"Constitutional Sheriffs" v. the Constitution

(Originally posted in 2013; in 2018, the first paragraph was updated slightly to reflect the passage of time since 2013.)

In 2013, Cochise County's new Sheriff Mark Dannels, on his County website, set up a page for messages on important topics. The page is at
. http://cochise.az.gov/cochise_sheriff.aspx?id=12008&ekmensel=c580fa7b_190_0_12008_13
and down near the bottom of the page, the message dated January 28 appears to include all that Sheriff Dannels has to say about the limits of federal power, in the specific context of gun laws.  The message includes "several of my fellow citizens in Cochise County ... have voiced to me their concerns and fears with the President's recent decision to issue a number of executive orders aimed at gun control....  I feel it is necessary to publish my official position on our Second Amendment rights, and what role I and my Office will have in this matter....  I and my Deputies shall not be used as a surrogate of any government entity to violate the civil rights of the citizens of this great Nation....  In closing, while I respect our Nation's elected Offices ... I and my Office will ensure the Constitutional Rights of the citizens of Cochise County are not infringed upon and will not permit any official, federal or otherwise, to attempt to do so."

We have a little concern with that statement's echo, at the end, of the "constitutional sheriffs" movement, which believes that county sheriffs are the "supreme law enforcement officers of the land," and may legally refuse to or enforce obey any federal law that they don't like.  We hope the echo was unintentional.

The "constitutional sheriff" movement often cites Printz v. US, a 1997 Supreme Court case, for the idea that a sheriff is some kind of supreme authority.  The Printz opinion ruled on two cases, one brought by Sheriff Jay Printz in Montana, the other brought by Sheriff Richard Mack in Graham County, Arizona.  The opinion was a victory for state sovereignty, but it does NOT acknowledge sheriffs as any kind of supreme authority, nor say that sheriffs may ignore federal law.  For the subtleties, you'll have to actually read the majority opinion in Printz; here's all of it:
.   http://www.law.cornell.edu/supct/html/95-1478.ZO.html

Two paragraphs down from here, there's an adaptation of the Printz opinion.  "Constitutional sheriff" believers will like some of its language, but will be unhappy with its statement that the Supremacy Clause forbids state courts from disobeying federal laws in general.  We recommend careful reading of the last paragraph of section III below, including its citation to the case of Testa v. Katt, 330 US 386 (1947).

Printz holds that Congress cannot compel States to enact or enforce a federal regulatory program, and can't circumvent that prohibition by conscripting State officers directly to administer a program.  But "administering a program" is different from "obeying a law," and Printz does not generally authorize a sheriff to decide which laws to obey, nor nullify a federal law inside his county.  The Constitution, and laws passed pursuant to it, are the supreme law of the land.  If you disagree with a law, or feel that it wasn't passed pursuant to the Constitution, the Supreme Court gets the final word.  You must follow that final word, whether you like it or not.

Now here's an adaptation of the Printz opinion (which Scalia wrote), using the voice of the Supreme Court:

In 1993 Congress amended the Gun Control Act of 1968 by enacting the Brady Act, which, in certain states, requires chief law enforcement officers (CLEOs; typically, sheriffs) to implement a Federal regulatory program.  This case is not about having to obey federal laws in general; the case is only about having to participate in the administration of a federal program.

Here are the steps that the Brady Act requires in certain states:  a CLEO who receives notice from a gun dealer of a proposed sale 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."  A CLEO who determines that a transaction would be unlawful need do nothing, but if he does notify a dealer that a transaction would be unlawful, he must, at the would-be purchaser's request, provide a written statement of the reasons for that determination.  Also, if the sheriff does not discover any basis for objecting to the sale, he must destroy all records in his possession relating to the transfer.  It is apparent that the Brady Act purports to direct state law enforcement officers to participate, at least temporarily, in the administration of a federal regulatory scheme.  Printz and Mack argue that it is unconstitutional for Congress to press them into federal service.  They win.

The Constitution does not speak to the precise question, so the Court will examine historical understanding and practice, the structure of the Constitution, and prior Court opinions.

I.  History

Printz and Mack argue that compelling state executive officers to administrate federal programs is, at least until very recent years, unprecedented.  The Federal Government counters that statutes enacted by the first Congresses required state courts to perform certain duties about immigration.  But at most, these early laws establish that the Constitution was originally understood to permit federal imposition of an obligation on state judges in judicial matters.  We (that is, Scalia, speaking for the majority) do not think these laws imply a power of Congress to dragoon the state executive into its service.  Indeed, it can be argued that the number of these statutes about state courts, contrasted with the lack of statutes imposing obligations on State executives, suggests an assumed absence of such power.

At least until very recently, there were no executive commandeering statutes.  The Government relies on several federal statutes from the past few decades that require state officials to participate in implementing federal regulatory schemes.  However, some of these statutes are more accurately described as conditions for receiving federal funding than as mandates to the States, and others require only the provision of information to the Federal Government, not forced participation in the actual administration of a federal program.  For the issue in this case, these statutes have little relevance, and in any event they are so recent that their persuasive force is far outweighed by almost two centuries of apparent congressional avoidance of the practice.

II.  The Constitution

The Constitution established "dual sovereignty."  Residual state sovereignty was implicit in the Constitution's conferral upon Congress not of all governmental powers, but only of discrete, enumerated ones, Art. I 8, an implication which 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 persuaded them that using the States as the instruments of federal governance was both ineffectual and provocative of federal-state conflict.  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 Federalist 15's words, "the only proper objects of government."  The Constitution gives Congress the power to regulate individuals, not States.  Citizens have two political capacities, one state and one federal, each protected from incursion by the other.

The Constitution thus contemplates that a State's government will represent and remain accountable to its own citizens.  As Federalist 39 said:  "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."  This separation is one of the Constitution's structural protections of liberty.  The power of the Federal Government would be augmented immeasurably if it were able to impress into its service -- at no cost to itself -- the police officers of the 50 States.

Federal control of state officers would also affect the separation and balance of powers between the three branches of the Federal Government.  The Constitution makes it the President's job to "take Care that the Laws be faithfully executed," Art. II 3, personally and through officers whom he appoints (save for low-ranking officers), 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 meaningful Presidential control is possible without the power to appoint and remove).  The unity of the Federal Executive would be shattered, and the power of the President reduced, if Congress could act effectively without the President, by simply requiring state officers to execute its laws.

The dissent reasons 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 merely prohibits the exercise of powers "not delegated to the United States."  But the Necessary and Proper Clause itself destroys the dissent's Necessary and Proper Clause argument.  When a law implementing the Commerce Clause violates the principle of state sovereignty, Federalist 33 says it is mere "usurpation" which "deserve[s] to be treated as such."  We have previously answered the Necessary and Proper Clause argument:  "[E]ven where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts... .  [T]he Commerce Clause, for example, authorizes Congress to regulate interstate commerce directly; it does not authorize Congress to regulate state governments' regulation of interstate commerce."

The dissent responds that Art. VI 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," therefore 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.  The Supremacy Clause, however, makes the "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.

III.  Prior Supreme Court opinions

Federal commandeering of state governments is so novel that this Court's first experience with it did not occur until the 1970's, when the Environmental Protection Agency promulgated regulations about gasoline conservation.  After we decided to review the constitutionality of the regulations, the Government declined to defend them.  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.

When we were at last confronted squarely with a federal statute that unambiguously required the States to enact or administer a federal regulatory program, we concluded that "The Federal Government may not compel the States to enact or administer a federal regulatory program."  Now the Government contends it is permissible 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."  As to the distinction between "making" law and "enforcing" it, it is impossible to draw a line at "no policymaking;" 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 on state authority is not likely to be an effective one.

Even if the Brady Act left no "policymaking" discretion with the States, that would not reduce the intrusion on state sovereignty.  It is an essential attribute of the States' sovereignty that they remain independent and autonomous within their proper sphere of authority.  It is no more compatible with this independence and autonomy that their officers be "dragooned" 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 US 386 (1947), and FERC v. Mississippi, 456 US 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]"); that says nothing about whether state executive officers must administer federal programs, instead of generally obeying federal law.  And FERC upheld statutory provisions precisely because they did not commandeer state government.

IV.  Wrapping up

If Congress could force state governments to absorb the financial burden of implementing a federal regulatory program, then members of Congress could 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 still take the blame for its burdensomeness and defects.  A CLEO, not a federal official, will stand between the gun purchaser and immediate possession of his gun, and will be blamed if any error (even in the federal database) causes a buyer to be mistakenly rejected.

The dissent argues that the Brady Act is addressed to individuals, not to the State itself.  That is an insignificant difference.  The Act is directed to "individuals" in their official capacities as agents of the state.  A suit against a state official in his or her official capacity is no different from a suit against the State itself.  The same is true of a directive to an official in his or her official capacity.  It is "empty formalistic reasoning of the highest order" to say that the Federal Government cannot control a State, but can control a State's officers.

Finally, the Government argues that "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; and whatever the burden, where it is the whole object of a federal law to direct the functioning of the state executive, it is the very principle of separate state sovereignty that such a law offends.

We conclude categorically that "The Federal Government may not compel the States to enact or administer a federal regulatory program."  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" -- is unconstitutional.

We have previously held 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.