# Amicus Curiae Brief — Printz v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0704%3A14

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1996
- **Citation:** 518 U.S. 1003

## Text

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AUG 15 1996

CLERK

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,

v.
UNITED STATES OF AMERICA,
Respondent.

—?e-

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
whether persons may lawfully purchase handguns; to destroy
records concerning handgun purchasers; and to provide the
reasons for adverse determinations, as mandated by the
Brady Act, 18 U.S.C. § 922(s)(2), (6)(B), and (C).

QUESTIONS PRESENTED FOR REVIEW
INTEREST OF AMICUS CURIAE
STATEMENT OF THE CASE
SUMMARY OF ARGUMENT
ARGUMENT

il

TABLE OF CONTENTS

THE INTERIM PROVISIONS OF THE
BRADY ACT VIOLATE THE TENTH
AMENDMENT TO THE UNITED STATES

CONSTITUTION
A.

The Interim Provisions of the
Brady Act Impermissibly interfere
with an Inherent Aspect of |

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The Interim Provisions of the
Brady Act Undermine the Process-
Based Protections of Political
Accountability Enunciated by

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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.

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TABLE OF AUTHORITIES CITED
Page
CASES
City of Los Angeles v. Lyons, 461 U.S.
Se accveseadedabecscduskut Gobet dase 10
Frank v. United States, 860 F. Supp.
Ff & ey rorrrie irri ot 16
Frank v. United States, 78 F.3d 815
CPG ME enackeedteesscctnteas ta caeeher 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 ae EE 6b N66 Wec6 66s Ses Ws sepeeeus 2
Kelly v. Robinson, 479 U.S. 36
Se - ¢csconeebsneedes tunendéeendaecueenn 9
Knapp v. Schweitzer, 357 U.S. 371
GED «dene c be héu Menecbtherdesdecaedeuke 9
Koog v. United States, 79 F.3d 452
Spas GED -adeeentsbacbecedeuacs aunt 5,7,14
Mack v. United States, 856 F. Supp.
of FY § errrrrrre bee aneweued 2-3
Mack v. United States, 66 F.3d 1025
GG GE ccecesccvvcvecceses 4-5,9-12,14-17
New York v. United States, 505 U.S. 144
SEED occcetosceseciesocbs seoeese 4-7,12-15,18
Printz v. United States, 854 F. Supp.

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Page
Rizzo v. Goode, 423 U.S. 362 (1976) .............. 10
United States v. Lopez, 514 U.S. __,
Se ee PE Gbedécbys cence cenectées 2,9
United States v. Ron Pair Enterprises, Inc.,
TT TES TEE LTTE re 9
Younger v. Harris, 401 U.S. 37 (1971) ............ 9-10
RULE
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STATUTES
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UNITED STATES CONSTITUTION
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MISCELLANEOUS

Laurence H. Tribe, American Constitutional
Ram, BEDE Ee, GHEE évecceewcccesvodocece 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) ..... 8

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
+

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 purpose of litigating in the public interest.

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.

——

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
handgun. During this waiting period, the Act requires local
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 "[uJnder 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; Printz,
854 F. Supp. at 1506. Both District Courts held that Section
922(s)(2) of the Act, by imposing on the sheriffs a
duty to conduct background checks, violated the Tenth
Amendment as interpreted by this Court in New York vy.
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. Jd.
According to the lower court, "[t}he 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." Id.

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 CLEQOs) 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 directly 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.

+

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. 18 U.S.C.
§ 922(s)(8). By creating additional affirmative duties which
these 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, ¢.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
(1986); 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 ‘> 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 genersily 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

? Concern for governmental accountability ultimately derives
from a concern for individual liberty. “The Constitution
does not protect the sovereignty of States for the benefit of
the States or state governments as abstract political
entities .... To the contrary, the Constitution divides
authority between federal and state governments for the

ion of individuals." New York v. United 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, SOS 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.” Id. (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." Id. 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)(S). 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,
kt 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." /d.
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

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.’
However, 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).

oe

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
policy.

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 relatively
minor and temporary in nature--violates the letter and spirit
of the Tenth Amendment and should not be allowed to stand.

DATED: August, 1996.

Respectfully submitted,

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0704%3A14. Public record. Not legal advice.