a generally applicable increase in the
minimum wage. See Congressional Budget Office, The Experience of
the Congressional Budget Office During the First Year of the
Unfunded Mandates Reform Act 13-15 (Jan. 1997).
21 The Court raises the specter that the National Government
seeks the authority "to impress into its service ... the police
officers of the 50 States."
Ante, at 922. But it is
difficult to see how state sovereignty and individual liberty are
more seriously threatened by federal reliance on state police
officers to fulfill this minimal request than by the aggrandizement
of a national police force. The Court's alarmist hypothetical is no
more persuasive than the likelihood that Congress would actually
enact any such program.
960
ject to reduction, if Congress could ... requir[e] state
officers to execute its laws."
Ante, at 923. Putting to one
side the obvious tension between the majority's claim that
impressing state police officers will unduly tip the balance of
power in favor of the federal sovereign and this suggestion that it
will emasculate the Presidency, the Court's reasoning contradicts
New York v.
United States.22
That decision squarely approved of cooperative federalism
programs, designed at the national level but implemented
principally by state governments.
New York disapproved of a
particular
method of putting such programs into place, not
the
existence of federal programs implemented locally. See
505 U. S., at 166 ("Our cases have identified a variety of methods
... by which Congress may urge a State to adopt a legislative
program consistent with federal interests"). Indeed, nothing in the
majority's holding calls into question the three mechanisms for
constructing such programs that
New York expressly approved.
Congress may require the States to implement its programs as a
condition of federal spending,23 in order to avoid the threat of
unilateral federal action in the area,24 or as a part of a program
that affects States and private parties alike.25 The majority's
suggestion in response to this dissent that Congress' ability to
create such programs is limited,
ante, at 923, n. 12, is
belied by the importance and sweep of the federal statutes that
meet this description, some of which we described in
New
York. See
22 Moreover, with respect to programs that directly enlist the
local government officials, the majority's position rests on
nothing more than a fanciful hypothetical. The enactment of
statutes that merely involve the gathering of information, or the
use of state officials on an interim basis, do not raise even
arguable separation-of-powers concerns.
23 See New York, 505 U. S., at 167; see, e. g., South Dakota v.
Dole, 483
24 New York, 505 U. S., at 167; see, e. g., Hodel v. Virginia
Surface Mining & Reclamation Assn., Inc.,
452 U. S. 264 (1981).
25 New York, 505 U. S., at 160; see, e. g., Garcia v. San
Antonio Metropolitan Transit Authority,
469 U. S. 528 (1985).
961
505 U. S., at 167-168 (mentioning,
inter alia, the Clean
Water Act, the Occupational Safety and Health Act of 1970, and the
Resource Conservation and Recovery Act of 1976).
Nor is there force to the assumption undergirding the Court's
entire opinion that if this trivial burden on state sovereignty is
permissible, the entire structure of federalism will soon collapse.
These cases do not involve any mandate to state legislatures to
enact new rules. When legislative action, or even administrative
rulemaking, is at issue, it may be appropriate for Congress either
to pre-empt the State's lawmaking power and fashion the federal
rule itself, or to respect the State's power to fashion its own
rules. But these cases, unlike any precedent in which the Court has
held that Congress exceeded its powers, merely involve the
imposition of modest duties on individual officers. The Court seems
to accept the fact that Congress could require private persons,
such as hospital executives or school administrators, to provide
arms merchants with relevant information about a prospective
purchaser's fitness to own a weapon; indeed, the Court does not
disturb the conclusion that flows directly from our prior holdings
that the burden on police officers would be permissible if a
similar burden were also imposed on private parties with access to
relevant data. See
New York, 505 U. S., at 160;
Garcia v.
San Antonio Metropolitan Transit Authority,
469 U. S. 528
(1985). A structural problem that vanishes when the statute affects
private individuals as well as public officials is not much of a
structural problem.
Far more important than the concerns that the Court musters in
support of its new rule is the fact that the Framers entrusted
Congress with the task of creating a working structure of
intergovernmental relationships around the framework that the
Constitution authorized. Neither explicitly nor implicitly did the
Framers issue any command that forbids Congress from imposing
federal duties on private citizens or on local officials. As a
general matter, Con-
962
gress has followed the sound policy of authorizing federal
agencies and federal agents to administer federal programs. That
general practice, however, does not negate the existence of power
to rely on state officials in occasional situations in which such
reliance is in the national interest. Rather, the occasional
exceptions confirm the wisdom of Justice Holmes' reminder that "the
machinery of government would not work if it were not allowed a
little play in its joints."
Bain Peanut Co. of Tex. v.
Pinson, 282 U.
S. 499, 501 (1931).
IV
Finally, the Court advises us that the "prior jurisprudence of
this Court" is the most conclusive support for its position.
Ante, at 925. That "prior jurisprudence" is
New York
v.
United States.26 The case involved the validity of a
federal statute that provided the States with three types of
incentives to encourage them to dispose of radioactive wastes
generated within their borders. The Court held that the first two
sets of incentives were authorized by affirmative grants of power
to Congress, and therefore "not inconsistent with the Tenth
Amendment." 505 U. S., at 173, 174. That holding, of course, sheds
no doubt on the validity of the Brady Act.
The third so-called "incentive" gave the States the option
either of adopting regulations dictated by Congress or of taking
title to and possession of the low level radioactive waste. The
Court concluded that, because Congress had no power to compel the
state governments to take title to the
26 The majority also cites to
FERC v.
Mississippi,
456 U. S. 742
(1982), and
Hodel v.
Virginia Surface Mining &
Reclamation Assn., Inc., 452 U. S. 264 (1981). See
ante, at 925-926. Neither case addressed the issue presented
here.
Hodel simply reserved the question. See 452 U. S., at
288. The Court's subsequent opinion in
FERC did the same,
see 456 U. S., at 764-765; and, both its holding and reasoning cut
against the majority's view in these cases.
963
waste, the "option" really amounted to a simple command to the
States to enact and enforce a federal regulatory program.
Id., at 176. The Court explained:
"A choice between two unconstitutionally coercive regulatory
techniques is no choice at all. Either way, 'the Act commandeers
the legislative processes of the States by directly compelling them
to enact and enforce a federal regulatory program,' Hodel v.
Virginia Surface Mining & Reclamation Assn., Inc.,
supra, at 288, an outcome that has never been understood to lie
within the authority conferred upon Congress by the Constitution."
Ibid.
After noting that the "take title provision appears to be
unique" because no other federal statute had offered "a state
government no option other than that of implementing legislation
enacted by Congress," the Court concluded that the provision was
"inconsistent with the federal structure of our Government
established by the Constitution."
Id., at 177.
Our statements, taken in context, clearly did not decide the
question presented here, whether state executive officials-as
opposed to state legislators-may in appropriate circumstances be
enlisted to implement federal policy. The "take title" provision at
issue in
New York was beyond Congress' authority to enact
because it was "in principle ... no different than a
congressionally compelled subsidy from state governments to
radioactive waste producers," id., at 175, almost certainly a
legislative Act.
The majority relies upon dictum in
New York to the effect
that "[t]he Federal Government may not compel the States to enact
or administer a federal regulatory program."
Id., at
188 (emphasis added); see
ante, at 933. But that language
was wholly unnecessary to the decision of the case. It is, of
course, beyond dispute that we are not bound by the dicta of our
prior opinions. See,
e. g., U. S.
Bancorp Mortgage
Co. v.
Bonner Mall Partnership, 513 U. S. 18, 24 (1994)
(SCALIA, J.) ("invoking our customary refusal to be bound by
dicta"). To
964
the extent that it has any substance at all,
New York's
administration language may have referred to the possibility that
the State might have been able to take title to and devise an
elaborate scheme for the management of the radioactive waste
through purely executive policymaking. But despite the majority's
effort to suggest that similar activities are required by the Brady
Act, see
ante, at 927-928, it is hard to characterize the
minimal requirement that CLEO's perform background checks as one
involving the exercise of substantial policymaking discretion on
that essentially legislative scale.27
Indeed, JUSTICE KENNEDY'S recent comment about another case that
was distinguishable from
New York applies to these cases as
well:
"This is not a case where the etiquette of federalism has been
violated by a formal command from the N a-
27 Indeed, this distinction is made in the
New York
opinion itself. In that case, the Court rejected the Government's
argument that earlier decisions supported the proposition that "the
Constitution does, in some circumstances, permit federal directives
to state governments."
New York, 505 U. S., at 178. But in
doing so, it distinguished those cases on a ground that applies to
the federal directive in the Brady Act:
"[A]ll involve congressional regulation of individuals, not
congressional requirements that States regulate ....
"[T]he cases relied upon by the United States hold only that
federal law is enforceable in state courts and that federal courts
may in proper circumstances order state officials to comply with
federal law, propositions that by no means imply any authority on
the part of Congress to mandate state regulation."
Id., at
178-179.
The Brady Act contains no command directed to a sovereign State
or to a state legislature. It does not require any state entity to
promulgate any federal rule. In these cases, the federal statute is
not even being applied to any state official. See n. 16, supra. It
is a "congressional regulation of individuals,"
New York,
505 U. S., at 178, including gun retailers and local police
officials. Those officials, like the judges referred to in the
New York opinion, are bound by the Supremacy Clause to
comply with federal law. Thus if we accept the distinction
identified in the
New York opinion itself, that decision
does not control the disposition of these cases.
965
tional Government directing the State to enact a certain policy,
cf. New York v. United States, 505 U. S. 144 (1992), or
to organize its governmental functions in a certain way, cf.
FERC v. Mississippi, 456 U. S., at 781, (O'CONNOR,
J., concurring in judgment in part and dissenting in part)."
Lopez, 514 U. S., at 583 (concurring opinion).
In response to this dissent, the majority asserts that the
difference between a federal command addressed to individuals and
one addressed to the State itself "cannot be a constitutionally
significant one."
Ante, at 930. But as I have already noted,
n. 16,
supra, there is abundant authority in our Eleventh
Amendment jurisprudence recognizing a constitutional distinction
between local government officials, such as the CLEO's who brought
this action, and state entities that are entitled to sovereign
immunity. To my knowledge, no one has previously thought that the
distinction "disembowels,"
ante, at 931, the Eleventh
Amendment.28
Importantly, the majority either misconstrues or ignores three
cases that are more directly on point. In
FERC v.
Mississippi, 456 U. S. 742 (1982), we
upheld a federal statute requiring state utilities commissions,
inter alia, to take the affirmative step of considering
federal energy standards in a manner complying with federally
specified notice and comment procedures, and to report back to
Congress periodically. The state commissions could avoid this
obligation
28 Ironically, the distinction that the Court now finds so
preposterous can be traced to the majority opinion in
National
League of Cities. See 426 U. S., at 854 ("[T]he States as
States stand on a quite different footing from an individual or a
corporation when challenging the exercise of Congress' power to
regulate commerce"). The fact that the distinction did not provide
an adequate basis for curtailing the power of Congress to extend
the coverage of the Fair Labor Standards Act to state employees
does not speak to the question whether it may identify a legitimate
difference between a directive to local officers to provide
information or assistance to the Federal Government and a directive
to a State to enact legislation.
966
only by ceasing regulation in the field, a "choice" that we
recognized was realistically foreclosed, since Congress had put
forward no alternative regulatory scheme to govern this very
important area.
Id., at 764, 766, 770. The burden on state
officials that we approved in FERC was far more extensive than the
minimal, temporary imposition posed by the Brady Act.29
Similarly, in
Puerto Rico v.
Branstad, 483 U. S. 219 (1987), we
overruled our earlier decision in
Kentucky v.
Dennison, 24 How. 66 (1861), and held that the Extradition
Act of 1793 permitted the Commonwealth of Puerto Rico to seek
extradition of a fugitive from its laws without constitutional
barrier. The Extradition Act, as the majority properly concedes,
plainly imposes duties on state executive officers. See
ante, at 908-909. The majority suggests that this statute is
nevertheless of little importance because it simply constitutes an
implementation of the authority granted the N ational Government by
the Constitution's Extradition Clause, Art. IV; § 2. But in
Branstad we noted ambiguity as to whether Puerto Rico
benefits from that Clause, which applies on its face only to
"States." Avoiding the question of the Clause's applicability, we
held simply that under the Extradition Act Puerto Rico had the
power to request that the State of Iowa deliver up the fugitive the
Commonwealth sought. 483 U. S., at 229-230. Although
Branstad relied on the authority of the Act alone, without
the benefit of the
29 The majority correctly notes the opinion's statement that
"this Court never has sanctioned explicitly a federal command to
the States to promulgate and enforce laws and regulations .... "
FERC, 456 U. S., at 761-762. But the Court truncates this quotation
in a grossly misleading fashion. We continued by noting
in that
very sentence that "there are instances where the Court has
upheld federal statutory structures that in effect directed state
decisionmakers to take or to refrain from taking certain actions."
Ibid. Indeed, the Court expressly rejected as "rigid and
isolated,"
id., at 761, our suggestion long ago in
Kentucky v.
Dennison, 24 How. 66, 107 (1861), that
Congress "has no power to impose on a State officer, as such, any
duty whatever."
967
Extradition Clause, we noted no barrier to our decision in the
principles of federalism-despite the fact that one Member of the
Court brought the issue to our attention, see id., at 231 (SCALIA,
J., concurring in part and concurring in judgment).3o
Finally, the majority provides an incomplete explanation of our
decision in
Testa v.
Katt, 330 U. S. 386 (1947), and
demeans its importance. In that case the Court unanimously held
that state courts of appropriate jurisdiction must occupy
themselves adjudicating claims brought by private litigants under
the federal Emergency Price Control Act of 1942, regardless of how
otherwise crowded their dockets might be with state-law matters.
That is a much greater imposition on state sovereignty than the
Court's characterization of the case as merely holding that "state
courts cannot refuse to apply federal law,"
ante, at 928.
That characterization describes only the narrower duty to apply
federal law in cases that the state courts have consented to
entertain.
30 Moreover,
Branstad unequivocally rejected an important
premise that resonates throughout the majority opinion: namely,
that because the States retain their sovereignty in areas that are
unregulated by federal law, notions of comity rather than
constitutional power govern any direction by the National
Government to state executive or judicial officers. That construct
was the product of the ill-starred opinion of Chief Justice Taney
in
Kentucky v.
Dennison, 24 How. 66 (1861), announced
at a time when "the practical power of the Federal Government [was]
at its lowest ebb,"
Branstad, 483 U. S., at 225. As we
explained:
"If it seemed clear to the Court in 1861, facing the looming
shadow of a Civil War, that 'the Federal Government, under the
Constitution, has no power to impose on a State officer, as such,
any duty whatever, and compel him to perform it,' 24 How., at 107,
basic constitutional principles now point as clearly the other
way."
Id., at 227.
"Kentucky v.
Dennison is the product of another
time. The conception of the relation between the States and the
Federal Government there announced is fundamentally incompatible
with more than a century of constitutional development. Yet this
decision has stood while the world of which it was a part has
passed away. We conclude that it may stand no longer."
Id.,
at 230.
968
The language drawn from the Supremacy Clause upon which the
majority relies ("the Judges in every State shall be bound [by
federal law], any Thing in the Constitution or Laws of any state to
the Contrary notwithstanding"), expressly embraces that narrower
conflict of laws principle. Art. VI, cl. 2. But the Supremacy
Clause means far more. As
Testa held, because the "Laws of
the United States ... [are] the supreme Law of the Land," state
courts of appropriate jurisdiction must hear federal claims
whenever a federal statute, such as the Emergency Price Control
Act, requires them to do so. Art. VI, cl. 2.
Hence, the Court's textual argument is quite misguided.
The majority focuses on the Clause's specific attention to the
point that "Judges in every State shall be bound."
Ibid.
That language commands state judges to "apply federal law" in cases
that they entertain, but it is not the source of their duty to
accept jurisdiction of federal claims that they would prefer to
ignore. Our opinions in
Testa, and earlier the
Second
Employers' Liability Cases, rested generally on the language of
the Supremacy Clause, without any specific focus on the reference
to judges.31
31 As the discussion above suggests, the Clause's mention of
judges was almost certainly meant as nothing more than a
choice-of-Iaw rule, informing the state courts that they were to
apply federal law in the event of a
conflict with state
authority. The majority's quotation of this language,
ante,
at 928-929, is quite misleading because it omits a crucial phrase
that follows the mention of state judges. In its entirety, the
Supremacy Clause reads: "This Constitution, and the Laws of the
United States which shall be made in Pursuance thereof; and all
Treaties made, or which shall be made, under the Authority of the
United States, shall be the supreme Law of the Land; and the Judges
in every State shall be bound thereby,
any Thing in the
Constitution or Laws of any state to the Contrary
notwithstanding." Art. VI, cl. 2 (emphasis added). The omitted
language, in my view, makes clear that the specific reference to
judges was designed to do nothing more than state a choice-of-Iaw
principle. The fact that our earliest opinions in this area, see
Testa; Second Employers' Liability Cases, written at a time
when the question was far more hotly contested
969
The majority's reinterpretation of
Testa also contradicts
our decision in
FERG. In addition to the holding mentioned
earlier, see
supra, at 965-966, we also approved in that
case provisions of federal law requiring a state utilities
commission to "adjudicate disputes arising under [a federal]
statute."
FERC, 456 U. S., at 760. Because the state
commission had "jurisdiction to entertain claims analogous to
those" put before it under the federal statute, ibid., we held that
Testa required it to adjudicate the federal claims. Although
the commission was serving an adjudicative function, the
commissioners were unquestionably not "judges" within the meaning
of Art. VI, cl. 2. It is impossible to reconcile the Court's
present view that
Testa rested entirely on the specific
reference to state judges in the Supremacy Clause with our
extension of that early case in
FERG.32
Even if the Court were correct in its suggestion that it was the
reference to judges in the Supremacy Clause, rather than the
central message of the entire Clause, that dictated the result in
Testa, the Court's implied
expressio unius argument
that the Framers therefore did
not intend to permit the
enlistment of other state officials is implausible. Throughout our
history judges, state as well as federal, have merited as much
respect as executive agents. The notion that the Framers would have
had no reluctance to "press
than it is today, did not rely upon that language lends
considerable support to this reading.
32 The Court's suggestion that these officials ought to be
treated as "judges" for constitutional purposes because that is,
functionally, what they are, is divorced from the constitutional
text upon which the majority relies, which refers quite explicitly
to "Judges" and not administrative officials. In addition, it
directly contradicts the majority's position that early statutes
requiring state courts to perform executive functions are
irrelevant to our assessment of the original understanding because
"Judges" were at issue. In short, the majority's adoption of a
proper functional analysis gives away important ground elsewhere
without shoring up its argument here.
970
state judges into federal service" against their will but would
have regarded the imposition of a similar-indeed, far lesser-
burden on town constables as an intolerable affront to principles
of state sovereignty can only be considered perverse. If such a
distinction had been contemplated by the learned and articulate men
who fashioned the basic structure of our government, surely some of
them would have said SO.33
***
The provision of the Brady Act that crosses the Court's newly
defined constitutional threshold is more comparable to a statute
requiring local police officers to report the identity of missing
children to the Crime Control Center of the Department of Justice
than to an offensive federal command to a sovereign State. If
Congress believes that such a statute will benefit the people of
the Nation, and serve the interests of cooperative federalism
better than an enlarged federal bureaucracy, we should respect both
its policy judgment and its appraisal of its constitutional
power.
Accordingly, I respectfully dissent.
JUSTICE SOUTER, dissenting.
I join JUSTICE STEVENS'S dissenting opinion, but subject to the
following qualifications. While I do not find anything dispositive
in the paucity of early examples of federal employment of state
officers for executive purposes, for the reason given by JUSTICE
STEVENS,
ante, at 948-949, neither would I find myself in
dissent with no more to go on than those few early instances in the
administration of naturaliza-
33 Indeed, presuming that the majority has correctly read the
Supremacy Clause, it is far more likely that the founders had a
special respect for the independence of judges, and so thought it
particularly important to emphasize that state judges were bound to
apply federal law. The Framers would hardly have felt any
equivalent need to state the then wellaccepted point, see supra, at
945-948, that the enlistment of state executive officials was
entirely proper.
971
tion laws, for example, or such later instances as state support
for federal emergency action, see
ante, at 949-950;
ante, at 905-910, 916-917 (majority opinion). These
illustrations of state action implementing congressional statutes
are consistent with the Government's positions, but they do not
speak to me with much force.
In deciding these cases, which I have found closer than I had
anticipated, it is The Federalist that finally determines my
position. I believe that the most straightforward reading of No. 27
is authority for the Government's position here, and that this
reading is both supported by No. 44 and consistent with Nos. 36 and
45.
Hamilton in No. 27 first notes that because the new Constitution
would authorize the National Government to bind individuals
directly through national law, it could "employ the ordinary
magistracy of each [State] in the execution of its laws." The
Federalist No. 27, p. 174 (J. Cooke ed. 1961) (A. Hamilton). Were
he to stop here, he would not necessarily be speaking of anything
beyond the possibility of cooperative arrangements by agreement.
But he then addresses the combined effect of the proposed Supremacy
Clause, U. S. Const., Art. VI, cl. 2, and state officers' oath
requirement, U. S. Const., Art. VI, cl. 3, and he states that "the
Legislatures, Courts and Magistrates of the respective members will
be incorporated into the operations of the national government,
as far as its just and constitutional authority extends; and
will be rendered auxiliary to the enforcement of its laws." The
Federalist No. 27, at 174-175 (emphasis in original). The natural
reading of this language is not merely that the officers of the
various branches of state governments may be employed in the
performance of national functions; Hamilton says that the state
governmental machinery "will be incorporated" into the Nation's
operation, and because the "auxiliary" status of the state
officials will occur because they are "bound by the sanctity of an
oath," id., at 175, I take him to mean that their auxiliary
functions
972
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
973
his commentary on the oath requirement. He asks why state
magistrates should have to swear to support the N ational
Constitution, when national officials will not be required to
oblige themselves to support the state counterparts. His answer is
that national officials "will have no agency in carrying the State
Constitutions into effect. The members and officers of the State
Governments, on the contrary, will have an essential agency in
giving effect to the Federal Constitution."
Id., No. 44, at
307 (J. Madison). He then describes the state legislative "agency"
as action necessary for selecting the President, see U. S. Const.,
Art. II, § 1, and the choice of Senators, see U. S. Const., Art. I,
§ 3 (repealed by Arndt. 17). The Federalist No. 44, at 307. The
Supremacy Clause itself, of course, expressly refers to the state
judges' obligations under federal law, and other numbers of The
Federalist give examples of state executive "agency" in the
enforcement of national revenue laws.2
consists of not obstructing administration of the law is not
described as "incorporated into the operations" of a government or
as an "auxiliary" to its law enforcement. One simply cannot escape
from Hamilton by reducing his prose to inapposite figures of
speech.
2 The Court reads Madison's No. 44 as supporting its view that
Hamilton meant "auxiliaries" to mean merely "nonobstructors." It
defends its position in what seems like a very sensible argument,
so long as one does not go beyond the terms set by the Court: if
Madison really thought state executive officials could be required
to enforce federal law, one would have expected him to say so,
instead of giving examples of how state officials (legislative and
executive, the Court points out) have roles in the election of
national officials. See
ante, at 914-915, and n. 8. One
might indeed have expected that, save for one remark of Madison's,
and a detail of his language, that the Court ignores. When he asked
why state officers should have to take an oath to support the
National Constitution, he said that "several reasons might be
assigned," but that he would "content [himself] with one which is
obvious & conclusive." The Federalist No. 44, at 307. The one
example he gives describes how state officials will have "an
essential agency in giving effect to the federal Constitution." He
was not talking about executing congressional statutes; he was
talking about putting the National Constitution into effect by
selecting the executive and legislative members who would exercise
its powers. The answer to the
974
Two such examples of anticipated state collection of federal
revenue are instructive, each of which is put forward to counter
fears of a proliferation of tax collectors. In No. 45, Hamilton
says that if a State is not given (or declines to exercise) an
option to supply its citizens' share of a federal tax, the
"eventual collection [of the federal tax] under the immediate
authority of the Union, will generally be made by the officers, and
according to the rules, appointed by the several States."
Id., No. 45, at 313. And in No. 36, he explains that the
National Government would more readily "employ the State officers
as much as possible, and to attach them to
Court's question (and objection), then, is that Madison was
expressly choosing one example of state officer agency, not
purporting to exhaust the examples possible.
There is, therefore, support in Madison's No. 44 for the
straightforward reading of Hamilton's No. 27 and, so, no occasion
to discount the authority of Hamilton's views as expressed in The
Federalist as somehow reflecting the weaker side of a split
constitutional personality.
Ante, at 915-916, n. 9. This,
indeed, should not surprise us, for one of the Court's own
authorities rejects the "split personality" notion of Hamilton and
Madison as being at odds in The Federalist, in favor of a view of
all three Federalist writers as constituting a single personality
notable for its integration:
"In recent years it has been popular to describe Publius [the
nominal author of The Federalist] as a 'split personality' who
spoke through Madison as a federalist and an exponent of limited
government, [but] through Hamilton as a nationalist and an admirer
of energetic government .... Neither the diagnosis of tension
between Hamilton and Madison nor the indictment of each man for
self-contradiction strikes me as a useful or perhaps even
fair-minded exercise. Publius was, on any large view-the only
correct view to take of an effort so sprawling in size and
concentrated in time-a remarkably 'whole personality,' and I am far
more impressed by the large area of agreement between Hamilton and
Madison than by the differences in emphasis that have been read
into rather than
in their papers .... The
intellectual tensions of
The Federalist and its creators are
in fact an honest reflection of those built into the Constitution
it expounds and the polity it celebrates." C. Rossiter, Alexander
Hamilton and the Constitution 58 (1964).
While Hamilton and Madison went their separate ways in later
years, see id., at 78, and may have had differing personal views,
the passages from The Federalist discussed here show no sign of
strain.
975
the Union by an accumulation of their emoluments," id., No. 36,
at 228, than by appointing separate federal revenue collectors.
In the light of all these passages, I cannot persuade myself
that the statements from No. 27 speak of anything less than the
authority of the National Government, when exercising an otherwise
legitimate power (the commerce power, say), to require state
"auxiliaries" to take appropriate action. To be sure, it does not
follow that any conceivable requirement may be imposed on any state
official. I continue to agree, for example, that Congress may not
require a state legislature to enact a regulatory scheme and that
New York v.
United States, 505 U. S. 144 (1992), was
rightly decided (even though I now believe its dicta went too far
toward immunizing state administration as well as state enactment
of such a scheme from congressional mandate); after all, the
essence of legislative power, within the limits of legislative
jurisdiction, is a discretion not subject to command. But insofar
as national law would require nothing from a state officer
inconsistent with the power proper to his branch of tripartite
state government (say, by obligating a state judge to exercise law
enforcement powers), I suppose that the reach of federal law as
Hamilton described it would not be exceeded, cf.
Garcia v.
San Antonio Metropolitan Transit Authority, 469 U. S. 528, 554,
556-567 (1985) (without precisely delineating the outer limits of
Congress's Commerce Clause power, finding that the statute at issue
was not "destructive of state sovereignty").
I should mention two other points. First, I recognize that my
reading of The Federalist runs counter to the view of Justice
Field, who stated explicitly in
United States v.
Jones, 109 U.
S. 513, 519-520 (1883), that the early examples of state
execution of federal law could not have been required against a
State's will. But that statement, too, was dictum, and as against
dictum even from Justice Field, Madison and Hamilton prevail.
Second, I do not read any of The Federalist
976
material as requiring the conclusion that Congress could require
administrative support without an obligation to pay fair value for
it. The quotation from No. 36, for example, describes the United
States as paying. If, therefore, my views were prevailing in these
cases, I would remand for development and consideration of
petitioners' points, that they have no budget provision for work
required under the Act and are liable for unauthorized
expenditures. Brief for Petitioner in No. 95-1478, pp. 4-5; Brief
for Petitioner in No. 95-1503, pp. 6-7.
JUSTICE BREYER, with whom JUSTICE STEVENS joins, dissenting.
I would add to the reasons JUSTICE STEVENS sets forth the fact
that the United States is not the only nation that seeks to
reconcile the practical need for a central authority with the
democratic virtues of more local control. At least some other
countries, facing the same basic problem, have found that local
control is better maintained through application of a principle
that is the direct opposite of the principle the majority derives
from the silence of our Constitution. The federal systems of
Switzerland, Germany, and the European Union, for example, all
provide that constituent states, not federal bureaucracies, will
themselves implement many of the laws, rules, regulations, or
decrees enacted by the central "federal" body. Lenaerts,
Constitutionalism and the Many Faces of Federalism, 38 Am. J. Compo
L. 205, 237 (1990); D. Currie, The Constitution of the Federal
Republic of Germany 66, 84 (1994); Mackenzie-Stuart, Foreword,
Comparative Constitutional Federalism: Europe and America ix (M.
Tushnet ed. 1990); Kimber, A Comparison of Environmental Federalism
in the United States and the European Union, 54 Md. L. Rev. 1658,
1675-1677 (1995). They do so in part because they believe that such
a system interferes less, not more, with the independent authority
of the "state," member nation, or other subsidiary government, and
helps
977
to safeguard individual liberty as well. See Council of European
Communities, European Council in Edinburgh, 11-12 Dec. 1992,
Conclusions of the Presidency 20-21 (1993); D. Lasok & K.
Bridge, Law and Institutions of the European Union 114 (1994);
Currie,
supra, at 68, 81-84, 100-101; Frowein, Integration
and the Federal Experience in Germany and Switzerland, in 1
Integration Through Law 573, 586-587 (M. Cappelletti, M. Seccombe,
& J. Weiler eds. 1986); Lenaerts,
supra, at 232,263.
Of course, we are interpreting our own Constitution, not those
of other nations, and there may be relevant political and
structural differences between their systems and our own. Cf. The
Federalist No. 20, pp. 134-138 (C. Rossiter ed. 1961) (J. Madison
and A. Hamilton) (rejecting certain aspects of European
federalism). But their experience may nonetheless cast an empirical
light on the consequences of different solutions to a common legal
problem-in this case the problem of reconciling central authority
with the need to preserve the liberty-enhancing autonomy of a
smaller constituent governmental entity. Cf. id., No. 42, at 268
(J. Madison) (looking to experiences of European countries); id.,
No. 43, at 275, 276 (J. Madison) (same). And that experience here
offers empirical confirmation of the implied answer to a question
JUSTICE STEVENS asks: Why, or how, would what the majority sees as
a constitutional alternative-the creation of a new federal gun-law
bureaucracy, or the expansion of an existing federal
bureaucracy-better promote either state sovereignty or individual
liberty? See
ante, at 945, 959 (STEVENS, J.,
dissenting).
As comparative experience suggests, there is no need to
interpret the Constitution as containing an absolute
principle-forbidding the assignment of virtually any federal duty
to any state official. Nor is there a need to read the Brady Act as
permitting the Federal Government to overwhelm a state civil
service. The statute uses the words "reasonable effort," 18 U. S.
C. § 922(s)(2)-words that easily can encom-
978
pass the considerations of, say, time or cost necessary to avoid
any such result.
Regardless, as JUSTICE STEVENS points out, the Constitution
itself is silent on the matter.
Ante, at 944, 954, 961
(dissenting opinion). Precedent supports the Government's position
here.
Ante, at 956, 960-961, 962-970 (STEVENS, J.,
dissenting). And the fact that there is not more precedent-that
direct federal assignment of duties to state officers is not
common-likely reflects, not a widely shared belief that any such
assignment is incompatible with basic principles of federalism, but
rather a widely shared practice of assigning such duties in other
ways. See,
e. g., South Dakota v.
Dole, 483 U. S. 203 (1987)
(spending power);
Garcia v.
United States, 469 U. S. 70 (1984);
New York v.
United States, 505 U. S. 144, 160 (1992)
(general statutory duty);
FERC v.
Mississippi,
456 U. S. 742
(1982) (pre-emption). See also
ante, at 973-974 (SOUTER, J.,
dissenting). Thus, there is neither need nor reason to find in the
Constitution an absolute principle, the inflexibility of which
poses a surprising and technical obstacle to the enactment of a law
that Congress believed necessary to solve an important national
problem.
For these reasons and those set forth in JUSTICE STEVENS'
opinion, I join his dissent.
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