Journal of Contemporary Law 1998
Recent Development, p.178
Posted for educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain a back issue.
PRINTZ V. UNITED STATES: SUPREME COURT DECLARES BRADY ACT'S REVIEW OF HANDGUN APPLICATION REQUIREMENT UNCONSTITUTIONAL
H. JAY *
Copyright © 1998 Journal of Contemporary Law
In Printz v. United States,  the United States Supreme Court held unconstitutional interim provisions of the Brady Handgun Violence Prevention Act (the Brady Act)  requiring local Chief Law Enforcement Officers (CLEOs) to receive and evaluate handgun permit applications  and to report, upon request, their reasoning for rejecting any application.  Justice Scalia's majority opinion held that these provisions were severable from the main body of the Brady Act and overturned the Ninth Circuit's decision that the Brady Act in its entirety was constitutional.  Subsequent interim provisions and those permanent provisions that will be determined in the future will have to be constructed in such a way as to avoid the separation of powers questions on which the decision relies.
2. The Case
Jay Printz (Printz) and Richard Mack (Mack),the petitioners, are the CLEOs from Ravalli County, Montana, and Graham County, Arizona, respectively.  They each filed separate actions contesting the constitutionality of the requirement that they accept Brady forms and perform background checks on handgun applicants.  Both district courts hearing the cases held the interim provisions unconstitutional, [p.179]
yet found them severable from the rest of the Brady Act, leaving a voluntary background-check system in place.  The Ninth Circuit consolidated the appeals, and a divided panel held that none of the Brady Act's provisions were unconstitutional, overturning the district courts.  The Supreme Court granted certiorari. 
Printz and Mack "object(ed) to being pressed into federal service, and (argued) that congressional action compelling state officers to execute federal laws is unconstitutional."  The main support they asserted for this argument was that "compelled enlistment of state executive officers for the administration of federal programs (has been), until very recent years at least, unprecedented." 
The government countered this argument with an historical assertion, stating that "the earliest Congresses enacted statutes that required the participation of state officials in the implementation of federal laws."  The government also relied on early written sources to assert that participation by state officials in the implementation of federal laws was consonant with early constitutional interpretation.  Finally, the government pointed out certain recent federal statutes which require participation of state or local officials to implement federal regulatory schemes. 
The Supreme Court found that the historical record supported the petitioners' approach, but stated that historical analysis alone was inconclusive.  The majority stated that since no constitutional text speaks to the precise question raised by the case, in addition to historical "understanding and practice," the Court must analyze the structure of the Constitution and the jurisprudence of the Supreme Court to make a proper conclusion on the issue. 
On the analysis of the Constitution's structure, the Court held first that "(t)he power of the Federal Government would be augmented [p.180] immeasurably if it were able to impress into its service--and at no cost to itself--the police officers of the 50 States."  Secondly, the majority stated that the power of the President would be undermined if Congress could simply require state officers to execute its laws.  Finally, the majority held that the dissent's argument utilizing the Necessary and Proper and Supremacy Clauses did not actually resolve the constitutionality of the provisions at issue. 
The majority turned finally to the Court's jurisprudence, finding that its holding in New York v. United States  controlled the present dispute. In New York, the Court held that "(t)he Federal Government may not compel the States to enact or administer a federal regulatory program." 
The government argued New York should be distinguished on several grounds.  First, unlike New York, the present case did not involve federal direction of state legislative activity. Instead, the Brady Act provisions only required implementation of a final legislative solution, and did not direct state policy making.  In response, the Court held that the government's argument indicated that state control over law enforcement under the Brady Act has been completely removed, making the situation even worse for state sovereignty than the one in New York. 
The government also attempted to distinguish New York by maintaining that requiring state officers to perform discrete, ministerial tasks specified by Congress does not diminish the accountability of either federal or state officers.  However, the Court did not find this argument acceptable. It found that by forcing state governments to absorb costs, Congress could take credit for implementing regulatory programs without paying to maintain them.  Additionally, by forcing state governments to administer federal [p.181] programs, Congress could shift the blame for any burdens or defects of those programs to the states. 
Finally, the government argued that the Brady Act provisions are best administered locally, and only place a minimal and temporary burden on local officials.  Assuming the truth of this argument, the Court held that the very principle of state sovereignty was offended by the interim provisions, and that "no comparative assessment of the various interests" could "overcome that fundamental defect." 
The dissent also attempted to distinguish New York. It stated that unlike the provisions at issue in New York, the provisions in the Brady Act are targeted at control of state officers, not control of state governments.  The majority responded by stating that "(saying) the Federal government cannot control the State, but can control all its officers, is to say nothing of significance." 
Accordingly, the Court reiterated the holding in New York that "(t)he Federal Government cannot compel a state to enact or administer a federal regulatory program,"  and held that the Brady Act's provisions "plainly (run) afoul of that rule." 
(b) Historical Analysis
The Court stated that the government's claim that early congressional legislation required state officials to perform federal regulatory duties was an assertion that must be treated with "careful consideration."  Early enactments by Congress "provid(e) 'contemporaneous and weighty evidence' of the Constitution's meaning"  and "contemporaneous legislative exposition of the Constitution . . . acquiesced in for a long term of years, fixes the construction to be given its provisions."  Conversely, a demonstration [p.182] that earlier Congresses did not enact provisions directing the actions of state executive officers would be reason to believe that those Congresses thought the power did not exist. 
The government pointed to early congressional enactments requiring states to record applications for citizenship,  transmit abstracts of citizenship applications and other naturalization records to the Secretary of State,  register aliens seeking naturalization, and issue certificates of registry.  However, the Court indicated that these duties actually may have been required only of states that authorized their courts to conduct naturalization proceedings.  In addition, the government put forward other laws to demonstrate that state courts were also required to perform functions unrelated to naturalization.  These functions included conflict resolution between captains and their crews,  hearing claims by slave owners and issuing certificates for the forced removal of runaway slaves,  taking proof of the claims of Canadian refugees after the Revolutionary War,  and ordering the deportation of alien enemies in times of war.  The Court stated that these laws applied only to judicial actions, and allowed Congress to require state judges to "enforce federal prescriptions . . . related to matters appropriate for the judicial power."  Thus, the laws did not reflect control of state administrations. 
The Court also described how the Madisonian Compromise resulted in Article III, section 1 of the Constitution, which requires only one federal court, the Supreme Court, and allows Congress the option of creating additional lower federal courts.  Early congresses would have known that the Supreme Court could not have heard all federal cases arising in the nation, and prior to additional federal [p.183] courts being created, might have assumed that state courts could fill this gap, applying the "foreign" federal law.  Additionally, the Court pointed out that the Supremacy Clause explicitly requires state courts to apply Constitutional provisions and federal laws made under it.  Finally, state courts are also required, by the Full Faith and Credit Clause of the Constitution, to apply other, "foreign" state legislation.  Therefore, the Court concluded that the above laws do not "imply a power of Congress to impress the state executive into its service." 
One early law  presented by the government did involve duties imposed on state executives, but the Court pointed out that this was a direct implementation of the Extradition Clause of the Constitution.  Thus, the Court determined that the absence of laws imposing obligations on state executive officers, in contrast to the number extant which imposed obligations on state courts, indicates that early Congresses did not recognize a power to control state executives. 
The government next argued that portions of The Federalist indicate that early Congresses saw that eventually federal duties would be undertaken by state officers.  The Court indicated that none of the statements relied on in this instance, however, "necessarily implies--what is the critical point here--that Congress could impose these responsibilities without the consent of the States."  The majority indicated that these early statements rested on the assumption that the States would consent to allowing their officials to assist the federal government,  an assumption which the Court states proved correct between the early federal and state governments. 
Justice Souter's dissent (on which point the two other [p.184] dissenters agree) relies on another passage of The Federalist  to argue that the national government will have "authority . . . when exercising an otherwise legitimate power (the commerce power, say), to require state 'auxiliaries' to take appropriate action."  The majority indicated, however, that this interpretation of the passage in question would mean that state officers would be under an obligation to implement federal law even without a specific directive to do so.  The majority points out that no one has asserted in this litigation or elsewhere that this interpretation is in actuality the law. 
The majority also points out that such an interpretation would subject state legislatures to federal direction, contrary to the Court's holding in New York.  The majority contended that an interpretation of this passage from The Federalist consistent with Silkwood v. Kerr-McGee Corp.  is more consistent with the context in which it was written.  Such an interpretation would be that the passage intends that state law should be enacted, enforced and interpreted so as not to obstruct federal law. 
Justice Souter argued that his interpretation of Federalist No. 27 is supported by No. 44, and thus, both Madison and Hamilton oppose the majority's view on this issue.  The majority pointed out, however, that though state officials are required to give "effect" to the federal Constitution, as referred to by Madison, this effect is to be given according to the laws of the states.  Additionally, the majority argues that there is no indication in any of Madison's other writings that he supported this view supposedly held by Hamilton. 
Following these more removed inquiries, the Court considered recent legislation raised by the government in which the federal government had undertaken to control state executives.  The Court [p.185] found that the newness of this approach indicated that it was otherwise generally absent historically.  The government argued that the first statute it relied on requires state officials to take charge of local immigration affairs, provide relief and support to immigrants in distress, exclude certain classes of persons, and send convicts back to their countries of origin.  The Court pointed out that the statute did not mandate these duties, but empowered the Secretary of the Treasury to contract with pertinent state officers designated by the governor to undertake these duties. 
The second statute described by the government authorizes 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 executing the World War I selective draft law. The Court indicated that "it is far from clear that the authorization 'to utilize the service' of State officers was an authorization to compel the service of State officers."  In practice, the President approached the governors of the states to request assistance, rather than exercising this authorization to enforce draft laws. 
Finally, the government pointed out a number of federal statutes enacted recently which require the participation of state or local officials in carrying out federal regulations.  The Court found some of these statutes to be conditions attached to federal funding measures, others merely requirements for information, and stated that neither situation addressed the question posed in the present case.  The other statutes presented were not deemed relevant since none have been decided on by the Court, and since their persuasive force is outweighed by two centuries of precedent.  The Court compared this situation to that in INS v. Chada,  in which the Court found the legislative veto to be unconstitutional in spite of its presence in [p.186] "perhaps hundreds of statutes." 
(c) Governmental Structure in the Constitution
Unprompted by either litigant, the Court discussed the effect of the interim measures in question on the structure of government as it exists in the United States. The Court stated that the Constitution establishes a system of "dual sovereignty"  in which the states surrender many important powers and yet retain "a residuary and inviolable sovereignty."  This sovereignty is seen throughout the Constitution's text,  such as in the Guarantee Clause,  which "presupposes the continued existence of the states and . . . those means and instrumentalities which are the creation of their sovereign and reserved rights."  Additionally, the Court pointed out that residual state sovereignty is implicit in the enumerated manner in which powers were granted to the federal government, which is explicit in the Tenth Amendment. 
The Court also discussed the experience of the Framers under the Articles of Confederation, showing that they had accepted the view that using the states as federal instruments was ineffectual and provocative of federal-state conflict.  The Framers rejected a central government that would "act upon and through the States," and designed a system of governments that exercised concurrent authority.  In fact, the conclusion of the Court in New York was that "(t)he Framers explicitly chose a Constitution that confers upon Congress the power to regulate individuals, not States."  The Court has also stated that the great innovation of this design was that "our citizens would have two political capacities, one state and one federal, [p.187] each protected from incursion by the other."  Thus, the Constitution contemplates that a state's government "will represent and remain accountable to its own citizens." 
The Court stated that the separation of these two spheres, federal and state, is as important to the protection of liberty as is the separation of the coordinate branches of federal government.  Furthermore, a balance of power between the two will "reduce the risk of tyranny and abuse from either front."  The majority concluded that "(t)he 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." 
The majority also stated that federal control of state officers would have an effect upon the balance of powers between the branches of the federal government itself.  Article II, sections 2 and 3 of the Constitution, requires the President to "take Care that the Laws be faithfully executed," either personally or through appointed officers. The Brady Act "effectively transfers this responsibility to thousands of CLEOs . . . who are left to implement the program without meaningful Presidential control."  The Court stated that the unity on which the Framers insisted  "would be shattered, and the power of the President would be subject to reduction, if Congress could act as effectively without the President as with him, by simply requiring state officers to execute its laws." 
The dissent argued that the Brady Act provisions are constitutional under the Necessary and Proper Clause.  The regulation of handgun sales is contemplated by the Commerce Clause, which formally delegates a regulatory power to Congress.  The [p.188] majority found, however, that the Necessary and Proper Clause itself undermines the dissent's argument.  Where a law intended to carry into execution the Commerce Clause violates principles of state sovereignty, it is not a proper law to be executed under the Necessary and Proper clause.  It is "thus . . . 'merely (an) ac(t) of usurpation' which 'deserve(s) to be treated as such."' 
Article VI of the Constitution 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."  The dissent argued that this mandate, coupled with the Supremacy Clause, makes not only the Constitution, but "every law enacted by Congress" binding on state officers, including laws requiring state officer enforcement.  The majority stated, however, that the Supremacy Clause only makes those laws made in pursuance of the Constitution the "Law of the Land"  Therefore, the dissent's argument does not actually answer the constitutionality question. 
(d) Prior Supreme Court Jurisprudence
The majority next turned to cases dealing with recent federal regulations to determine whether any precedent controlled the current case. In both Hodel v. Virginia Surface Mining & Reclamation Ass'n, Inc.  and FERC v. Mississippi,  the majority stated that the Court "sustained (federal) statutes against constitutional challenge only after assuring . . . that they did not require the States to enforce federal law." 
In Maryland v. EPA  and Brown v. EPA,  the Courts of Appeals for the Fourth and Ninth Circuits invalidated contested Environmental Protection Agency (EPA) regulations on statutory [p.189] grounds in order to avoid constitutional issues. The Court of Appeals for the District of Columbia Circuit also invalidated EPA regulations on both Constitutional and statutory grounds in District of Columbia v. Train.  When the Supreme Court granted certiorari to review the regulations, the government declined to defend them, rescinded some and conceded the invalidity of the others. These actions lead the Court to remand the cases on consideration of mootness. 
In New York, the Court overturned a federal statute that "unambiguously required the State to enact or administer a federal regulatory program."  The government argued that New York is distinguishable on the grounds that the Brady Act does not require the state legislature or executive officials to make policy, but issues a final directive to state CLEOs. 
The majority found this line of reasoning reminiscent of the separation between the unconstitutional delegation of legislative authority and the constitutional conferral of executive power.  The majority stated that the Court has not been effective in "drawing the line" in that issue, and would be no less able to draw a distinct line in the issues of policy and final directives.  The Court stated that almost any executive action will have a policymaking component and that, in this case, the government would "have to fall back upon a line of 'not too much policymaking,"' rather than one of no policymaking in the actions required of CLEOs.  The majority stated that "an imprecise barrier against federal intrusion upon state authority is not likely to be an effective one." 
The government argued that the Court's decisions in Testa v. Katt  and FERC v. Mississippi  support their distinction of New York. The majority indicated that neither decision was relevant.  Testa held that state courts cannot refuse to apply federal law, a [p.190] conclusion that has nothing to do with the present issue.  The FERC decision upheld the statute at issue "precisely because (it) did not commandeer state government, but merely imposed preconditions to continued state regulation of an otherwise pre-empted field." 
The Court's holding in Printz reiterates the language from New York that "(t)he Federal Government may not compel the States to enact or administer a federal regulatory program."  It further states that "(t)he mandatory obligation imposed on CLEOs to perform background checks on prospective handgun purchasers plainly runs afoul of that rule." 
The Brady Act's interim procedures for handgun applications require state CLEOs to accept and review such applications, and, when they are requested to do so, to comment on those that are rejected.  In Printz, the Court found that the power of Congress to enlist the aid of State officers did not exist historically,  and has not been established conclusively even by recent precedent. 
The Court also found that the structure of the Constitution calls for a separation of the state and federal governments, as well as of the legislative and executive branches of the federal government, and that the relevant provisions of Brady Act provisions violated both these requirements. 
Finally, the Court found that in those cases in which it has commented on federal direction of state officers, the principle has emerged that the federal government cannot require states to administer or enact federal regulatory programs.  Accordingly, the Court held that the mandatory obligations imposed on State CLEO's by the Brady Act unconstitutional and must be severed from the [p.191] remainder of the Act. 
* David Liechty, Junior Staff Member, Journal of Contemporary Law.
1. 17 S. Ct. 2365 (1997).
2. 18 U.S.C. §§ 921-925A (1994 & Supp 1997).
3. 18 U.S.C. §§ 922 (s)(1)(A)(i)(III) and (IV)(Supp. 1997).
4. 18 U.S.C. § 922 (s)(6)(C)(Supp. 1997).
5. Printz, 117 S. Ct. at 2384.
6. Id. at 2369.
10. 16 S. Ct. 2521.
11. Printz, 117 S. Ct. at 2369-70.
12. Id. at 2370.
13. Id. (citing Brief for the United States 28).
14. Id. at 2372 (citing 1 Debate on the Constitution 502 (B. Bailyn ed. 1993); The Federalist No. 36 at 221 (A. Hamilton) and The Federalist No. 45 at 292 (J. Madison)).
15. Id. at 2376.
17. Id. at 2370.
18. Id. at 2378.
20. Id. at 2379.
21. 505 U.S. 144 (1992) (determining that although Low-Level Radioactive Waste Policy Act's monetary and access incentive provisions were within power of federal government, "take title" provision violated Tenth Amendment).
22. Id. at 188.
23. Printz, 117 S. Ct. at 2380-83.
24. Id. at 2380-81.
25. Id. at 2381.
26. Id. at 2382.
29. Id. at 2383.
31. Id. at 2398-99 (Stevens, J., dissenting).
32. Id. at 2382.
33. Id. at 2383 (quoting New York, 505 U.S. at 188).
34. Id. at 2383.
35. Id. at 2370.
36. Id. (quoting Bowsher v. Synar, 478 U.S. 714 (1986)).
37. Id. (quoting Myers v. United States, 272 U.S. 52, 175 (1926)).
39. Id. (citing Act of Mar. 26, 1790, ch. 3, § 1, 1 Stat. 103).
40. Id. (citing Act of June 18, 1798, ch. 54, § 2, 1 Stat. 567).
41. Id. (citing Act of Apr. 14, 1802, ch. 28, § 2, 2 Stat. 154-55).
42. Id. (citing Act of Mar. 26, 1790, ch. 3, § 1, 1 Stat. 103; Holmgren v. United States, 217 U.S. 509, 516-17 (1910); United States v. Jones, 109 U.S. 513, 519-520 (1883)).
44. Id. (citing Act of July 20, 1790, ch. 29, § 3, 1 Stat. 132).
45. Id. (citing Act of Feb. 12, 1793, ch. 7, § 3, 1 Stat. 302-305).
46. Id. (citing Act of Apr. 7, 1798, ch. 26, § 3, 1 Stat. 548).
47. Id. (citing Act of July 6, 1798, ch. 66, § 2, 1 Stat. 577-578).
48. Id. at 2371.
52. U.S. Const. art. VI., cl. 2.
53. U.S. Const. art. IV, § 1; Printz, 117 S. Ct. at 2371.
54. Printz, 117 S. Ct. at 2371.
55. Act of Feb. 12, 1793, ch. 7, § 1, 1 Stat. 302.
56. U.S. Const. art. IV, § 2, cl. 2.
57. Printz, 117 S.Ct. at 2371-72.
58. Id. at 2372 (citing 1 Debate on the Constitution 502 (B. Bailyn ed., 1993); The Federalist No. 36, at 221 (A. Hamilton) (C. Rossiter ed., 1961); The Federalist No. 45, at 292 (J. Madison) (C. Rossiter, ed. 1961); The Federalist, No. 27, at 176 (A. Hamilton) (C. Rossiter ed., 1961)).
59. Printz, 117 S. Ct. at 2372 (emphasis in original).
60. See FERC v. Mississippi, 456 U.S. 742, 796, n. 35 (1982).
61. Printz, 117 S. Ct. at 2372-73. (See generally L. White, The Federalists (1948).
62. The Federalist, No. 27, at 177 (A. Hamilton)(C. Rossiter ed., 1961).
63. Printz, 117 S. Ct. at 2402.
65. Id. at 2373.
66. Id. (citing New York, 505 U.S. 144 (1992)).
67. 464 U.S. 238(1984).
68. Printz, 117 S. Ct. at 2374; The Federalist No. 27, at 176 (A. Hamilton) (C. Rossiter ed., 1961); The Federalist No. 36, at 222 (A. Hamilton) (C. Rossiter ed., 1961).
70. Id. at 2403.
71. Id. at 2374.
72. Id. at 2375.
75. Id. (citing Act of August 3, 1882, ch. 376, §§ 2, 4, 22 Stat. 214).
76. Id. at 2375.
77. Id. (quoting Act of May 18, 1917, ch. 15, § 6, 40 Stat. 80-81).
78. Id. (emphasis in original).
80. Id. at 2376.
83. 462 U.S. 919 (1993).
84. Printz, 117 S.Ct. at 2736.
85. Id. (quoting Gregory v. Ashcroft, 501 U.S. 452, 475 (1991); Tafflin v. Levitt, 493 U.S. 455, 458 (1990)).
86. Id. (quoting The Federalist No. 39, at 245 (J. Madison) (C. Rossiter ed., 1961)).
87. Id. (citing Lane County v. Oregon, 7 Wall. 71, 76 (1869); Texas v. White, 7 Wall. 700, 725 (1869)).
88. U.S. Const. art IV, § 4.
89. Id. (quoting Helvering v. Gerhardt, 304 U.S. 405, 414-15 (1938)).
90. Id. at 2376-77.
91. Id. at 2377; see The Federalist No. 15, at 109 (A. Hamilton)(C. Rossiter ed., 1961).
93. 505 U.S. at 166.
94. Printz, 117 S. Ct. At 2377 (quoting United States Term Limits, Inc. v. Thornton, 514 U.S. 779, 838 (1995)).
95. Id. (citations omitted).
96. Id. at 2378.
97. Id. (quoting Gregory, 501 U.S. at 458).
101. Id. See also The Federalist No. 70 (A. Hamilton) (C. Rossiter ed., 1961); 2 Documentary History of the Ratification of the Constitution 495 (M. Jensen ed., 1976); Calabresi & Prakas, The President's Power to Execute the Laws, 104 Yale L.J. 541 (1994).
103. Id. at 2387-88.
105. Id. at 2379.
107. Id. (quoting The Federalist No. 33, at 204 (A. Hamilton) (C. Rossiter ed., 1961)).
108. Id. at 2388 (quoting U.S. Const. art. VI, cl. 3).
110. Id. at 2379.
112. 452 U.S. 264 (1981).
113. 456 U.S. 742 (1982).
114. Printz, 117 S.Ct. at 2380.
115. 530 F.2d 215, 226 (4 th Cir. 1975).
116. 521 F.2d 827, 838-42 (9 th Cir. 1975).
117. 521 F.2d 971, 994 (D.C. Cir. 1975).
118. EPA v. Brown, 431 U.S. 99 (1977).
119. Printz, 117 S.Ct. at 2380.
121. Id. See also A.L.A. Schecter Poultry Corp. v. United States, 295 U.S. 495, 530 (1935); Panama Refining Co. v. Ryan, 293 U.S. 388 428-29 (1935).
122. Id. at 2380-81.
123. Id. at 2381.
125. 330 U.S. 386 (1947).
126. 456 U.S. 742 (1982).
127. Printz, 117 S. Ct. at 2381.
130. Id. at 2435.
131. Id. at 2383 (quoting New York, 505 U.S. at 188).
132. 18 U.S.C. §§ 922(s)(1)(A)(i)(III) and (IV) and (s)(2) (1997).
133. Printz, 117 S. Ct. at 2371.
134. Id. at 2375-76.
135. Id. at 2377-2379.
136. Id. at 2383.
137. Id at 2384.