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.
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. 103— 322, 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
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
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).
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
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,
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
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
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 responsibilities
Another passage of The Federalist reads as follows:
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 otherwise
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 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
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
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.
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
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
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 any one 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:
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.
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 Ratification
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 itself.
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
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
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,
The Government's distinction between "making" law and merely "enforcing" it, between "policy making" 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 policy making 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
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
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
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
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 administered
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.
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 record keeping 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
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.
* * *
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
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.
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 intra state, 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
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
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
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. Using language
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.
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).
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:
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 I.
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
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.
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
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.
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
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,
Similarly, the First Congress enacted legislation requiring state courts to serve, functionally, like contemporary regulatory
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
The Court's evaluation of the historical evidence, furthermore, fails to acknowledge the important difference between
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.
Indeed, the presumption of validity that supports all congressional enactments
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.
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.
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).
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 subject
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,
Nor is there force to the assumption under girding 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 rule making, 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 inter governmental 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, Congress
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.
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
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
Indeed, Justice Kennedy's recent comment about another case that was distinguishable from New York applies to these cases as well:
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.
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
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 National 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
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.
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.
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
* * *
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 naturalization
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
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
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. Comp. 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
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 encompass
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.
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 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.
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.
"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).
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).
"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 Switzerland— and 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)).
"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.
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 authority— does nothing to support the majority's unwarranted extension of that reasoning today.
"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).
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.
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 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.
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 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.
"[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.
"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.
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 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 in apposite figures of speech.
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.