Kelly M. Klaus*
It is something of an annual tradition at the Supreme Court that
each Term's biggest and most controversial cases are announced on
the last day. The most closely-watched cases of the Court's 1996-97
Term, those dealing with the so-called "right to die,"
were not decided last, however. Printz v. United States, 117 S.
Ct. 2365 (1997), which presented a constitutional challenge to provisions
of the Brady Handgun Violence Prevention Act, was the only case
remaining on the Court's docket on the Term's final day. The case
had been under submission for close to seven months. When the opinion
was announced from the Bench, it wasn't difficult to figure out
why, for the Court itself, this case had been the battle royal.
Justice Scalia, the author of the majority opinion, read a summary
of the Court's decision striking down those portions of the Brady
Act that required local law-enforcement officials to perform background
checks on individuals wishing to purchase firearms. When Justice
Stevens then began to read aloud portions of his dissent, it was
clear that he felt impassioned about the case: in addition to spending
twice as much time as had Justice Scalia summarizing his opinion,
he made some extemporaneous remarks, not found in the published
dissent, likening the majority's approach to federalism issues to
the Warren Court's free-wheeling discovery of rights emanating from
the Constitution's "penumbras." Printz, then, clearly
was an important decision.
Here's what the case was all about. After years of wrangling, Congress
passed the Brady Act (named for President Reagan's Press Secretary,
who was permanently wounded during the assassination attempt on
the President) to impose a national background check system on gun
sales. The Act directs the Attorney General to establish, before
the end of 1998, a national system for checking the criminal records
of prospective gun purchasers. Until such a system could be implemented,
however, the Act enlisted state officers to conduct the background
checks. Unless the gun purchaser already possessed a state handgun
permit issued after a background check or the state already had
in place a system for an instant background check at the time of
sale, the Act imposed certain duties (backed up by criminal sanctions)
on the chief law enforcement officers (CLEOs) of the purchaser's
residence to determine whether the prospective purchase would be
in violation of federal law.
The CLEOs of two counties, one in Montana and the other in Arizona,
brought separate suits in federal district court, each claiming
the Act unconstitutionally required him to enforce federal law.
In each case, the district court agreed. The Court of Appeals for
the Ninth Circuit reversed in both cases, holding the Act constitutional.
The Supreme Court then reversed the Ninth Circuit.
Justice Scalia's opinion began by observing that the CLEOs' challenge
could not be answered solely by reference to the Constitution's
text, and that their claim had to be evaluated in light of three
sources: (1)historical understanding and practice; (2)the Constitution's
structure; and (3)the Court's federalism precedents.
The Government argued forcefully that Congress, from its earliest
days, had required state officials to participate in the implementation
of federal law. Justice Scalia carefully examined the Government's
submission and found it wanting. The Government pointed first to
early federal laws requiring state courts to perform certain duties
relating to the naturalization of new citizens. Justice Scalia found
that the Government's evidence established at most that the Framers
understood that the federal government could require state judges
to enforce federal requirements. This understanding was consistent,
Justice Scalia explained, with the Madisonian Compromise, which
in Article III, Section 1 of the Constitution established only a
single Supreme Court and gave Congress the option to create lower
federal courts (thereby suggesting that state courts could and would
be arbiters of federal law), and with the Supremacy Clause, which
required judges in each state to be bound by the "Laws of the
Justice Scalia found it significant that, compared to the numerous
federal laws imposing requirements on state judges to enforce federal
law, the Government was unable to cite more than a single early
statute that required state executive officials to similarly enforce
federal prescriptions. And that single law, the Extradition Act
of 1793, was a direct implementation of the Constitution's Extradition
Clause. Moreover, the earliest federal laws directed at state participation
in implementing federal law did not mandate state involvement, they
recommended it. And when one state, Georgia, refused the federal
government's invitation to keep federal prisoners at state expense,
Congress's response was to authorize the United States Marshal to
rent temporary jail space on his own.
With respect to historical practices since the framing, the Government
relied on the World War I draft law that authorized the President
to utilize the services of state officers. Justice Scalia found
that it was not clear that the authorization to utilize was the
authorization to compel the service of state officers, and he found
it significant that when President Wilson implemented the Act, he
requested state assistance and did not commandeer it. Beyond this
selective service law, the Government could point only to recently-enacted
legislation, which Justice Scalia described as irrelevant to the
task of discerning historical tradition.
Turning to constitutional structure, Justice Scalia observed, first,
that the Framers established a system of "dual sovereignty"
precisely to avoid the inefficiencies and conflicts bred by the
Articles of Confederation's use of the states as instruments of
the federal government. As the Court emphasized in its last major
case on federal commandeering of state machinery, New York v. United
States, 505 U.S. 144 (1992), "The Framers explicitly chose
a Constitution that confers upon Congress the power to regulate
individuals, not States." Allowing the federal government to
commandeer state officers in the implementation of federal law,
Justice Scalia said, would blur lines of political accountability
and dilute the Constitution's structure of dual sovereignty.
Granting such authority to Congress would upset another of the
Constitution's structural features: the separation of powers. The
Constitution assigns the power to enforce laws to the President.
The Brady Act, Justice Scalia observed, effectively transferred
this power and responsibility to CLEOs located in all 50 states.
Finding support for the Government's position in neither historical
practice nor constitutional design, Justice Scalia turned to the
Court's jurisprudence on federal-state relations. Justice Scalia
found those cases fatal to the Government's position. Because federal
commandeering of state governments has been a relatively recent
phenomenon, the Court did not address the issue explicitly until
the early 1980s. When it did, the Court made clear, albeit at first
in dicta, that it had never sanctioned a federal command that the
states promulgate and enforce particular laws and regulations.
When it squarely confronted a federal command that states enforce
a federal regulatory program, the Court declared the command unconstitutional.
In New York v. United States, Congress had required states either
to enact legislation dealing with the disposal of radioactive waste
or to "take title" to it. The Court held that the federal
Government lacked the power to compel states to enact or administer
a regulatory program. Justice Scalia found New York controlling.
He rejected the Government's plea to distinguish New York on the
ground that the statute there required states to make policy, whereas
the Brady Act compels administration of a final directive. Justice
Scalia found the line between "policymaking" and "implementation"
both difficult to mark, since there are few instances of executive
action that do not involve setting policy, and ultimately unhelpful
to the Government's case, since the intrusion on state sovereignty
is if anything greater when the federal Government reduces states
"to puppets of a ventriloquist Congress."
The Government also argued that requiring states to perform "ministerial"
tasks, such as performing routine background checks, would not violate
New York because that performance would not diminish the accountability
of either state or federal officials. Justice Scalia rejected this
argument, observing that Congress was basically attempting to take
credit for dealing with a pressing national problem without having
to pay for the solution with higher taxes.
Finally, the Government resorted to arguing that the interests
furthered by the Brady Act outweighed the minimal burden on state
officers of having to conduct background checks. Justice Scalia
stated in no uncertain terms that where a law aims to upset the
federal-state design, a balancing test is inappropriate.
Justice Scalia's opinion was joined in full by the Chief Justice
and Justices O'Connor, Kennedy, and Thomas. Justice O'Connor wrote
a separate concurring opinion to make clear that Congress could
achieve the same end of state participation by conditioning that
participation on the receipt of federal funds. Justice Thomas also
concurred with opinion, restating his views from United States v.
Lopez, 514 U.S. 549 (1995), that Congress does not have power under
the Commerce Clause to regulate point-of-sale transactions and suggesting
that the Brady Act might be subject to attack for violating the
Second Amendment's right "to keep and bear arms."
Justice Stevens wrote the lead dissent, joined in full by Justices
Souter, Ginsburg, and Breyer. Justice Stevens looked to the same
sources Justice Scalia had -- history, structure, and precedent
-- as well as one other: constitutional text. According to Justice
Stevens, the text of the Constitution plainly authorized, and just
as plainly did not prohibit, Congress to impose the background-check
obligations on local CLEOs: Congress found authority to regulate
gun sales in the Commerce Clause; the Necessary and Proper Clause
gave Congress the power to enlist state executives in furthering
that regulation (Justice Scalia derided this argument as relying
on "the last, best hope of those who defend ultra vires congressional
action"); state officers were required to comply with Congress's
requirement by virtue of their constitutional obligation to take
an oath to support the Constitution and by virtue of the Supremacy
Clause; and the Tenth Amendment did not limit the scope of Congress's
power in this regard.
Justice Stevens discussed the same historical evidence as had Justice
Scalia, but he believed that history, both early and recent, supported
the Government's theory. Justice Stevens argued that the rejection
of the Articles of Confederation demonstrated not a solicitude for
state independence, but an intention to create a strong, supreme
central government. Justice Stevens described the majority's characterization
of the early immigration and naturalization laws as requiring judges,
but not legislators or executives, to follow congressional commands,
as "rest[ing] on empty formalistic reasoning of the highest
order." According to Justice Stevens, those laws clearly required
judges to perform executive functions, such as administering loyalty
oaths and recording applications for citizenship.
Justice Stevens also argued that structural concerns did not support
the majority's holding. Relying on the Court's decision in Garcia
v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985)
-- which overruled the rule of state immunity from federal regulation
announced in National League of Cities v. Usery, 426 U.S. 833 (1976)
-- Justice Stevens insisted that the Constitution's structure requires
states to seek protection through the political, rather than the
judicial, process. Justice Stevens pointed to recent legislation
reforming Congress's practice of imposing "unfunded mandates"
on the states as evidence that states are fully capable of protecting
their sovereign interests through their representation in Congress.
Justice Stevens also disputed the majority's emphasis on maintaining
a clear line between the state and federal governments so as to
ensure political accountability. Justice Stevens faulted the majority
for providing no empirical support for its assertion that state
officials implementing federal policy will have to "take the
blame" if programs fail; and he said that local officials often
take action in response to multiple sources of authority, and that
concerned citizens could and should be expected to determine the
true source of their grievance with respect to particular governmental
programs. Justice Stevens also commented on the irony that, while
the majority praised the Constitution's "dual sovereignty"
as a means of protecting state autonomy, the Court's holding would
actually necessitate an enlarged federal bureaucracy to implement
the Government's programs.
As for the majority's argument based on precedent, Justice Stevens
argued that the relevant precedent consisted of a single case, New
York, and he found that case distinguishable. Justice Stevens viewed
New York as holding only that the federal Government cannot compel
states to enact legislation. Justice Stevens found other cases emphasizing
federal supremacy more directly relevant, particularly Testa v.
Katt, 330 U.S. 386 (1947), which he read to hold that state courts
of appropriate jurisdiction must adjudicate federal claims, without
regard to other demands on their dockets.
Justices Souter and Breyer each wrote separate dissenting opinions.
Justice Souter candidly admitted that the case had turned out to
be "closer than [he] had anticipated," but said that any
doubts that he had as to the Brady Act's constitutionality were
eliminated by Hamilton's statement in Federalist No. 27, 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." Justice
Scalia responded at length to Justice Souter's reliance on Federalist
No. 27, arguing that if that passage was taken at face value, state
governments would be obligated automatically to implement federal
law, without Congress imposing an express requirement that they
do so -- a position that no one had ever thought or argued was the
Justice Breyer's dissent pointed out that other federal systems,
such as Switzerland, Germany, and the European Union, required constituent
governments to implement national policy, without a corresponding
loss of authority on the part of the states or member nations. Justice
Scalia dismissed this "comparative analysis [as] inappropriate
to the task of interpreting a constitution, though it was of course
quite relevant to the task of writing one."
Printz is the third major case in as many Terms in which the Court
has limited the federal Government's authority under federalism
principles. In United States v. Lopez, the Court decided for the
first time in more than a half-century that Congress had exceeded
its authority under the Commerce Clause. Last Term, in Seminole
Tribe of Florida v. Florida, 116 S. Ct. 1114 (1996), the Court held
that the Commerce Clause does not grant Congress the power to abrogate
the states' Eleventh Amendment immunity from suit in federal court.
Printz extends the holding of New York v. United States, which said
Congress may not compel states to enact legislation, so that Congress
now lacks power to compel state executives to implement federal
The cases represent a triumph for Chief Justice Rehnquist, who
as an Associate Justice had authored the Court's short-lived opinion
in National League of Cities v. Usery. There, the Court interpreted
the Tenth Amendment to limit Congress's authority to regulate states
in the same manner that Congress regulates individuals; National
League of Cities itself held that when states performed "traditional
governmental functions," they were immune from the Fair Labor
Standards Act's minimum wage and overtime requirements. In the decade
following National League of Cities, the Court considered several
Tenth Amendment challenges to federal regulations, but rejected
each of them. Finally, in Garcia v. San Antonio Metropolitan Transit
Authority, the Court overruled National League of Cities. Then-Justice
Rehnquist wrote a one-paragraph dissent, confidently asserting that
it was "not incumbent on those of us in dissent to spell out
further the fine points of a principle that will, I am confident,
in time again command the support of a majority of this Court."
Time has proved the Chief Justice to be at least half-right. The
Court's recent federalism cases have not indicated an intention
to return to the National League of Cities rule that states are
immune in some circumstances from federal legislation. But a clear
(albeit slim) Court majority has embraced the principle that the
Constitution assigns the Court an active and important role in policing
the boundary between the federal and state governments. As illustrated
by the fiery exchanges between Justices Scalia and Stevens in Printz,
"the battle scene of federalism," as Justice O'Connor
described it in Garcia, is likely to remain an area of active conflict
within the Court in the years to come.
*Kelly M. Klaus is an associate at Munger, Tolles and Olson, L.L.P.
in San Francisco.