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Friday, September 29, 2006 11:25:00 Central

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117 S.Ct. 2365

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Briefs and Other Related Documents

Supreme Court of the United States

Jay PRINTZ, Sheriff/Coroner, Ravalli County, Montana, Petitioner,

v.

UNITED STATES.



Richard MACK, Petitioner,

v.

UNITED STATES.



Nos. 95-1478, 95-1503.
Argued Dec. 3, 1996.

Decided June 27, 1997.


County sheriff sought to enjoin enforcement of provisions of Brady Handgun Violence Prevention Act imposing requirements on chief law enforcement officers (CLEO). The United States District Court for the District of Montana, Charles C. Lovell, J., 854 F.Supp. 1503, held background check requirement to be unconstitutional. Another county sheriff brought separate action to declare Brady Act unconstitutional. The United States District Court for the District of Arizona, John M. Roll, J., 856 F.Supp. 1372, found that background search requirement was unconstitutional. Parties appealed, and cases were consolidated. The Court of Appeals for the Ninth Circuit, 66 F.3d 1025, reversed. Certiorari was granted. The Supreme Court, Justice Scalia, held that: (1) obligation to conduct background checks on prospective handgun purchasers imposed unconstitutional obligation on state officers to execute federal laws; (2) sheriffs were not in position to challenge Act's requirements that CLEOs destroy handgun-applicant statements and give would-be purchasers written statements of reasons for determining their ineligibility to receive handguns; and (3) there were no plaintiffs before Court who could challenge provisions requiring firearms dealers to forward to CLEO notice of contents of handgun-applicant statement, and to wait five business days before consummating sale.
Reversed.
Justices O'Connor and Thomas filed concurring opinions.
Justice Stevens filed a dissenting opinion in which Justices Souter, Ginsburg, and Breyer joined.
Justice Souter filed a dissenting opinion.
Justice Breyer filed a dissenting opinion in which Justice Stevens joined.
West Headnotes
[1] Constitutional Law 16

92k16 Most Cited Cases

Early congressional enactments provide contemporaneous and weighty evidence of Constitution's meaning.


[2] Constitutional Law 19

92k19 Most Cited Cases

Contemporaneous legislative exposition of Constitution, acquiesced in for long term of years, fixes construction to be given its provisions.


[3] States 4.16(1)

360k4.16(1) Most Cited Cases

State legislatures are not subject to federal direction.


[4] States 4

360k4 Most Cited Cases

Constitution established system of dual sovereignty under which states surrendered many of their powers to federal government but retained residuary and inviolable sovereignty.


[5] States 4

360k4 Most Cited Cases

Constitution contemplates that state's government will represent and remain accountable to its own citizens.


[6] Commerce 12

83k12 Most Cited Cases

When a law for carrying into execution Commerce Clause violates principle of state sovereignty, it is not a law proper for carrying into execution Commerce Clause, and is thus not enforceable under Necessary and Proper Clause. U.S.C.A. Const. Art. 1, § 8, cls. 3, 18.


[7] States 4.16(1)

360k4.16(1) Most Cited Cases

Even where Congress has authority under Constitution to pass laws requiring or prohibiting certain acts, Necessary and Proper Clause does not grant Congress power directly to compel states to require or prohibit those acts. U.S.C.A. Const. Art. 1, § 8, cl. 18.


[8] Commerce 12

83k12 Most Cited Cases

Commerce Clause authorizes Congress to regulate interstate commerce directly; it does not, pursuant to Necessary and Proper Clause, authorize Congress to regulate state governments' regulation of interstate commerce. U.S.C.A. Const. Art. 1, § 8, cls. 3, 18.


[9] States 4.16(1)

360k4.16(1) Most Cited Cases

Federal government may not compel states to implement, by legislation or executive action, federal regulatory programs.


[10] States 4.16(1)

360k4.16(1) Most Cited Cases
[10] Weapons 3

406k3 Most Cited Cases

Interim obligations imposed upon states' chief law enforcement officers (CLEO) by Brady Handgun Violence Prevention Act, including obligations to conduct background checks on prospective handgun purchasers and to accept completed handgun-applicant statements from firearms dealers, impose unconstitutional obligation on state officers to execute federal laws. 18 U.S.C.A. § 922(s)(1)(A)(i)(III, IV), (s)(2).


[11] Constitutional Law 42.1(1)

92k42.1(1) Most Cited Cases

State chief law enforcement officers (CLEO) who had not voluntarily chosen to participate in administration of federal scheme of background checks of prospective handgun purchasers, as set forth in Brady Handgun Violence Prevention Act, were not in position to challenge Act's requirements that CLEOs destroy all handgun-applicant statements received from firearm dealers and that CLEOs provide would-be purchasers written statements of reasons for determining their ineligibility to receive handguns; those provisions applied only to CLEOs who had voluntarily chosen to participate in administration of scheme. 18 U.S.C.A. § 922(s)(6)(B)(i), (s)(6)(C).


[12] Constitutional Law 42.1(1)

92k42.1(1) Most Cited Cases

Supreme Court would not consider challenges to provisions of Brady Handgun Violence Prevention Act requiring firearms dealers to forward to state chief law enforcement officer (CLEO) notice of contents of handgun-applicant statement, and to wait five business days before consummating sale, where no firearms dealers or purchasers were before Court. 18 U.S.C.A. § 922(s)(1)(A)(i)(III, IV), (s)(1)(A)(ii).



**2366 *898 Syllabus [FN*]
FN* The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499.

Brady Handgun Violence Prevention Act provisions require the Attorney General to establish a national system for instantly checking prospective handgun purchasers' backgrounds, note following 18 U.S.C. § 922, and command the "chief law enforcement officer" (CLEO) of each local jurisdiction to conduct such checks and perform related tasks on an interim basis until the national system becomes operative, § 922(s). Petitioners, the CLEOs for counties in Montana and Arizona, filed separate actions challenging the interim provisions' constitutionality. In each case, the District Court held that the background-check provision was unconstitutional, but concluded that it was severable from the remainder of the Act, effectively leaving a voluntary background-check system in place. The Ninth Circuit reversed, finding none of the interim provisions unconstitutional.


Held:
1. The Brady Act's interim provision commanding CLEOs to conduct background checks, § 922(s)(2), is unconstitutional. Extinguished with it is the duty implicit in the background-check requirement that the CLEO accept completed handgun-applicant statements (Brady Forms) from firearms dealers, § § 922(s)(1)(A)(i)(III) and (IV). Pp. 2369-2383.
(a) Because there is no constitutional text speaking to the precise question whether congressional action compelling state officers to execute federal laws is unconstitutional, the answer to the CLEOs' challenge must be sought in historical understanding and practice, in the Constitution's structure, and in this Court's jurisprudence. Pp. 2369-2370.
**2367 (b) Relevant constitutional practice tends to negate the existence of the congressional power asserted here, but is not conclusive. Enactments of the early Congresses seem to contain no evidence of an assumption that the Federal Government may command the States' executive power in the absence of a particularized constitutional authorization. The early enactments establish, at most, that the Constitution *899 was originally understood to permit imposition of an obligation on state judges to enforce federal prescriptions related to matters appropriate for the judicial power. The Government misplaces its reliance on portions of The Federalist suggesting that federal responsibilities could be imposed on state officers. None of these statements necessarily implies--what is the critical point here--that Congress could impose these responsibilities without the States' consent. They appear to rest on the natural assumption that the States would consent, see FERC v. Mississippi, 456 U.S. 742, 796, n. 35, 102 S.Ct. 2126, 2157, n. 35, 72 L.Ed.2d 532 (o' CONNOR, J., concurring in judgment and dissenting in part). Finally, there is an absence of executive-commandeering federal statutes in the country's later history, at least until very recent years. Even assuming that newer laws represent an assertion of the congressional power challenged here, they are of such recent vintage that they are not probative of a constitutional tradition. Pp. 2370-2376.
(c) The Constitution's structure reveals a principle that controls these cases: the system of "dual sovereignty." See, e.g., Gregory v. Ashcroft, 501 U.S. 452, 457, 111 S.Ct. 2395, 2399, 115 L.Ed.2d 410. Although the States surrendered many of their powers to the new Federal Government, they retained a residuary and inviolable sovereignty that is reflected throughout the Constitution's text. See, e.g., Lane County v. Oregon, 7 Wall. 71, 76, 19 L.Ed. 101. 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. The Federal Government's power would be augmented immeasurably and impermissibly if it were able to impress into its service--and at no cost to itself--the police officers of the 50 States. Pp. 2376-2378.
(d) Federal control of state officers would also have an effect upon the separation and equilibration of powers between the three branches of the Federal Government itself. The Brady Act effectively transfers the President's responsibility to administer the laws enacted by Congress, Art. II, § § 2 and 3, to thousands of CLEOs in the 50 States, who are left to implement the program without meaningful Presidential control. The Federal Executive's unity would be shattered, and the power of the President would be subject to reduction, if Congress could simply require state officers to execute its laws. P. 2378.
(e) Contrary to the contention of Justice STEVENS' dissent, the Brady Act's direction of the actions of state executive officials is not constitutionally valid under Art. I, § 8, as a law "necessary and proper" to the execution of Congress's Commerce Clause power to regulate handgun sales. Where, as here, a law violates the state sovereignty principle, it is not a law "proper for carrying into Execution" delegated *900 powers within the Necessary and Proper Clause's meaning. Cf. New York v. United States, 505 U.S. 144, 166, 112 S.Ct. 2408, 2423, 120 L.Ed.2d 120. The Supremacy Clause does not help the dissent, since it makes "Law of the Land" only "Laws of the United States which shall be made in Pursuance [of the Constitution]." Art. VI, cl. 2. Pp. 2378- 2379.
(f) Finally, and most conclusively in these cases, the Court's jurisprudence makes clear that the Federal Government may not compel the States to enact or administer a federal regulatory program. See, e.g., New York, supra, at 188, 112 S.Ct., at 2435. The attempts of the Government and Justice STEVENS' dissent to distinguish New York--on grounds that the Brady Act's background-check provision does not require state legislative or executive officials to make policy; that requiring state officers to perform discrete, ministerial federal tasks does not diminish the state or federal officials' accountability; and that the Brady Act is addressed to individual CLEOs **2368 while the provisions invalidated in New York were directed to the State itself--are not persuasive. A "balancing" analysis is inappropriate here, since the whole object of the law is to direct the functioning of the state executive, and hence to compromise the structural framework of dual sovereignty; it is the very principle of separate state sovereignty that such a law offends. See, e.g., New York, supra, at 187, 112 S.Ct., at 2434. Pp. 2379-2383.
2. With the Act's background-check and implicit receipt-of-forms requirements invalidated, the Brady Act requirements that CLEOs destroy all Brady Forms and related records, § 922(s)(6)(B)(i), and give would-be purchasers written statements of the reasons for determining their ineligibility to receive handguns, § 922(s)(6)(C), require no action whatsoever on the part of CLEOs such as petitioners, who are not voluntary participants in administration of the federal scheme. As to them, these provisions are not unconstitutional, but simply inoperative. Pp. 2383-2384.
3. The Court declines to address the severability question briefed and argued by the parties: whether firearms dealers remain obliged to forward Brady Forms to CLEOs, § § 922(s)(1)(A)(i)(III) and (IV), and to wait five business days thereafter before consummating a firearms sale, § 922(s)(1)(A)(ii). These provisions burden only dealers and firearms purchasers, and no plaintiff in either of those categories is before the Court. P. 2384.
66 F.3d 1025 (C.A.9 1995), reversed.
SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and O'CONNOR, KENNEDY, and THOMAS, JJ., joined. O'CONNOR, J., post, p. 2385, and THOMAS, J., post, p. 2385, filed concurring opinions. STEVENS, J., filed a dissenting opinion, in which SOUTER, GINSBURG, and *901 BREYER, JJ., joined, post, p. 2386. SOUTER, J., filed a dissenting opinion, post, p. 2401. BREYER, J., filed a dissenting opinion, in which STEVENS, J., joined, post, p. 2404.
Stephen P. Halbrook, Fairfax, VA, for petitioners.
Walter Dellinger, Durham, NC, for respondent.
*902 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.
I

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 *903 must first: (1) receive from the transferee a statement (the **2369 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 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 recordkeeping 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 *904 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 not 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 (D.Ariz.1994); 854 F.Supp. 1503 (D.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. 1003, 116 S.Ct. 2521, 135 L.Ed.2d 1046 (1996).
II

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 *905 5-day waiting period for handgun purchases by notifying the gun dealers that they have no reason to believe the transactions would be illegal.


Petitioners here object to being pressed into federal service, and contend that congressional action compelling state officers **2370 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.
[1][2] 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 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, 106 S.Ct. 3181, 3186, 92 L.Ed.2d 583 (1986) (quoting Marsh v. Chambers, 463 U.S. 783, 790, 103 S.Ct. 3330, 3335, 77 L.Ed.2d 1019 (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, 47 S.Ct. 21, 45, 71 L.Ed. 160 (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, *906 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, 30 S.Ct. 588, 589, 54 L.Ed. 861 (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, 3 S.Ct. 346, 351, 27 L.Ed. 1015 (1883) (stating that these obligations were imposed "with the consent of the States" and "could not be enforced against the consent of the States"). [FN1] 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 *907 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.
FN1. The dissent is wrong in suggesting, post, at 2391, n. 9, that the Second Employers' Liability Cases, 223 U.S. 1, 32 S.Ct. 169, 56 L.Ed. 327 (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 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 laws is appropriate to the occasion and is invoked in conformity with those laws." Id., at 56-57, 32 S.Ct., at 178. 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 SOUTER, Justice GINSBURG and Justice BREYER. The separate dissenting opinions of Justice SOUTER and Justice BREYER will be referred to as such.)
**2371 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, 11 L.Ed. 117 (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, 71 S.Ct. 980, 95 L.Ed. 1212 (1951).
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 *908 on the States' executive (notwithstanding the attractiveness of that course to Congress), suggests an assumed absence of such power. [FN2] 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*909 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, **2372 however, of the Extradition Clause of the Constitution itself, see Art. IV, § 2. [FN3]
FN2. 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, 77 S.Ct. 1203, 1214, 1 L.Ed.2d 1311 (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 2392, 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, 55 S.Ct. 869, 79 L.Ed. 1611 (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 2392; 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 the said ship or vessel is fit to proceed on the intended voyage...." 1 Stat. 132.


FN3. 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."



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, 107 S.Ct. 2433, 2438, 96 L.Ed.2d 332 (1987).
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 *910 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 with 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 these responsibilities *911 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, 102 S.Ct. 2126, 2157, n. 35, 72 L.Ed.2d 532 (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 **2373 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).
[3] 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 2390 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 *912 legitimate power (the commerce power, say), to require state 'auxiliaries' to take appropriate action." Post, at 2402. 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 laws of the Confederacy as to the enumerated and legitimate objects of its jurisdiction." [FN4] 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 legislatures are not subject to federal direction. New York v. United States, 505 U.S. 144, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992). [FN5]
FN4. 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."
FN5. Justice SOUTER seeks to avoid incompatibility with New York (a decision which he joined and purports to adhere to), by saying, post, at 2403-2404, that the passage does not mean "any conceivable requirement may be 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 "the essence of legislative power ... is a discretion not subject to command," ibid.--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.
**2374 *913 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 ipso facto invalid. [FN6] See Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248, 104 S.Ct. 615, 621, 78 L.Ed.2d 443 (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 *914 passage with Hamilton's statement in The 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. [FN7]
FN6. If Justice SOUTER finds these obligations too insignificant, see post, at 2402, n. 1, then perhaps he should subscribe to the interpretations of "essential agency" given by Madison, see infra, at 2374, and n. 8, or by Story, see n. 8, infra. 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.
FN7. 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.
Justice SOUTER contends that his interpretation of The 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 2402, 2404. In fact, The 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 The 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, The 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).


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