In a century driven by the Progressive-Era view that ever-larger
government can solve the manifold problems of life, the rebirth
of American federalism toward century's end is more than a little
remarkable. No fewer than three bills were introduced in the 104th
Congress to restate our most basic constitutional principle, that
ours is a government of delegated, enumerated, and thus limited
powers. And on the day the 104th Congress was elected, awakening
Washington from its century-long political drift, the Supreme Court
heard oral argument in a case that six months later would awaken
Washington from its sixty-year constitutional drift: invoking "first
principles," the Court said, for the first time since the New
Deal, that the power of Congress to regulate "commerce among
the states" is not a power to regulate everything. United States
v. Lopez, 115 S.Ct. 1624 (1995).
Unfortunately, as the 104th Congress peters out, its taste for
principle seems to be going with it. The Court, however, is supposed
to be above politics. We will test that principle this fall in a
pair of cases that deal nominally with guns, as in Lopez, but more
deeply with the same question the Lopez Court addressed, that most
basic of constitutional questions: Has Congress been granted the
power to do what it did?
What Congress did in 1993 to bring that question now before the
Court was pass the Brady Act, 18 U.S.C. § 922(s), which amended
the Gun Control Act of 1968 by imposing a waiting period of up to
five days for the purchase of a handgun and subjecting purchasers
to background checks during that period. Five years from the date
of enactment, a national system for background checks is due for
completion. In the meantime, the Act requires those checks to be
performed by the chief law enforcement officer of the purchaser's
place of residence--a state official--and therein lies the rub.
Jay Printz and Richard Mack are sheriffs in Montana and Arizona,
respectively. As a practical matter, like others who have challenged
it, they contend that the Act imposes duties that are hardly minimal.
A purchase is unlawful if the purchaser is a fugitive, is an unlawful
user of a controlled substance, has been adjudicated a mental defective,
has been dishonorably discharged from the armed forces, has renounced
his citizenship, or is under certain restraining orders involving
an intimate partner. A check must be completed within five days.
And a rejected applicant is entitled to be given reasons for the
rejection within 20 days.
As a legal matter, Printz and Mack argue, among other things, that
the Court made it clear in New York v. United States, 505 U.S. 144
(1992), that the federal government is precluded under the Tenth
Amendment from commanding state officers to assist in carrying out
federal programs. The respective district courts agreed with Sheriffs
Printz and Mack, but a divided panel of the Ninth Circuit reversed
those decisions after consolidating the appeals. To date, the Second
Circuit has sided with the Ninth, while the Fifth has gone the other
way. At this writing, Printz v. United States is the lead case before
The circuit majority in Printz began its analysis by noting that
"[n]o one in this case questions the fact that regulation of
the sales of handguns lies within the broad commerce power of Congress.
The issue for decision is whether the manner [of regulation] violates
the Tenth Amendment." 66 F.3d 1025, 1028 (emphasis added).
Given the tepid concurrence of Justices Kennedy and O'Connor in
Lopez, it was doubtless prudent not to raise the more basic question
of Congress's power to regulate intra or even interstate gun sales--which
is not to say that the answer to that question is clear. Because
only Justice Thomas, in his Lopez concurrence, entertained the possibility--indeed,
the necessity--of the Court's eventually restoring a functional
analysis of the Commerce Clause, we are left today, even after Lopez,
to understand that Congress may regulate anything that "substantially
affects" interstate commerce--which is almost everything--and
to ask simply about any defects that might inhere in the means Congress
There was a time--a short time--when an inquiry into the legitimacy
of the means Congress had chosen would invoke the Necessary and
Proper Clause--with "necessary" meaning "that without
which" and "proper" pointing to restraints that might
arise from the powers of other branches or of the states or from
enumerated or unenumerated rights. We lost "necessary"
in McCulloch v. Maryland, 17 U.S. 316 (1819), however, when Chief
Justice Marshall read it to mean "appropriate"; and "proper"
has only occasionally been read properly. Today, of course, congressional
means are analyzed most often under the "rational basis"
test that came from United States v. Carolene Products, 304 U.S.
144 (1938), which is no test at all, constitutionally. But means
are truly scrutinized only when "fundamental" or at least
"important" rights are implicated--categories with no
constitutional foundation whatever--or when conflicting powers are
at issue--and even then the concern about conflicting state powers
has come back in fashion only of late.
Thus, after bowing to the New Deal Court's dismissal of the Tenth
Amendment as "but a truism," United States v. Darby, 312
U.S. 100 (1941), the court below said that "[i]n recent years
. . . the Tenth Amendment has been interpreted `to encompass any
implied constitutional limitation on Congress' authority to regulate
state activities, whether grounded in the Tenth Amendment itself
or in principles of federalism derived generally from the Constitution'"
(quoting South Carolina v. Baker, 485 U.S. 505, 511 n.5 (1988)).
Hence, the question before it, the court said, is whether the requirements
of the Act transgress "such an implied limitation on federal
What an odd way to begin the analysis. Rather than ask directly,
as a natural reading of the Tenth Amendment suggests, whether there
is a federal power to "dragoon" state officials into federal
service, as Judge Fernandez colorfully puts it in dissent, the majority
looks instead for an "implied limitation" on federal power.
The idea seems to be that if there is no such limitation--which
the court concludes--then the federal power exists.
But that stands the Tenth Amendment on its head. The basic limit
on federal power is the limit contained in the very premise of the
Constitution, as set forth in the first words of Article I ("All
legislative Powers herein granted . . .") and in the last documentary
words to come from the founding period, the Tenth Amendment ("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."). A natural reading of the relatively straightforward
language of both those passages would have us asking, one supposes,
not whether there is some implied limitation on federal power but
whether there is, to begin with, a federal power of the kind at
issue. In short, in the words of Judge Fernandez, does the Constitution
grant a power to the federal government to "conscript"
state officials "to fulfill its purposes"?
Plainly, given the premise of the Constitution and the theory and
history of dual sovereignty in this nation, those who would answer
that question in the affirmative, as the court did, would seem to
have an uphill battle. At the least, given no explicit grant in
the Constitution of the kind of power at issue, one would expect
a search not for some implied limitation on federal power--failing
discovery of which the power is assumed--but a search for some implied
grant of federal power--derived from, because implied by, an explicit
The Printz court undertook no such search, however. Instead, it
set forth a number of "ways in which the federal government
is permitted to secure the assistance of state authorities in achieving
federal legislative goals," concluding that against this background
there appears to be "nothing unusually jarring" about
the Act's requirements. 66 F.3d at 1029. Two problems beset the
court's approach, however. First, none of the examples cited amounts
to direct and unconditional federal conscription of state employees
to carry out a federal program, as the Brady Act does. Second, each
example predates the Court's decision in New York.
Responding to the latter problem, which Printz and Mack had raised,
the court argued that "New York was concerned with a federal
intrusion on the States of a different kind and much greater magnitude
than any involved in the Brady Act." 66 F.3d at 1030. In New
York, Congress was attempting to coerce states to enact state legislation
according to federal standards. Here, Congress is merely conscripting
state employees for federal ends, the court seems to say. And since
a limitation on that power is not implied by New York's holding,
the power must be legitimate.
Again, the Tenth Amendment is made to stand on its head. Like Justice
Stevens in U.S. Term Limits, Inc. v. Thornton, 115 S.Ct. 1842 (1995),
handed down only a month after Lopez, the Printz court seems to
believe that the Tenth Amendment says "All that is not reserved
is given," rather than "All that is not given is reserved."
The gap between those two formulations, of course, is yawning.
The Printz case raises many other issues as well, including important
questions about political accountability and institutional and personal
liability, which are inevitable when one sovereign commands the
employees of another. But no question will be more basic, and important,
to our future as a free people than the inquiry into the ground
and scope of authority. Far more than a practical question about
sovereign relations, that inquiry reaches our First Principles as
a nation. Indeed, it is nothing less than a question about political
legitimacy. Fall politics aside, the Court will be hard pressed
to avoid it.
*Roger Pilon directs the Cato Institute's Center for Constitutional