Note: Printz v. United States (1997)

Printz v. United States: Background

            In 1992, the Court decided New York v. United States. The basic facts of the case are as follows. In the early 1980’s, Congress confronted the fact that there were insufficient sites for the long-term storage of nuclear waste. In response, Congress enacted the Low-Level Radioactive Waste Policy Amendments of 1985. The statute required a state to enact a law consistent with federal guidelines for the disposal of nuclear waste. States that failed to do so would face consequences. The statute tried to encourage states to form compacts to safely store one another’s waste. Creating an in-state site would guarantee states access to out-of-state sites. If a state failed to pass legislation creating an in-state disposal site by a certain deadline, the state was required to take title to and possession of all waste generated within its borders, and it became liable for any damages caused by the state’s failure to take possession. The Court recognized that regulation of the interstate market in waste disposal is within Congress’ commerce power, but struck the statute nonetheless.

Near the conclusion of the majority opinion Justice O’Connor commented:

The take title provision appears to be unique. No other federal statute has been cited which offers a state government no option other than that of implementing legislation enacted by Congress. Whether one views the take title provision as lying outside Congress’ enumerated powers, or as infringing upon the core of state sovereignty reserved by the 10th Amendment, the provision is inconsistent with the federal structure of our Government established by the Constitution.(Emphasis added.)

Was the “affirmative limitation” language of National League of Cities (1976) viable after Garcia (1985)? Is it viable after New York?

As you read Printz (1997), list and compare arguments by the dissent and the majority. With reference to historical arguments, start with the dissent and then look at the arguments by the majority. Do the same with other types of arguments, such as textual and structural ones and arguments from precedent. Most of the majority’s arguments are attempts to respond to the dissent. You should use the same method for analyzing the decision in Alden v. Maine (1999).

Printz v. United States

521 U.S. 898 (1997)

[Majority: Scalia, Rehnquist (C.J.), O’Connor, Kennedy, and Thomas. Concurring: O’Connor and Thomas. Dissenting: Stevens, Souter, Ginsburg and Breyer.]

Justice Scalia delivered the opinion of the Court.

The question presented in these cases is whether certain interim provisions of the Brady Handgun Violence Prevention Act . . . commanding state and local law enforcement officers to conduct background checks on prospective handgun purchasers and to perform certain related tasks, violate the Constitution.

[I. The Gun Control Act of 1968 (GCA) established a detailed federal scheme governing the distribution of firearms. In 1993, Congress amended the GCA by enacting the Brady Act, which required mandatory background checks of gun-buyers and the issuance of a permit before delivery of the weapon. While the Act called for the creation of a federal bureaucracy to conduct the checks, it required state law enforcement officers to conduct the checks during the interim period. Petitioners Jay Printz and Richard Mack were two state officers who challenged the statute, saying that forcing them to do the checks at the demand of the federal government violated constitutional principles of state sovereignty.] . . .

1. [T]he Brady Act purports to direct state law enforcement officers to participate, albeit only temporarily, in the administration of a federally enacted regulatory scheme. . . .

The 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 observes that statutes enacted by the first Congresses required state courts to record applications for citizenship, to transmit abstracts of citizenship applications and other naturalization records to the Secretary of State, and to register aliens seeking naturalization and issue certificates of registry. It may well be, however, that these requirements applied only in States that authorized their courts to conduct naturalization proceedings. . . .

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. 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. . . .

To complete the historical record, we must note that there is not only an absence of executive-commandeering statutes in the early Congresses, but there is an absence of them in our later history as well, at least until very recent years. The Government points to the Act of August 3, 1882, ch. 376, which enlisted state officials “to take charge of the local affairs of immigration in the ports within such State, and to provide for the support and relief of such immigrants therein landing as may fall into distress or need of public aid”; to inspect arriving immigrants and exclude any person found to be a “convict, lunatic, idiot,” or indigent; and to send convicts back to their country of origin “without compensation.” The statute did not, however, mandate those duties, but merely empowered the Secretary of the Treasury “to enter into contracts with such State . . . officers as may be designated for that purpose by the governor of any State” (emphasis added).

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 with the President’s directions guilty of a misdemeanor (emphasis added). Act of May 18, 1917. However, 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; and the misdemeanor provision surely applied only to refusal to comply with the President’s authorized directions, which might not have included directions to officers of States whose governors had not volunteered their services. It is interesting that in implementing the Act President Wilson did not commandeer the services of state officers, but instead requested the assistance of the States’ governors. . . . It is impressive that even with respect to a wartime measure the President should have been so solicitous of state independence.

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 as mandates to the States; others, which require only the provision of information to the Federal Government, do not involve the precise issue before us here, which is the forced participation of the States’ executive in the actual administration of a federal program. . . .

III. 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],” a principle that controls the present cases.

III-A. It is incontestable that the Constitution established a system of “dual sovereignty.” Gregory v. Ashcroft (1991). Although the States surrendered many of their powers to the new Federal Government, they retained “a residuary and inviolable sovereignty,” The Federalist No. 39 (J. Madison). This is reflected throughout the Constitution’s text, including (to mention only a few examples) the prohibition on any involuntary reduction or combination of a State’s territory, Art. IV, § 3; the Judicial Power Clause, Art. III, § 2, and the Privileges and Immunities Clause, Art. IV, § 2, which speak of the “Citizens” of the States; the amendment provision, Article V, which requires the votes of three-fourths of the States to amend the Constitution; and the Guarantee Clause, Art. IV, § 4, which “presupposes the continued existence of the states and . . . those means and instrumentalities which are the creation of their sovereign and reserved rights,” Helvering v. Gerhardt (1938). Residual state sovereignty was also implicit, of course, in the Constitution’s conferral upon Congress of not all governmental powers, but only discrete, enumerated ones, Art. I, § 8, which implication was rendered express by the 10th Amendment’s assertion that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

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 . . . 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 federal governments would exercise concurrent authority over the people — who were, in Hamilton’s words, “the only proper objects of government,” The Federalist No. 15. . . .”The Framers explicitly chose a Constitution that confers upon Congress the power to regulate individuals, not States.” [citing New York v. United States (1992)] The great innovation of this design was that “our citizens would have two political capacities, one state and one federal, each protected from incursion by the other” — “a legal system unprecedented in form and design, establishing two orders of government, each with its own direct relationship, its own privity, its own set of mutual rights and obligations to the people who sustain it and are governed by it.” U.S. Term Limits, Inc. v. Thornton (1995) (Kennedy, J., concurring). The Constitution thus contemplates that a State’s government will represent and remain accountable to its own citizens. . . .

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. . . .

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.

III-B. 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 insure both vigor and accountability — is well known. That unity 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.

III-C. The dissent of course resorts to the last, best hope of those who defend ultra vires congressional action, the Necessary and Proper Clause. . . . What destroys the dissent’s Necessary and Proper Clause argument, however, is . . . the Necessary and Proper Clause itself. . . . We in fact answered the dissent’s Necessary and Proper Clause argument in New York: “[E]ven where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts. . . . [T]he Commerce Clause, for example, authorizes Congress to regulate interstate commerce directly; it does not authorize Congress to regulate state governments’ regulation of interstate commerce.” New York v. United States. . . .

1. 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. . . .

[L]ater 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. (1981) and FERC v. Mississippi (1982), we sustained statutes against constitutional challenge only after assuring ourselves that they did not require the States to enforce federal law. In Hodel we . . . concluded that the Surface Mining Control and Reclamation Act . . . merely made compliance with federal standards a precondition to continued state regulation in an otherwise pre-empted. Hodel. In FERC, we construed. . . . the Public Utility Regulatory Policies Act of 1978, to contain only the “command” that state agencies “consider” federal standards, and again only as a precondition to continued state regulation of an otherwise pre-empted field. We warned that “this Court never has sanctioned explicitly a federal command to the States to promulgate and enforce laws and regulations.”

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 (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. We concluded that Congress could constitutionally require the States to do neither. “The Federal Government,” we held, “may not compel the States to enact or administer a federal regulatory program.”

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, for Congress to command state or local officials to assist in the implementation of federal law so long as “Congress itself devises a clear legislative solution that regulates private conduct” and requires state or local officers to provide only “limited, non-policymaking help in enforcing that law.” “[T]he constitutional line is crossed only when Congress compels the States to make law in their sovereign capacities.” Brief for United States 16.

The Government’s distinction between “making” law and merely “enforcing” it, between “policymaking” 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. This Court has not been notably successful in describing the latter line; indeed, some think we have abandoned the effort to do so. We are doubtful that the new line the Government proposes would be any more distinct. Executive action that has utterly no policymaking 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? . . . Is [a] decision whether to devote maximum “reasonable efforts” or minimum “reasonable efforts” not preeminently a matter of policy? It is quite impossible, in short, to draw the Government’s proposed line at “no policymaking,” and we would have to fall back upon a line of “not too much policymaking.” How much is too much is not likely to be answered precisely; and an imprecise barrier against federal intrusion upon state authority is not likely to be an effective one.

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 . . . by “reduc[ing] [them] to puppets of a ventriloquist Congress,” Brown v. EPA (1975). It is an essential attribute of the States’ retained sovereignty that they remain independent and autonomous within their proper sphere of authority. It is no more compatible with this independence and autonomy that their officers be “dragooned” (as Judge Fernandez put it in his dissent below) 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 also maintains that requiring state officers to perform discrete, ministerial tasks specified by Congress does not violate the principle of New York because it does not diminish the accountability of state or federal officials. This argument fails even on its own terms. By forcing state governments to absorb the financial burden of implementing a federal regulatory program, Members of Congress can take credit for “solving” problems without having to ask their constituents to pay for the solutions with higher federal taxes. And even when the States are not forced to absorb the costs of implementing a federal program, they are still put in the position of taking the blame for its burdensomeness and for its defects. Under the present law, for example, it will be the CLEO and not some federal official who stands between the gun purchaser and immediate possession of his gun. And it will likely be the CLEO, not some federal official, who will be blamed for any error (even one in the designated federal database) that causes a purchaser to be mistakenly rejected. . . .

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 by CLEOs during the interim period, and places a minimal and only temporary burden upon state officers.” . . . Assuming all the mentioned factors were true, they might be relevant if we were evaluating whether the incidental application to the States of a federal law of general applicability excessively interfered with the functioning of state governments. But where, as here, it is the whole object of the law to direct the functioning of the state executive, and hence to compromise the structural framework of dual sovereignty, such a “balancing” analysis is inappropriate. It is the very principle of separate state sovereignty that such a law offends, and no comparative assessment of the various interests can overcome that fundamental defect. . . .

1. . . . 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 State’s 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-by-case 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 10th Amendment to the extent it forces States and local law enforcement officers to perform background checks on prospective handgun owners and to accept Brady Forms from firearms dealers. Our holding, of course, does not spell the end of the objectives of the Brady Act. . . . Congress is . . . free to amend the interim program to provide for its continuance on a contractual basis with the States if it wishes, as it does with a number of other federal programs.

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. [Omitted.]

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 (1992). Nor need we consider the wisdom of relying on local officials rather than federal agents to carry out aspects of a federal program . . . 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 the Congress could require state agents to collect federal taxes. Or the question whether Congress could impress state judges into federal service to entertain and decide cases that they would prefer to ignore.

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 10th Amendment, “in historical understanding and practice, in the structure of the Constitution, [or] in the jurisprudence of this Court,” 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.” 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. Congress expressed special concern that “[t]he level of firearm violence in this country is, by far, the highest among developed nations.” The partial solution contained in the Brady Act, a mandatory background check before a handgun may be purchased, has met with remarkable success. Between 1994 and 1996, approximately 6,600 firearm sales each month to potentially dangerous persons were prevented by Brady Act checks; over 70% of the rejected purchasers were convicted or indicted felons. Whether or not the evaluation reflected in the enactment of the Brady Act is correct as to the extent of the danger and the efficacy of the legislation, the congressional decision surely warrants more respect than it is accorded in today’s unprecedented decision.

1. The text of the Constitution provides a sufficient basis for a correct disposition of this case.

Article I, § 8, grants the 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 (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. . . . Unlike the 1st Amendment, which prohibits the enactment of a category of laws that would otherwise be authorized by Article I, the 10th Amendment imposes no restriction on the exercise of delegated powers. . . .

1. 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. . . .

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. . . . 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 (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. . . .

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. . . .

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.” 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. The new Constitution would avoid this problem, resulting in “a regular and peaceable execution of the law of the Union.”

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” (second emphasis added). . . .

[The Court’s] position, if correct, would undermine most of our post-New Deal Commerce Clause jurisprudence. As Justice O’Connor quite properly noted in New York, “[t]he Federal Government undertakes activities today that would have been unimaginable to the Framers.”

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, 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. . . .

The Court’s evaluation of the historical evidence, furthermore, fails to acknowledge the important difference between policy decisions that may have been influenced by respect for state sovereignty concerns, and decisions that are compelled by the Constitution. Thus, for example, the decision by Congress to give President Wilson the authority to utilize the services of state officers in implementing the World War I draft, see Act of May 18, 1917, surely indicates that the national legislature saw no constitutional impediment to the enlistment of state assistance during a federal emergency. The fact that the President was able to implement the program by respectfully “request[ing]” state action, rather than bluntly commanding it, is evidence that he was an effective statesman, but surely does not indicate that he doubted either his or Congress’ power to use mandatory language if necessary. . . .

III. 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, creating state emergency response commissions designed to manage the release of hazardous substances, collecting and reporting data on underground storage tanks that may pose an environmental hazard, and reporting traffic fatalities, and missing children, to a federal agency. . . .

Given the fact that the Members of Congress are elected by the people of the several States, with each State receiving an equivalent number of Senators in order to ensure that even the smallest States have a powerful voice in the legislature, it is quite unrealistic to assume that they will ignore the sovereignty concerns of their constituents. It is far more reasonable to presume that their decisions to impose modest burdens on state officials from time to time reflect a considered judgment that the people in each of the States will benefit therefrom.

Indeed, the presumption of validity that supports all congressional enactments has added force with respect to policy judgments concerning the impact of a federal statute upon the respective States. . . .

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. . . .

Nor is there force to the assumption undergirding 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 this case, unlike any precedent in which the Court has held that Congress exceeded its powers, merely involves the imposition of modest duties on individual officers. . . .

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 intergovernmental 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 has followed the sound policy of authorizing federal agencies and federal agents to administer federal programs. That general practice, however, does not negate the existence of power to rely on state officials in occasional situations in which such reliance is in the national interest. . . .

1. Finally, the Court advises us that the “prior jurisprudence of this Court” is the most conclusive support for its position. That “prior jurisprudence” is New York v. United States. The case involved the validity of a federal statute that provided the States with three types of incentives to encourage them to dispose of radioactive wastes generated within their borders. The Court held that the first two sets of incentives were authorized by affirmative grants of power to Congress, and therefore “not inconsistent with the 10th Amendment.” That holding, of course, sheds no doubt on the validity of the Brady Act.

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 waste, the “option” really amounted to a simple command to the States to enact and enforce a federal regulatory program. . . .

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,” almost certainly a legislative act. . . .

Finally, the majority provides an incomplete explanation of our decision in Testa v. Katt (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.” That characterization describes only the narrower duty to apply federal law in cases that the state courts have consented to entertain.

The language drawn from the Supremacy Clause upon which the majority relies (“the Judges in every State shall be bound [by federal law], any Thing in the Constitution or Laws of any state to the Contrary notwithstanding”), expressly embraces that narrower conflict of laws principle. Art. VI, cl. 2. But the Supremacy Clause means far more. As Testa held, because the “Laws of the United States . . . [are] the supreme Law of the Land,” state courts of appropriate jurisdiction must hear federal claims whenever a federal statute, such as the Emergency Price Control Act, requires them to do so.

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.” 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 state judges into federal service” against their will but would have regarded the imposition of a similar — indeed, far lesser — burden on town constables as an intolerable affront to principles of state sovereignty, can only be considered perverse. If such a distinction had been contemplated by the learned and articulate men who fashioned the basic structure of our government, surely some of them would have said so.

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. [Omitted.]

Justice Breyer, with whom Justice Stevens joins, dissenting. [Omitted.]