Printz v United States 95-1478 and 95-1503

SUPREME COURT OF THE UNITED STATES

Nos. 95-1478 and 95-1503

JAY PRINTZ, SHERIFF/CORONER, RAVALLI COUNTY, MONTANA,

PETITIONER 95-1478 v. UNITED STATES RICHARD MACK, PETITIONER
95-1503

on writs of certiorari to the united states court of appeals for the ninth circuit

[June 27, 1997]

Justice Scalia delivered the opinion of the Court.

The question presented in these cases is whether certain interim provisions of the Brady
Handgun Violence Prevention Act, Pub. L. 103-159, 107 Stat. 1536, commanding state and
local law enforcement officers to conduct background checks on prospective handgun
purchasers and to perform certain related tasks, violate the Constitution.

The Gun Control Act of 1968 (GCA), 18 U.S.C. § 921 et seq., establishes a detailed federal
scheme governing the distribution of firearms. It prohibits firearms dealers from transferring
handguns to any person under 21, not resident in the dealer's State, or prohibited by state or
local law from purchasing or possessing firearms, §922(b). It also forbids possession of a
firearm by, and transfer of a firearm to, convicted felons, fugitives from justice, unlawful
users of controlled substances, persons adjudicated as mentally defective or committed to
mental institutions, aliens unlawfully present in the United States, persons dishonorably
discharged from the Armed Forces, persons who have renounced their citizenship, and
persons who have been subjected to certain restraining orders or been convicted of a
misdemeanor offense involving domestic violence. §§922(d) and (g).

In 1993, Congress amended the GCA by enacting the Brady Act. The Act requires the Attorney
General to establish a national instant background check system by November 30, 1998, Pub.
L. 103-159, as amended, Pub. L. 103-322, 103 Stat. 2074, note following 18 U.S.C. § 922 and
immediately puts in place certain interim provisions until that system becomes operative.
Under the interim provisions, a firearms dealer who proposes to transfer a handgun must
first: (1) receive from the transferee a statement (the Brady Form), §922(s)(1)(A) (i)(I),
containing the name, address and date of birth of the proposed transferee along with a sworn
statement that the transferee is not among any of the classes of prohibited purchasers,
§922(s)(3); (2) verify the identity of the transferee by examining an identification document,
§922(s)(1)(A)(i)(II); and (3) provide the "chief law enforcement officer" (CLEO) of the
transferee's residence with notice of the contents (and a copy) of the Brady Form,
§§922(s)(1)(A)(i)(III) and (IV). With some exceptions, the dealer must then wait five business
days before consummating the sale, unless the CLEO earlier notifies the dealer that he has no
reason to believe the transfer would be illegal. §922(s)(1)(A)(ii).

The Brady Act creates two significant alternatives to the foregoing scheme. A dealer may sell a
handgun immediately if the purchaser possesses a state handgun permit issued after a
background check, §922(s)(1)(C), or if state law provides for an instant background check,
§922(s)(1)(D). In States that have not rendered one of these alternatives applicable to all gun

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purchasers, CLEOs are required to perform certain duties. When a CLEO receives the
required notice of a proposed transfer from the firearms dealer, the CLEO must "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 record keeping systems
are available and in a national system designated by the Attorney General." §922(s)(2). The
Act does not require the CLEO to take any particular action if he determines that a pending
transaction would be unlawful; he may notify the firearms dealer to that effect, but is not
required to do so. If, however, the CLEO notifies a gun dealer that a prospective purchaser is
ineligible to receive a handgun, he must, upon request, provide the would be purchaser with a
written statement of the reasons for that determination. §922(s)(6)(C). Moreover, if the CLEO
does not discover any basis for objecting to the sale, he must destroy any records in his
possession relating to the transfer, including his copy of the Brady Form. §922(s)(6)(B)(i).
Under a separate provision of the GCA, any person who "knowingly violates [the section of
the GCA amended by the Brady Act] shall be fined under this title, imprisoned for no more
than 1 year, or both." §924(a)(5).

Petitioners Jay Printz and Richard Mack, the CLEOs for Ravalli County, Montana, and
Graham County, Arizona, respectively, filed separate actions challenging the constitutionality
of the Brady Act's interim provisions. In each case, the District Court held that the provision
requiring CLEOs to perform background checks was unconstitutional, but concluded that that
provision was severable from the remainder of the Act, effectively leaving a voluntary
background check system in place. 856 F. Supp. 1372 (Ariz. 1994); 854 F. Supp. 1503 (Mont.
1994). A divided panel of the Court of Appeals for the Ninth Circuit reversed, finding none of
the Brady Act's interim provisions to be unconstitutional. 66 F. 3d 1025 (1995). We granted
certiorari. 518 U. S. ___ (1996).

From the description set forth above, it is apparent that the Brady Act purports to direct state
law enforcement officers to participate, albeit only temporarily, in the administration of a
federally enacted regulatory scheme. Regulated firearms dealers are required to forward
Brady Forms not to a federal officer or employee, but to the CLEOs, whose obligation to
accept those forms is implicit in the duty imposed upon them to make "reasonable efforts"
within five days to determine whether the sales reflected in the forms are lawful. While the
CLEOs are subjected to no federal requirement that they prevent the sales determined to be
unlawful (it is perhaps assumed that their state law duties will require prevention or
apprehension), they are empowered to grant, in effect, waivers of the federally prescribed 5
day waiting period for handgun purchases by notifying the gun dealers that they have no
reason to believe the transactions would be illegal.

The petitioners here object to being pressed into federal service, and contend that
congressional action compelling state officers to execute federal laws is unconstitutional.
Because there is no constitutional text speaking to this precise question, the answer to the
CLEOs' challenge must be sought in historical understanding and practice, in the structure of
the Constitution, and in the jurisprudence of this Court. We treat those three sources, in that
order, in this and the next two sections of this opinion.

Petitioners contend that compelled enlistment of state executive officers for the
administration of federal programs is, until very recent years at least, unprecedented. The
Government contends, to the contrary, that-the earliest Congresses enacted statutes that
required the participation of state officials in the implementation of federal laws," Brief for

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United States 28. The Government's contention demands our careful consideration, since
early congressional enactments "provid[e] `contemporaneous and weighty evidence' of the
Constitution's meaning," Bowsher v. Synar, 478 U.S. 714, 723-724 (1986) (quoting Marsh v.
Chambers, 463 U.S. 783, 790 (1983)). Indeed, such "contemporaneous legislative exposition
of the Constitution . . . , acquiesced in for a long term of years, fixes the construction to be
given its provisions." Myers v. United States, 272 U.S. 52, 175 (1926) (citing numerous cases).
Conversely if, as petitioners contend, earlier Congresses avoided use of this highly attractive
power, we would have reason to believe that the power was thought not to exist.

The Government observes that statutes enacted by the first Congresses required state courts
to record applications for citizenship, Act of Mar. 26, 1790, ch. 3, §1, 1 Stat. 103, to transmit
abstracts of citizenship applications and other naturalization records to the Secretary of State,
Act of June 18, 1798, ch. 54, §2, 1 Stat. 567, and to register aliens seeking naturalization and
issue certificates of registry, Act of Apr. 14, 1802, ch. 28, §2, 2 Stat. 154-155. It may well be,
however, that these requirements applied only in States that authorized their courts to
conduct naturalization proceedings. See Act of Mar. 26, 1790, ch. 3, §1, 1 Stat. 103; Holmgren
v. United States, 217 U.S. 509, 516-517 (1910) (explaining that the Act of March 26, 1790
"conferred authority upon state courts to admit aliens to citizenship" and refraining from
addressing the question "whether the States can be required to enforce such naturalization
laws against their consent"); United States v. Jones, 109 U.S. 513, 519-520 (1883) (stating
that these obligations were imposed "with the consent of the States" and-could not be
enforced against the consent of the States"). [n.1] Other statutes of that era apparently or at
least arguably required state courts to perform functions unrelated to naturalization, such as
resolving controversies between a captain and the crew of his ship concerning the
seaworthiness of the vessel, Act of July 20, 1790, ch. 29, §3, 1 Stat. 132, hearing the claims of
slave owners who had apprehended fugitive slaves and issuing certificates authorizing the
slave's forced removal to the State from which he had fled, Act of Feb. 12, 1793, ch. 7, §3, 1
Stat. 302-305, taking proof of the claims of Canadian refugees who had assisted the United
States during the Revolutionary War, Act of Apr. 7, 1798, ch. 26, §3, 1 Stat. 548, and ordering
the deportation of alien enemies in times of war, Act of July 6, 1798, ch. 66, §2, 1 Stat. 577-
578.

These early laws establish, at most, that the Constitution was originally understood to permit
imposition of an obligation on state judges to enforce federal prescriptions, insofar as those
prescriptions related to matters appropriate for the judicial power. That assumption was
perhaps implicit in one of the provisions of the Constitution, and was explicit in another. In
accord with the so called Madisonian Compromise, Article III, §1, established only a Supreme
Court, and made the creation of lower federal courts optional with the Congress--even though
it was obvious that the Supreme Court alone could not hear all federal cases throughout the
United States. See C. Warren, The Making of the Constitution 325-327 (1928). And the
Supremacy Clause, Art. VI, cl. 2, announced that "the Laws of the United States . . . shall be
the supreme Law of the Land; and the Judges in every State shall be bound thereby." It is
understandable why courts should have been viewed distinctively in this regard; unlike
legislatures and executives, they applied the law of other sovereigns all the time. The principle
underlying so called "transitory" causes of action was that laws which operated elsewhere
created obligations in justice that courts of the forum state would enforce. See, e.g., McKenna
v. Fisk, 1 How. 241, 247-249 (1843). The Constitution itself, in the Full Faith and Credit
Clause, Art. IV, §1, generally required such enforcement with respect to obligations arising in
other States. See Hughes v. Fetter, 341 U.S. 609 (1951).

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For these reasons, we do not think the early statutes imposing obligations on state courts
imply a power of Congress to impress the state executive into its service. Indeed, it can be
argued that the numerousness of these statutes, contrasted with the utter lack of statutes
imposing obligations on the States' executive (notwithstanding the attractiveness of that
course to Congress), suggests an assumed absence of such power. [n.2] The only early federal
law the Government has brought to our attention that imposed duties on state executive
officers is the Extradition Act of 1793, which required the "executive authority" of a State to
cause the arrest and delivery of a fugitive from justice upon the request of the executive
authority of the State from which the fugitive had fled. See Act of Feb. 12, 1793, ch. 7, §1, 1
Stat. 302. That was in direct implementation, however, of the Extradition Clause of the
Constitution itself, see Art. IV, §2. [n.3]

Not only do the enactments of the early Congresses, as far as we are aware, contain no
evidence of an assumption that the Federal Government may command the States' executive
power in the absence of a particularized constitutional authorization, they contain some
indication of precisely the opposite assumption. On September 23, 1789--the day before its
proposal of the Bill of Rights, see 1 Annals of Congress 912-913--the First Congress enacted a
law aimed at obtaining state assistance of the most rudimentary and necessary sort for the
enforcement of the new Government's laws: the holding of federal prisoners in state jails at
federal expense. Significantly, the law issued not a command to the States' executive, but a
recommendation to their legislatures. Congress "recommended to the legislatures of the
several States to pass laws, making it expressly the duty of the keepers of their gaols, to
receive and safe keep therein all prisoners committed under the authority of the United
States," and offered to pay 50 cents per month for each prisoner. Act of Sept. 23, 1789, 1 Stat.
96. Moreover, when Georgia refused to comply with the request, see L. White, The Federalists
402 (1948), Congress's only reaction was a law authorizing the marshal in any State that
failed to comply with the Recommendation of September 23, 1789, to rent a temporary jail
until provision for a permanent one could be made, see Resolution of Mar. 3, 1791, 1 Stat. 225.

In addition to early legislation, the Government also appeals to other sources we have usually
regarded as indicative of the original understanding of the Constitution. It points to portions
of The Federalist which reply to criticisms that Congress's power to tax will produce two sets
of revenue officers--for example, "Brutus's" assertion in his letter to the New York Journal of
December 13, 1787, that the Constitution "opens a door to the appointment of a swarm of
revenue and excise officers to prey upon the honest and industrious part of the community,
eat up their substance, and riot on the spoils of the country," reprinted in 1 Debate on the
Constitution 502 (B. Bailyn ed. 1993). "Publius" responded that Congress will probably "make
use of the State officers and State regulations, for collecting" federal taxes, The Federalist No.
36, p. 221 (C. Rossiter ed. 1961) (A. Hamilton) (hereinafter The Federalist), and predicted that
"the eventual collection [of internal revenue] under the immediate authority of the Union,
will generally be made by the officers, and according to the rules, appointed by the several
States," id., No. 45, at 292 (J. Madison). The Government also invokes the Federalist's more
general observations that the Constitution would "enable the [national] government to
employ the ordinary magistracy of each [State] in the execution of its laws," id., No. 27, at 176
(A. Hamilton), and that it was "extremely probable that in other instances, particularly in the
organization of the judicial power, the officers of the States will be clothed in the
correspondent authority of the Union," id., No. 45, at 292 (J. Madison). But none of these
statements necessarily implies--what is the critical point here--that Congress could impose

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these responsibilities without the consent of the States. They appear to rest on the natural
assumption that the States would consent to allowing their officials to assist the Federal
Government, see FERC v. Mississippi, 456 U.S. 742, 796, n. 35 (1982) (O'Connor, J.,
concurring in judgment in part and dissenting in part), an assumption proved correct by the
extensive mutual assistance the States and Federal Government voluntarily provided one
another in the early days of the Republic, see generally White, supra, at 401-404, including
voluntary federal implementation of state law, see, e.g., Act of Apr. 2, 1790, ch. 5, §1, 1 Stat.
106 (directing federal tax collectors and customs officers to assist in enforcing state
inspection laws).

Another passage of The Federalist reads as follows:

"It merits particular attention . . . , that the laws of the Confederacy as to the
enumerated and legitimate objects of its jurisdiction will become the supreme
law of the land; to the observance of which all officers, legislative, executive, and
judicial in each State will be bound by the sanctity of an oath. Thus, the
legislatures, courts, and magistrates, of the respective members will be
incorporated into the operations of the national government as far as its just and
constitutional authority extends; and will be rendered auxiliary to the
enforcement of its laws." The Federalist No. 27, at 177 (A. Hamilton) (emphasis in
original).

The Government does not rely upon this passage, but Justice Souter (with whose conclusions
on this point the dissent is in agreement, see post, at 11) makes it the very foundation of his
position; so we pause to examine it in some detail. Justice Souter finds "[t]he natural reading"
of the phrases "will be incorporated into the operations of the national government" and "will
be rendered auxiliary to the enforcement of its laws" to be that the National Government will
have "authority . . . , when exercising an otherwise legitimate power (the commerce power,
say), to require state `auxiliaries' to take appropriate action." Post, at 2. There are several
obstacles to such an interpretation. First, the consequences in question ("incorporated into
the operations of the national government" and "rendered auxiliary to the enforcement of its
laws") are said in the quoted passage to flow automatically from the officers' oath to observe
the "the laws of the Confederacy as to the enumerated and legitimate objects of its
jurisdiction." [n.4] Thus, if the passage means that state officers must take an active role in the
implementation of federal law, it means that they must do so without the necessity for a
congressional directive that they implement it. But no one has ever thought, and no one
asserts in the present litigation, that that is the law. The second problem with Justice Souter's
reading is that it makes state legislatures subject to federal direction. (The passage in
question, after all, does not include legislatures merely incidentally, as by referring to "all
state officers"; it refers to legislatures specifically and first of all.) We have held, however,
that state leglislatures are not subject to federal direction. New York v. United States, 505
U.S. 144 (1992). [n.5]

These problems are avoided, of course, if the calculatedly vague consequences the passage
recites--"incorporated into the operations of the national government" and "rendered
auxiliary to the enforcement of its laws"--are taken to refer to nothing more (or less) than the
duty owed to the National Government, on the part of all state officials, to enact, enforce, and
interpret state law in such fashion as not to obstruct the operation of federal law, and the
attendant reality that all state actions constituting such obstruction, even legislative acts, are

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ipso facto invalid. [n.6] See Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248 (1984) (federal
pre-emption of conflicting state law). This meaning accords well with the context of the
passage, which seeks to explain why the new system of federal law directed to individual
citizens, unlike the old one of federal law directed to the States, will "bid much fairer to avoid
the necessity of using force" against the States, The Federalist No. 27, at 176 . It also
reconciles the passage with Hamilton's statement in Federalist No. 36, at 222, that the
Federal Government would in some circumstances do well "to employ the state officers as
much as possible, and to attach them to the Union by an accumulation of their emoluments"--
which surely suggests inducing state officers to come aboard by paying them, rather than
merely commandeering their official services. [n.7]

Justice Souter contends that his interpretation of Federalist No. 27 is "supported by No. 44,"
written by Madison, wherefore he claims that "Madison and Hamilton" together stand
opposed to our view. Post, at 4. In fact, Federalist No. 44 quite clearly contradicts Justice
Souter's reading. In that Number, Madison justifies the requirement that state officials take
an oath to support the Federal Constitution on the ground that they "will have an essential
agency in giving effect to the federal Constitution." If the dissent's reading of Federalist No.
27 were correct (and if Madison agreed with it), one would surely have expected that
"essential agency" of state executive officers (if described further) to be described as their
responsibility to execute the laws enacted under the Constitution. Instead, however,
Federalist No. 44 continues with the following description:

"The election of the President and Senate will depend, in all cases, on the
legislatures of the several States. And the election of the House of
Representatives will equally depend on the same authority in the first instance;
and will, probably, forever be conducted by the officers and according to the laws
of the States." Id., at 287 (emphasis added).

It is most implausible that the person who labored for that example of state executive officers'
assisting the Federal Government believed, but neglected to mention, that they had a
responsibility to execute federal laws. [n.8] If it was indeed Hamilton's view that the Federal
Government could direct the officers of the States, that view has no clear support in
Madison's writings, or as far as we are aware, in text, history, or early commentary elsewhere.
[n.9]

To complete the historical record, we must note that there is not only an absence of executive
commandeering statutes in the early Congresses, but there is an absence of them in our later
history as well, at least until very recent years. The Government points to the Act of August 3,
1882, ch. 376, §§2, 4, 22 Stat. 214, which enlisted state officials "to take charge of the local
affairs of immigration in the ports within such State, and to provide for the support and relief
of such immigrants therein landing as may fall into distress or need of public aid"; to inspect
arriving immigrants and exclude any person found to be a "convict, lunatic, idiot," or
indigent; and to send convicts back to their country of origin "without compensation." The
statute did not, however, mandate those duties, but merely empowered the Secretary of the
Treasury "to enter into contracts with such State . . . officers as may be designated for that
purpose by the governor of any State." (Emphasis added.)

The Government cites the World War I selective draft law that authorized the President "to
utilize the service of any or all departments and any or all officers or agents of the United

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States and of the several States, Territories, and the District of Columbia, and subdivisions
thereof, in the execution of this Act," and made any person who refused to comply with the
President's directions guilty of a misdemeanor. Act of May 18, 1917, ch. 15, §6, 40 Stat. 80-81
(emphasis added). However, it is far from clear that the authorization "to utilize the service"
of state officers was an authorization to compel the service of state officers; and the
misdemeanor provision surely applied only to refusal to comply with the President's
authorized directions, which might not have included directions to officers of States whose
governors had not volunteered their services. It is interesting that in implementing the Act
President Wilson did not commandeer the services of state officers, but instead requested the
assistance of the States' governors, see Proclamation of May 18, 1917, 40 Stat. 1665 ("call[ing]
upon the Governor of each of the several States . . . and all officers and agents of the several
States . . . to perform certain duties"); Registration Regulations Prescribed by the President
Under the Act of Congress Approved May 18, 1917, Part I, §7 ("the governor [of each State] is
requested to act under the regulations and rules prescribed by the President or under his
direction") (emphasis added), obtained the consent of each of the governors, see Note, The
President, the Senate, the Constitution, and the Executive Order of May 8, 1926, 21 Ill. L. Rev.
142, 144 (1926), and left it to the governors to issue orders to their subordinate state officers,
see Selective Service Regulations Prescribed by the President Under the Act of May 18, 1917,
§27 (1918); J. Clark, The Rise of a New Federalism 91 (1965). See generally Note, 21 Ill. L.
Rev., at 144. It is impressive that even with respect to a wartime measure the President should
have been so solicitous of state independence.

The Government points to a number of federal statutes enacted within the past few decades
that require the participation of state or local officials in implementing federal regulatory
schemes. Some of these are connected to federal funding measures, and can perhaps be more
accurately described as conditions upon the grant of federal funding than as mandates to the
States; others, which require only the provision of information to the Federal Government, do
not involve the precise issue before us here, which is the forced participation of the States'
executive in the actual administration of a federal program. We of course do not address these
or other currently operative enactments that are not before us; it will be time enough to do so
if and when their validity is challenged in a proper case. For deciding the issue before us here,
they are of little relevance. Even assuming they represent assertion of the very same
congressional power challenged here, they are of such recent vintage that they are no more
probative than the statute before us of a constitutional tradition that lends meaning to the
text. Their persuasive force is far outweighed by almost two centuries of apparent
congressional avoidance of the practice. Compare INS v. Chadha, 462 U.S. 919 (1983), in
which the legislative veto, though enshrined in perhaps hundreds of federal statutes, most of
which were enacted in the 1970's and the earliest of which was enacted in 1932, see id., at
967-975 (White, J., dissenting), was nonetheless held unconstitutional.

The constitutional practice we have examined above tends to negate the existence of the
congressional power asserted here, but is not conclusive. We turn next to consideration of the
structure of the Constitution, to see if we can discern among its "essential postulate[s],"
Principality of Monaco v. Mississippi, 292 U.S. 313, 322 (1934), a principle that controls the
present cases.

It is incontestible that the Constitution established a system of "dual sovereignty." Gregory v.

Ashcroft, 501 U.S. 452, 457 (1991); Tafflin v. Levitt, 493 U.S. 455, 458 (1990). Although the
States surrendered many of their powers to the new Federal Government, they retained "a

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residuary and inviolable sovereignty," The Federalist No. 39, at 245 (J. Madison). This is
reflected throughout the Constitution's text, Lane County v. Oregon, 7 Wall. 71, 76 (1869);
Texas v. White, 7 Wall. 700, 725 (1869), including (to mention only a few examples) the
prohibition on any involuntary reduction or combination of a State's territory, Art. IV, §3; the
Judicial Power Clause, Art. III, §2, and the Privileges and Immunities Clause, Art. IV, §2,
which speak of the "Citizens" of the States; the amendment provision, Article V, which
requires the votes of three fourths of the States to amend the Constitution; and the Guarantee
Clause, Art. IV, §4, which "presupposes the continued existence of the states and . . . those
means and instrumentalities which are the creation of their sovereign and reserved rights,"
Helvering v. Gerhardt, 304 U.S. 405, 414-415 (1938). Residual state sovereignty was also
implicit, of course, in the Constitution's conferral upon Congress of not all governmental
powers, but only discrete, enumerated ones, Art. I, §8, which implication was rendered
express by the Tenth Amendment's assertion that "[t]he powers not delegated to the United
States by the Constitution, nor prohibited by it to the States, are reserved to the States
respectively, or to the people."

The Framers' experience under the Articles of Confederation had persuaded them that using
the States as the instruments of federal governance was both ineffectual and provocative of
federal state conflict. See The Federalist No. 15. Preservation of the States as independent
political entities being the price of union, and "[t]he practicality of making laws, with coercive
sanctions, for the States as political bodies" having been, in Madison's words, "exploded on all
hands," 2 Records of the Federal Convention of 1787, p. 9 (M. Farrand ed. 1911), the Framers
rejected the concept of a central government that would act upon and through the States, and
instead designed a system in which the state and federal governments would exercise
concurrent authority over the people--who were, in Hamilton's words, "the only proper
objects of government," The Federalist No. 15, at 109. We have set forth the historical record
in more detail elsewhere, see New York v. United States, 505 U. S., at 161-166, and need not
repeat it here. It suffices to repeat the conclusion: "The Framers explicitly chose a
Constitution that confers upon Congress the power to regulate individuals, not States." Id., at
166. [n.10] The great innovation of this design was that-our citizens would have two political
capacities, one state and one federal, each protected from incursion by the other"--"a legal
system unprecedented in form and design, establishing two orders of government, each with
its own direct relationship, its own privity, its own set of mutual rights and obligations to the
people who sustain it and are governed by it." U. S. Term Limits, Inc. v. Thornton, 514 U.S.
779, 838 (1995) (Kennedy, J., concurring). The Constitution thus contemplates that a State's
government will represent and remain accountable to its own citizens. See New York, supra,
at 168-169; United States v. Lopez, 514 U.S. 549, 576-577 (1995) (Kennedy, J., concurring).
Cf. Edgar v. MITE Corp., 457 U.S. 624, 644 (1982) ("the State has no legitimate interest in
protecting nonresident[s]"). As Madison expressed it: "[T]he 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." The Federalist No. 39, at 245. [n.11]

This separation of the two spheres is one of the Constitution's structural protections of liberty.
"Just as the separation and independence of the coordinate branches of the Federal
Government serve to prevent the accumulation of excessive power in any one branch, a
healthy balance of power between the States and the Federal Government will reduce the risk
of tyranny and abuse from either front." Gregory, supra, at 458. To quote Madison once
again:

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"In the compound republic of America, the power surrendered by the people is
first divided between two distinct governments, and then the portion allotted to
each subdivided among distinct and separate departments. Hence a double
security arises to the rights of the people. The different governments will control
each other, at the same time that each will be controlled by itself." The Federalist
No. 51, at 323.

See also The Federalist No. 28, at 180-181 (A. Hamilton). The power of the Federal
Government would be augmented immeasurably if it were able to impress into its service--
and at no cost to itself--the police officers of the 50 States.

We have thus far discussed the effect that federal control of state officers would have upon the
first element of the "double security" alluded to by Madison: the division of power between
State and Federal Governments. It would also have an effect upon the second element: the
separation and equilibration of powers between the three branches of the Federal
Government itself. The Constitution does not leave to speculation who is to administer the
laws enacted by Congress; the President, it says, "shall take Care that the Laws be faithfully
executed," Art. II, §3, personally and through officers whom he appoints (save for such
inferior officers as Congress may authorize to be appointed by the "Courts of Law" or by "the
Heads of Departments" who are themselves presidential appointees), Art. II, §2. The Brady
Act effectively transfers this responsibility to thousands of CLEOs in the 50 States, who are
left to implement the program without meaningful Presidential control (if indeed meaningful
Presidential control is possible without the power to appoint and remove). The insistence of
the Framers upon unity in the Federal Executive--to insure both vigor and accountability--is
well known. See The Federalist No. 70 (A. Hamilton); 2 Documentary History of the
Ratification of the Constitution 495 (M. Jensen ed. 1976) (statement of James Wilson); see
also Calabresi & Prakash, The President's Power to Execute the Laws, 104 Yale L. J. 541
(1994). That unity would be shattered, and the power of the President would be subject to
reduction, if Congress could act as effectively without the President as with him, by simply
requiring state officers to execute its laws. [n.12]

The dissent of course resorts to the last, best hope of those who defend ultra vires
congressional action, the Necessary and Proper Clause. It reasons, post, at 3-5, that the power
to regulate the sale of handguns under the Commerce Clause, coupled with the power to
"make all Laws which shall be necessary and proper for carrying into Execution the foregoing
Powers," Art. I, §8, conclusively establishes the Brady Act's constitutional validity, because
the Tenth Amendment imposes no limitations on the exercise of delegated powers but merely
prohibits the exercise of powers "not delegated to the United States." What destroys the
dissent's Necessary and Proper Clause argument, however, is not the Tenth Amendment but
the Necessary and Proper Clause itself. [n.13] When a "La[w] . . . for carrying into Execution"
the Commerce Clause violates the principle of state sovereignty reflected in the various
constitutional provisions we mentioned earlier, supra, at 19-20, it is not a "La[w] . . . proper
for carrying into Execution the Commerce Clause," and is thus, in the words of The Federalist,
"merely [an] ac[t] of usurpation" which "deserve[s] to be treated as such." The Federalist No.
33, at 204 (A. Hamilton). See Lawson & Granger, The "Proper" Scope of Federal Power: A
Jurisdictional Interpretation of the Sweeping Clause, 43 Duke L. J. 267, 297-326, 330-333
(1993). We in fact answered the dissent's Necessary and Proper Clause argument in New
York: "[E]ven where Congress has the authority under the Constitution to pass laws requiring
or prohibiting certain acts, it lacks the power directly to compel the States to require or

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prohibit those acts. . . . [T]he Commerce Clause, for example, authorizes Congress to regulate
interstate commerce directly; it does not authorize Congress to regulate state governments'
regulation of interstate commerce." 505 U. S., at 166.

The dissent perceives a simple answer in that portion of Article VI which requires that "all
executive and judicial Officers, both of the United States and of the several States, shall be
bound by Oath or Affirmation, to support this Constitution," arguing that by virtue of the
Supremacy Clause this makes "not only the Constitution, but every law enacted by Congress
as well," binding on state officers, including laws requiring state officer enforcement. Post, at
6. The Supremacy Clause, however, makes "Law of the Land" only "Laws of the United States
which shall be made in Pursuance [of the Constitution]"; so the Supremacy Clause merely
brings us back to the question discussed earlier, whether laws conscripting state officers
violate state sovereignty and are thus not in accord with the Constitution.

Finally, and most conclusively in the present litigation, we turn to the prior jurisprudence of
this Court. Federal commandeering of state governments is such a novel phenomenon that
this Court's first experience with it did not occur until the 1970's, when the Environmental
Protection Agency promulgated regulations requiring States to prescribe auto emissions
testing, monitoring and retrofit programs, and to designate preferential bus and carpool
lanes. The Courts of Appeals for the Fourth and Ninth Circuits invalidated the regulations on
statutory grounds in order to avoid what they perceived to be grave constitutional issues, see
Maryland v. EPA, 530 F. 2d 215, 226 (CA4 1975); Brown v. EPA, 521 F. 2d 827, 838-842
(CA9 1975); and the District of Columbia Circuit invalidated the regulations on both
constitutional and statutory grounds, see District of Columbia v. Train, 521 F. 2d 971, 994
(CADC 1975). After we granted certiorari to review the statutory and constitutional validity of
the regulations, the Government declined even to defend them, and instead rescinded some
and conceded the invalidity of those that remained, leading us to vacate the opinions below
and remand for consideration of mootness. EPA v. Brown, 431 U.S. 99 (1977).

Although we had no occasion to pass upon the subject in Brown, later opinions of ours have
made clear that the Federal Government may not compel the States to implement, by
legislation or executive action, federal regulatory programs. In Hodel v. Virginia Surface
Mining & Reclamation Assn., Inc., 452 U.S. 264 (1981), and FERC v. Mississippi, 456 U.S.
742 (1982), we sustained statutes against constitutional challenge only after assuring
ourselves that they did not require the States to enforce federal law. In Hodel we cited the
lower court cases in EPA v. Brown, supra, but concluded that the Surface Mining Control and
Reclamation Act did not present the problem they raised because it merely made compliance
with federal standards a precondition to continued state regulation in an otherwise pre-
empted field, Hodel, supra, at 288. In FERC, we construed the most troubling provisions of
the Public Utility Regulatory Policies Act of 1978, to contain only the "command" that state
agencies "consider" federal standards, and again only as a precondition to continued state
regulation of an otherwise pre-empted field. 456 U. S., at 764-765. We warned that "this
Court never has sanctioned explicitly a federal command to the States to promulgate and
enforce laws and regulations," id., at 761-762.

When we were at last confronted squarely with a federal statute that unambiguously required
the States to enact or administer a federal regulatory program, our decision should have come
as no surprise. At issue in New York v. United States, 505 U.S. 144 (1992), were the so called
"take title" provisions of the Low Level Radioactive Waste Policy Amendments Act of 1985,

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which required States either to enact legislation providing for the disposal of radioactive
waste generated within their borders, or to take title to, and possession of the waste--
effectively requiring the States either to legislate pursuant to Congress's directions, or to
implement an administrative solution. Id., at 175-176. We concluded that Congress could
constitutionally require the States to do neither. Id., at 176. "The Federal Government," we
held, "may not compel the States to enact or administer a federal regulatory program." Id., at
188.

The Government contends that New York is distinguishable on the following ground: unlike
the "take title" provisions invalidated there, the background check provision of the Brady Act
does not require state legislative or executive officials to make policy, but instead issues a
final directive to state CLEOs. It is permissible, the Government asserts, for Congress to
command state or local officials to assist in the implementation of federal law so long as
"Congress itself devises a clear legislative solution that regulates private conduct" and
requires state or local officers to provide only "limited, non policymaking help in enforcing
that law." "[T]he constitutional line is crossed only when Congress compels the States to
make law in their sovereign capacities." Brief for United States 16.

The Government's distinction between "making" law and merely "enforcing" it, between
"policymaking" and mere "implementation," is an interesting one. It is perhaps not meant to
be the same as, but it is surely reminiscent of, the line that separates proper congressional
conferral of Executive power from unconstitutional delegation of legislative authority for
federal separation of powers purposes. See A. L. A. Schechter Poultry Corp. v. United States,
295 U.S. 495, 530 (1935); Panama Refining Co. v. Ryan, 293 U.S. 388, 428-429 (1935). This
Court has not been notably successful in describing the latter line; indeed, some think we
have abandoned the effort to do so. See FPC v. New England Power Co., 415 U.S. 345, 352-
353 (1974) (Marshall, J., concurring in result); Schoenbrod, The Delegation Doctrine: Could
the Court Give it Substance? 83 Mich. L. Rev. 1223, 1233 (1985). We are doubtful that the new
line the Government proposes would be any more distinct. Executive action that has utterly
no policymaking component is rare, particularly at an executive level as high as a
jurisdiction's chief law enforcement officer. Is it really true that there is no policymaking
involved in deciding, for example, what "reasonable efforts" shall be expended to conduct a
background check? It may well satisfy the Act for a CLEO to direct that (a) no background
checks will be conducted that divert personnel time from pending felony investigations, and
(b) no background check will be permitted to consume more than one half hour of an officer's
time. But nothing in the Act requires a CLEO to be so parsimonious; diverting at least some
felony investigation time, and permitting at least some background checks beyond one half
hour would certainly not be unreasonable. Is this decision whether to devote maximum
"reasonable efforts" or minimum "reasonable efforts" not preeminently a matter of policy? It
is quite impossible, in short, to draw the Government's proposed line at "no policymaking,"
and we would have to fall back upon a line of "not too much policymaking." How much is too
much is not likely to be answered precisely; and an imprecise barrier against federal intrusion
upon state authority is not likely to be an effective one.

Even assuming, moreover, that the Brady Act leaves no "policymaking" discretion with the
States, we fail to see how that improves rather than worsens the intrusion upon state
sovereignty. Preservation of the States as independent and autonomous political entities is
arguably less undermined by requiring them to make policy in certain fields than (as Judge
Sneed aptly described it over two decades ago) by "reduc[ing] [them] to puppets of a

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ventriloquist Congress," Brown v. EPA, 521 F. 2d, at 839. It is an essential attribute of the
States' retained sovereignty that they remain independent and autonomous within their
proper sphere of authority. See Texas v. White, 7 Wall, at 725. It is no more compatible with
this independence and autonomy that their officers be "dragooned" (as Judge Fernandez put
it in his dissent below, 66 F. 3d, at 1035) into administering federal law, than it would be
compatible with the independence and autonomy of the United States that its officers be
impressed into service for the execution of state laws.

The Government purports to find support for its proffered distinction of New York in our
decisions in Testa v. Katt, 330 U.S. 386 (1947), and FERC v. Mississippi, 456 U.S. 742 (1982).
We find neither case relevant. Testa stands for the proposition that state courts cannot refuse
to apply federal law--a conclusion mandated by the terms of the Supremacy Clause ("the
Judges in every State shall be bound [by federal law]"). As we have suggested earlier, supra,
at 6-7, that says nothing about whether state executive officers must administer federal law.
Accord New York, 505 U. S., at 178-179. As for FERC, it stated (as we have described earlier)
that "this Court never has sanctioned explicitly a federal command to the States to
promulgate and enforce laws and regulations," 456 U. S., at 761-762, and upheld the statutory
provisions at issue precisely because they did not commandeer state government, but merely
imposed preconditions to continued state regulation of an otherwise pre-empted field, in
accord with Hodel, 452 U. S., at 288, and required state administrative agencies to apply
federal law while acting in a judicial capacity, in accord with Testa, See FERC, supra, at 759-
771, and n. 24. [n.14]

The Government also maintains that requiring state officers to perform discrete, ministerial
tasks specified by Congress does not violate the principle of New York because it does not
diminish the accountability of state or federal officials. This argument fails even on its own
terms. By forcing state governments to absorb the financial burden of implementing a federal
regulatory program, Members of Congress can take credit for "solving" problems without
having to ask their constituents to pay for the solutions with higher federal taxes. And even
when the States are not forced to absorb the costs of implementing a federal program, they
are still put in the position of taking the blame for its burdensomeness and for its defects. See
Merritt, Three Faces of Federalism: Finding a Formula for the Future, 47 Vand. L. Rev. 1563,
1580, n. 65 (1994). Under the present law, for example, it will be the CLEO and not some
federal official who stands between the gun purchaser and immediate possession of his gun.
And it will likely be the CLEO, not some federal official, who will be blamed for any error
(even one in the designated federal database) that causes a purchaser to be mistakenly
rejected.

The dissent makes no attempt to defend the Government's basis for distinguishing New York,
but instead advances what seems to us an even more implausible theory. The Brady Act, the
dissent asserts, is different from the "take title" provisions invalidated in New York because
the former is addressed to individuals--namely CLEOs--while the latter were directed to the
State itself. That is certainly a difference, but it cannot be a constitutionally significant one.
While the Brady Act is directed to "individuals," it is directed to them in their official
capacities as state officers; it controls their actions, not as private citizens, but as the agents of
the State. The distinction between judicial writs and other government action directed against
individuals in their personal capacity, on the one hand, and in their official capacity, on the
other hand, is an ancient one, principally because it is dictated by common sense. We have
observed that "a suit against a state official in his or her official capacity is not a suit against

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the official but rather is a suit against the official's office. . . . As such, it is no different from a
suit against the State itself." Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989).
And the same must be said of a directive to an official in his or her official capacity. To say
that the Federal Government cannot control the State, but can control all of its officers, is to
say nothing of significance. [n.15] Indeed, it merits the description "empty formalistic reasoning
of the highest order," post, at 15. By resorting to this, the dissent not so much distinguishes
New York as disembowels it. [n.16]

Finally, the Government puts forward a cluster of arguments that can be grouped under the
heading: "The Brady Act serves very important purposes, is most efficiently administered by
CLEOs during the interim period, and places a minimal and only temporary burden upon
state officers." There is considerable disagreement over the extent of the burden, but we need
not pause over that detail. Assuming all the mentioned factors were true, they might be
relevant if we were evaluating whether the incidental application to the States of a federal law
of general applicability excessively interfered with the functioning of state governments. See,
e.g., Fry v. United States, 421 U.S. 542, 548 (1975); National League of Cities v. Usery, 426
U.S. 833, 853 (1976) (overruled by Garcia v. San Antonio Metropolitan Transit Authority,
469 U.S. 528 (1985)); South Carolina v. Baker, 485 U.S. 505, 529 (1988) (Rehnquist, C. J.,
concurring in judgment). But where, as here, it is the whole object of the law to direct the
functioning of the state executive, and hence to compromise the structural framework of dual
sovereignty, such a "balancing" analysis is inappropriate. [n.17] It is the very principle of
separate state sovereignty that such a law offends, and no comparative assessment of the
various interests can overcome that fundamental defect. Cf. Bowsher, 478 U. S., at 736
(declining to subject principle of separation of powers to a balancing test); Chadha, 462 U. S.,
at 944-946 (same); Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 239-240 (1995) (holding
legislated invalidation of final judgments to be categorically unconstitutional). We expressly
rejected such an approach in New York, and what we said bears repeating:

"Much of the Constitution is concerned with setting forth the form of our
government, and the courts have traditionally invalidated measures deviating
from that form. The result may appear `formalistic' in a given case to partisans of
the measure at issue, because such measures are typically the product of the era's
perceived necessity. But the Constitution protects us from our own best
intentions: It divides power among sovereigns and among branches of
government precisely so that we may resist the temptation to concentrate power
in one location as an expedient solution to the crisis of the day." Id., at 187.

We adhere to that principle today, and conclude categorically, as we concluded categorically

in New York: "The Federal Government may not compel the States to enact or administer a
federal regulatory program." Id., at 188. The mandatory obligation imposed on CLEOs to
perform background checks on prospective handgun purchasers plainly runs afoul of that
rule.

What we have said makes it clear enough that the central obligation imposed upon CLEOs by
the interim provisions of the Brady Act--the obligation to "make a reasonable effort to
ascertain within 5 business days whether receipt or possession [of a handgun] would be in
violation of the law, including research in whatever State and local record keeping systems are
available and in a national system designated by the Attorney General," 18 U.S.C. § 922(s)(2)-
-is unconstitutional. Extinguished with it, of course, is the duty implicit in the background

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check requirement that the CLEO accept notice of the contents of, and a copy of, the
completed Brady Form, which the firearms dealer is required to provide to him,
§§922(s)(1)(A)(i)(III) and (IV).

Petitioners also challenge, however, two other provisions of the Act: (1) the requirement that
any CLEO "to whom a [Brady Form] is transmitted" destroy the form and any record
containing information derived from it, §922(s)(6)(B)(i), and (2) the requirement that any
CLEO who "determines that an individual is ineligible to receive a handgun" provide the
would be purchaser, upon request, a written statement of the reasons for that determination,
§922(s)(6)(C). With the background check and implicit receipt of forms requirements
invalidated, however, these provisions require no action whatsoever on the part of the CLEO.
Quite obviously, the obligation to destroy all Brady Forms that he has received when he has
received none, and the obligation to give reasons for a determination of ineligibility when he
never makes a determination of ineligibility, are no obligations at all. These two provisions
have conceivable application to a CLEO, in other words, only if he has chosen, voluntarily, to
participate in administration of the federal scheme. The present petitioners are not in that
position. [n.18] As to them, these last two challenged provisions are not unconstitutional, but
simply inoperative.

There is involved in this Brady Act conundrum a severability question, which the parties have
briefed and argued: whether firearms dealers in the jurisdictions at issue here, and in other
jurisdictions, remain obliged to forward to the CLEO (even if he will not accept it) the
requisite notice of the contents (and a copy) of the Brady Form, §§922(s)(1)(A)(i)(III) and
(IV); and to wait five business days before consummating the sale, §922(s)(1)(A)(ii). These
are important questions, but we have no business answering them in these cases. These
provisions burden only firearms dealers and purchasers, and no plaintiff in either of those
categories is before us here. We decline to speculate regarding the rights and obligations of
parties not before the Court. Cf., e.g., New York, supra, at 186-187 (addressing severability
where remaining provisions at issue affected the plaintiffs).

***

We held in New York that Congress cannot compel the States to enact or enforce a federal
regulatory program. Today we hold that Congress cannot circumvent that prohibition by
conscripting the State's officers directly. The Federal Government may neither issue
directives requiring the States to address particular problems, nor command the States'
officers, or those of their political subdivisions, to administer or enforce a federal regulatory
program. It matters not whether policymaking is involved, and no case by case weighing of
the burdens or benefits is necessary; such commands are fundamentally incompatible with
our constitutional system of dual sovereignty. Accordingly, the judgment of the Court of
Appeals for the Ninth Circuit is reversed.

It is so ordered.

Notes
1 The dissent is wrong in suggesting, post, at 13, n. 9, that the Second Employers' Liability
Cases, 223 U.S. 1 (1912), eliminate the possibility that the duties imposed on state courts and
their clerks in connection with naturalization proceedings were contingent on the State's

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voluntary assumption of the task of adjudicating citizenship applications. The Second

Employers' Liability Cases stand for the proposition that a state court must entertain a claim
arising under federal law "when its ordinary jurisdiction as prescribed by local law is
appropriate to the occasion and is invoked in conformity with those laws." Id., at 56-57. This
does not necessarily conflict with Holmgren and Jones, as the States obviously regulate the
"ordinary jurisdiction" of their courts. (Our references throughout this opinion to "the
dissent" are to the dissenting opinion of Justice Stevens, joined by Justice Ginsburg
and Justice Breyer. The separate dissenting opinions of Justice Breyer and Justice Souter will
be referred to as such.)

2 Bereft of even a single early, or indeed even pre-20th century, statute compelling state
executive officers to administer federal laws, the dissent is driven to claim that early federal
statutes compelled state judges to perform executive functions, which implies a power to
compel state executive officers to do so as well. Assuming that this implication would follow
(which is doubtful), the premise of the argument is in any case wrong. None of the early
statutes directed to state judges or court clerks required the performance of functions more
appropriately characterized as executive than judicial (bearing in mind that the line between
the two for present purposes is not necessarily identical with the line established by the
Constitution for federal separation of powers purposes, see Sweezy v. New Hampshire, 354
U.S. 234, 255 (1957)). Given that state courts were entrusted with the quintessentially
adjudicative task of determining whether applicants for citizenship met the requisite
qualifications, see Act of Mar. 26, 1790, ch. 3, §1, 1 Stat. 103, it is unreasonable to maintain
that the ancillary functions of recording, registering, and certifying the citizenship
applications were unalterably executive rather than judicial in nature.

The dissent's assertion that the Act of July 20, 1790, ch. 29, §3, 1 Stat. 132-133, which
required state courts to resolve controversies between captain and crew regarding
seaworthiness of a vessel, caused state courts to act "like contemporary regulatory agencies,"
post, at 14, is cleverly true--because contemporary regulatory agencies have been allowed to
perform adjudicative ("quasi judicial") functions. See 5 U.S.C. § 554; Humphrey's Executor v.
United States, 295 U.S. 602 (1935). It is foolish, however, to mistake the copy for the original,
and to believe that 18th century courts were imitating agencies, rather than 20th century
agencies imitating courts. The Act's requirement that the court appoint "three persons in the
neighbourhood . . . most skilful in maritime affairs" to examine the ship and report on its
condition certainly does not change the proceeding into one "supervised by a judge but
otherwise more characteristic of executive activity," post, at 14; that requirement is not
significantly different from the contemporary judicial practice of appointing expert witnesses,
see e.g., Fed. Rule Evid. 706. The ultimate function of the judge under the Act was purely
adjudicative; he was, after receiving the report, to "adjudge and determine . . . whether said
ship or vessel is fit to proceed on the intended voyage . . . ." 1 Stat. 132.

3 Article IV, §2, cl. 2 provides:

"A Person charged in any State with Treason, Felony, or other Crime, who shall flee from
Justice, and be found in another State, shall on Demand of the executive Authority of the
State from which he fled, be delivered up, to be removed to the State having Jurisdiction of
the Crime."

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To the extent the legislation went beyond the substantive requirement of this provision and
specified procedures to be followed in complying with the constitutional obligation, we have
found that that was an exercise of the congressional power to "prescribe the Manner in which
such Acts, Records and Proceedings, shall be proved, and the Effect thereof," Art. IV, §1. See
California v. Superior Court of Cal., San Bernardino Cty., 482 U.S. 400, 407 (1987).

4 Both the dissent and Justice Souter dispute that the consequences are said to flow
automatically. They are wrong. The passage says that (1) federal laws will be supreme, and (2)
all state officers will be oath bound to observe those laws, and thus (3) state officers will be
"incorporated" and "rendered auxiliary." The reason the progression is automatic is that there
is not included between (2) and (3): "(2a) those laws will include laws compelling action by
state officers." It is the mere existence of all federal laws that is said to make state officers
"incorporated" and "auxiliary."

5 Justice Souter seeks to avoid incompatibility with New York (a decision which he joined
and purports to adhere to), by saying, post, at 3-4, that the passage does not mean "any
conceivable requirement maybe imposed on any state official," and that "the essence of
legislative power . . . is a discretion not subject to command," so that legislatures, at least,
cannot be commanded. But then why were legislatures mentioned in the passage? It seems to
us assuredly not a "natural reading" that being "rendered auxiliary to the enforcement of [the
national government's] laws" means impressibility into federal service for "courts and
magistrates" but something quite different for "legislatures." Moreover, the novel principle of
political science that Justice Souter invokes in order to bring forth disparity of outcome from
parity of language--namely, that "[t]he essence of legislative power . . . is a discretion not
subject to command"--seems to us untrue. Perhaps legislatures are inherently
uncommandable as to the outcome of their legislation, but they are commanded all the time
as to what subjects they shall legislate upon--commanded, that is, by the people, in
constitutional provisions that require, for example, the enactment of annual budgets or forbid
the enactment of laws permitting gambling. We do not think that state legislatures would be
betraying their very "essence" as legislatures (as opposed to their nature as sovereigns, a
nature they share with the other two branches of government) if they obeyed a federal
command to enact laws, for example, criminalizing the sale of marijuana.

6 If Justice Souter finds these obligations too insignificant, see post, at 3, n. 1, then perhaps
he should subscribe to the interpretations of "essential agency" given by Madison, see infra,
at 15 andn. 8, or by Story, see infra, n. 9. The point is that there is no necessity to give the
phrase the problematic meaning which alone enables him to use it as a basis for deciding this
case.

7 Justice Souter deduces from this passage in No. 36 that although the Federal Government
may commandeer state officers, it must compensate them for their services. This is a mighty
leap, which would create a constitutional jurisprudence (for determining when the
compensation was adequate) that would make takings cases appear clear and simple.

8 Justice Souter's discussion of this passage omits to mention that it contains an example of
state executives' "essential agency"--and indeed implies the opposite by observing that "other
numbers of the Federalist give examples" of the "essential agency" of state executive officers.
Post, at 4 (emphasis added). In seeking to explain the curiousness of Madison's not
mentioning the state executives' obligation to administer federal law, Justice Souter says that

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in speaking of "an essential agency in giving effect to the Federal Constitution," Federalist No.
44, Madison "was not talking about executing congressional statutes; he was talking about
putting the National Constitution into effect," post, at 4, n. 2. Quite so, which is our very
point.

It is interesting to observe that Story's Commentaries on the Constitution, commenting upon

the same issue of why state officials are required by oath to support the Constitution, uses the
same "essential agency" language as Madison did in Federalist No. 44, and goes on to give
more numerous examples of state executive agency than Madison did; all of them, however,
involve not state administration of federal law, but merely the implementation of duties
imposed on state officers by the Constitution itself: "The executive authority of the several
states may be often called upon to exert Powers or allow Rights given by the Constitution, as
in filling vacancies in the senate during the recess of the leislature; in issuing writs of election
to fill vacancies in the house of representatives; in officering the militia, and giving effect to
laws for calling them; and in the surrender of fugitives from justice." 2 Story, Commentaries
on the Constitution of the United States 577 (1851).

9 Even if we agreed with Justice Souter's reading of the Federalist No. 27, it would still seem
to us most peculiar to give the view expressed in that one piece, not clearly confirmed by any
other writer, the determinative weight he does. That would be crediting the most expansive
view of federal authority ever expressed, and from the pen of the most expansive expositor of
federal power. Hamilton was "from first to last the most nationalistic of all nationalists in his
interpretation of the clauses of our federal Constitution." C. Rossiter, Alexander Hamilton
and the Constitution 199 (1964). More specifically, it is widely recognized that "The Federalist
reads with a split personality" on matters of federalism. See D. Braveman, W. Banks, & R.
Smolla, Constitutional Law: Structure and Rights in Our Federal System 198-199 (3d ed.
1996). While overall The Federalist reflects a "large area of agreement between Hamilton and
Madison," Rossiter, supra, at 58, that is not the case with respect to the subject at hand, see
Braveman, supra, at 198-199. To choose Hamilton's view, as Justice Souter would, is to turn a
blind eye to the fact that it was Madison's--not Hamilton's--that prevailed, not only at the
Constitutional Convention and in popular sentiment, see Rossiter, supra, at 44-47, 194, 196; 1
Records of the Federal Convention (M. Farrand ed. 1911) 366, but in the subsequent struggle
to fix the meaning of the Constitution by early congressional practice, see supra, at 5-10.

10 The dissent, reiterating Justice Stevens' dissent in New York, 505 U. S., at 210-213,
maintains that the Constitution merely augmented the pre-existing power under the Articles
to issue commands to the States with the additional power to make demands directly on
individuals. See post, at 7-8. That argument, however, was squarely rejected by the Court in
New York, supra, at 161-166, and with good reason. Many of Congress's powers under Art. I,
§ 8, were copied almost verbatim from the Articles of Confederation, indicating quite clearly
that "[w]here the Constitution intends that our Congress enjoy a power once vested in the
Continental Congress, it specifically grants it." Prakash, Field Office Federalism, 79 Va. L.
Rev. 1957, 1972 (1993).

11 Justice Breyer's dissent would have us consider the benefits that other countries, and the
European Union, believe they have derived from federal systems that are different from ours.
We think such comparative analysis inappropriate to the task of interpreting a constitution,
though it was of course quite relevant to the task of writing one. The Framers were familiar
with many federal systems, from classical antiquity down to their own time; they are

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discussed in Nos. 18-20 of The Federalist. Some were (for the purpose here under discussion)
quite similar to the modern "federal" systems that Justice Breyer favors. Madison's and
Hamilton's opinion of such systems could not be clearer. Federalist No. 20, after an extended
critique of the system of government established by the Union of Utrecht for the United
Netherlands, concludes:

"I make no apology for having dwelt so long on the contemplation of these federal precedents.
Experience is the oracle of truth; and where its responses are unequivocal, they ought to be
conclusive and sacred. The important truth, which it unequivocally pronounces in the present
case, is that a sovereignty over sovereigns, a government over governments, a legislation for
communities, as contra distinguished from individuals, as it is a solecism in theory, so in
practice it is subversive of the order and ends of civil polity . . . ." Id., at 138.

Antifederalists, on the other hand, pointed specifically to Switzerland--and its then 400 years
of success as a "confederate republic"--as proof that the proposed Constitution and its federal
structure was unnecessary. See Patrick Henry, Speeches given before the Virginia Ratifying
Convention, 4 and 5 June, 1788, reprinted in The Essential Antifederalist 123, 135-136 (W.
Allen & G. Lloyd ed. 1985). The fact is that our federalism is not Europe's. It is "the unique
contribution of the Framers to political science and political theory." United States v. Lopez,
514 U.S. 549, 575 (1995) (Kennedy, J., concurring) (citing Friendly, Federalism: A Forward,
86 Yale L. J. 1019 (1977)).

12 There is not, as the dissent believes, post, at 23, "tension" between the proposition that
impressing state police officers into federal service will massively augment federal power, and
the proposition that it will also sap the power of the Federal Presidency. It is quite possible to
have a more powerful Federal Government that is, by reason of the destruction of its
Executive unity, a less efficient one. The dissent is correct, post, at 24, that control by the
unitary Federal Executive is also sacrificed when States voluntarily administer federal
programs, but the condition of voluntary state participation significantly reduces the ability of
Congress to use this device as a means of reducing the power of the Presidency.

13 This argument also falsely presumes that the the Tenth Amendment is the exclusive textual
source of protection for principles of federalism. Our system of dual sovereignty is reflected in
numerous constitutional provisions, see supra, at 19-20, and not only those, like the Tenth
Amendment, that speak to the point explicitely. It is not at all unusual for our resolution of a
significant constitutional question to rest upon reasonable implications. See, e.g., Myers v.
United States, 272 U.S. 52(1926) (finding by implication from Art. II, §§1, 2, that the
President has the exclusive power to remove executive officers); Plaut v. Spendthrift Farm,
Inc., 514 U.S. 211 (1995) (finding that Article III implies a lack of congressional power to set
aside final judgments).

14 The dissent points out that FERC cannot be construed as merely following the principle
recognized in Testa that state courts must apply relevant federal law because "[a]lthough the
commission was serving an adjudicative function, the commissioners were unquestionably
not `judges' within the meaning of [the Supremacy Clause]." Post, at 33. That is true enough.
But the answer to the question of which state officers must apply federal law (only " `judges'
within the meaning of [the Supremacy Clause]") is different from the answer to the question
of which state officers may be required by statute to apply federal law (officers who conduct
adjudications similar to those traditionally performed by judges). It is within the power of the

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States, as it is within the power of the Federal Government, see Crowell v. Benson, 285 U.S.
22 (1932), to transfer some adjudicatory functions to administrative agencies, with
opportunity for subsequent judicial review. But it is also within the power of Congress to
prescribe, explicitly or by implication (as in the legislation at issue in FERC), that those
adjudications must take account of federal law. The existence of this latter power should not
be unacceptable to a dissent that believes distinguishing among officers on the basis of their
title rather than the function they perform is "empty formalistic reasoning of the highest
order," post, at 15. We have no doubt that FERC would not have been decided the way it was
if nonadjudicative responsibilities of the state agency were at issue.

15 Contrary to the dissent's suggestion, post, at 18-19, n. 16, and 29, the distinction in our
Eleventh Amendment jurisprudence between States and municipalities is of no relevance
here. We long ago made clear that the distinction is peculiar to the question of whether a
governmental entity is entitled to Eleventh Amendment sovereign immunity, see Monell v.
New York City Dept. of Social Servs., 436 U.S. 658, 690, n. 55 (1978); we have refused to
apply it to the question of whether a governmental entity is protected by the Constitution's
guarantees of federalism, including the Tenth Amendment, see National League of Cities v.
Ursery, 426 U.S. 833, 855-856, n. 20 (1976) (overruled on other grounds by Garcia v. San
Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985)); see also Garcia, supra
(resolving Tenth Amendment issues in suit brought by local transit authority).

16 The dissent's suggestion, post, at 28-29, n. 27, that New York v. United States, 505 U.S.
144 (1992), itself embraced the distinction between congressional control of States
(impermissible) and congressional control of state officers (permissible) is based upon the
most egregious wrenching of statements out of context. It would take too much to reconstruct
the context here, but by examining the entire passage cited, id., at 178-179, the reader will
readily perceive the distortion. The passage includes, for example, the following:

"Additional cases cited by the United States discuss the power of federal courts to order state
officials to comply with federal law. . . . Again, however, the text of the Constitution plainly
confers this authority on the federal courts . . . . The Constitution contains no analogous grant
of authority to Congress." Id., at 179.

17 The dissent observes that "Congress could require private persons, such as hospital
executives or school administrators, to provide arms merchants with relevant information
about a prospective purchaser's fitness to own a weapon," and that "the burden on police
officers [imposed by the Brady Act] would be permissible if a similar burden were also
imposed on private parties with access to relevant data." Post, at 25. That is undoubtedly true,
but it does not advance the dissent's case. The Brady Act does not merely require CLEOs to
report information in their private possession. It requires them to provide information that
belongs to the State and is available to them only in their official capacity; and to conduct
investigation in their official capacity, by examining databases and records that only state
officials have access to. In other words, the suggestion that extension of this statute to private
citizens would eliminate the constitutional problem posits the impossible.

18 We note, in this regard, that both CLEOs before us here assert that they are prohibited
from taking on these federal responsibilities under state law. That assertion is clearly correct
with regard to Montana law, which expressly enjoins any "county . . . or other local
government unit" from "prohibit[ing] . . . or regulat[ing] the purchase, sale or other transfer

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(including delay in purchase, sale, or other transfer), ownership, [or] possession . . . of any . . .
handgun," Mont. Code §45-8-351(1) (1995). It is arguably correct with regard to Arizona law
as well, which states that "[a] political subdivision of this state shall not . . . prohibit the
ownership, purchase, sale or transfer of firearms," Ariz. Rev. Stat. §13-3108(B) (1989). We
need not resolve that question today; it is at least clear that Montana and Arizona do not
require their CLEOs to implement the Brady Act, and CLEOs Printz and Mack have chosen
not to do so.

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