I
The “Anti-Commandeering” Rule
The second paragraph of Article VI of the Constitution—the “Supremacy Clause”—provides: “This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
In a decision from which four justices dissented, the Court recognized that this clause permits Congress to enact laws that impose federal duties on state judges, but concluded that it does not allow the federal government to require any other state officials to enforce federal rules of law. The ruling in that case unnecessarily and unwisely curtails the power of Congress to make use of state officials in the enforcement or administration of federal law. It creates a serious risk that the federal response to national catastrophes or acts of terrorism will be inadequate; it also impairs the efficient administration of ordinary federal programs. The potentially harmful consequences of this “anti-commandeering” rule are clearly sufficient to justify an amendment to the Constitution repudiating it.
In the aftermath of the murder of twenty first graders and six adults at the Sandy Hook Elementary School in Newtown, Connecticut, on December 14, 2012, the New York Times published an article describing serious omissions in the database used by the federal government in making background checks of prospective gun purchasers:
The gaps exist because the system is voluntary; the Supreme Court ruled in 1997 that the federal government cannot force state officials to participate in the federal background check system. As a result, when a gun dealer asks the F.B.I. to check a buyer’s history, the bureau sometimes allows the sale to proceed even though the purchaser should have been prohibited from acquiring a weapon, because its database is missing the relevant records. While the database flaws do not appear to have been a factor in the Newtown, Conn., school massacre, they have been linked to other attacks, including the Virginia Tech mass murder in 2007.
The 1997 case to which the article referred was the Court’s five-to-four decision in Printz v. United States,1 in which the Court announced what has come to be known as the anti-commandeering rule—a rule that prohibits Congress from requiring state officials to perform federal duties.
In the Printz case the Court considered the constitutionality of a provision in Congress’s ultimate response to the attempted assassination of President Ronald Reagan in 1981. His assailant, John Hinckley, who almost succeeded in killing the president and who seriously wounded Jim Brady, the president’s press secretary, was found not guilty by reason of insanity. After prolonged hearings and over seven years of debates, in 1993 Congress finally enacted the Brady Handgun Violence Protection Act as an amendment to the Gun Control Act of 1968. The 1968 act had established a detailed federal scheme governing the distribution of firearms. The amendments to that scheme were described in the legislative history as a response to an “epidemic of gun violence,” noting that 15,377 Americans had been murdered with firearms in 1992.
The new statute, known as the Brady Act, required the attorney general to establish a national instant-background-check system to prevent felons and persons with mental problems from buying guns. The act authorized $200 million in federal grants to the states to compensate them for their assistance in developing the national system. Congress directed the attorney general to have the new system in place by November 30, 1998. In the interim, the amendment provided that a firearms dealer, before making a sale, must give notice to the local chief law enforcement officer (“CLEO”), who was then required to make a “reasonable effort” to determine whether the proposed sale would be lawful.
Congress obviously expected local law enforcement officers to welcome the opportunity to participate in the interim background-check program. A “friend of the court” brief filed in the Supreme Court on behalf of groups representing “hundreds of thousands” of police officers, including the Fraternal Order of Police and the National Association of Police Organizations, expressed unqualified support for the act and explained why the burden imposed on local officials was trivial, while the benefits of the background checks were significant. (Between 1994 and 1996 background checks had prevented approximately 6,600 firearms sales each month to potentially dangerous persons.) Nevertheless, Jay Printz, the CLEO for Ravalli County, Montana, and Richard Mack, the CLEO for Graham County, Arizona, filed two separate actions challenging the constitutionality of the interim provisions of the Brady Act. Printz and Mack were both represented by Stephen A. Halbrook, a well-respected Virginia lawyer and author who had written at length about the right to bear arms protected by the Second Amendment. Halbrook persuaded both district judges that a federal mandate requiring local sheriffs to perform background checks, even on a temporary basis, was prohibited by the Supreme Court’s ruling in the then-recent decision in New York v. United States. In that case (over the dissent of Justices Byron White, Harry Blackmun, and myself) the Court had invalidated a federal statute that required states either to enact legislation providing for the disposal of radioactive waste within their borders or to take title to the waste.
The Court of Appeals for the Ninth Circuit reversed the district court decisions and upheld the constitutionality of the Brady Act. In its opinion the appellate court pointed out that the reasoning in the Supreme Court’s opinion in New York applied to federal statutes commanding state legislatures to enact specific laws, but not to the Brady Act’s direction to CLEOs. It wrote:
Although we concede that there is language in New York that lends support to the view of Mack and Printz, that language must be interpreted in the context in which it was offered. New York was concerned with a federal intrusion on the States of a different kind and much greater magnitude than any involved in the Brady Act. The constitutional evil that New York addressed was one recognized by several of the cases already cited: the federal government was attempting to direct the States to enact their own legislation or regulations according to a federal formula.
After their loss in the Court of Appeals, Printz and Mack successfully sought review in the Supreme Court, arguing that the distinction between forced legislation and requiring other action by state officials was not valid. In a five-to-four decision, the Court agreed with that argument and ruled in their favor. That majority opinion is the source of what is now known as the anti-commandeering rule.
It was an unusual opinion because the Court failed to cite either of the two earlier opinions that—had they not been overruled—would have provided more support for its position than those it did cite. The two uncited cases were the 1861 opinion by Chief Justice Roger Taney in Kentucky v. Dennison,2 and the 1976 opinion by then-Justice William H. Rehnquist in National League of Cities v. Usery.3
In the former case the state of Kentucky had requested the Court to issue an order compelling the governor of Ohio to comply with Kentucky’s attempt to extradite Willis Lago, who had been charged in Kentucky with assisting a slave to run away from his master. In his opinion for the Court refusing to order Ohio to comply with Kentucky’s extradition request, Chief Justice Taney wrote:
[W]e think it clear that the Federal government, under the Constitution, has no power to impose on a state officer, as such, any duty whatsoever, and compel him to perform it; for if it possessed this power, it might overload the officer with duties which would fill up all his time, and disable him from performing his obligations to the state, and might impose on him duties of a character incompatible with the rank and dignity to which he was elevated by the state (pp. 107–108).
While Taney’s reasoning in that case would have provided direct support for the outcome in Printz, in a 1987 case involving a request by Puerto Rico to the governor of Iowa for the extradition of a fugitive who had been accused of murder in Puerto Rico, the Court reconsidered its holding in Kentucky v. Dennison and overruled the case. In his opinion for the Court in Puerto Rico v. Branstad,4 Justice Thurgood Marshall wrote that:
Kentucky v. Dennison rests upon a foundation with which time and the currents of constitutional change have dealt much less favorably. If it seemed clear to the Court in 1861, facing the looming shadow of a Civil War, that “the Federal Government, under the Constitution, has no power to impose on a State officer, as such, any duty whatever, and compel him to perform it,”… basic constitutional principles now point as clearly the other way.… It would be superfluous to restate all the occasions on which this Court has imposed upon state officials a duty to obey the requirements of the Constitution, or compelled the performance of such duties; it may suffice to refer to Brown v. Board of Education, and Cooper v. Aaron. The fundamental premise of the holding in Dennison—“that the States and the Federal Government in all circumstances must be viewed as coequal sovereigns”—is not representative of the law today.…
Kentucky v. Dennison is the product of another time. The conception of the relation between the States and the Federal Government there announced is fundamentally incompatible with more than a century of constitutional development. Yet this decision has stood while the world of which it was a part has passed away.5
Justice Rehnquist’s opinion for a narrow majority in National League of Cities v. Usery (the Secretary of Labor)6 would also have provided support for the anti-commandeering rule if the case had not been overruled. In that case the Court invalidated an act of Congress that required the states to comply with the Fair Labor Standards Act, reasoning that the federal statute impermissibly impaired the states’ ability to act as sovereigns. What that opinion described as an “undoubted attribute of sovereignty” was the states’ power to determine the wages and hours of their employees. Because the Rehnquist majority viewed those determinations as “functions essential to separate and independent existence,” it held that “Congress may not abrogate the States’ otherwise plenary authority to make them.”7
Less than a decade after the decision in National League of Cities, Justice Harry Blackmun had second thoughts about the case and decided that it should be overruled. In Garcia v. San Antonio Metropolitan Transit Authority8—a case that involved the application of the Fair Labor Standards Act to the employees of a public agency—he did just that. Joined by the four justices who had dissented in National League of Cities (William J. Brennan, White, Marshall, and myself), he issued an opinion expressly overruling National League of Cities. In that opinion Justice Blackmun correctly explained that the states’ sovereign interests “are more properly protected by procedural safeguards inherent in the structure of the federal system than by judicially created limitations on federal power.”9 Those procedural safeguards ensure that any decision to impose a federal duty on states or state officers, or the chief law enforcement officers of a county, is made by the Congress, all of whose members represent the interests of the several states.
Justice Blackmun’s belief that the framers of the Constitution relied primarily on Congress rather than the judiciary to protect the states’ sovereign interests is buttressed by the provision in Article V of the Constitution that permanently prohibits any amendment that would deprive any state of its equal suffrage in the Senate. While he did not cite Article V in his Garcia opinion, his decision to defer to the congressional judgment expressed in the amendment to the Fair Labor Standards Act provides a dramatic contrast with the bold lawmaking approach followed by the majority in Printz.
That majority also failed to consider whether the rule it announced was really just “the product of another time,” or whether deference was due to a decision made by the elected representatives of the states. Moreover, the opinion had little to say about the practical consequences of a decision limiting the power of the federal government to respond to problems with a national dimension. Instead, after stating that “there is no constitutional text speaking” to the question whether Congress can compel state officers to execute federal laws (a statement that simply ignores the text of the Supremacy Clause), the majority based its answer on (1) its understanding of relevant historical events, (2) what it described as “the structure of the Constitution,” and (3) the Court’s prior jurisprudence. While the debates between the majority and the four dissenters over those three matters occupy more than seventy pages in the official reports of the Court’s decisions, a few words here will identify the nature of that debate.
The earliest historical events relevant to the Printz case were laws enacted by Congress in the 1790s; they required state judges to perform duties related to the registration of aliens, the naturalization of new citizens, and the arbitration of disputes about the seaworthiness of vessels. Under the majority’s view those laws were authorized by the Supremacy Clause of the Constitution only because they imposed duties on state judges rather than on other state officers or agents. In my judgment that is not a fair reading of the text, which provides 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” (Article VI, Cl. 2). Moreover, there were later historical events in which the federal government relied on state officials to carry out federal programs.
The World War I selective draft law was just such an event. The statute expressly authorized the president to utilize the services of “any or all departments and any or all agents of the United States and of the several States,” and made it a misdemeanor for any person to refuse to comply with the president’s directions. The statute provides an example of how reliance on state officials can provide an integral part of an important federal program. Whether it is also evidence of a belief shared by both the Congress and President Wilson that the federal government could command state participation—as opposed to merely making a request for voluntary assistance—was the subject of debate among the justices in the Printz case. The Court discounted the significance of this statute because, when President Wilson called upon the state governors to implement it, he “requested” them to act instead of issuing “commands.” It seemed to me that the imposition of criminal sanctions for refusing to comply with a presidential request made it as mandatory as an express command. Moreover, it is unrealistic to assume that Congress would have enacted a national draft law—or that the president would have signed a law—that gave the separate states an option to refuse to participate, or to curtail their respective participation, in the nation’s war effort. I think it also quite wrong to assume that a failure by Congress or the president to issue direct commands to state officers is evidence of a lack of power to do so. But even if we assume that the Printz majority correctly divined the actual intent of either President Wilson or the World War I Congress, that assumption sheds no light whatsoever on the wisdom of a rule that gives state and county officials a constitutional right to refuse to obey federal commands. The selective service law, which imposes a duty on ordinary citizens to engage in combat with our foreign enemies when ordered to do so, does, however, highlight the unusual character of a rule that gives county law enforcement officers a constitutional right to refuse to participate in a federal program designed to curb domestic violence.
The structure of the government created under the Constitution differed from that created by the Articles of Confederation in several ways. Most relevant to the issue presented by Printz, under the Articles the national government had no direct power over individual citizens; its commands were all directed to the states, which in turn imposed duties on their citizenry. Under the Constitution both the states and the federal government exercise direct authority over citizens. The Printz majority made the illogical assumption that the Constitution’s grant of additional authority to the national government must have been accompanied by a surrender of the preexisting authority to issue commands to states. It is more logical, however, to assume that an effective remedy for weakness would include not only the new authority but also the preservation of the existing authority. The fact that throughout our history the federal government has required the states to play a critical role in providing the manpower to fight our wars demonstrates that the anti-commandeering rule was invented by the Printz majority.
In addition to increasing the risk of a national catastrophe and hampering the federal government’s ability to make a prompt and effective response to disasters, the anti-commandeering rule also limits the government’s options in the routine administration of its programs. Federal programs involving the protection of the environment, the distribution of electric power, and the regulation of interstate transportation, as examples, may be implemented more efficiently by the reliance, in part, on state personnel instead of enlarging the federal bureaucracy. An article in the 1998 edition of the Supreme Court Review published by University of Chicago professors Matthew Adler and Seth Kreimer had this to say: “Like the federalism jurisprudence set forth a generation ago, in National League of Cities v. Usery, the new jurisprudence of commandeering purports to define an area of total state (and local) immunity from federal intervention. Neither the magnitude of the federal interest nor the degree of interference with state prerogatives is relevant. Rather, the doctrinal boundaries constitute what Justice Anthony Kennedy calls ‘the etiquette of federalism,’ and federal trespass across those boundaries is per se invalid.”
After noting that other scholars had already shown that neither history nor constitutional text supported the new doctrine, their own analysis “emboldened” Professors Adler and Kreimer to make “the positive prediction that the doctrine will soon be abandoned, as was National League of Cities a generation ago. A jurisprudence that consists of nothing more than some arbitrary rules of ‘etiquette’ ought to be, and we hope soon will be, outgrown.”
Rather than waiting for a jurisprudence consisting of nothing more than an arbitrary rule of etiquette to be outgrown, I have come to the conclusion that the potential hazards associated with the rule are sufficiently serious to justify amending the Constitution to eliminate the rule. Even though each such hazard may be remote, the magnitude of the potentially harmful consequences is sufficiently serious to justify such action. Adding just four words—“and other public officials”—immediately after the word “Judges” in the Supremacy Clause would, under the Court’s reasoning, expressly confirm the power of Congress to impose mandatory duties on public officials in every state.
I have already mentioned the fact that the voluntary character of state participation in the development of a database for making background checks of prospective gun purchasers enhances the risk that another mass murder will occur. Although the attack on the World Trade Center that occurred on September 11, 2001, was not foreseen when the Printz case was decided, I had this to say in my dissent:
[S]ince the ultimate issue is one of power, we must consider its implications in times of national emergency. Matters such as the enlistment of air raid wardens, the administration of a military draft, the mass inoculation of children to forestall an epidemic, or perhaps the threat of an international terrorist, may require a national response before federal personnel can be made available to respond.10
As Justice Breyer pointed out in his own dissent in the Printz case:
I would add to the reasons Justice Stevens sets forth the fact that the United States is not the only nation that seeks to reconcile the practical need for a central authority with the democratic virtues of more local control. At least some other countries, facing the same basic problem, have found that local control is better maintained through application of a principle that is the direct opposite of the principle the majority derives from the silence of our Constitution. The federal systems of Switzerland, Germany, and the European Union, for example, all provide that constituent states, not federal bureaucracies, will themselves implement many of the laws, rules, regulations, or decrees enacted by the central “federal” body.11
Perhaps Congress would seldom elect to pattern an American program after a foreign model, but our elected representatives, rather than judges, should decide whether it is wise to do so. They should take prompt action to minimize the risk of another tragedy like the massacre that occurred at the Sandy Hook Elementary School and to maximize the federal government’s ability to respond effectively to natural disasters that recur with distressing frequency. The Constitution should be amended by adding the four words “and other public officials” to the Supremacy Clause in Article VI.