ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR THE PETITIONER

OPINIONS BELOW

on December 19, 1995. The petition for a writ of certiorari was filed on March 15, 1996, and was granted on June 17, 1996. This Court has jurisdiction under 28 U.S.C. § 1254(1).

United States was permanently enjoined from enforcing § 922(s)(2) in Montana. (Pet. App. 67-68a, 74a.)

pulling deputies off patrol and investigation duties." (Jt. App. 14a.)

authorizing the expenditures. He is personally liable for expending funds without authorization. 2 (it. App. l5a.) The duties of § 922(s) conflict with Mont. Code § 45-8-351(1), which provides:

No county. . . or other local government unit may prohibit, register, tax, license, or regulate the purchase, sale or other transfer (including delay in purchase, sale, or other transfer), ownership, [or] possession. . . of any. . . handgun.

We are increasingly being asked, and sometimes ordered, to do more with less as evidenced by the "Brady Law". . . . We are, however, utilizing our patrol vehicles long past their safe limits, the DARE

program grant is running out and we are burning out our employees and volunteers. . . . (Ex. 3, Jt. App. 22-23a, 30a.)

The impact of the mandates of the Act is far from de minimis. The ascertainment/background check provision is most burdensome. CLEOs must perform these background checks on every potential transferee, must determine the applicable law on which the ascertainments are made, and must determine whether each transfer violates the law. These are substantial undertakings, some involving the exercise of discretion, which may be performed— if at all— only with great effort and the expenditure of unfunded resources. (Pet. App. at 60a.)

enforcement officer ("CLEO") of every locality to ascertain within 5 business days whether receipt of a handgun is lawful, including research in State, local, and national records. The CLEO is commanded to destroy information on lawful handgun purchasers within 20 days. If receipt of the handgun is determined to be unlawful, the CLEO is required to explain why.

the transferee and transmitting a copy to the chief law enforcement officer ("CLEO") where the transferee resides. 4 The dealer may transfer the handgun after five business days, unless the CLEO provides notice that the purchaser is ineligible. The handgun may be transferred sooner if the CLEO notifies the dealer that the transfer is lawful.

A chief law enforcement officer to whom a transferor has provided notice . . . shall make a reasonable effort to ascertain within 5 business days whether receipt or possession would be in violation of the law, including research in whatever State and local recordkeeping systems are available and in a national system designated by the Attorney General.

The Attorney General has designated "the National Crime Information Center (NCIC) as the national system to be used by law enforcement for crime history record background checks." 59 F.R. 9498 (Feb. 28, 1994).

Unless the chief law enforcement officer to whom a statement is transmitted. . . determines that

a transaction would violate Federal, State, or local law— (i) the officer shall, within 20 business days after the date the transferee made the statement on the basis of which the notice was provided, destroy the statement, any record containing information derived from the statement, and any record created as a result of the notice required.

If a chief law enforcement officer determines that an individual is ineligible to receive a handgun and the individual requests the officer to provide the reason for such determination, the officer shall provide the reasons to the individual in writing within 20 business days after receipt of the request.

failure to prevent a transfer to an unlawful recipient or for prevention of a transfer to a lawful recipient. Political subdivisions are not immune from damages actions. 6

actions and the contempt power. (Pet. App. 44-45a n. 19.)

expungements, and restorations of civil rights. 12 The definition of "convicted" under § 921(a)(20) requires the CLEO to research the laws of potentially all fifty states and federal law. 13 The potential liabilities of an incorrect decision— injunction suits and electoral retribution to the CLEO, damages suits against the county— make study and legal advice imperative.

alien has a lawful status. 16 Records of fugitives, 17 dishonorable discharges, ex-citizens, and restraining orders involving intimate persons (e.g., in domestic relations cases) must be searched. 18 It must be determined whether the handgun to be purchased has ever been transported in interstate commerce, without which § 922(g) does not apply.

State governments are neither regional offices nor administrative agencies of the Federal Government . . . . The Constitution instead "leaves to the several States a residuary and inviolable sovereignty," The Federalist No. 39, . . . reserved explicitly to the States by the Tenth Amendment.
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. (Emphasis added). 19

The statute at issue required the States either to "enact" a program to dispose of radioactive waste according to Congress’ directives, or to "administer" the program by taking title to and possession of the waste and by being liable for damages. 112 S.Ct. at 2416. It was well established that States cannot be ordered to "enact and enforce" federal programs. Id. at 2420, quoting Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264,288 (1981). The statute in Hodel was constitutional because "the States are not compelled to enforce [federal] standards, to expend any state funds, or to participate in the federal regulation program in any manner whatsoever." Id.

Similarly, New York noted, the statute in FERC v. Mississippi, 456 U.S. 742, 764 (1982) "require[d] only consideration of federal standards. And if a State has no utilities commission, or simply stops regulating in the field, it need not even entertain the federal proposals." 112 S.Ct. at 2420-21. The two Titles challenged in FERC were upheld because they "simply condition continued state involvement in a pre-emptible area on the consideration of federal proposals." FERC, 456 U.S. at 765. Further, the commission in FERC was part of the "state adjudicatory machinery" and thus was subject to Article VI of the Constitution, under which State judges are bound by federal law. 20 Id. at 761-62.

rights. As New York explains, such impositions blur responsibility:

Where the Federal Government directs the States to regulate, it may be state officials who will 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. Id. at 2424.

A State whose citizens do not wish it to attain the Act’s milestones may devote its attention and its resources to issues its citizens deem more worthy . . . The State need not expend any funds, or participate in any federal program, if local residents do not view such expenditures or participation as worthwhile. Id. at 2427.

Because an instruction to state governments to

take title to waste, standing alone, would be beyond the authority of Congress, and because a direct order to regulate, standing alone, would also be beyond the authority of Congress, it follows that Congress lacks the power to offer the States a choice between the two. Id. at 2427-28.

(minimum wage laws applicable to private and public sectors). By contrast, the Brady Act orders only CLEOs, not all citizens, to check records, destroy records, and explain denials. As in New York, it is unnecessary "to apply or revisit" cases such as Garcia, "as this is not a case in which Congress has subjected a State to the same legislation applicable to private parties." 23 112 S.Ct. at 2420.

The Rules effectively make medical neglect of handicapped newborns a state investigative priority, possibly forcing state agencies to shift scarce resources away from other enforcement activities . . . The Rules also order state agencies to "immediately" review reports from hospitals,. . . to conduct "onsite investigations" . . . . Id. at 639.

will as the foot soldiers in a federal crusade. " 24 Id. at 642. Sheriffs departments are not field offices of the BATF, nor may they be conscripted for a federal crusade.

Congress, thus, foists the core policy decision raised by the Brady Act onto the CLEOs. This certainly is a regulatory policy judgment sufficient to constitute "administration" even in the government’s more restricted sense of that term, especially when the CLEO can be sued for the malperformance of those duties. Id.

authority given the CLEOs by the States, without the States’ consent or participation," and in effect amends the State criminal codes. Id. at 459 & n. 7. Second, Congress has "secur[ed] the CLEOs’ participation only by coercing the States." Id. at 459. Third, the Act "requir[es] a State to allow CLEOs to perform duties that the State obviously prefers to avoid," instead of enforcement of local laws, maintenance of jails, and transport of criminals. Id. at 460. Fourth, the Act "blurs accountability for the policy choices reflected in this legislation." Id. at 460. 25

a federal program, and ignores the prong holding that Congress may not command the States to "administer" it. 26

obliterated; all that is left is the "to enact" prong. 28

opinion able to withstand judicial scrutiny.

of the law depends on whether federal judges believe that a CLEO is too busy or not.

United States v. Lopez, 115 S.Ct. 1624, 1626 (1995) declared the federal Gun Free School Zones Act unconstitutional because it "neither regulates a commercial activity nor contains a requirement that the possession be connected in any way to interstate commerce." Nor is being a CLEO a commercial activity or connected to interstate commerce. 33 It cannot be argued that commerce is affected if CLEOs do not conduct Brady checks, for Congress may not regulate "all activities that might lead to violent crime, regardless of how tenuously they relate to interstate commerce." Id. at 1632.

The "States possess primary authority for defining

and enforcing the criminal law.". . . "Our national government is one of delegated powers alone. Under our federal system the administration of criminal justice rests with the States. . . ."

Id. at 1631 n. 3 (citations omitted). The Brady Act usurps the most fundamental element of State sovereignty: the administration of criminal justice.

allow the President to remove postmasters from office, Myers v. United States, 272 U.S. 52, 163-4 (1926) explained that "the vesting of the executive power in the President was essentially a grant of the power to execute the laws." The Execution of Laws Clause implies that "as part of his executive power he would select those who were to act for him under his direction in the execution of the laws." Id. The President’s executive power includes "the general administrative control of those executing the laws." Id.

To provide for calling forth the Militia to execute the Laws of the Union. . .;

To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the authority of training the militia according to the discipline prescribed by Congress. . . . (Emphasis added.)

"to execute the Laws of the Union," to "govern" them, or to prescribe their "discipline." Expressio unius est exciuslo alterius (the expression of one thing is the exclusion of another).

requires State legislatures or executives to fulfill duties. Art. 1, §§ 2, 4 , Amendment XVII (election matters); Art. I, § 10, cl. 2 (state duties on imports "shall be for the Use of the Treasury of the United States"). It also explicitly prohibits the States from coining money, engaging in war, and certain other activities, Art. I, § 10, cl. 1, and from violating certain rights. Amendment XIV (due process, equal protection); Amendments XV, XIX, XXIV, and XXVI (voting rights).

922(s)(l), (t)(l). Striking the duty of CLEOs to check records destroys the purpose of the waiting period and of the requirement that a dealer provide notice to the CLEO.

option, rather than a requirement, for state and local law enforcement agencies while keeping the waiting period." Additional Dissenting Views, id. at 39. The amendment failed. Id.

H.R. 7 in the last Congress addressed this issue as follows: "Paragraph 1"— that is the background check— "shall not be interpreted to require any action by a chief law enforcement officer which is not otherwise required." . . . The language in this bill has Congress requiring local police departments to take their time and their resources to make a

background check without Federal support.

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 I voted instead for affirmative legislation that provided for an instant, mandatory 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 H9107-08.

Senator Jeffords stated that without the required background checks, the bill should not pass:

I do not believe that Brady bill waiting periods should be established prior to handgun purchases unless accurate background checks can be made.

requirement is unconstitutional, the requirement that dealers provide notice to CLEOs is not severable and is void.

disclose reasons for denial is not severable from the CLEO’s veto power over transfers:

H.R. 1025 contains no system to redress a wrongful denial of purchase. If a person improperly is denied his rights, the only redress is to hire an attorney and go to court to prove he or she is law-abiding. This turns the presumption of innocence, on which our legal system is based, upside down. It allows for arbitrary and capricious misuse of the regulatory process by over-zealous or corrupt government officials, resulting in the denial of basic rights to honest citizens.

I support the Brady bill, with the Ramstad amendment that will guarantee the second amendment rights of citizens by requiring law enforcement officials to provide written documentation for any denials that might be rendered. Such a guarantee is essential so that individuals who are denied permission to purchase a gun might be given a written explanation which they may use in the event that they appeal the decision in Federal Court. Id.

Judiciary Committee Chairman Brooks stressed why CLEOs must explain denials: "As this bill is written, a person can be denied the right to make a lawful handgun purchase— without any cause, and without any explanation. What could be more fundamental to due process than to require the Government to tell you why you cannot exercise a right that is being exercised by others every day?" Id. at H9122.

The standard for determining the severability of an unconstitutional provision is well established: Unless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law.

substantive reach of the statute and leaves completely unchanged its basic operation." United States v. Jackson, 390 U.S. 570, 586 (1968). The provisions are not "functionally independent" if the "valid and invalid provisions [are] so intertwined that the Court would have to rewrite the law to allow it to stand." Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987). Even if it remains operative, the law must still "function in a manner consistent with the intent of Congress." Id. at 685.

— Koog acknowledges that the waiting period does not apply in States with instant checks, permit systems, or other exemptions, and will be replaced by the national instant check system. "These exceptions cast doubt on the notion of an independent ‘cooling off period." Id. at 463. However, because of § 928, Koog concludes that the waiting period and licensee duties are severable from the invalid duties. Id. Koog did not discuss the argument that Congress would not have adopted the Act without a duty to destroy records to prevent firearm-owner registration or the duty to explain denials to protect due process.

the applicability of this clause to § 43 [of the ADA, the Employee Protection Program (EPP)] is in doubt,

however, because, unlike many sections of the Deregulation Act, the EPP does not amend provisions of the Aviation Act or any other pre-existing statute, but instead establishes a new program. Id.

weeks after gestation if it could not regulate it 20 weeks before gestation. A severability clause radically different than § 928 provided that "if any one or more provision, section, subsection, sentence, clause, phrase or word" is found to be unconstitutional, "the same is hereby declared to be severable." 116 S.Ct. at 2070. "The legislature hereby declares that it would have passed this part, and each provision, section, subsection, sentence, clause, phrase or word thereof, irrespective of the fact" that something was declared unconstitutional. Id.

The two sections at issue here are not "interrelated" in any relevant sense— i.e., in the sense of being so interdependent that the remainder of the statute cannot function effectively without the invalidated provision, or in the sense that the invalidated provision could be regarded as part of a legislative compromise, extracted in exchange for the inclusion of other provisions of the statute. Id. at 2070-71.

The mandatory check was the compromise for allowing up to five days wait. 50 The explanation requirement was the compromise for the CLEO's veto power over handgun sales.

Respectfully submitted,

STEPHEN P. HALBROOK*
Richard E. Gardiner
Attorneys for Petitioner
*Counsel of Record

Of Counsel:
James A. Haynes
James A. Haynes Law Office
Hamilton, Montana

NOTES

1. Printz is also the county coroner, whose duties as defined in Mont. Code § 7-4-2911 include the holding of inquests, inquiring into the causes of deaths, gathering evidence, and notifying kin. text@note1

2. See Mont. Code § 7-4-2110, 7-4-2203 (power of board of county commissioners to supervise officials, including sheriff, charged with the disbursement of public revenues, to see that they perform their duties, and to prosecute delinquencies). text@note2

3. Koog v. United States, 79 F.3d 452 (5th Cir. 1996), rev’g 852 P.Supp. 1376 (W.D.Tex. 1994), and aff'g McGee v. United States, 863 F.Supp. 321 (S.D.Miss. 1994). Accord, Romero v. United States, 883 F.Supp. 1076 (W.D.La. 1995) (holding § 922(s)(2), (6)(B) and (C) unconstitutional). The commands were upheld in Frank v. United States, 79 F.3d 452), rev’g 860 F.Supp. 1030 (D.Vt. 1994) (holding the background check command unconstitutional). text@note3

4. § 922(s)(8) provides that "the term ‘chief law enforcement officer means the chief of police, the sheriff, or an equivalent officer or the designee of any such individual." text@note4

5. See Seminole Tribe of Florida v. Florida, 116 S.Ct. 1114, 1126 (1996) (Congress lack power under Indian Commerce Clause, which delegates more power than Interstate Commerce Clause, to abrogate States’ immunity from suit under the Eleventh Amendment). text@note5

6. See Braman v. State of California, 28 Cal.App. 4th 344, 33 Cal.Rptr.2d 608 (1994) (wrongful death action where State agency failed to investigate mental patient who bought handgun and committed suicide). text@note6

7. The letter provided BATF's "interpretation of the Act so that you will be bettter able to fulfill the requirements the Act imposes" on CLEOs. (US App. 1a) The BATF form for handgun purchasers includes "Instructions to Chief Law Enforcemenbt Officers." Id. at 4a. Oblivious to the CLEOs' compelling duties to enforce State criminal laws, BATF implored: "The greatest immediate task before us is the implement the waiting period aspect of Brady by February 28, 1994." Id. at . text@note7

8. This provision exempts purchases where the transferee has a permit to possess a handgun issued by the State after the State has determined that the person may lawfully possess a handgun. text@note8

9. This provision exempts States with laws requiring officials so verify that a person’s handgun possession would not violate the law. text@note9

10. BATF disapproved Arizona’s instant check (Ariz. Rev. Stat. 䅉-3114; Mack Record 58, Trans., May 31, 1994, at 60-62.) text@note10

11. Further, § 922(n) makes it "unlawful for any person who is under indictment for a crime punishable by imprisonment for a term exceeding one year to . . . receive any firearm. . . which has been shipped or transported in interstate or foreign commerce." text@note11

12. To determine whether one has received relief from disabilities under § 925(c), the Federal Register and court records must be searched. text@note12

13. Beecham v. United States, 511 U.S. 368, 114 S.Ct. 1669, 1670-fl (1994) (federal and State choice-of-law issues); United States v. Gomez, 911 P.2d 219, 220-21 (9th Cir. 1990) ("the whole of state law," i.e., the rights to vote, hold office, and sit on a jury, determine whether a felon’s rights are restored); United States v. Eaton, 31 P.3d 789, 792 (9th Cii. 1994) (applying North Dakota law to Montana resident). text@note13

14. The Justice Department notes that drug use may be indicated in criminal records, drug treatment records, medical records, and drug test records. 60 P.R. 63fl7, 63730 (Dcc. 12, 1995). text@note14

15. "The Brady bill will keep guns out of the hands of . . . adjudicated mental incompetents." 139 CONG.REC. H9093 (Nov. 10, 1993) (remarks of Rep. Sensenbrenner). The Justice Department states that evidence of mental incompetency may be found in records of courts, boards, commissions, and other legal authorities. 60 F.R. 63727, 63730 (Dec. 12, 1995). text@note15

16. 27 C.F.R. 𨴊. 130(aX2) asks alien purchasers to include their alien registration numbers so that CLEOs can verify lawful residency with INS. See T.D. ATF-361, ATF Quarterly Bull, 24 (1995). text@note16

17. "This category includes persons (1) who know they have charges pending against them, even if only for a misdemeanor, and who leave the State of prosecution, or (2) who leave the State in order to avoid giving testimony in any criminal proceeding." 60 FR. 63fl7, 63730 (Dec. 12, 1995). text@note17

18. For the Department of Justice’s comments on records in these various categories, see 60 FR. 63727, 63730 (Dec. 12, 1995). text@note18

19. Madison further explained in The Federalist No.39 that the Constitution did not establish a purely national government in which "all local authorities are subordinate to the supreme; and may be controlled, directed, or abolished by it at pleasure." Instead, "the local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority, than the general authority is subject to them, within its own sphere." 15 Documentary History of the Ratification of the Constitution 385 (1984). text@note19

20. "No comparable constitutional provision authorizes Congress so command State legislatures to legislate." New York , 112 S.Ct at 2429-30. See Testa v. Katt, 330 U.S. 386, 389-90, 394 (1947). text@note20

21. Id. at 2423. "If a State's citizens view federal policy at sufficiently contrary to local interests, they may elect to decline a federal grant" Id. at 2424. See South Dakota v. Dole, 483 U.S. 203 (1987) (highway funds conditioned on minimum drinking age). text@note21

22. Cf. South Carolina v. Baker, 485 U.S. 505, 507-08 (1988) (repeal of tax exemption for interest on unregistered State bonds; no command to States involved). text@note22

23. Garcia itself recognized the existence of "affirmative limits the constitutional structure might impose on Federal action affecting the States under the Commerce Clause." 469 U.S. at 556. text@note23

24. "Important principles of federalism are implicated by any ‘federal program that compels state agencies . . . to function as bureaucratic puppets of the Federal Government.’" Id. at 642, n. 29, quoting FERC v. Mississippi, 456 U.S. 742, 783 (1982) (opinion of O’Connor, J.). text@note24

25. Voters will blame the CLEO for inconveniences and for diverting resources away from State priorities. Disapproved persons will sue the State or political subdivision for erroneous decisions. Id. at 461. text@note25

26. Presaging New York are decisions that the States may not be commanded to administer federal EPA regulations against motor vehicle owners. District of Columbia v. Train, 521 F.2d 971, 992 (D.C. Cir. 1975) (scheme similar to what "would have existed during Prohibition if the Federal government had sought to compel police officers in a wet State to enforce the Federal laws on the subject"); Maryland v. EPA, 530 F.2d 215, 225 (4th Cir. 1975) ("not far afield is the rejection by the Philadelphia Convention of (Charles Pinkney’s constitutional plan which would have enabled Congress to ‘revise,’ ‘negative,’ or ‘annul’ the laws of a state"); and Brown, v. EPA, 521 F.2d 827, 835 (9th Cit. 1975) (regulation makes "the states departments of the Environmental Protection Agency no less obligated to obey its Administrator’s command than are its subordinate officials"); remanded for consideration of mootness, EPA v. Brown, 431 U.S. 99 (1977). text@note26

27. The "administration" of the Gun Control Act which is vested in the Secretary of the Treasury, § 103, P.L 90-618 (1968), includes issuing licenses, conducting background checks, and other duties similar so those in the Brady Act 18 U.S.C. § 923; 26 U.S.C. § 5812. text@note27

28. See Board of Natural Resources v. Brown, 992 F.2d 937, 947 (9th Cir. 1993) (invalidating federal commands that States administer federal timber-export policies); D. Merritt, Three Faces of Federalism, 47 VANDERBILT LAW REV. 1563, 1580 (1994) (comparing Brown with district court decisions in Printz and Mack). text@note28

29. S. Prakash, Field Office Federalism, 79 VA.L.REV. 1957, 1960,2006 a. 247 (1993) argues that New York was wrongly decided and that "state tax collectors could be drafted into the service of the Internal Revenue Service. Local police could enforce federal criminal and civil law." text@note29

30. See United States v. Snyder, 852 P.2d 471, 47475 (9th Cir. 1988) (federal government may not "interfere with a state’s exercise of its police power," and thus federal court may not direct State DMV to suspend driver’s license, even though de minimus). text@note30

31. The traffic-fatality reporting requirement is tied to the receipt of highway funds. 23 U.S.C. § 402(c). Missing children are reported to the National Crime Information Center (NCIC) (42 U.S.C. § 5779), a records exchange system used by the federal, State, and local governments. 28 U.S.C. § 534(a)(4). NCIC regulations apply to State and local agencies which receive federal funds, and failure to comply may terminate funding and access. 28 C.F.R. §§ 20.20, 20.25, 20.38. text@note31

32. Some Gun Control Act provisions are based on powers other than tbe commerce clause. E. g., 18 U.S.C. § 930 (prohibition on firearm at federal building); U.S. Const Art I, § 8, cL 17 (Congress may exercise exclusive legislation over fedeal buildings). See United States v. Thompson, 687 F.2d 1279, 1285 (10th Cir. 1982). text@note32

33. 949 F.2d 8, 10-11 (1st Cir. 1991), cert. denied, 503 U.S. 995 (1992) (Tenth Amendment not violated by prohibition on felon’s receipt of firearm in interstate commerce because "the statute is not directed at states as such, but at individual behavior"). text@note33

34. Presidency is "designed for the prompt and faithful execution of the laws." Loving v. United States, 116 S.Ct. 1737, 64 U.S.LW. 4390, 4393 (1996). "The clear assignment of power to a branch, furthermore, allows the citizens so know who may be called to answer for making, or not making, those delicate and necessary decisions essential to governance." Id. text@note34

35. See, e.g., 42 U.S.C. § 14081(b) ("the Attorney General may deputize State and local law enforcement officers"). Dixson v. United States,465 U.S. 482,510 (1984) (O’Conner, J.,joined by Rehuquist, C.J., Stevens, J., and Brennan, J., dissenting on other grounds), states:

A proper respect for the sovereignty of States requires that federal programs not be interpreted to deputize States or their political subdivisions to act on behalf of the United States unless such deputy status is expressly accepted or, where lawful, expressly imposes. It would be inconsistent with the general relationship between the Federal and State Governments to conclude, absent such express actions, that a State is acting in effect as an agent of the United States. text@note35

36. ’"An executory law that regulates subjects outside Congress’s enumerated powers is not ‘proper’ and therefore not constitutional." G. Lawson and P. Granger, The "Proper" Scope of Federal Power, 43 DUKE L JOUR. 267, 330 (1993). text@note36

37. Cunningham v. Neagle, 135 U.S. 1, 63-64 (1890). See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 156-57 (1803) (the commission is proof of the appointment, and the officer may not be removable once the commission is received). text@note37

38. A similar check that does not apply to CLEOs is Art. II, § 4, which provides that "all civil officers of the United States, shall be removed from office" on conviction for bribery and other crimes. text@note38

39. By granting the Attorney General and the Department of the Treasury power over CLEOs, the Brady Act treats CLEOs as Inferior officers," which Buckley defines as "lesser functionaries subordinate to officers of the United States." Id at 126 n. 162. text@note39

40. See Bowsher v. Synar, 478 U.S. 714, 734 (1986) (by entrusting execution of a law to a person not removable by the President, "Congress in effect has retained control over the execution of the Act and has intruded into the executive function."); Morrison v. Olson, 487 U.S. 654, 692 (1988) (lack of removal power would leave "no means for the President to ensure the ‘faithful execution’ of the laws."). text@note40

41. Early legislation provided that the President may call out the militia to execute the laws, and "the President’s orders may be given so the chief executive magistrate of the state, or to any militia officer." Houston v. Moore, 18 U.S. (5 Wheat.) 1, 15 (1820). "By the Constitution, the President is not only Commander-in Chief of. . . the militia, when called into service, but he is also . . . bound to see the laws duly executed." J. Story, A Familiar Exposition of the Constitution of the United States 𨴜 (1840). See Perpich v. Dept of Defense, 496 U.S. 334, 349-51 (1990). text@note41

42. BATF has determined that there are 2 States where the waiting period does not apply. 59 F.R. 37534 (July 22, 1994). text@note42

43. Under HR. 7, "No duty is created for the chief of police." House Judiciary Committee Report 102-47, at 12 (1991). With an optional check, Rep. Staggers argued, police would check persons from black neighborhood or foreign sounding names, but not persons from white suburbs or Anglo-Saxon names. 138 CONG.REC. H2668 (May 1, 1991). Numerous speakers objected to the check being optional and not mandatory. E.g., at H2828 (Inhofe), H2829 (Schaefer), H2831 (Brooks), H2834 (Schiff).

44. Congress rejected a proposal for pistol registration in the National Firearms Act of 1934, which requires registration of machineguns. 26 U.S.C. M5841, 5845(a); National Firearms Act Hearings Before the Committee on Ways and Means, U.S. House of Representatives, 73rd Cong., 2d Sess., 58 (1934). text@note44

45. See Federal Firearms Legislation, Hearings before Subcom. to Investigate Juvenile Delinquency, Senate Judiciary Com., 90th Cong., 2d Seas. (1968). text@note45

46. E. g., P.L 104-52, 109 Stat. 471 (1995) (prohibiting use of funds for "consolidating or centralizing, within the Department of the Treasury, the records, or any portion thereof, of acquisition and disposition of firearms maintained by Federal firearms licensees"). See Treasury’s Proposed Gun Regulations: Hearings before Subcommittee on Crime, House Judiciary Committee, 95th Cong, 2d Sess. (1979). text@note46

47. The Airline Deregulation Act was "codified at various sections of Tide 49 U.S.C. App." 480 U.S. at 680. text@note47

48. That clause states: "If any provision of this Act. . . is held invalid, the remainder of the Act. . . shall not be affected thereby." § 1504, P.L 85-726. text@note48

49. Aside from its reference to "this Act" instead of "this chapter," the pertinent part of the severability clause of the Federal Aviation Act is identical to the severability clause of the GCA. text@note49

50. Senator Kohl favored "time to cool off" in "an ideal world," but the Brady bill "is not a perfect piece of legislation. It is a compromise. . . . The bill before us today represents the best deal we could make to get the votes we need." 139 CONO.REC. S16332 (Nov. 19, 1993). text@note50