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  •   States May Not Be Compelled 'to Implement . . . Federal Regulatory Programs'

    Saturday, June 28, 1997; Page A12

    Following are excerpts from the Supreme Court decision in Printz v. U.S. and Mack v. U.S. striking down the requirement that local police check the backgrounds of prospective gun buyers. The decision was written by Justice Antonin Scalia:

    The question presented in these cases is whether certain interim provisions of the Brady Handgun Violence Prevention Act commanding state and local law enforcement officers to conduct background checks on prospective handgun purchasers and to perform certain related tasks, violate the Constitution.

    In 1993, Congress amended the [Gun Control Act of 1968] by enacting the Brady Act. The Act requires the Attorney General to establish a national instant background check system by November 30, 1998, and immediately puts in place certain interim provisions. . . .

    Petitioners Jay Printz and Richard Mack, the [chief law enforcement officers] CLEOs for Ravalli County, Montana, and Graham County, Arizona, respectively, filed separate actions challenging the constitutionality of the Brady Act's interim provisions. . . .

    The petitioners here object to being pressed into federal service, and contend that congressional action compelling state officers to execute federal laws is unconstitutional. . . .

    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. . . . "

    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. . . . 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. . . .

    [T]he early statutes imposing obligations on state courts [do not] 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 on the States' executive (notwithstanding the attractiveness of that course to Congress), suggests an assumed absence of such power. . . .

    [T]here 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 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. . . . 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 . . . [t]heir persuasive force is far outweighed by almost two centuries of apparent congressional avoidance of the practice. . . .

    It is incontestable that the Constitution established a system of "dual sovereignty." Although the States surrendered many of their powers to the new Federal Government, they retained "a residuary and inviolable sovereignty. . . . "

    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. . . . 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," personally and through officers whom he appoints. . . .

    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. . . . [T]he 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.

    Finally . . . 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 1970s . . . [O]pinions of ours have made clear that the Federal Government may not compel the States to implement, by legislation or executive action, federal regulatory programs. . . .

    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, 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. We concluded that Congress could constitutionally require the States to do neither. . . .

    The dissent . . . 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. . . .

    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 State's 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-by-case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty. . . .


    Following are excerpts from the dissent in the Brady Act cases written by Justice John Paul Stevens, joined by Justices David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer:

    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. . . .

    [The Constitution] grants the Congress the power to regulate commerce among the States. . . . [T]here 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. . . .

    The [Tenth] Amendment provides no support for a rule that immunizes local officials from obligations that might be imposed on ordinary citizens. Indeed, it would be more reasonable to infer that federal law may impose greater duties on state officials than on private citizens. . . .

    [T]he 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. . . . 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." No fair reading of these materials can justify such an interpretation. . . .

    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, Congress 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. . . .

    [T]he 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." But . . . there is abundant authority in our . . . 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. . . .

    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.

    © Copyright 1997 The Washington Post Company

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