B. Background of the litigation.

not aware of any system of records, whether accessible to law enforcement officers or not, of people who have ever renounced U.S. citizenship. LEAA does not believe that there is a registry of individuals who have received dishonorable discharges from the armed forces. Is the CLEO expected to attempt to discover such information as a part of a "reasonable effort?"

prospered in Egypt. Then, as it says in Exodus 1:8, "(t)here arose a new king in Egypt who knew not Joseph." If LEAA members can place any confidence in the claim that they are not subject to criminal penalties, they can only do so until there is "a new king in Egypt," that is, until there is some change, either a change of heart or a change in personnel, at the Department of Justice, after which law enforcement officers would again be subject to the criminal penalties provided in the Act.

LEAA members would not be subject to criminal prosecution. 3

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce, with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people....

The way to sidestep this barrier lay in the concept, derived from Locke and implicit in pre-Revolutionary American thought, of the people themselves as the ultimate repository of imperium. E. Morgan, "The American Revolution Considered as an Ideological Movement," in Causes and Consequences of the American Revolution, 172, 178-79, (1966). The people might then divide their imperium among two units of government provided that each had a distinct responsibility. "The federal and State governments are in fact but different agents and trustees of the people, constituted with different powers and designed for different purposes." Federalist No. 46 (Madison) at 294 (C. Rossiter, ed. 1961). To this theoretical base the Framers added practical counsel: to expect one sovereign to govern another is to invite conflict and chaos. Hamilton thus stressed the ability of the federal system to overcome both theoretical limitations and practical risks, by having each sovereign govern individuals:

[A] sovereignty over sovereigns, a government over governments a legislation for communities, as contradistinguished from individuals, as it is a solecism in theory, so in practice it is subversive of the order and ends of civil polity, by substituting violence in place of the mild and salutary coercion of the magistrate.

revenue, and none involve the commerce power. During the debates of 1787-88, the power over revenue was one of the most confused areas of discourse. Congress had, of course, the power to raise money; most envisioned that the bulk of its funding would come from customs levies; few had any clear idea of what laws the Congress might choose to enact if these proved insufficient. The debate was thus exceptionally prone to lapse into speculation and hypothetical fears. Moreover, the proposed Constitution itself did seem to envision that any direct tax needs would be apportioned out to the states: Art. 1, § 9 provided that "No capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken."

. . . . is probable that this power will not be resorted to, except for supplemental purposes of revenue; that an option will then be given to the states to supply their quota by previous collections of their own; and that the eventual collection, under the immediate authority of the Union, will generally be made by their own

officers, and according to the rules, appointed by the several States.

Id. at 292. Madison continues that, in the event these additional collections are needed, it might be advisable (in modern terms) to "cross-deputize" the officers: thus state officials may be "clothed with the corresponding authority of the Union." Id. Such deputization would, of course, be a grant of federal power to willing deputies, not a conscription of state power; there is nothing in Madison which suggests that he envisioned the state officials being involuntarily enrolled. Indeed, conscription would be inconsistent with the central theme of No. 45, which is the limitation of federal power vis-avis that of the states, and the allaying of fears of an overwhelming national government.

In other cases, the probability is that the United States will either wholly abstain from the objects pre-occupied for local purposes, or will make use of the State officers and State regulations for collecting the additional imposition. This will best answer the views of revenue, because it will save expence in the

collection, and will best avoid any occasion of disgust to the State governments and to the people.

response to State prohibitions, although Madison privately complained that enforcement of the Revenue Act was being retarded by the Virginia statute. Id. at 297. The thought of conscripting state employees rather than hiring them did not occur to Madison nor, so far as our records reflect, to any other legislator. Voluntary employment, and that with the concurrence of the state, was the avenue pursued.

cooperation and support of the States, when exercising the legitimate powers of the General Government, and were accustomed to receive it, upon principles of comity ... where no such duty was imposed by the Constitution.") 5. In particular, use of state courts to process naturalizations ceased when the states began to object. 6 That States voluntarily aided the new government should not be read as a waiver of their right to object should it, centuries later, proclaim them its serfs.

the rare cases where the Constitution expressly required them to follow federal standards.

The Government of the United States is one of limited powers; and no authority exists beyond the prescribed limits, marked out in the instrument itself. Whatever powers are not granted, necessarily belong to the respective States, or to the people of the respective states, if they have not been confided by them to the State Governments.

interstate commerce. Article I, section 8 of the Constitution gives Congress the power "(t)o regulate Commerce with foreign Nations, and among the several States..." This is a plenary power which may extend to matters purely intrastate, and may even preempt explicit state law. See, e.g., Fry v. United States, 421 U.S. 542, 547 (1975); Heart of Atlanta Hotel v. United States, 379 U.S. 241, 262 (1964). However, the Constitution places limits upon this plenary power. See, e.g. United States v. Jackson, 390 U.S. 570 (1968).

in New York, supra, by commanding individual members of the legislature, rather than the legislature as a whole. The Brady Act commands: either enact legislation, or implement Federal legislation. By doing so, it exceeds the limits of the authority of Congress.

Tenth Amendment cases in which the issue was the authority of Congress to subject state governments to generally applicable laws. These cases include Garcia v. San Antonio Metropolitan Transit Authority, 469 US.. 528 (1985)(Fair Labor Standards Act); Fry v. U.S., 421 U.S. 542 (1975)(wage stabilization), and South Carolina v. Baker, 485 U.S. 505 (l988)(tax exemption on the interest on municipal bonds). Id., at 140. The Court found these cases inapposite since the legislation at issue, in New York, was not applicable to private parties. Instead the issue was ". . .the circumstances under which Congress may use the States as implements of regulation." Id.

regulations. In fact, the court observed, ". . . this Court never has sanctioned explicitly a federal command to the States to promulgate and enforce laws and regulations." Id.

In providing for a stronger central government, therefore, the Framers explicitly chose a Constitution that confers upon Congress the power to regulate individuals, not States. As we have seen, the Court has consistently respected this choice. We have always understood that even where Congress has the authority.. . to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts.
* * *
The allocation of power contained in the Commerce Clause, for example, authorizes Congress to regulate interstate commerce directly; it does not authorize Congress to regulate state governments’ regulation of interstate commerce. Id., at 144.

No matter how powerful the federal interest

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involved, the Constitution simply does not give Congress the authority to require the States to regulate. The Constitution instead gives Congress the authority to regulate matters directly and to pre-empt contrary state regulation. Where a federal interest is sufficiently strong to cause Congress to legislate, it must do so directly; it may not conscript state governments as its agents. Id., at 152.

Respectfully Submitted,
James H. Warner
Attorney for Amicus Curiae
Law Enforcement Alliance of America

NOTES 1. Interestingly, when Congress was considering the Brady Bill, it was suggested that Federal Agents might perform the background checks. This was rejected because it would have been too burdensome upon the Federal Agents. HR.. Rep. No. 103-344, 103rd Cong., 1st. Sess., at 7(1993). text@note1

2. "The Constitution Subcommittee also received evidence that the Bureau has formulated a requirement, of which dealers were not informed, that requires a dealer to keep official records of sales even from his private collection. BATF has gone farther than merely failing to publish this requirement. At one point, even as it was prosecuting a dealer on this charge (admitting that he had not criminal intent) the Director of the Bureau wrote Senator S. I. Hayakawa to indicate there was no such legal requirement. And that it was completely lawful for a dealer to sell from his collection without recording it." Subcomm. On the Constitution, Sen. Judiciary Comm., The Right to Keep and Bear Arms 97th Congress.2d Sess. At 22 (1982). The case referred to is documented at Hearings on S. 1030 before the Senate Judiciary Comm., 97th Cong.2d Sess. At 60-62 (1982); one director of the prosecuting agency opined that the questioned conduct was and had always been legal; his replacement, in a statement filed with the court, avowed that this was a mistake. text@note2

3. In any case, the Office of Legal Counsel has overlooked the legislative history. In fact, proposals to snake the background check optional for CLEOs were considered and rejected in both the Subcommittee On Crime and the House Judiciary Committee. Congress’ rejection of the amendment makes no sense unless the result was intended to mean exactly what it says: CLEOs must carry out the program or risk sanctions. We cannot safely assume that future officials will overlook the statutory history. text@note3

4. If it did, quaere the effect of enactment of the Alien and Sedition Act. text@note4

5. Dennison’s result was of course overruled in Puerto Rico v. Branstad, 483 U.S. 219 (1987). This has no effect on the Court’s observations of the voluntazy nature of state compliance m the early days of the nation. text@note5

6. ". . . the naturalization act of March 26, 1790, gave state judges jurisdiction over its operation, though the citizenship conferred was federal. Later, in some states the state courts were forbidden to act in the matter and the courts decided that the prohibition was within the power of the state legislatures." Matteson, supra, at 296. text@note6