18 U.S.C. § 922(s) invents the post of "Chief Law
Enforcement Official," ("CLEO"), specifically defining
it to include only those holding State office. Indeed,
Congress rejected committee amendments which proposed
to have the CLEO’s tasks undertaken by Federal
employees.
Page 13
H.R. Rep. No. 103-344, at 38-39,
reprinted 1993 U.S. Code, Cong. & Admin News at
2008.
The duties of the invented post are onerous. The CLEO
must make reasonable efforts to ensure that each
purchaser of a handgun from a Federally-licensed
dealer is not barred from purchasing by any Federal,
State, or local law. 18 U.S.C. § 922(s)(2). Merely
insuring that a person is not barred from gun
ownership under Federal law requires making a
determination that he does not fall into any one of
eight categories, ranging from persons convicted of a
"crime punishable by more than a year’s imprisonment"
(but excluding those who have received restorations of
civil rights or Federal "relief from disabilities") to
those with dishonorable military discharges or who
have renounced citizenship. 18 U.S.C. § 922(g).
Where available records leave room for doubt, the CLEO
must shift the burden of proof to the purchaser and
assess the weight of the documentation he provides.
6
If he errs in denying clearance, Congress has given
the rejected buyer a cause of action against his
county, with recovery of attorneys’ fees. 18 U.S.C.
§ 925A.
Sheriff Mack has but a limited force— averaging
1.5 deputies on patrol at any given time— to
maintain the peace in an area nearly the size of
Connecticut. J.A. 8. The Federal mandate commandeers
one to two man-hours of effort per day from this
resource. App. 65. The result has been of no benefit
to his office or his county. In three months of
compelled effort, his office found exactly one
purchase which was even questionable. App. 65-66.
Page 14
This commandeering of State resources, and requirement
that they be used in violation of State law, marks an
exceptionally clear Tenth Amendment violation. It
cannot be justified by reference either to New
York or to rulings which antedate that decision.
Indeed, to defend the statute at issue the United
States must reverse the Tenth Amendment interpretation
it espoused in New York. There, the United
States took pains to distinguish its facts from those
of a hypothetical mandate to regulate private activity
to Federal specification, contending that the latter
would mark a worse violation of federalism:
[C]onstruction of a state-owned facility— although
it would require a significant commitment of state
resources— is qualitatively different from the
implementation of federal policies regulating private
activity, which would transform state administrative
bodies into ‘field offices of the national
bureaucracy.’ FERC v. Mississippi, 456 U.S. at
777.
Brief of the United States, New York v. United
States, at 36-37. Only two years ago, the United
States reiterated this position: compelled State
enforcement of Federal law would comprise the
archetypical violation of New York.
7
Page 15
To defend 18 U.S.C. § 922(s), the United States
must now contend that forcing States to implement
"federal policies regulating private activity" and to
"assume responsibility for the enforcement of federal
law" are exemplars of federalism and not of its most
egregious violation.
A. 18 U.S.C. § 922(s) Cannot Be Justified By
Reference To Rulings Of This Court Antedating New
York v. United States.
1. Statutes Equally Burdening States And The Federal
Electorate: Garcia v. San Antonio Metropolitan
Transit Authority.
Pre-New York Tenth Amendment case law evolved
in two contexts. The first involved coverage of
generally applicable Federal legislation, such as that
regulating employment. Here the original landmark was
National League of Cities v. Usery, 426 U.S.
833 (1976), which held minimum wage provisions
inapplicable to key State employees.
Usery was overruled by Garcia v. San Antonio
Metropolitan Transit Authority, 469 U.S. 528
(1985), in which the Court suggested that the
political process itself could protect States in the
context presented: where the burden imposed by the
legislation was equally applicable to the voting
citizenry, the electoral process would ensure that it
was not oppressive. 469 U.S. at 554.
18 U.S.C. § 922(s) plainly falls outside the
parameters of Garcia burdening State and
private employers alike, the statute in Garcia
created a natural alliance of
Page 16
interests. The dynamics of the statute here instead
function to "divide and conquer." Sheriffs are
burdened by performing the checks; the electorate is
not. Indeed, the public is burdened most severely when
the sheriffs do not perform the checks: in that event
each purchaser must wait the full five business days.
The national sovereign aggravated the division of
interests by on the one hand commanding the sheriff to
withhold approval if records are incomplete,
see note 3, supra, and on the other
granting the citizen the right to sue him, and recover
attorneys’ fees, if he fails to approve a qualified
buyer. 18 U.S.C. § 925A.
2. Statutes Singling Out States But Offering
Constitutionally Valid Alternatives: Hodel And
FERC
In deciding Garcia this Court did not rule out
substantive limitations on Federal power in contexts
other than those presented by a statute equally
burdening private parties and the States:
These cases do not require us to identify or define
what affirmative limits the constitutional structure
might impose on Federal action affecting the States
under the Commerce Clause. See Coyle v. Oklahoma, 221
U.S. 559 (1911).
469 U.S. at 556. The reference to Coyle—
which had rejected Congressional attempts to prevent
the relocation of a State capital— suggested what
those "affirmative limits" might comprise.
Coyle remained good law because, unlike the
wage and hour law upheld in Garcia, the statute
invalidated in Coyle applied only to a State
Page 17
government— indeed, it could apply only to
a State government.
This admonition proved too subtle a caution to
restrain Congressional appetites. The second aspect of
pre-New York case law evolved out of Federal attempts
to target State officials for performance of desired
Federal services.
For a time, a definitive holding on the Tenth
Amendment could be avoided. Hodel v. Virginia
Surface Mining & Reclamation Ass’n, 452 U.S. 264
(1981), posed a challenge to the Surface Mining Act.
That act imposed Federal regulations on coal mining,
but excepted those States whose regulatory system met
certain Federal standards. The Court found no
constitutional violation: imposition of Federal
regulations would be justified as Commerce Clause
pre-emption and States were afforded this as an
alternative to accepting the Federal standards. If a
State declined to comply, "the full regulatory burden
will be borne by the Federal government." 452 U.S. at
288.
Hodel was quickly followed by Federal Energy
Regulatory Commission v. Mississippi, 456 U.S. 742
(1982) ("FERC"). The statute at issue was the
Public Utilities Regulatory Policy Act ("PURPA"), Pub.
L. 95-617, 92 Stat. 3119, which required that State
utility commissions implement certain regulations and
that they provide certam administrative relief.
A sharply divided Court upheld the requirements
against Tenth Amendment attack. Although the statute
provided no express exception, the majority noted that
States could escape its mandate by withdrawing from
Page 18
regulating interstate commerce, i.e.,
electrical power distribution. 456 U.S. at 765.
18 U.S.C. § 922(s) stands in sharp contrast to the
Surface Mining Act and to PURPA. Here, State officials
cannot escape the mandate by accepting Federal
pre-emption or by simply withdrawing from regulating
the field. Indeed, the Sheriff’s county has been
withdrawn from the field by statute. A.R.S. §
13-3108.
3. Statutes Requiring Non-Discriminatory Application
By State Adjudicators: Testa v.
Katt And FERC.
In discussing PURPA’s requirements that State
utilities commissions adjudicate certain disputes, and
its establishment of a private cause of action to
review certain decisionmaking, the FERC
majority suggested in dictum
8
that the situation might be analogized to that
presented by Testa v. Katt, 330 U.S. 386
(1947), see 456 U.S. at 760. Testa had involved
a refusal by Rhode Island courts to entertain
treble-damage suits under Federal wartime price
controls: the State court had treated these as
extrajurisdictional "penal statutes" which it need not
enforce. Testa held that the resulting
discrimination against Federal causes of action
offended the Supremacy Clause; courts of general
jurisdiction by definition decide all legal issues
brought before them, and a constitutional
Page 19
Federal statute is, by virtue of the Supremacy Clause,
the "law of the land." Testa stressed that the
courts involved possessed "adequate and appropriate
jurisdiction" under State law to handle this manner’
of adjudication. 330 U.S. at 394.
Testa posed an exceptional case: a State court
which treated Federal law as if it were a foreign
statute. Its citation of Herb v. Pitcairn, 324
U.S. 117 (1945), by way of contrast, see 330 U.S. at
394, underscores the limits of its holding. Herb had
remanded, for consideration as an independent State
ground for decision, the issue of whether the State
court had jurisdiction to consider analogous State
claims. Cf. Martinez v. California, 444
U.S. 277, 283-84 n.7 (1980) (Court has never read
Testa to require that State courts accept
claims under 42 U.S.C. § 1983.). The power of the
State court, under State law, to consider an
analogous claim is thus a predicate to applying
Testa’s rationale.
The FERC dictum suggested that
Testa’s rationale might be applicable to State
utility commissions, noting that their role was "
‘functionally comparable’ to that of a judge," 456
U.S. at 760 n.24, and indeed one holding general
jurisdiction, for the utility boards were bound to
hear claims by "any interested person." Id. at 768. In
this view, the "seemingly precise parallel" between
PURPA’s procedural mandates and existing State process
might be sufficient to avert a Tenth Amendment
challenge to the statute on its face. 456 U.S. at 769
n.31.
The facts now before the Court stand in striking
contrast to those of FERC. Under Arizona law, a
county is but "a subordinate agency" of the State,
Peters v. Fry, 71
Page 20
Ariz. 30, 34, 223 P.2d 176, 178 (1950); its officials
possess only those "quite limited" powers
affirmatively granted "expressly or by necessary
implication" by the state legislature, Maricopa
County v. Black, 19 Ariz. App. 239, 241, 506 P.2d
279, 281 (1973). The State has long forbidden counties
to engage in the only relevant adjudication, that of
determining who should purchase or possess firearms.
A.R.S. § 13-3108. The sheriff’s powers are defined
by statute and do not include adjudication of any
type, but are limited to straightforward enforcement
functions— arrest and confinement, service of
process, search and rescue. A.R.S. § 11-441. The
Sheriff has never engaged in regulation of the type
commanded, and his office has no existing mechanism or
budget for handling it. J.A. 9.
Sheriff Mack holds no adjudicatory powers, and neither
he nor the county he serves may engage in adjudication
of the type at issue here. 18 U.S.C. § 922(s)
seeks to compel him to engage in a function utterly
outside his established purpose— to adjudicate
disputes between his constituents and the commands of
the Federal sovereign, to document his rationale, and
to submit his findings to judicial review. Under
Testa the Federal sovereign must take State
adjudicators as it finds them, respecting the limits
of the State’s decisionmaking structure. FERC,
456 U.S. at 773-74 n~4 (Powell, J. concurring in part
and dissenting in part). This Congress did not do.
If Sheriff Mack’s established State duty is not
"functionally comparable to that of a judge," it bears
no relation at all to the duty of a court of general
jurisdiction. Such a court is jurisdictionally
distinguished by a requirement to take in all
litigants and to apply in its entirety the
Page 21
"law of the land." Such a court is functionally
distinguished by its inability to set agenda and
priorities: those are, so to speak, already subject to
commandeering by litigants. FERC, 456 U.S. at
784-85 (O’Connor, J., concurring in part and
dissenting in part). In contrast, Sheriff Mack is held
accountable by his constituents for the setting of
priorities— and in a degree beyond that even of a
legislature. For him, the question is not which bill
is first reported from committee, but why there was a
twenty minute delay in responding to a burglary in
progress.
9
The rationale of Testa, even if extended per
the dictum of FERC, is inapplicable
here. The official commanded to adjudicate is not an
adjudicator, he has no established State power over
matters analogous to those at issue, and he lacks both
the legal and the functional attributes of a court of
general jurisdiction.
B. 18 U.S.C. § 922(s) Violates The Parameters Of
Federalism As Recognized By This Court In New York
v. United States.
Congressional attempts to commandeer the resources of
other sovereigns did not end with PURPA, and at length
the Tenth Amendment issue was inescapably presented by
enactment of the "take title" proviso of the Low-Level
Radioactive Waste Policy Amendments Act, 42
Page 22
U.S.C. § 2021b-2021l. Under that proviso, unless
a State made specified provision for disposal of its
wastes by compact or construction of facilities, the
State would take title to them upon tender.
A 6-3 majority of this Court held the proviso
unconstitutional. New York v. United States,
505 U.S. 144 (1992). Garcia was held
inapplicable, "as this is not a case in which Congress
has subjected a State to the same legislation
applicable to private parties." 505 U.S. at 160.
Rather, the issue was one of the "affirmative" limits
foreshadowed by Garcia ’s reference to Coyle.
The Court concluded:
-
States are not mere political subdivisions of the
United States. State governments are neither regional
offices nor administrative agencies of the United
States. The positions occupied by state officials
appear nowhere on the Federal Government’s most
detailed organizational chart. The Constitution
instead ‘leaves to the several States a residuary and
inviolable sovereignty’. . .
-
Whatever the outer limits of that sovereignty may be,
one thing is clear: The Federal Government may not
compel the States to enact or administer a federal
regulatory program.
505 U.S. at 168.
1. 18 U.S.C. § 922(s) Imposes Substantial Duties
Upon State Officials, In Violation Of The Tenth
Amendment.
18 U.S.C. § 922(s) invents the post of "Chief Law
Enforcement Official," ("CLEO"), specifically defining
it
Page 23
to include only those holding State office. Indeed,
Congress rejected committee amendments which proposed
to have the CLEO’s tasks undertaken by Federal
employees. See H.R. Rep. No. 103-344, at 38-39,
reprinted 1993 U.S. Code, Cong. & Admin News at
2008.
The duties of the post are onerous. Merely insuring
that a person is not barred from gun ownership under
Federal law— 18 U.S.C. § 922(g)— requires
a determination that he:
(1) has not been convicted of a crime punishable by
more than a year’s imprisonment (a term of art defined
in 18 U.S.C. § 921(a) to exclude, inter
alia, convictions followed by restoration of civil
liberties or Federal "relief from disabilities")
(2) is not a fugitive from justice;
(3) is not an unlawful user of controlled substances;
(4) has never been adjudicated a mental defective or
committed;
(5) is not an illegal alien;
(6) has not been given a dishonorable military
discharge;
(7) has never renounced his citizenship; and
(8) is not subject to a domestic restraining order.
The Chief Law Enforcement Officer must make all
"reasonable" attempts at these determinations each
time a handgun is sold. 18 U.S.C. § 922(s)(2).
Where incomplete records suggest the purchaser "might"
be precluded, the
Page 24
CLEO must shift the burden of proof to the purchaser,
ask for documentary evidence and assess its weight.
10
Sheriff Mack documented the difficulties of
compliance. National computer records largely reflect
only outstanding warrants, J.A. at 5, while State
records do not reflect the civil rights restorations
given, often automatically, under State law. Id. at 5.
If the check is extended beyond criminal records, it
becomes all but impossible. Verifying State mental
records would require a four-hour drive; ruling out
illicit drug use might require checking any number of
investigative files; Sheriff Mack can only speculate
how he might "reasonably" determine if a person had
been dishonorably discharged, was an alien, or had
renounced American citizenship. J.A. at 6-7.
The CLEO’s duties do not end here. If the results are
negative, the CLEO must destroy the request and also
"any record containing information derived from the
statement. . . . " 18 U.S.C. § 922(s)(6)(B). If
the results are positive, the CLEO must block the sale
and, if requested, serve a written explanation of his
action. 18 U.S.C. § 922(s)(6)(C). A rejected buyer
has a Federal cause of action against the CLEO’s
employer, with recovery of attorney’s fees. 18 U.S.C.
§ 925A.
11
Page 25
The statute clearly runs afoul of New York’s
invalidation of the "take title" requirement. Congress
can no more command Sheriff Mack to take
responsibility for Federally-licensed dealers’
transaction than it could command New York
authorities to take responsibility for third parties’
nuclear scrap. Either schema conflicts with this
Court’s conclusion that "The Federal Government may
not compel the States to enact or administer a federal
regulatory program." 505 U.S. at 188 (emphasis
supplied). See Deborah Merritt, Three Faces
of Federalism, 47 Vand. L. Rev. 1563, 1580 n.65
(1994).
New York predicted that such Federal
"commandeering" would undermine the very core of
federalism, permitting one sovereign to shift
accountability to another: "[I]t may be State
officials who bear the brunt of public disapproval,
while the federal officials who devised the regulatory
program may remain insulated from the electoral
ramifications of their decision." 505 U.S. at 169. The
statute at issue here fulfills that prediction.
Sheriff Mack is forced to reallocate scarce resources
entrusted to him by his electorate. He is blamed by
them for the resulting diversion. App. 65-66.
Moreover, when the purchaser disputes the completeness
of the records Sheriff Mack is
Page 26
forced to serve as an adjudicator and to accept the
blame for the decision Congress forced him to make.
App. 65.
2. The Ninth Circuit’s Attempt To Distinguish New
York Fails.
In creating a federal system, the Framers took comfort
in the reflection that "Power us] almost always the
rival of power," Federalist No. 28 (A.
Hamilton), anticipating that "The different
governments will control each other, at the same time
that each will be controlled by itself." Federalist
No. 51 (J. Madison). To separate each government’s
line of command, the Framers rejected alike Hamilton’s
proposals for Federal appointment of governors,
Pinckney’s call for State enforcement of Federal
decisions, and Randolph’s proposal for a congressional
"negative" upon State law. See James Madison,
Notes on Debates in the Federal Convention 31, 139 (A.
Koch, ed. 1966).
These practical judgments have withstood the hard test
of two centuries. They are set at nought by the
Circuit decision below. To sustain the statute, the
Circuit rewrites the results of 1787, creating Federal
powers which far exceed those rejected in the
Convention. Rather than a "negative" upon State law,
Congress acquires nearly unlimited power to compel
action to its specification.
The Ninth Circuit attempted to distinguish New
York on the ground that the statute there at issue
sought to mandate policy making in the form of
regulation or statute, whereas 18 U.S.C. § 922(s)
mandates enforcement of
Page 27
externally-dictated policy. App. 10-12. The
distinction drawn is both incorrect and artificial.
An examination of the facts of New York
demonstrates the untenable nature of the enact/enforce
distinction. In briefing New York, the United
States contended that the statute at issue gave States
three alternative modes of compliance, two of which
required no regulation of private conduct:
(1) "the simple act" of executing an appropriate
compact, which required "no significant regulatory
activity whatsoever;"
(2) raking title to the waste and building its own
facilities, which would not involve "implementation of
federal policies regulating private activity" or
(3) regulating privately-owned storage facilities.
Brief of the United States, New York v. United
States, No. 91-543, at 34-37. This Court concluded
that none of the posed alternatives passed Tenth
Amendment muster, and in so doing explained quite
clearly the breadth of its use of "administer:"
Respondents emphasize the latitude given to the States
to implement Congress’ plan. The Act enables the
States to regulate pursuant to Congress’ instructions
in any number of different ways. States may avoid
taking title to contracting with sited regional
compacts, by building a disposal site alone or as a
part of a compact, or by permitting private parties to
build a disposal site. . . . This line of reasoning,
however, only underscores the critical alternative a
State lacks:
Page 28
A State may not decline to administer the federal
program.
505 U.S. at 176-77. "Administer" was thus clearly used
to encompass, not only promulgation of regulations
directed at private conduct, but State decisions
regarding the use of its own resources.
Unwilling to accept this Court’s clear statement of
the standard, the Circuit tortures "or administer,"
arguing that this Court must have meant only
"‘administer’ in the sense of being in charge of a
program and making policy decisions App. 11, n.7. The
Circuit’s gloss is inconsistent with New York
and, for that matter, with common sense: if the CLEO,
who processes the forms, sets the standards, makes the
rulings, and is subject to judicial review, is not "in
charge" of the program, one can only wonder who is.
The artificial nature of the Circuit’s distinction is
illustrated by the facts of the present case.
Adjudication is as much an aspect of policymaking as
is the promulgation of regulations. It involves the
ultimate form of accountability: the adjudicator makes
not general rules, but concrete decisions announced to
parties in conflict. 18 U.S.C. § 922(s) requires
Sheriff Mack to make rulings regarding his own
constituents’ rights. When records are ambiguous, as
they were in the only computer "hit" he obtained, he
is ordered to "shift the burden" to the
constituent— to reject the constituent’s word on
the matter— and to demand evidence and assess what
is provided.
Allocation of public resources is likewise a policy
function, and here the statute compels the Sheriff and
him alone to make the relevant decisions. Beyond the
Page 29
expressly-mandated research into two Federal record
systems, he must decide how much of an inquiry
constitutes a "reasonable effort." He and he alone
must account to his constituents for consequences’ of
the diversion.
The Circuit’s newfound theory of federalism narrows
the Tenth Amendment to a geometrical point, an
abstraction with location but no dimensions or mass.
It opens the way for Congress to pass statutes which
allow it to take the credit and delegate the blame. No
longer bound by restraints of budget and manpower,
Congress is free to expand the powers of the
Interstate Commerce Commission, the Federal Trade
Commission, or any other chosen agency, by allowing
them to conscript State agencies and manpower. It can
order Federal lands patrolled by State land agencies,
and divert county officials to secure the borders. "As
id&as for federal projects grow, but resources lessen,
the incentives will grow stronger for Congress to
command the state governments to perform federal
programs for free." Lipner, Imposing Federal
Business on Officers of the State: What the Tenth
Amendment Might Mean, 57 Geo. Wash. L. Rev. 907,
929 (1989). The Federal sovereign need no longer offer
conditional grants-in-aid as inducements to changes in
criminal justice programs, highways, or welfare
programs; it need no longer contract with States for
housing of Federal prisoners or securing of Federal
facilities. It has but to command.
The conflict between the Ninth Circuit’s ruling and
New York is absolute. If the Ninth Circuit is
correct, then New York is wrong: the Federal
government could have
Page 30
ordered State officials to take title to the waste and
build appropriate disposal sites; that option involved
no regulatory decisionmaking save that relating, as
here, to the allocation of the State’s own resources.
C. 18 U.S.C. § 922(s) Presents A Far More
Egregious Violation Of Federalism Than Was Present In
New York.
To the extent 18 U.S.C. § 922(s) could be
distinguished from the statute invalidated in New
York, it presents a more serious violation of the
Tenth Amendment norms in terms of accountability,
justification, and impact upon federalism.
1. Aggravation Of Misplaced Accountability.
New York’s "take title" proviso at least
allowed a division of misplaced accountability: any
decisions which would be made, e.g., to enter a
compact or to site a waste disposal facility, would be
shared by the entire legislature. 18 U.S.C. §
922(s) hands the sheriff complete and sole
responsibility for enforcement; indeed, it thrusts him
into face-to-face confrontations with his
constituents. The constituent angered at the sheriff’s
decision to withhold authorization, App. 65, did not
blame Congress, nor the State legislature en
masse: he blamed Richard Mack.
Further, 18 U.S.C. § 922(s) presents Sheriff Mack
with a far more difficult task of correcting the
misplaced accountability. Under the "take title"
proviso, it was at least possible for the legislature
to explain that the Congress had forced it to take
title to the waste: here, Sheriff
Page 31
Mack must try to explain why a delayed response to a
burglary call was somehow due to a Congressional
enactment. In New York, the misplaced
accountability was at least divisible and demonstrabtc
here it is focused and insidious.
2. Lack Of Process Justification.
In New York the United States could at least
contend that the statute was a Federal attempt to
redress an interstate conflict, undertaken after calls
from the States themselves. See New
York, 505 U.S. at 191-94 (White, 1.. dissenting).
The National Governors’ Association had been prominent
in the negotiations, and 42 States had already entered
into compacts. Id. at 190-91. Thus the dissent
submitted that the statute was "very much the product
of cooperative federalism, in which the States
bargained among themselves," Id. at 194.
Here, there can be no such claims. 18 U.S.C. §
922(s) was the outcome of no compacts, no compromise,
no negotiation. § 922(s) is a straightforward
attempt by the Federal government to force duties upon
unwilling officials.
Nor can it be argued that 18 U.S.C. § 922(s)
represents "a delicate compromise between. . .
overburdened States . . . and the rest of the States."
505 U.S. at 200 (White, J., dissenting). The statute
affects only sales by licensed dealers, and
such dealers are generally forbidden to sell to
residents of other States. 18 U.S.C. § 922(a)(2),
(b)(3); 27 C.F. R. § 178. 124(c)(1), 178.11
"Identification Documents"
Page 32
(requiring buyer to present identification showing
residence).
12
3. Mandated Violation Of State Law.
The mandate at issue in New York went to the
State itself, which ultimately commands its agents’
legal authorities. Once the State had decided on its
mode of compliance, it had all legal authority
necessary to do so.
In 18 U.S.C. § 922(s), Congress did not address
its commands to a sovereign, but to one of the
sovereign’s servants. Sheriff Mack possesses only the
legal authority delegated to him by the people of the
State. These have granted him limited authority
bearing no relation to the adjudicatory tasks assigned
by the Federal statute, and they have specifically
forbidden him to undertake the sort of duties that the
statute commands.
The ability of the people of a State to constrain the
officials they choose and empower is critical to the
"full realization of our liberties." Justice William
Brennan, Jr., State Constitutions and the
Protection of Individual Rights, 90 Harv. L. Rev.
489, 491 (1977). See also Feldman & Abney,
The Double Security of Federalism: Protecting
Individual Liberty Under the Arizona Constitution,
20 Ariz. St. L.J. 115
Page 33
(1988). If Congress can command State officials to act
as Federal agents, subject only to the restrictions
placed on the national government in 1791, then the
protections of the people of the States have since
imposed on their own agents can be negated by the
Supremacy Clause. Under § 922(s), the officials of
the State— holding offices established, empowered,
and funded by its people— are no longer under the
command of the State and its people.
4. Dilution Of Essential Checks And Balances.
To the Framers, federalism held value as a means of
checking the ambitions of either level of government.
Power being almost always the rival of power, the
general government will at all times stand ready to
check the usurpations of the state governments, and
these will have the same disposition toward the
general government. The people, by throwing themselves
into either scale, will infallibly make it
predominate. It their rights are invaded by either,
they can make use of the other for redress.
Federalist No. 28 (Hamilton).
18 U.S.C. § 922(s) negates this critical balance.
The actions of State officials toward their
constituents are subject to complete and direct
Congressional control. The people are left with
neither the advantage of dual sovereignty— two
authorities who may compete for their support— nor
that of single sovereignty— absolute
accountability. Instead they are subject to a single
ruler, whose functions are screened behind agents it
does not appoint but whose actions it commands.
Page 34
5. Impairment Of The People’s Right To Choose Their
Officials.
The "authority of the people of the States to
determine the qualifications of their most important
governmental offices" is at the core of republican
theory. Gregory v. Ashcroft, 401 U.S. 452, 463 (1991).
"Through the structure of its government, and the
character of those who exercise governmental
authority, a state defines itself as a sovereign." Id.
at 460.
In the ruling below, the Ninth Circuit lightly
dismissed Sheriff Mack’s Thirteenth Amendment claim
with the note that a State official may escape
compelled services under 18 U.S.C. § 922(s) by
resigning his office. App. 45. Under this view,
Congress may dictate whom the people of the State
choose to represent them; those unwilling to labor as
Congress may prescribe need not apply. The people of a
State may, under Coyle, choose their capital,
but not they may not choose who fills it.
To the extent that any distinction can be drawn, 18
U.S.C. § 922(s) presents an aggravation, not a
mitigation, of the Federalism problems presented in
New York. It is an exceptionally egregious
violation of the principles of federalism protected by
the Tenth Amendment.
In sum, 18 U.S.C. § 922(s) marks a blatant
violation of the principles of federalism. The
legislatures of the States are not merely commanded;
they are supplanted, and orders issued directly to
their officials. Those officials in turn are commanded
to act in excess of the powers given by the people of
the State, and even in defiance of the legislature’s
commands. The officials are commanded to act without
compensation, but with civil liability in the event of
error.
Page 35
The exceptional nature of the constitutional violation
is apparent: to defend 18 U.S.C. § 922(s) the
United States must abandon— indeed, reverse—
the Tenth Amendment position it has uniformly
advocated before this Court. 18 U.S.C. § 922(s) is
an egregious violation of the principles of federalism
recognized and guaranteed by the Tenth Amendment.
II
The Commerce Power Does Not Justify A Federal Mandate
That A State Official, Precluded By Statute From
Interfering With Commerce, Regulate Commerce To
Federal Specification
18 U.S.C. § 922(s) attempts to regulate, not
commerce, nor State interference with commerce, but a
State official who exercises limited local police
powers— indeed, an official whose people have
forbidden him to affect the relevant commerce. The
command far exceeds Congressional Article I powers.
At the core of the Constitution’s apportionment of
power was the decision to give the national government
powers that were "few and defined," Federalist No.
45 (Madison), consisting of the "great and
aggregate interests" of the new nation. Federalist
No. 10 (Madison).
Among those defined powers was the authority "to
regulate commerce. . . among the several States." Art.
I, § 8. While this power is near-plenary, with "no
limitations other than those prescribed in the
constitution," Gibbons v. Ogden, 22 U.S. 1, 196
(1824), its scope was still restricted to regulation
of "commercial intercourse," and only that "among the
several states." Id. at 189-90.
Page 36
Exertion of congressional powers over commerce have
taken three historic forms: regulation of the channels
of commerce, protection of instrumentalities of
commerce, and regulation of acts which substantially
affect commerce. United States v. Lopez, 115
S.Ct. 1624, 1629-30 (1995) ("Lopez"). To the
extent a State engages in or affects commerce, it is
subject to regulation. Fry v. United States, 421 U.S.
542, 547-48 (1975) (engaging in commerce through
employment); EEOC v. Wyoming, 460 U.S. 226, 235
(1983) (same). To the extent it restricts commerce,
its acts are subject to Congressional preclusion or
pre-emption. Jones v. Rath Packing Co., 430
U.S. 519, 525-26 (1977); City of Burbank v.
Lockheed Air Terminal, 411 U.S. 624, 633-34
(1973).
As interstate commerce itself has grown, so have
powers over it. But in enacting 18 U.S.C. § 922(s)
Congress chose to regulate, not commerce, but the
States themselves. It issued commands to Sheriff Mack,
not on the basis that he or his State were burdening
commerce, but on the basis that he was not burdening
it and that his State had forbidden him to do
so.
For nearly two centuries, it remained undisputed that
the Commerce Clause does not authorize Federal
commands that the States regulate commerce. See
District of Columbia v. Train, 521 F.2d 971, 992
(D.C. Cir. 1975), remanded for consideration of
mootness 431 U.S. 99 (1977) ("We are aware of no
decisions of the Supreme Court which hold that the
federal government may validly exercise its commerce
power by directing nonconsenting states to regulate
activities affecting interstate commerce, and we doubt
that any exist."). Commerce Clause issues instead
revolved around determining the scope within Congress
which might regulate private individuals, and that
within which the State might not. See, e.g..
Gibbons v.
Page 37
Ogden; Houston, East and West Ry. Co. v.
United States, 234 U.S. 342 (1914); NLRB v.
Jones and Laughlin Steel Corp., 301 U.S. 1 (1937).
Only in 1975 did an arm of the national government
assert authority to command State officials to
regulate interstate commerce; the attempt ended when
the United States declined to defend it before this
Court.
The asserted power arose against the background of an
Environmental Protection Agency "veto" and preemption
of certain State attempts at Clean Air Act compliance,
with consequent imposition of Federal standards. But
rather than use Federal resources to enforce the
Federal standards, EPA asserted the statutory power to
force State agencies to apply them.
The Fourth, Ninth, and District of Columbia Circuits
held that such a ‘construction would exceed Commerce
Clause powers, and rejected the asserted power. See
State of Maryland v. EPA, 530 F.2d 215, 227-28 (4th
Cir. 1975); Brown v. EPA, 521 F.2d 827, 837-39
(9th Cir. 1975); District of Columbia v. Train,
521 F.2d 971, 992 (D.C. Cir. 1975).
After this Court granted certiorari, the United States
declined to defend the challenged regulations. It
instead informed the Court that the EPA would amend
portions of the regulations, and that the
Administrator "has never asserted any power to compel
the State to carry out its governmental
responsibilities under an implementation plan," Brief
for the Federal Parties, EPA v. Brown, No.
75-909, at 20 n.14. The remaining regulations were to
be justified, not as a command to the State to
regulate private conduct, but as a command to the
State to restrict pollution created by its own
actions:
Page 38
The State is, in either case, subject to federal
regulation only to the extent it is responsible for
the pollution, and only when its responsibility stems
not from mere failure to regulate private activities,
but from its ownership and control of the facilities
used in the process of contamination of the air. The
power asserted by the Administrator is only over the
State as polluter, not over the State as State.
Id. at 20. In light of the government’s broad retreat,
this Court remanded for consideration of mootness.
EPA v. Brown, 431 U.S. 99 (1977).
The issue, indefensible in 1977, now reappears. It is
presented, paradoxically, in the wake of this Court’s
reiteration that:
While the Framers no doubt endowed Congress with the
power to regulate interstate commerce in order to
avoid further instances of the interstate trade
disputes that were common under the Articles of
Confederation, the Framers did not intend that
Congress should exercise that power through the
mechanism of mandating State regulation. The
Constitution established Congress as a ‘superintending
authority over the reciprocal trade’ among the States,
The Federalist No. 42, p. 268 (C. Rossiter, ed. 1961)
by empowering Congress to regulate that trade
directly, not by authorizing Congress to issue
trade-related orders to State governments.
New York, 505 U.S. at 180.
Sheriff Mack’s position was, and remains,
straightforward: although firearms may flow in
interstate commerce, he is not a firearms dealer, but
a State official exercising police powers, limited by
statute, in Graham
Page 39
County. He neither engages in nor interferes with
interstate commerce when he refuses to supervise
Federal firearms licensees. He is not ordered by the
State to affect commerce in firearms— in fact, as
noted above, the statutes of the State have expressly
forbidden him to do so.
The Ninth Circuit here disposed of Commerce Clause
concerns with the note that regulation of firearm
sales lies within the commerce power, and the statute
in question focuses on sales rather than simple
possession. App. 5 n.5. The fact that private
citizens in a State engage in commerce is thus
made dispositive of the Congressional power to command
officials of that State. If this is good law, then
New York cannot be: nuclear waste travels in
and affects commerce, and thus Congress would have had
every right to command States to deal with it. If this
is correct, then the Court need not have labored so
mightily to sustain the measures at issue in
FERC and in Hodel : the mere fact that
residents of Mississippi consume power, and those of
Virginia engage in mining, would have justified any
mandate Congress issued, or coul4 have issued, to the
States. Indeed,
By such logic, there is no state governmental function
which Congress cannot reach and control.... The states
can be forced to act or not to act, as Congress
chooses to define the burden. . . . The traditional
remedy of unwilling states, abandonment of the field
to direct federal control, is barred.
David Salmon, The Federalist Principle: Interaction
of the Commerce Clause and the Tenth Amendment in the
Clean Air Act, 2 Col. J. Environ. L. 290, 326-27
(1976).
The Ninth Circuit majority extends Commerce Clause
powers to the point where they "effectively obliterate
the distinction between what is national and what is
local."
Page 40
NLRB v. Jones & Laughlin Steel, 301 U.S. at 37.
It brings to fruition the fears dismissed by the
FERC majority.
13
If a State affects commerce, it may be stopped or
restricted; if it withdraws from affecting it, it may
be commanded to do so. If its official is empowered to
undertake the task, so much the better: if not,
Congress may simply bestow upon him the authority when
it hands him the duty.
III
The Unconstitutional Portions Of 18 U.S.C. §
922(s) Cannot Be Severed From The Valid Portions
18 U.S.C. § 922(s)’s imposition of duties violates
the Tenth Amendment and exceeds Commerce Clause
powers. The question remains whether § 922(s)
falls, or only some severable portion of it.
A. Severance Is Proper Only Where The Constitutional
Portion Of A Statute Is Fully Operative And In The
Manner In Which The Legislature Intended.
Severability hinges upon a two-part test. Alaska
Airlines v. Brock, 480 U.S. 678, 684-5 (1987). To
be severable,
Page 41
the stricken provisions must be "functionally
independent" of the surviving ones. United States
v. Jackson, 390 U.S. 570, 586 (1968). Moreover,
the statute as severed must function "in a
manner consistent with the intent of Congress."
Alaska Airlines, 480 U.S. at 685 (Emphasis the
Court’s); that is, elimination of the statute’s
invalid portions must leave "completely unchanged its
basic operation." United States v. Jackson, 390
U.S. at 586.
B. The Unchallenged Portions Of 18 U.S.C. § 922(s)
Are Not Fully Operative In The Manner Congress
Intended.
Stripped of compulsory background checks, 18 U.S.C.
§ 922(s) becomes a waiting period, coupled with
the possibility that the CLEO may, if he
desires, perform a check. Every licensed dealer in
Graham County will be obligated to transmit notices to
Sheriff Mack— who may promptly discard them—
and every purchaser will wait five days for a
determination that will never come. The "program"
would still exist, but— as explained below— it
would bear little relation to Congressional intent.
1. Severance Would Change The Statute Into A Form
Which Congress Refused To Enact.
As discussed ante, the 102d Congress had considered
H.R.7, which provided for a fixed waiting period with
optional checks. The proposal approved by the 103d
Congress differed enormously from this approach,
making the background check mandatory and the waiting
period optional, ending the moment the check was
performed. Rep. Zimmer explained the impact:
Page 42
Two years ago I voted against an earlier version
of the Brady bill, which required a 7-day waiting
period for handgun purchases with only an optional
background check . . .
The legislation we are voting on today addresses my
principal objections to the 1991 Brady bill. The
background check is no longer optional and the waiting
period will be eliminated as soon as a national
instant check system can be implemented.
Id. at 9107-08. The 103d Congress four times
rejected, in House subcommittee, committee, and on the
floor, amendments proposed by Rep. Schiff to make the
check optional. See H.R. Rep. No. 103-344 at 38-39,
reprinted 1993 U.S. Code, Cong. & Admin. News
at 2008-09 (subcommittee and committee action); 139
Cong. Record H9093, H9143-44 (Daily ed., Nov. 10,
1993) (proposed floor amendment and motion to
recommit).
2. Severance Would Yield A Statute With Disadvantages
Which Congress Did Not Weigh.
Severance assumes that the resulting statute would be
a subset of the original; it is inappropriate where
severance would "cause results not contemplated or
desired by the legislature." Connally v. Union
Sewer Pipe Co., 184 U.S. 540, 565 (1902). Two such
results are apparent here.
First, a shift from mandatory to voluntary background
checks radically alters the cost/benefit balance. On
the benefit side, a Federally-imposed voluntary check
achieves little. Background checks were always an
option
Page 43
for States which desired to have them; States which do
not desire them are unlikely to perform them if they
are proclaimed optional.
14
An optional check thus incurs the lull
burden of a mandatory check (a
five-day wait for millions of constituents) while not
increasing the benefit sought vis a vis that of
the status quo. In rejecting H.R.7, Congress showed
awareness of this different balance. "This not only
penalizes law-abiding citizens, it does not even
ensure that a check is done." 137 Cong. Record 112831
(Daily ed. May 8, 1991) (Rep. Ballenger).
Second, the debate over H.R.7 shows that Congress
foresaw special disadvantages to non-mandatory
background checks. Rep. Staggers complained that the
option permitted discrimination: "If in fact you live
in a neighborhood that is an Afro-American
neighborhood, chances are the police are going to
check your records. If you come from an affluent white
neighborhood, they probably are not going to find the
time. .." 137 Cong. Record at 1-12668 (Rep. Staggers)
(Daily ed., May 8, 1991). Rep. Ballenger voiced
similar concerns. Id. at H2831. The potential for
discriminatory application was not weighed by the 103d
Congress, simply because it had no application to the
bill it passed. To sever the statute here leads, not
merely to a law with somewhat reduced benefit, but
Page 44
to a new statute with problems that Congress has not
weighed.
3. Severance Would Create A Statute Containing
Inconsistencies And Incongruities.
The severed form of the statute would not even be
internally consistent. As enacted, the statute’s
timetables mesh and its exceptions track its commands
precisely. If severed, its provisions make little
sense indeed:
(1) Dealer sends form to CLEO and must wait 5
business days before transferring firearm. 18
U.S.C. § 922(s)(1)(A)(ii).
(2) CLEO must investigate purchaser within 5
business days. 18 U.S.C. § 922(s)(2).
(a) Unless CLEO obtains a "hit," CLEO destroys forms
in 20 days. 18 U.S.C. § 922(s)(6)(C).
(b) If "hit" results, and is challenged, CLEO must
provide rationale in 20 days. 18 U.S.C. §
922(s)(6)(B)(i).
Exception: dealer need not send form or wait if
State law requires an "authorized government
official" to "verify" legality before transfer.
18 U.S.C. § 922(s)(1)(D).
Dealer sends form to CLEO and must wait 5 business
days before transferring firearm. 18 U.S.C. §
922(s)(1)(A)(ii).
Page 45
Unless CLEO checks and obtains a "hit," CLEO destroys
forms in 20 days. 18 U.S.C. § 922(s)(6)(C).
Exception: dealer need not send form or wait if
State law requires an "authorized government official"
to "verify" legality before transfer. 18 U.S.C. §
922(s)(1)(D).
As severed, the times for the background check and the
waiting period no longer tally; the only time limit on
the check is the document destruction deadline of 20
days, yet the dealer may transfer the gun within five.
As severed, the exception does not track the rule.
Under the statute as enacted, a State gains exemption
from a mandatory check by creating its own mandatory
check. As severed, the statute would require only an
optional check, yet to gain exception the State
must have a mandatory one; thus a State could
have legal requirements stricter than the Federal plan
(i.e., a 15 day wait with optional checks) yet
find it did not qualify: its CLEOs must still
be served with forms despite the fact that another
official has been assigned to perform the voluntary
checks. Whether Congress would have enacted a bill
with these incongruities is for it alone to decide.
Mandatory background checks, the core of § 922(s),
are constitutionally void. Severance creates, not a
subset of the legislation, but a complete substitute,
and one with incongruities and disadvantages Congress
never had reason to weigh. 18 U.S.C. § 922(s)
cannot be severed; it falls as a whole.
Page 46
CONCLUSION
18 U.S.C. § 922(s) exceeds Commerce Clause powers
delegated by the people to Congress, and violates the
principles of federalism given voice in the Tenth
Amendment. The offending portions cannot be stricken
without creating a statute Congress declined to pass,
and which contains unique disadvantages and
incongruities. We respectfully submit that the Court
should reverse the decision of the United States Court
of Appeals for the Ninth Circuit and hold 18 U.S.C.
§ 922(s) ,invalid in its entirety.
DAVID T. HARDY
Attorney for Petitioner
NOTES
1. The Attorney General advised Congress that
"enormous tasks remain" in creating the Federal system
and that "It is a near certainty that a national
instant-check system is more than five years away . .
. " 139 Cong. Record at S16314 (Daily ed., Nov. 19,
1993). See also id. at H9130 (Rep. Schumer).
text@note1
2. Under some conditions, the dealer may have
alternate modes of compliance available. Forms of
compliance applicable to ordinary handguns are: (1)
notify the CLEO and wait a maximum of five business
days for clearance; (2) verify that the purchaser
holds a permit under an appropriate State firearms
permit law; or (3) obtain approval through a State
system that verifies legal eligibility to purchase. 18
U.S.C. § 922(s)(1)(A), (C), (D).
text@note2
3. If the buyer wants to contest his! her status, you
can be in the position of shifting the burden of
tracking down absolute proof to the buyer. If the
buyer can furnish you with criminal disposition
records or other documents that establish that he/she
is not prohibited from receiving or possessing a
handgun, you could then notify the FFL [dealer] that
you have withdrawn your objection to the sale.
Bureau of Alcohol, Tobacco and Firearms, "Open Letter
to State and Local Law Enforcement Officials,"
Excerpts of Record on Appeal at 28, reproduced at
Appendix to Brief for the United States, Printz v.
United States, No. 95-1478, at 17a.
text@note3
4. Good faith— even reliance on advice of
counsel— is no defense. Hartford Accident &
Indemnity Co. v. Wainscott, 41 Ariz. 439, 19 P.2d
328 (1933).
text@note4
5. Sheriff Mack also contended that the duties
imposed were void for vagueness, and that tEey
violated the Thirteenth Amendment by requiring
personal service under pain of law. The Court of
Appeals ultimately held the vagueness contention
unripe, and that the Thirteenth Amendment was not
violated since State servants could avoid involuntary
Federal servitude by resigning their office. App. at
16-19. As will be discussed infra, the latter
conclusion raises its own Tenth Amendment difficulty.
text@note5
6. See note 3, supra.
text@note6
7. See Reply Brief of the United States,
United States v. Lopez (No. 93-1260) at 10:
Under this Court’s decision in New York v. United
States, supra, very different
constitutional issues would be presented if Congress
imposed statutory requirements or prohibitions
directly upon state and local educational officials,
or if Congress mandated that state and local
governments assume responsibility for the enforcement
of federal law.
text@note7
8. After discussing the analogy, the majority notes
that "it plainly is not necessary" to reach the issue
since PURPA allowed the State to escape the mandate by
withdrawing from the field. 456 U.S. at 764.
text@note8
9. Since the filing of this action, a Graham County
resident was reported missing and soon thereafter
found dead in the desert. Sheriff Mack was promptly
subjected to a recall petition based on claims his
office had not responded with sufficient speed. In the
sheriff’s context, accountability for setting o
priorities is no abstraction.
text@note9
10. See note 3, supra.
text@note10
11. The statute purports to immunize the Sheriff
against other civil liability arising from his
preventing, or failing to prevent, a person from
obtaining a firearm. 18 U.S.C. § 922(s)(7). It
does not expressly immunize his employing government.
Compare 18 U.S.C. § 922(t)(6) (granting
immunity under permanent system both to official and
to local government). The Federal grant of immunity,
if applicable, may itself exceed constitutional
boundaries. Arizona has abandoned sovereign immunity.
See Pritchard v. State, 163 Ariz. 427, 788 P.2d
1178 (1990). Issuance of a permit, other than those
relating to professions, is actionable if grossly
negligent. A.R.S. § 12-820.02(5). The State
Constitution prohibits enactment of laws restricting
recovery for wrongful death. Ariz. Const. Art. II
§ 31. An attempt to immunize a State official
against a tort claim brought by a State resident,
under State law in a State court, poses its own Tenth
Amendment concerns.
text@note11
12. This is not to deny that firearms may flow,
illicitly, between States. But § 922(s) is not
directed at stopping such transfers, which either
involve sellers other than licensed dealers, or
falsified identification. § 922(s) does not cover
the former, and is not intended to address the latter:
it simply provides for determining whether the person
to whom the buyer’s identification pertains has a
record.
text@note12
13. The FERC dissents suggested that the
decision opened the way to Federal control of all
State functions; the majority dismissed this as
"apocalyptic" and "overstated," since the holding
"does not suggest that the federal government may
impose conditions on state activities in fields that
are not pre-emptible . . . " 456 U.S. at 769-70,
n.32. If the Ninth Circuit majority is correct,
pre-emption is irrelevant: a State’s apparatus may be
commandeered even if it withdraws from the field.
text@note13
14. It might be suggested that a severed 18 U.S.C.
§ 922(s) would give an opportunity to State
officials who privately desire to perform checks but
are frustrated by the refusal of their constituents to
give them the power. Yet this approach yields an
anomalous result. It seeks to save a portion of the
statute from 10th Amendment invalidation by suggesting
that its value lies in protecting State officials from
the control and oversight of the people of the State.
text@note14
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