The Federalist Society

Printz v. United States

Federalism & Separation of Powers Practice Group Newsletter - Volume 1, Issue 3, Fall 1997

December 1, 1997

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 United States."

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 law.

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 legislation.

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.


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