Amicus Curiae Brief — Printz v. United States

Nos. 95-1478 and 95-1503

In the

Supreme Court of the United States

October Term, 1995

=

JAY PRINTZ, Sheriff/Coroner Ravalli County, Montana,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

~

SHERIFF RICHARD MACK,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

+

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

+

BRIEF AMICUS CURIAE OF PACIFIC LEGAL

FOUNDATION SUPPORTING THE PETITIONERS

~~—

Of Counsel *SHARON L. BROWNE

ANNE M. HAWKINS *Counsel of Record

_ Pacific Legal Foundation Pacific Legal Foundation

2151 River Plaza Drive, 2151 River Plaza Drive,

Suite 305 Suite 305

Sacramento, California 95833 Sacramento, California 95833

Telephone: (916) 641-8888 Telephone: (916) 641-8888

Attorneys for Amicus Curiae

i

QUESTIONS PRESENTED FOR REVIEW

Whether Congress has power under Article I,

Section 8, of the United States Constitution, consistent the

Tenth Amendment as interpreted in New York v. United

States, 50S U.S. 144 (1992), to command state-created chief

law enforcement officers: to search records and to ascertain

Brady Act, 18 U.S.C. § 922(s)(2), (6)(B), and (C).

i

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ...........

INTEREST OF AMICUS CURIAE ..............45. |

STATEMENT OF THE CASE ..............+-45. 2

SUMMARY OF ARGUMENT .............0000055 5

ARGUMENT onc cccccccvcesceseeuenen ee 7

THE INTERIM PROVISIONS OF THE

BRADY ACT VIOLATE THE TENTH

AMENDMENT TO THE UNITED STATES

COMBTETUTRGN ov cccccceneesass buenas 7

A. The Interim Provisions of the

Brady Act Impermissibly Interfere

with an Inherent Aspect of

Seate Govercigmty 2 wc cc ccc ssccedscoces 8

B. The Interim Provisions of the

Brady Act Undermine the Process-

Based Protections of Political

Accountability Enunciated by

This Court in Garcia ........ eee eee 10

C. The Interim Provisions of the Brady

Act Compel State Officials to

Administer a Federal Regulatory

Program in Violation of the

Constitutional Standards Set Forth

by This Court in New York v.

13

tf Pe rn

ee

iii

Page

If Congress Cannot Require

iv

TABLE OF AUTHORITIES CITED

Page

CASES

City of Los Angeles v. Lyons, 461 U.S.

| Pre rr tS ers ori ere 10

Frank v. United States, 860 F. Supp.

PG Ws Ee 6. dd est ceccdececacsiewvebenel 16

Frank v. United States, 78 F.3d 815

Ge Ge cocceWuvesetasedecdeeaeeeeee? 5

Garcia v. San Antonio Metropolitan

Transit Authority, 469 U.S. 528 (1985) ..... 6,10-13,17-18

Hodel v. Virginia Surface Mining

and Reclamation Association, Inc.,

Ge Gly SE OK SSS OveoK cd tae Teeneséess 2

Kelly v. Robinson, 479 U.S. 36

PPP rrrririryrrr ire ee 9

Knapp v. Schweitzer, 357 U.S. 371

PPP or Tr eT TT CT TeTETTTrT rT ry 9

Koog v. United States, 79 F.3d 452

tS REST TT Pr orriTiirTr: ts 5,7,14

Mack v. United States, 856 F. Supp.

of FY & eer rer Suoceeaeuae’ 2-3

Mack v. United States, 66 F.3d 1025

_ Oth Cir. 1995) 2... cere eee ecenes 4-5,9-12,14-17

New York v. United States, 505 U.S. 144

GUE cocecestdeusesccoessucocsoons 4-7,12-15,18

Printz v. United States, 854 F. Supp.

Goa Gn Ge, GUT cccccccsccceseucecosoes 3-4

Vv

Page

Rizzo v. Goode, 423 U.S. 362 (1976) .............. 10

United States v. Lopez, 514U.S. _,

Sea Gh PGND bbb dé cen voseésesdneca’ 2,9

United States v. Ron Pair Enterprises, Inc.,

GP Cas SP PEED 6 6b WONG ONCE Sek tedee seeds 9

Younger v. Harris, 401 U.S. 37 (1971) ............ 9-10

RULE

ESE ccécucanerecceveesact eens cotieeves 2

STATUTES

PPUMDINGED 6.00.6 ccccccaccceeatadreavehes 2

DUD Sccedecesbecescscccssrtecesedées 2,5

PEED 6.0 ch ves bccedwénandeeoedecsaves 3

DEED seccecececttacacvucsasieseesescss 3

DEED cece caseeccseeeeuseesestsoss 3

DUE Cocceedeccccececsoceceoeress i,3

SUED che ec cares coves cone cescceseoes 3,8

DEE Sneckderevevessieecsaventsdavesac 3

DUE node ne54 668 oo cutuenass banceeec 3,14

UNITED STATES CONSTITUTION

COIIED GERD ow wee cc cccsrecetcesccccecees 6

vi

Page

MISCELLANEOUS

Laurence H. Tribe, American Constitutional

Fgh. 2 * h ere 17

Note, Constitutional Law--Tenth Amendment--Ninth

Circuit Holds Interim Enforcement

Provisions of the Brady Bill

Constitutional, 109 Harv. L. Rev. 1833 .......... 11-12

The Federalist No. 39

(January 16, 1788) (J. Madison) (Bantam ed. 1982) ..... »

Nos. 95-1478 and 95-1503

+

In the

Supreme Court of the United States

October Term, 1995

+

JAY PRINTZ, Sheriff/Coroner Ravalli County, Montana,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

+

SHERIFF RICHARD MACK,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

+

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

. a

BRIEF AMICUS CURIAE OF PACIFIC LEGAL

FOUNDATION SUPPORTING THE PETITIONERS

—o-

INTEREST OF AMICUS CURIAE

Pacific Legal Foundation (PLF) is a nonprofit, tax-

exempt corporation organized under the laws of the State of

California for the of ltdention ia the cublic |

l

2

PLF has nearly 25,000 supporters nationwide. Policy for

PLF is set by a Board of Trustees composed of concerned

citizens, many of whom are lawyers. PLF’s Board of

Trustees evaluates the merits of any contemplated legal

action and authorizes such legal action only when the

Foundation’s position has broad support within the general

community. PLF’s Board of Trustees has authorized the

filing of an amicus curiae brief in this matter.

PLF has participated in numerous cases concerning the

Tenth Amendment and limitations upon Congress’ Article I

powers. For example, PLF participated as amicus curiae

before this Court in Hodel v. Virginia Surface Mining and

Reclamation Association, Inc., 452 U.S. 264 (1981), and

United States v. Lopez, 514 U.S. ____, 115 S. Ct. 1624

(1995).

Amicus seeks to augment the argument in the

petitioner’s brief by elucidating the dimensions of the powers

reserved to the states under the Tenth Amendment to the

United States Constitution. PLF believes that its public

policy perspective and litigation experience dealing with state

sovereignty issues will provide an additional viewpoint with

respect to the constitutional and legal issues presented.

Pursuant to Rule 37.3, written permission from all parties for

PLF to file this brief has been lodged with the Clerk of the

Court.

a

STATEMENT OF THE CASE

This case involves a challenge to the constitutionality

of the Brady Handgun Violence Protection Act (the Brady

Act or the Act) (18 U.S.C. § 922(s)), an amendment to the

Gun Control Act of 1968. 18 U.S.C. § 922. Specifically,

Sheriffs Richard Mack and Jay Printz, in separate actions,

challenged the interim provisions of the Act. Mack v. United

3

States, 856 F. Supp. 1372 (D. Ariz. 1994); Printz v. United

States, 854 F. Supp. 1503 (D. Mont. 1994).

In 1993, Congress passed the Brady Act which imposes

a waiting period of up to five days for the purchase of a

law enforcement officials, referred to in the Act as Chief

Law Enforcement Officers (CLEOs), to perform background

checks of handgun purchasers. 18 U.S.C. § 922(s)(1)(2).

These background check provisions are to continue for up to

five years while the federal government sets up a national

criminal background check system to be maintained by the

Department of Justice. 18 U.S.C. § 922(t). These interim

provisions require local sheriffs, such as Mack and Printz, to

serve as CLEOs, 18 U.S.C. § 922(s)(8), or to face possible

criminal penalties. 18 U.S.C. § 924(a)(5). See also Mack,

856 F. Supp. at 1379 (holding that the threat of criminal

penalties for CLEOs exists "[u}]nder the plain meaning of the

statute"). If the CLEO determines that the transfer of the

handgun would be unlawful, the CLEO must destroy

information contained in the background check after 20 days

and keep all information resulting from the background check

confidential, 18 U.S.C. § 922(s)(6)(B). If the CLEO

disapproves the transfer, the purchaser may request an

explanation for the determination. The CLEO must provide

the explanation within 20 days. 18 U.S.C. § 922(s)(6)(C).

Sheriffs Mack and Printz argued, among other things,

that this federal mandate to state and local officials violates

the Tenth Amendment. Mack, 856 F. Supp. at 1378; Priniz,

854 F. Supp. at 1506. Both District Courts held that Section

922(s)(2) of the Act, by imposing on the sheriffs a mandatory

duty to conduct background checks, violated the Tenth

Amendment as interpreted by this Court in New York v.

United States, 50S U.S. 144 (1992). Mack, 856 F. Supp.

at 1381; Printz, 854 F. Supp. at 1513.

4

The Ninth Circuit consolidated appeals from both cases

and reversed the judgments of the District Courts. Mack v.

United States, 66 F.3d 1025 (9th Cir. 1995). In finding the

Act constitutional, the Ninth Circuit rejected any similarity

to New York, supra. In New York, this Court rejected, on

Tenth Amendment grounds, the “take title” provision of a

federal law that gave the states the choice of regulating the

disposal of radioactive waste generated within their states or

taking title to the waste. New York, 505 U.S. at 175-76.

The Ninth Circuit in Mack stated: “The Brady Act does not

embody a mandate to the ‘States’ in the sovereign sense

discussed in New York." Mack, 66 F.3d at 1031. “[T)he

CLEOs are not being commanded to engage in the central

sovereign processes of enacting legislation or regulations" for

which the states will be held politically accountable. Id.

According to the lower court, "[tJhe Brady Act is a

regulatory program aimed at individuals and not the States."

Mack, 66 F.3d at 1031. The lower court found that the

duties imposed by the Act do not implicate sovereign policy-

making concerns, but rather address typical law enforcement

functions--the Act is “not different from other minor

obligations that Congress has imposed on state officials." J¢

Dissenting in part, Judge Fernandez argued that the Act

presents a starker version of the problem in New York.

"Rather than ordering the state legislatures or agencies to

adopt a scheme for vetting requests for gun transfers,

Congress has avoided that hindrance and dragooned the state

officials directly." Mack, 66 F.3d at 1035. The dissent

warned that the federal government’s attempt to command

state executives directly poses at least as great a danger to

the federal system as the usurpation of state law-making

powers struck down in New York: “This legislation is a step

toward concentrating power in the hands of the federal

government, for it treats state officials and workers as if they

5

were mere federal employees. ... The time to stop this

journey of a thousand miles is at the first step." Jd.

Sheriffs Mack and Printz petitioned this Court for a

writ of certiorari. Because of a split between circuits

concerning the constitutionality of the CLEO provisions, the

United States supported the petition.' Certiorari was granted

by this Court on June 17, 1996.

>

SUMMARY OF ARGUMENT

In rushing to adopt the popular Brady Handgun Control

Act, 18 U.S.C. § 922(s), Congress has contravened the

Tenth Amendment by dragooning state law enforcement

officers (referred to in the Act as CLEOs) to act as federal

agents in implementing federal policy. The interim

provisions of the Act require CLEOs to perform background

checks of handgun purchasers. These mandatory provisions

require CLEOs to devote themselves to the performance of

federal duties regardless of what local law enforcement

priorities may arise. The Ninth Circuit, in holding the Brady

Act constitutional, misinterpreted and misapplied Tenth

Amendment doctrine.

It has long been recognized that local law enforcement

activities are uniquely central to the concept of state

sovereignty and merit the strongest constitutional safeguards

against federal infringement. The interim provisions of the

' Compare Koog v. United States, 79 F.3d 452, 458-59 (Sth

Cir. 1996) (striking down the CLEO provisions) with

Frank v. United States, 78 F.3d 815, 825 (2d Cir. 1996)

(upholding the provisions), and Mack, 66 F.3d at 1931

(upholding the provisions).

6

Brady Act implicate the states’ interest in criminal law

enforcement by requiring CLEOs to enforce a federal

program. By creating additional affirmative duties, the

interim provisions of the Brady Act displace state law

enforcement priorities with federal mandates thereby

compromising the states’ interest in criminal law

enforcement.

The interim provisions of the Brady Act do not fit

within the Tenth Amendment framework articulated in

Garcia v. San Antonio Metropolitan Transit Authority,

469 U.S. 528 (1985). Garcia enunciated a process-based test

for determining when states are immune from the imposition

of federal burdens pursuant to the Commerce Clause.

Garcia placed its confidence in the political process to ensure

that laws will not unduly burden states. The general

applicability of the minimum wage laws at issue in Garcia

justified this reliance because the wage laws applied to

individuals as well as states. The individuals could see that

the federal government promulgated the laws and they could

hold federal politicians accountable. In contrast, the interim

provisions of the Brady Act are not ‘urectly applicable to the

general citizenry, but apply only to state and local law

enforcement _officers. The general citizenry, therefore,

cannot easily determine the source of the background check

requirements administered by CLEOs. The normal operation

of the political process is therefore ineffective in restraining

the imposition of federal burdens on the states.

The interim provisions of the Brady Act flatly violate

the standards of federalism set forth in New York v. United

States, 50S U.S. 144. New York invalidated the “take title"

provision of the Low-Level Radioactive Waste Policy

Amendments Act of 1985. That federal law purportedly

provided states the choice of regulating the disposal of

radioactive waste generated within their states or taking title

7

to the waste. Jd. at 175-76. In a ruling that should have

been dispositive of the case at bar, the New York Court found

this was no choice at all because Congress had

commandeered the state’s legislative process in violation of

the Tenth Amendment. In contrast with the Ninth Circuit

which found the New York ruling unpersuasive, Koog v.

United States, 79 F.3d 452, recognized that New York

controls the outcome of this case.

The interim provisions of the Brady Act impose

-affirmative duties on CLEOs which are tantamount to the

forced state legislation that was prohibited in New York.

These interim provisions of the Brady Act directly compel

the precise manner in which state officials must administer

federal regulations, subject to criminal penalties. This

federal co-option of local law enforcement mechanisms--even

if relatively minor and temporary in nature--violates the letter

and spirit of the Tenth Amendment and should not be

allowed to stand.

-o—

ARGUMENT

THE INTERIM PROVISIONS OF

THE BRADY ACT VIOLATE

THE TENTH AMENDMENT

TO THE UNITED STATES CONSTITUTION

The Tenth Amendment to the United States Constitution

provides:

The powers not delegated to the United States by

the Constitution, nor prohibited by it to the

8

states, are reserved to the states respectively, or

to the people.

Constitution of the United States, Amendment X. The

language of the amendment reflects the concern of the

drafters that the jurisdiction of the central government should

extend “to certain enumerated objects only, and leave ... to

the several states a residuary and inviolable sovereignty over

all other objects." The Federalist No. 39 (January 16, 1788)

at 194 (J. Madison) (Bantam ed. 1982) (The Federalist

Papers). By imposing federal regulatory requirements into

a field of inherent state sovereignty, and by impressing state

officers to administer federal regulations, the interim

provisions of the Brady Act exceed the permissible limits of

the federal government’s jurisdiction.

A. The Interim Provisions of the

Brady Act Impermissibly Interfere

with an Inherent Aspect of State Sovereignty

Sheriffs Mack and Printz are local officials with critical

state law enforcement duties. By the Brady Act’s own

definition, they bear the chief law enforcement

responsibilities for their respective counties. i8 U.S.C.

§ 922(s)(8). By creating additional affirmative duties which

ese state officers would not otherwise be required to

undertake, the interim provisions of the Brady Act interfere

in the administration of the states’ criminal justice systems.

Regardless of what local law enforcement priorities may

arise, the Brady Act requires these officers to devote

themselves to the performance of federal duties.

9

In ruling that the interim provisions of the Brady Act

do not violate the Tenth Amendment, the court below found

that these regulations do not implicate "inherently central acts

of a sovereign.” Mack, 66 F.3d at 1031. In fact, however,

local law enforcement activities are uniquely central to the

concept of state sovereignty, and merit the strongest

constitutional safeguards against federal infringement.

This Court has repeatedly recognized criminal law

enforcement as being quintessentially a province of state

governments. See, e.g., United States v. Ron Pair

Enterprises, Inc., 489 U.S. 235, 245 (1989) ("the States’

interest in administering their criminal justice systems free

from federal interference is one of the most powerful of the

considerations that should influence a court"); United

States v. Lopez, 115 S. Ct. at 1631 n.3 ("‘States possess

primary authority for defining and enforcing the criminal

law’"); Knapp v. Schweitzer, 357 U.S. 371, 375 (1958) (the

bulk of authority to legislate on criminal justice is the

responsibility of the individual states). Most recently, in

United States v. Lopez, this Court noted that “[uJnder the

theories that the Government presents ... , it is difficult to

perceive any limitation on federal power, even in areas such

as criminal law enforcement or education where States

historically have been sovereign.” Lopez, 115 S. Ct. at 1632

(emphasis added).

The reservation of sovereignty to the states in the field

of criminal justice is so compelling that this Court has held

that a restitution obligation imposed as part of a state

criminal sentence may not be discharged in federal

bankruptcy proceedings, Kelly v. Robinson, 479 U.S. 36, 47

(1980); and that the federal courts must generally abstain

from enjoining state criminal proceedings, even where a state

criminal statute is allegedly unconstitutional. Younger v.

Harris, 401 U.S. 37, 45 (1971). The principle announced in

10

Younger has been extended to require federal court abstention

where an injunction is sought against state criminal law

enforcement bodies. See Rizzo v. Goode, 423 U.S. 362, 380

(1976), City of Los Angeles v. Lyons, 461 U.S. 95, 111

(1983).

In the case at bar, the interim provisions of the Brady

Act implicate the states’ interest in criminal law enforcement

by displacing state law enforcement priorities with federal

mandates, thereby forcing the states to reallocate law

enforcement resources from state duties to federal duties.

The court below erred in ruling that this interference does

not implicate “inherently central” aspects of state

sovereignty. Because the nature of the state interest which

is compromised by the interim provisions of the Brady Act

is unquestionably a power reserved to the states by the

Constitution, the provisions at issue conflict with the federal

structure protected by the Tenth Amendment.

B. The Interim Provisions of

the Brady Act Undermine

the Process-Based Protections

of Political Accountability

Enunciated by This Court in Garcia

The court below upheld the interim provisions of the

Brady Act in part by reference to this Court’s decision in

Garcia v. San Antonio Metropolitan Transit Authority,

469 U.S. 528:

There are numbers of ways in which the

federal government is permitted to secure the

assistance of state authorities in achieving federal

legislative goals. First and most directly, the

federal government may coerce the states and

their employees into complying with federal laws

ll

of general applicability. Garcia v. San Antonio

Metropolitan Transit Authority, 469 U.S. 528

(1985).

Mack, 66 F.3d at 1029. However, the constitutional issues

implicated in this case differ from those in Garcia in

fundamentally important respects.

In Garcia, this Court enunciated a process-based test

for determining when states are immune from the imposition

of federal burdens pursuant to the Commerce Clause. Rather

than examining the governmental function at issue (such as

law enforcement), the Garcia Court focused on the operation

of the political process as a limitation on federal excesses:

Any substantive restraint on the exercise of

Commerce Clause powers must find its

justification in ... possible failings in the national

political process rather than ... a “sacred

province of state autonomy."

Garcia, 469 U.S. at 554.

What made this test plausible in Garcia was the

procedural transparency of the regulations at issue in that

case--the extension of federal wage-and-hour legislation to

certain state employees.

“Because the wage laws applied directly to individuals,

as well as to states, individuals could see that the federal

government promulgated the laws and could hold federal

politicians accountable.” Note, Constitutional Law--Tenth

Amendment--Ninth Circuit Holds Interim Enforcement

Provisions of the Brady Bill Constitutional, 109 Harv. L.

Rev. 1833, 1836.

12

In the decision below, the Ninth Circuit found the

interim provisions of the Brady Act to be equivalent to

Garcia’s generally applicable federal legislation,

characterizing the challenged measure as “a regulatory

program aimed at individuals and not the States." Mack,

66 F.3d at 1031. In fact, however, the Brady Act provisions

clearly violate Garcia’s process-based Tenth Amendment

test.

The interim provisions are not directly applicable to

individual citizens, but only to certain state officials.

Because voters cannot easily determine the source of the

registration requirements administered by Sheriffs Printz and

Mack, political accountability breaks down. The normal

operation of the political process is therefore ineffective in

restraining the imposition of federal burdens such as those at

issue in this case. Impressing state officials to administer

federal regulations “may create a political curtain between

the federal ‘actors’ who pull the strings and the state

‘puppets’ who move the arms of the federal government--a

situation that tends to render the government unaccountable

to the polity." Note, Constitutional Law, 109 Harv. L.

Rev. at 1838.

The Garcia Court placed its confidence in the political

process to “ensure{] that laws that unduly burden the States

505 U.S. at 181.

13

will not be promulgated." Garcia, 469 U.S. at 556. In the

case at bar, however, the provisions at issue are not directly

applicable to the general citizenry; moreover, the very nature

of the interim provisions of the Brady Act generates

confusion as to the political level responsible for the

registration requirements. Consequently, the Brady Act

provisions cannot be upheld under this Court’s Garcia

doctrine.

C. The Interim Provisions of

the Brady Act Compel State Officials

to Administer a Federal Regulatory

Program in Violation of the

Constitutional Standards Set Forth by |

This Court in New York v. United States

In upholding the interim provisions of the Brady Act,

the Court below rejected the guidance of one of this Court’s

leading Tenth Amendment cases, New York vv.

United States, 50S U.S. 144. In New York, this Court

invalidated a provision of the Low-Level Radioactive Waste

Policy Amendments Act of 1985, a federal law that gave the

states the choice of regulating the disposal of radioactive

waste generated within their states or taking title to the

waste. 505 U.S. at 175-76. The “take title” provision was

invalidated as providing no real choice at all, the Court

finding that Congress had commandeered the states’

legislative processes in violation of the Tenth Amendment’s

fundamental norms of federalism. Jd. at 188. In a ruling

that should have been dispositive of the case at bar, this

Court concluded that "[t}he Federal Government may not

compel the States to enact or administer a federal regulatory

program.” Jd. (emphasis added).

New York has rightly been recognized as dispositive by

other lower courts passing on the constitutionality of the

14

interim provisions of the Brady Act. For example, in

Koog v. United States, 79 F.3d 452, the Fifth Circuit

recognized “that New York is central to the question before

us." Jd. at 455. The Koog court tracked the analysis of the

legislation at issue in New York and, concluding that the

interim duties imposed on the CLEOs are tantamount to

forced state legislation,” Koog, 79 F.3d at 458, found that

the Brady Act’s interim provisions violated the Tenth

Amendment.

In the proceedings below, however, the Ninth Circuit

found this Court’s New York ruling unpersuasive. The

appellate panel found New York inapplicable because “([t}he

Brady Act does not embody a mandate to the ‘States’ in the

sovereign sense. The Brady Act is a regulatory program

aimed at individuals and not the states." Mack, 66 F.3d

at 1031.

As previously noted, the Ninth Circuit erred in finding

local law enforcement administration to lie outside the core

aspects of state sovereignty. The second point cited by the

Court below--that the challenged measures impact directly on

state officers rather than upon the states themselves--hardly

takes this case out of the ambit of this Court’s New York

doctrine.

The interim provisions of the Brady Act directly

compel the precise manner in which state officers must

administer federal regulations, subject to criminal penalties.

18 U.S.C. § 924(a)(5). On their face, these provisions

amount to precisely the type of forced administration of

federal regulations that was prohibited by this Court in New

York. Under the plain standards set forth by this Court, the

decision below should be reversed and the interim provisions

of the Brady Act should be struck down as unconstitutional.

15

D. If Congress Cannot Require the

States to Adopt Handgun Regulations,

It Likewise Cannot "Dragoon" State

Employees to Administer the

Interim Provisions of the Brady Act

The court below recognized that "‘a direct order to regulate,

Standing alone, would ... be beyond the power of

Congress.’" Mack, 66 F.3d at 1030 (quoting New York,

505 U.S. at 176). . Nevertheless, the appellate panel upheld

the interim provisions of the Brady Act because it found

them addressed to “individuals and not the states." Jd.

at 1031. In other words, the court below held that Congress

could lawfully impress state employees to administer

regulations which it could not lawfully force their employers

to adopt.

In dissent, Judge Fernandez clearly identified the error

in this reasoning:

Rather than ordering the state legislatures or

agencies to adopt a scheme for vetting requests

for gun transfers, Congress has avoided that

hindrance and dragooned the state officials

directly.

Mack, 66 F.3d at 1034 (Fernandez, C.J., concurring and

dissenting). The challenged provisions of the Brady Act may

16

in fact pose a greater danger to federalism than direct

commands to regulate:

This legislation is a step toward concentrating

power in the hands of the federal government, for

it treats state officials and workers as if they were

mere federal employees.

Id.

Congress evidently concluded that efficient

administration of the Brady Act would be facilitated by

impressing into service local law enforcement officials.’

How ver, ease or efficiency in implementing federal policy

is insufficient justification for federal intrusion on sovereign

state operations where it is clear that Congress has no power

to force the states to adopt such regulations of their own.

The Ninth Circuit found that the duties imposed by the

Act on CLEOs are “not different from other minor

obligations that Congress has imposed on state officials."

Mack, 66 F.3d at 1031. However, the question of whether

the obligations imposed by the interim provisions are

"minor" is subsidiary to the issue of whether the federal

government has jurisdiction to mandate state executives to

administer federal regulations for the benefit of the federal

government.

> "It is clear that Congress sought to take advantage of the

local law enforcement’s familiarity with the population when

the background check provision was drafted." Frank v.

United States, 860 F. Supp. 1030, 1039 (D. Vt. 1994).

17

As one constitutional scholar has put it:

[N]o one expects Congress to obliterate the

states, at least in one fell swoop. If there is any

danger, it lies in the tyranny of small decisions--

in the prospect that Congress will nibble away at

state sovereignty, bit by bit, until someday

essentially nothing is left but a gutted shell. The

real question, therefore, is this: short of its

prohibition of Armageddon, does the Constitution

grant the states any judicially enforceable

protection from Congress?

Laurence H. Tribe, American Constitutional Law, § 5-20

at 381 (2d ed. 1988).

In the words of Judge Fernandez, “[t}he time to stop

this journey of a thousand miles is at the first step.” Mack,

66 F.3d at 1034 (Fernandez, C.J., concurring and

dissenting).

a

CONCLUSION

In reconciling congressional authority under the

commerce power with the constraints of the Tenth

Amendment, Justice O’Connor has noted, “[i]t is not enough

that the ‘end be legitimate’; the means to that end chosen by

Congress must not contravene the spirit of the Constitution."

Garcia, 469 U.S. at 585 (O’Connor, J., dissenting). In this

case Congress, in rushing to adopt the popular Brady Act,

has contravened the Tenth Amendment by dragooning state

officials to act as federal agents in implementing federal

polic y.

18

The interim provisions of the Brady Act compel state

executives to enforce federal regulations, for the benefit of

the federal government, in a field of inherent state

sovereignty. These provisions are not subject to the normal

restraints of the political process relied on by this Court in

Garcia, and flatly violate the standards of federalism set

forth in New York v. United States. This federal co-option

of local law enforcement mechanisms--even if

minor and temporary in nature--violates the letter and spirit

of the Tenth Amendment and should not be allowed to stand.

DATED: August, 1996.

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