Printz v. United States – Oral Argument – December 03, 1996

Media for Printz v. United States

Audio Transcription for Opinion Announcement – June 27, 1997 in Printz v. United States

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William H. Rehnquist:

We’ll hear argument now in Number 95-1478, Jay Printz, the sheriff of Ravalli County, Montana… is that the correct pronunciation of Ravalli?

Stephen P. Halbrook:

Ravalli, yes, Your Honor.

William H. Rehnquist:

And United States v. Richard Mack, the sheriff of Graham County, Arizona.

Mr. Halbrook.

Stephen P. Halbrook:

Mr. Chief Justice, and may it please the Court:

In the Federal-State context, this Court has upheld laws passed under the spending power, the commerce power, including the power to preempt State legislation, and the Article VI duty of State judges to hear Federal causes of action.

The interim provisions of the Brady act at issue here is not an exercise of any of those powers.

The Court of Appeals for the Ninth Circuit held that, in essence, Congress may commandeer the sheriffs departments of our country as long as the laws concerned do not interfere unduly with their duties.

The only alternative for the States is to enact laws which meet Congress’ standards to get out from under or exempt themselves from the Federal commands to–

Sandra Day O’Connor:

May I ask a preliminary question, please?

Stephen P. Halbrook:

–Yes, Your Honor.

Sandra Day O’Connor:

You represent both Sheriff Printz and Sheriff Mack?

Stephen P. Halbrook:

Yes, Your Honor.

Sandra Day O’Connor:

Sheriff Mack lost the election for sheriff of Graham County in the last election?

Stephen P. Halbrook:

That’s correct.

As of January, this coming January, Sheriff Mack–

Sandra Day O’Connor:

What date?

Stephen P. Halbrook:

–I believe it’s January 1, Your Honor.

Sandra Day O’Connor:

Mm-hmm, and will the case likely become moot as to Sheriff Mack on that date?

Stephen P. Halbrook:

Well, I note that the successor in office has been identified to the Clerk, and I believe that this matter will be addressed further in the future, but I don’t think it will be moot.

Depending on… under this Court’s rule the succession in office is automatic, is my understanding, unless that person withdraws.

Sandra Day O’Connor:

Mm-hmm.

Stephen P. Halbrook:

And Sheriff Mack may also be employed by a police department in the same county and, as such, would continue doing the same kinds of duties that are at issue here.

John Paul Stevens:

Well, but he wouldn’t be a CEO then, would he–

–Yes.

–or whatever you call the… he wouldn’t be covered by the statute.

Sandra Day O’Connor:

A chief law enforcement officer.

CLO.

Stephen P. Halbrook:

He would continue to be a chief law enforcement officer as defined by the statute here, and therefore he would be in a position of conducting the checks.

Sandra Day O’Connor:

And would you mind telling us where in the record we can find the evidence about the extent of the burden on the sheriffs departments in enforcing this law?

Stephen P. Halbrook:

Yes, Your Honor.

Sandra Day O’Connor:

Is there some reference to the record where we can find–

Stephen P. Halbrook:

In both cases there were affidavits, and then there was a hearing with testimony, and I would refer Your Honor in the Printz, the petition, the appendix to the Printz petition for cert, the affidavit… I’m sorry.

It’s in the joint appendix.

That will be at page 9a of the joint appendix, and the exhibits at 19a, and then a partial transcript of the hearing where testimony was heard at page 25a, and in the Mack appendices there would be the affidavit in the joint appendix at page 5–

Sandra Day O’Connor:

–Maybe you can file that with the Clerk later, the references, please.

Stephen P. Halbrook:

–Yes, Your Honor.

Sandra Day O’Connor:

Would you like to summarize for us what it showed in your view as to the extent of the burden?

Stephen P. Halbrook:

Yes, Your Honor.

Sandra Day O’Connor:

How many applications are filed in theses two counties, and how much time of the deputies is required to deal with it.

Stephen P. Halbrook:

Yes, Your Honor.

In regard to the Printz case, we have approximately a dozen officers.

We have a situation where the checks were estimated to take between 1 hour per day and several days, in the case of a very thorough check.

In the case of Mack, we have testimony that the checks routinely took 1 to 2 hours per day.

These are departments where between one-and-a-half and two officers are on patrol at any given time.

These are–

William H. Rehnquist:

Well, it would be rather strange to have one-and-a-half on patrol, wouldn’t it?

[Laughter]

Stephen P. Halbrook:

–That’s just an average Your Honor.

In the case of Graham County I believe there were 10 deputies, total, employed and when you count time off and 8-hour days and what-not, you end up with an average of one-and-a-half and, in the case of Ravalli County, Montana, we have about two on patrol at any given time.

Antonin Scalia:

Well, do you think that that’s determinative here, how extensive the incursion upon the officer’s duties are?

Stephen P. Halbrook:

No, Justice Scalia.

Antonin Scalia:

I mean, would the statute be constitutional as to those officers who didn’t take a large proportion of their time–

Stephen P. Halbrook:

Not at all.

Antonin Scalia:

–and unconstitutional as to others?

Stephen P. Halbrook:

Not at all.

These are just the facts of the case.

I think that these departments could have plenty of staff and not much to do and these commands would be unconstitutional.

We’ve not heard cited yet a specific provision of the Constitution that justifies these commands.

We’ve seen a lot of dancing around the Commerce Clause and Article VI of the Constitution and my answer is no, that regardless of the burden or lack thereof, that these commands are not constitutional.

Sandra Day O’Connor:

Well, has Congress imposed a burden on these chief law enforcement officers to report, or some State official to report on traffic fatalities, for example?

Stephen P. Halbrook:

Your Honor, that comes under the spending power.

There is a provision in regard to highway funds that provides that to get the highway funds there are a number of burdens on the States, including the drinking age and including–

Sandra Day O’Connor:

In exchange for receiving the highway funds.

Stephen P. Halbrook:

–That’s correct, Your Honor.

Sandra Day O’Connor:

Is that… excuse me.

Now, the Government has… the SG has filed a brief citing any number of cases, instances through the years where Congress has required States or local officials to perform some duties, and you assert that in every case it was linked somehow to funding?

Stephen P. Halbrook:

As far as we could determine, the statutes we looked at that were prominently cited by the Government… the one that you mentioned, the fatalities reporting, and then the reporting the missing children relates to the National Crime Information Center, which is a voluntary system of record reporting between the Federal Government and the States… and we haven’t found an instance where there was not some nexus with receipt of a grant or some other–

Sandra Day O’Connor:

Inducement to–

Stephen P. Halbrook:

–Inducement that would be under the spending power.

William H. Rehnquist:

–Now, did–

–How about some of the early cases that seem to involve immigration and required court clerks to keep some sort of a record or take some sort of an affidavit, a State court.

Stephen P. Halbrook:

In our view that clearly comes under Article VI, the special duty of State judges to hear Federal causes of action and to do other things that Congress passes that relate to the Article VI provision and Congress, under Article I, section 8, is empowered to enact a uniform rule of naturalization, and we interpret those early naturalization statutes as being under that provision and then being applied through the State judiciary through Article VI.

Anthony M. Kennedy:

Well, you don’t think that under the uniform rule of naturalization that Congress could compel State sheriffs to make background checks of aliens, do you?

Stephen P. Halbrook:

Absolutely not, because the sheriff is not a State judge, and Article VI refers explicitly to State judges.

Anthony M. Kennedy:

Yes, so… but I don’t think a whole lot turns, then, on the power of Congress to pass uniform rules of naturalization.

Congress is acting within its appropriate sphere, just as it acts within its appropriate sphere under the Commerce Clause.

Stephen P. Halbrook:

And the State judges have to apply that through Article VI, so I think the clearest example of the early Congress that applies here was the same day that Congress passed the Tenth Amendment they passed a resolution that the States would be encouraged to enact legislation authorizing State local officials, rather, to keep Federal prisoners in their jails.

It was seen as a completely voluntary function for which the sheriffs would be paid.

Ruth Bader Ginsburg:

Mr. Halbrook, the Government in its brief on page 31 has a footnote 21 citing several laws.

Do all of those, as far as you know, fit within the kind of, we give you this and in return you give us that?

Stephen P. Halbrook:

I don’t know whether all of them do.

I know that several of them do, and these are very… some of them are very obscure laws.

I don’t know that there’s ever been any litigation on them, so I cannot say that there is a specific power in the case of every one of these laws that one could link, for example, to the spending power.

Ruth Bader Ginsburg:

Well, my question is, are you saying that there’s nothing like this, that in every case there’s either something explicit in the Constitution, like the obligation of State courts that you get from Article VI, or extradition?

Is this the first of a kind, or is there anything that you would concede is like it?

Stephen P. Halbrook:

Well, I think there may be some of these laws… for example, I believe there’s one cited here about underground storage facilities, where the States are supposed to inventory and report underground storage facilities and frankly, Your Honor, I was not able to find a specific item in that statute that related to the spending power.

It’s just one of those obscure laws that I’m not really sure what the basis of it is.

Ruth Bader Ginsburg:

May–

Stephen P. Halbrook:

But in terms of precedents for this law that we have here, I think the law in New York v. United States was one that was on all fours with the laws here in terms of the–

John Paul Stevens:

–May I ask not about precedent but just about your theory of the case?

Is it your position that, without having any spending power at all, but just acting under the Commerce Clause, Congress would not have the power to have States report to it the number of fatalities involving children caused by airbags for… in 30-day period, or something like that?

It would not have the power to do that?

Stephen P. Halbrook:

–Justice Stevens, we find no power in the Constitution just to do that.

John Paul Stevens:

Well, the power… I suppose the argument would be the power is to regulate commerce, and they’re trying to improve safety on the highways and all the rest of it by getting this data, but you’d say that the Commerce Clause doesn’t authorize that.

Stephen P. Halbrook:

It would authorize commerce to be regulated, but it would not authorize the immersion of the States–

John Paul Stevens:

Requiring information to be provided by the States.

Stephen P. Halbrook:

–to do that kind of reporting, and I’d like to point out that this reporting–

Sandra Day O’Connor:

Couldn’t Congress do it under this spending help they give the States for the road systems?

Stephen P. Halbrook:

–That’s the way they do that–

Sandra Day O’Connor:

Yes.

Stephen P. Halbrook:

–now.

That is the basis for this law.

David H. Souter:

Mr. Halbrook, the obligation, as I understand it, on the part of the law enforcement officers is to use reasonable efforts.

Is that it?

Stephen P. Halbrook:

That’s correct.

David H. Souter:

Do whatever’s reasonable.

Is there in the statute any mechanism for review by anybody as to whether a given law enforcement officer did use reasonable efforts?

Stephen P. Halbrook:

No, Your Honor.

It’s a very vague term, and basically the law says that the CLEO, or the chief law enforcement officer, shall use reasonable efforts to ascertain whether receipt or possession of a handgun is lawful, but then it goes on to say, including, and we interpret this as a minimum that has to be carried out, including research into whatever State and local record-keeping systems are available and in the national system designated by the Attorney General.

David H. Souter:

Do you think it would be open to a court, to this Court to construe that reasonable effort criterion as one which turns on the law enforcement officer’s own view of what in relation to all of his other responsibilities, and in relation to his resources, is reasonable?

Can he be the judge of reasonableness?

Stephen P. Halbrook:

To some extent, perhaps, because the language is there, but I think that there’s a vanishing point or an ending point.

If he doesn’t do any… makes no effort whatever to conduct these background checks and to make these legal determinations, it seems that he is not making a reasonable effort.

David H. Souter:

Well, unless he is the judge of reasonableness.

If he were the sole judge of reasonableness, so that there was, in effect, no review of the adequacy of his efforts, would you have a case?

Stephen P. Halbrook:

I don’t think he is the sole judge, because–

David H. Souter:

No, but I’m asking you to assume my hypothesis.

If he were… if the statute were construed in such a way as to make him the sole judge, would you have a case?

Stephen P. Halbrook:

–We would have no case if it was totally optional, and I think your hypothetical would be equivalent to changing shall to may.

Antonin Scalia:

Well, that isn’t optional.

I mean, if I’m… if I am compelled to make an honest judgment about whether I have the resources to do this, presumably I’m not going to, you know, perjure myself, and I will therefore as a practical matter be compelled to use resources if they are available.

Stephen P. Halbrook:

Well–

Antonin Scalia:

Wouldn’t I?

Stephen P. Halbrook:

–As I… I agree with you, and as I understood the question–

Antonin Scalia:

So therefore your answer should be, we would continue to have a case because it would, indeed, continue to compel the State officers to do something.

Stephen P. Halbrook:

–As I understood the question, there will be no duty at all, and if there is any–

David H. Souter:

No, that wasn’t the question.

No, the question was… no, I’m sorry.

The question was, there was no review, that the final decision as to what was reasonable would be the decision of the law enforcement officer and there would be no review of that decision.

That’s the hypothesis.

Stephen P. Halbrook:

–Well–

David H. Souter:

On that hypothesis, would you have–

Stephen P. Halbrook:

–I would still have one problem left, I think.

David H. Souter:

–Okay.

Stephen P. Halbrook:

Which is the perception of the sheriff as not being a law-abiding sheriff.

In other words, if Congress enacts a law, constituents in the community, many of them think the law should be enforced if it’s on the books, and the sheriff in all cases decides that he doesn’t have to do anything and he completely rejects any execution of the law or consideration of execution of the law, then he does have the political damage, and this is a particular–

David H. Souter:

Well, he would have… and I think your point is well-taken, but would that… would that place him in the position that the opinion in the New York case, for example, described as being essentially an agent or employee, as it were, of the national Government to carry out a national Government policy?

It might put him in a political spot, I think you’re right.

But would that rise to the level of the obligation that in the broader passages in the New York case was condemned as unconstitutional?

Stephen P. Halbrook:

–Well, I think it would still come under the prohibition on requiring a State to administer a Federal regulatory program in the sense that there’s got to be some kind of minimal requirement.

Sandra Day O’Connor:

Well, of course, in this situation are there not criminal penalties for someone who doesn’t follow the requirements of the statute?

Stephen P. Halbrook:

Your Honor, the–

Sandra Day O’Connor:

So it would be a jury that would be interpreting, presumably, whether the sheriff had reasonably performed the requirements under the statute and could result in a criminal punishment, as I read the statute.

Stephen P. Halbrook:

–The statute broadly says whoever violates 922(s) is subject to incarceration.

Sandra Day O’Connor:

Right.

Stephen P. Halbrook:

And the… one district court held that that meant exactly what it said in the Mack case, that that was a threat of criminal prosecution when the law was first enacted and, in fact, the Bureau of Alcohol, Tobacco and Firearms spokesman on this law said that there were criminal penalties that applied to law enforcement officers.

However, none of the appellate courts have held that the criminal penalties apply.

They have held basically that that issue is moot because the Justice Department interpreted the law not to apply… interpreted criminal penalties not to apply to CLEO’s.

David H. Souter:

And what is your position?

Stephen P. Halbrook:

My position–

David H. Souter:

Do the criminal penalties apply to your client?

Stephen P. Halbrook:

–It says whoever.

I think under the plain language of the statute it does apply.

David H. Souter:

Is that your position that it does apply, that you’re taking the position before us that your clients are subject to the criminal penalties?

Stephen P. Halbrook:

What I have to say, because I represent real clients here, is that if the Government says they don’t apply and… the criminal penalties don’t apply and these are my clients, I’m going to agree with the Government, because I do not want my clients subject to a court ruling saying that criminal penalties apply to conduct.

Antonin Scalia:

And that’s a reasonable enough position, isn’t it?

There are a lot of statutes, for example, that impose civil penalties and criminal penalties upon regulatory violations and they have a general penalty provision that says whoever violates–

Stephen P. Halbrook:

Right.

Antonin Scalia:

–this law, and there are a lot of provisions in the statute that require the Secretary to conduct rulemaking, that require the Secretary to do this or that.

I don’t know anybody who’s ever tried to prosecute the Secretary if he fails to conduct a rulemaking.

I mean, it’s a violation of the APA, but it’s hard to say he’s in violation of the act within the meaning of the penalty provision.

Stephen P. Halbrook:

Well, I think you have to look at each statute and what the criminal penalties say, but in this case–

Antonin Scalia:

Is that a reasonable way to interpret this?

Stephen P. Halbrook:

–Well, Your Honor it says–

Antonin Scalia:

That, you know, we’re going to go after the sheriffs?

Stephen P. Halbrook:

–It says dealers shall do certain things, and then it says CLEO’s shall do certain things.

The word shall appears in both, and if you want to say that the criminal penalties don’t apply to the sheriffs, I don’t know, maybe they don’t apply to the dealers, either.

I don’t know who they apply to.

David H. Souter:

But I take it your position here, as you announced it a moment ago, is the Justice Department says those penalties don’t apply to the sheriffs and that’s your position here too, is that correct?

Stephen P. Halbrook:

Well, I have to say, frankly we’re in a dilemma, because we’re faced with the language of the statute, which is clear enough, and when we went into this litigation we asked for preliminary injunctions protecting our clients from criminal prosecution, and then the Justice Department came up with a memorandum saying that we’re not going to interpret the law in that way, so we certainly would like to preserve in essence these letters of immunity that our clients are not pros–

John Paul Stevens:

But as I understand your brief, your… in your view the statute would be equally unconstitutional whether it has the criminal penalties or not.

Stephen P. Halbrook:

–Oh, absolutely.

John Paul Stevens:

So why are we fussing about this issue, I wonder.

[Laughter]

Stephen P. Halbrook:

We think there’s other… I mean, the Government has said–

John Paul Stevens:

Except you have to answer questions that are put.

[Laughter]

Stephen P. Halbrook:

–The Government has clearly argued that they could bring the sheriffs into court on mandamus or injunction actions if they don’t enforce these laws.

Anthony M. Kennedy:

There’s something of a paradox in this whole area, is there not, in that if you prevail it means that you 1) have a huge Federal bureaucracy, or 2) withdrawal of funds, perhaps funds well in excess of what… the funds that you would really expend in this area.

Anthony M. Kennedy:

In a way, if you prevail you might be striking a blow for big Government.

Stephen P. Halbrook:

Absolutely not, Your Honor.

The funds are specifically prohibited to go to CLEO’s.

The funds are for the updating of the–

Anthony M. Kennedy:

I’m assuming a complete revision of the act.

Stephen P. Halbrook:

–Well, not even then, because by November of 1998 there is to be on line the permanent Brady act provisions under which the Federal Government will undertake these functions.

There will be an instant check where the Federal Bureau of Investigation, basically, will be conducting–

Anthony M. Kennedy:

Yes.

Stephen P. Halbrook:

–background checks, and all of our Tenth Amendment problems go away with that.

Sandra Day O’Connor:

Well, wouldn’t they go away as well if the Government offered money to chief law enforcement officers to administer the program, and you would have an option whether to accept the money and administer it or not.

Stephen P. Halbrook:

As long as the option was there–

Sandra Day O’Connor:

You wouldn’t be here under those circumstances.

Stephen P. Halbrook:

–We would not be here, absolutely not.

But there was no money, and there was no option in this case.

Sandra Day O’Connor:

Now, do a lot of chief law enforcement officers around the country comply voluntarily with this act?

Stephen P. Halbrook:

Well, I don’t know how the word voluntarily would–

Sandra Day O’Connor:

Well, they are complying.

Stephen P. Halbrook:

–They are complying.

Sandra Day O’Connor:

Like 40 States or more?

Stephen P. Halbrook:

Actually, the Brady act, the provisions we’re talking about only apply in about half the States.

Sandra Day O’Connor:

Mm-hmm.

Stephen P. Halbrook:

Maybe 24 States.

Sandra Day O’Connor:

Some of them have enacted their own program, so–

Stephen P. Halbrook:

Some States–

Sandra Day O’Connor:

–that’s sufficient?

Stephen P. Halbrook:

–Yes, Your Honor.

Some States already had laws on the books that met the Federal criteria, and in other States–

Sandra Day O’Connor:

And some are complying without protest.

Stephen P. Halbrook:

–Well, I’m not sure what you mean.

I mean, some States enacted laws to get out from under this provision.

Stephen P. Halbrook:

That’s how we get up to the 50 percent of the States are exempt from this.

Sandra Day O’Connor:

Yes.

Stephen P. Halbrook:

And then, as far as compliance, I’m not sure how much compliance there is, even in the States where… even on the part of the law enforcement personnel who support this law.

The brief of the State of Maryland and other States says that… in support of Government said that all you have to do is the computer, the Federal computer check, and that’s not what the law says.

It seems like they’re nullifying the law if that’s all they’re doing, because it–

Sandra Day O’Connor:

It says States as well, does it not, records?

Stephen P. Halbrook:

–All available State and local records.

Sandra Day O’Connor:

Yes.

John Paul Stevens:

May I ask you a question?

I want to be sure I understand your position now, prompted by Justice Kennedy’s question.

Supposing they amended the statute to say that all the investigations shall be done by Federal employees, FBI agents or something, but that the chief law enforcement officer of each community must make available to the Federal officer any records that will help him find out this information, would that be constitutional?

Stephen P. Halbrook:

No, Your Honor.

John Paul Stevens:

That would not.

Stephen P. Halbrook:

Not as–

Stephen G. Breyer:

That’s just the question that I have, actually.

I mean, if you track this through, I take it there’s a statute, for example, which says that States have to report missing children, right?

Stephen P. Halbrook:

–A statute that’s based on highway funding, yes.

Stephen G. Breyer:

It’s not… I just see they’re setting up a task force, and they say in the task force… what it says here is every Federal, State, and local law enforcement shall report each case of a missing child under age 18.

Stephen P. Halbrook:

To the NCIC.

Stephen G. Breyer:

Yes, right.

Period.

Stephen P. Halbrook:

Yes, right.

Stephen G. Breyer:

Not whether you take money, you don’t take money, so I take it you’re saying that’s unconstitutional, too.

Stephen P. Halbrook:

Well, I interpret that as being based on NCIC.

Stephen G. Breyer:

I don’t see anything here that says you have to do it only if you take money.

Stephen P. Halbrook:

Your Honor, when you look at the other provisions establishing the NCIC–

Stephen G. Breyer:

Then if it says you only have to do it if you take money, then I’m not right.

It’s not a good example.

There must be an example, maybe it’s this case, where Congress has the power under the Commerce Clause to say, report some things, right?

But the issue is whether it’s necessary and proper.

Stephen P. Halbrook:

–Correct.

Stephen G. Breyer:

That’s the issue.

Now, why is it that in Germany, in Switzerland, in the Common Market, in many other federal associations, people think it is more respectful of the States to impose minor duties upon State officials than to set up central bureaucracies?

Where is it in our history, or our Constitution, or in the language, that it is more respectful of States to have a Nationwide computer system run by the FBI than to impose minor reporting requirements on State officials?

What is it in law, or history, or anything you want to refer to that says it’s more consistent with States rights?

Stephen P. Halbrook:

In our Constitution, Your Honor–

Stephen G. Breyer:

Where does it say that?

Stephen P. Halbrook:

–It says that the President shall take care that the laws be faithfully executed, and it provides for a Federal executive branch to execute the laws that Congress passes.

Stephen G. Breyer:

And why is that more respectful of State rights to set up, let’s say, a Federal police service than to say the local police service has to report a few things?

Stephen P. Halbrook:

Well–

Stephen G. Breyer:

In other countries they think the opposite, and so what I’m looking for is history or language that says why it is here the opposite.

Stephen P. Halbrook:

–Because of the text of the Constitution and the intent of the Framers we’ve rejected the so-called New Jersey plan under which the Federal laws would be executed by State and local officials, and that’s the plan that we have.

That’s our Constitution.

Antonin Scalia:

Of course, when the Federal Government executes the laws the Federal Government also has to pay for their execution, right?

Stephen P. Halbrook:

They pay for it–

Antonin Scalia:

So if you vote for a massive regulatory program you also have to vote for the taxes at the Federal level, which makes Federal representatives less popular back home.

Stephen P. Halbrook:

–And it–

Antonin Scalia:

It’s much easier if you allow the… impose an obligation on the States to do it and the State legislators can take the heat by raising the taxes.

Stephen P. Halbrook:

–It’s also clear in terms of political responsibility who’s responsible for enacting the law and executing the law, and that’s something that’s broken down here.

We have Congress passing a law, taking credit to that extent, but then having the administration of the law being imposed on the shoulders of local law enforcement officials.

William H. Rehnquist:

Let me follow up on an earlier answer you gave, Mr. Halbrook.

I understood you to say that even if the Federal Government were to send out people to look at State records, that that would not be permissible, and I think that’s a rather strange answer, if I understood it correctly.

Certainly, in… say, in voting rights cases, Federal, FBI people come and look at State voter registrations.

If no activity were required on the part of a State agent, just the Federal Government would send an agent to look at some, say, criminal history records, would that be violative of the Constitution?

Stephen P. Halbrook:

Well, in the Voting Act cases, we’ve got the Fifteenth Amendment and we’ve got several other amendments that relate to voting rights.

William H. Rehnquist:

But here you have the Commerce Clause, which certainly gives general authority over things that move in commerce, and there’s no challenge here on that ground.

Stephen P. Halbrook:

Well, these are not commercial records they would be looking at.

There’s no nexus to interstate commerce if they want to go through the records, but this is the kind of thing where cooperative federalism really works.

There’s always been the sharing of information voluntarily.

It’s not a problem.

David H. Souter:

No, but you’re saying it would be unconstitutional to require that challenge.

Wasn’t that your answer to Justice Stevens?

Stephen P. Halbrook:

Yes Your Honor.

I don’t know what the constitutional–

David H. Souter:

Well, take criminal–

Stephen P. Halbrook:

–authorization would be.

David H. Souter:

–Just take criminal records, for example, not necessarily tied to commerce.

You mean it would… I take it it’s your position that it would be unconstitutional to require access by a Federal investigator to State conviction records, is that correct?

Is that your position?

Stephen P. Halbrook:

Access from a police department, perhaps, but by the same token, there’s no constitutional power that the States would have to require the Federal Government to share their records, but it’s the kind of thing that comes under cooperative federalism where–

Sandra Day O’Connor:

That’s an extreme position.

I thought you were here taking the position that this particular program required the county to expend its efforts and occupy the time of their deputies to devote first and foremost to the execution of this particular law, as opposed to their own needs for hunting murderers or rapists or robbers.

I thought that was the position.

Stephen P. Halbrook:

–Absolutely that is why we’re here.

Sandra Day O’Connor:

Yes, but you’re changing your position–

–And I think that’s totally different when you say no, we wouldn’t even agree that a law that says a Federal agent can come and look at State records–

Stephen P. Halbrook:

Your Honor–

Sandra Day O’Connor:

–would be allowed.

I mean, that’s a remarkable difference in position.

Stephen P. Halbrook:

–That’s a hypothetical question.

That issue hasn’t been briefed here.

No, but your position, counsel–

Stephen P. Halbrook:

–the citation to the authority for that.

John Paul Stevens:

–Your position, counsel, has been that there’s a lack of power here.

Stephen P. Halbrook:

Yes, Your Honor.

John Paul Stevens:

And even if it’s 10 minutes a month required by the officer, if the Federal Government orders it, you can’t do it.

Stephen P. Halbrook:

I don’t–

John Paul Stevens:

If it’s 10 minutes a month or 10 minutes a year.

That’s your position.

Stephen P. Halbrook:

–That’s our position, absolutely.

Stephen G. Breyer:

And if they pay a million dollars, if they pay a million dollars of the cost, if the State says, we don’t want your million dollars, we don’t want a billion dollars, we don’t want to do it, period–

Stephen P. Halbrook:

Yes–

Stephen G. Breyer:

–in your position, they can’t be forced–

Stephen P. Halbrook:

–That’s been the precedents of this Court under–

Antonin Scalia:

–I thought it was 10 minutes a month in the execution of a Federal law, 10 minutes a month in acting in an executive capacity to implement… not to obey, but to implement a Federal law.

Isn’t there a difference between that and simply obeying a subpoena for documents, or a statute that requires information to be provided, which statute could apply to public… to private individuals as well as to a Government.

Stephen P. Halbrook:

–Yes, Your Honor.

We don’t object to that, and we don’t object to subpoenas.

This Court’s precedents under the–

Antonin Scalia:

But requiring information to be turned over is something that you can do vis-a-vis a private citizen.

It doesn’t treat the Government as a Government.

You’re treating the State as a governmental institution, however, when you require it to enforce a law.

Stephen P. Halbrook:

–If it’s a law that applies universally under this Court’s precedents such as Garcia, this law would be valid.

If it’s–

John Paul Stevens:

Yes, but private citizens cannot open up public records.

Private citizens don’t have authority to make public records available.

If the State has its own secret files on people who violated the law, the question is, can the Federal Government command the State to make… give access to those documents, and you say no.

Stephen P. Halbrook:

–Well, if it’s records related to criminal conduct and subject to a subpoena, we have no problem at all with those records.

John Paul Stevens:

Yes, but I’m not talking about a subpoena.

William H. Rehnquist:

Thank you, Mr. Halbrook.

Stephen P. Halbrook:

Thank you, Your Honor.

William H. Rehnquist:

General Dellinger, we’ll hear from you.

Walter E. Dellinger, III:

Mr. Chief Justice, and may it please the Court:

Mr. Halbrook’s answers at oral argument are, I believe, fully consistent with the position that they have taken in their brief, and I think for understandable reasons.

They believe that there’s an entire failure of power on the part of the Federal Government to enact a law of this kind just as if it were the Government of Brazil or the King of Belgium.

Anthony M. Kennedy:

Well, can the State require the Federal Government to do something?

Walter E. Dellinger, III:

No, and–

Anthony M. Kennedy:

Why doesn’t it work in reverse?

Walter E. Dellinger, III:

–Because of the Supremacy Clause, I think, Justice Kennedy.

The–

Anthony M. Kennedy:

Well, but there’s a Federal design here, and the question is whether or not it is consistent with the political relation that subsists between the citizens to have one Government interfere with another.

Walter E. Dellinger, III:

–The Supremacy Clause resolved that issue, Justice Kennedy, where Congress is acting as it is here, fully within the core of one of its enumerated powers.

The three critical points, I think, are first that… just to tell you what I think I would hope to discuss… are first that, because this law does not impermissibly require the States to govern but, rather, essentially applies Federal law to local law enforcement officers and to gun dealers, requiring them to exchange vital information, and because Brady uses local law enforcement as the source of this information for the very good reason that these offices have, for now, the most ready access to the relevant information, and finally, because the interim Brady provisions are by definition so reasonable in their approach that it is necessary to resort to resurrecting a rigid rule like the repudiated position of Kentucky v. Dennison–

Anthony M. Kennedy:

Well, suppose that the Congress had said that because we have an emergency here and we’re not up and running, that for 5 years gun permits, gun transfer forms will be processed by the House of Representatives in their field offices, in their home offices.

The entire burden of complying with the act was up to the Congress of the United States, the individual Congressmen and their staffs.

That would be a clear violation of separation of powers, would it not?

You don’t think the Congress itself could administer this scheme through its congressional field offices?

Walter E. Dellinger, III:

–Congress may not be saddled with a duty of executive branch Government.

Anthony M. Kennedy:

It saddles… it saddles–

Walter E. Dellinger, III:

I agree with that.

Anthony M. Kennedy:

–All right.

Walter E. Dellinger, III:

But–

Anthony M. Kennedy:

And that is because there are some very basic notions of accountability that underlie separation of powers.

Why should, if the Congress could not ignore separation of powers, how can it ignore the Federal balance when the same consideration are applicable… that is to say, a blurring of political accountability?

Walter E. Dellinger, III:

–Well, I… it is not the case that Congress is ignoring the principles of federalism, Your Honor.

I think the act is quite sensitive to those concerns.

I would not necessarily concede that Congress could not seek information that was in the hands of congressional offices and require them to transmit it.

If Congress can require congressional offices to–

Anthony M. Kennedy:

Well, my hypothetical was a rather strange hypothetical–

Walter E. Dellinger, III:

–Well, I understand that.

Anthony M. Kennedy:

–I will admit.

Walter E. Dellinger, III:

Yes, I understand that, Justice Kennedy, and it’s a fair one, but it is important to realize the extent to which this is a law that applies to–

Sandra Day O’Connor:

Well, let me ask you whether you think that under the constitutional framework we have, which preserves States as sovereign entities, the Congress can pass a law mandating that every State administer Congress’ welfare plan without offering financial assistance and an option to the States to do that?

Can they just pass a law saying we think it’s in the public interest to resolve issues of poverty, and we mandate the States to carry out our extensive program that we devise, and the States are to manage it.

No money, no option.

You go do it, States.

Or some health program, or some State highway safety program, same thing.

Can Congress just pass it, and without giving the States and option or funding for it say, you attend to this, States.

You manage it.

You enforce these laws we pass.

Sandra Day O’Connor:

Can they do that?

Walter E. Dellinger, III:

–Justice O’Connor, Congress can impose upon State and local government officials the responsibility for assisting in the execution of a Federal program as long as, first, it does not implicate the serious concerns of State sovereignty and political accountability that are identified in New York–

Sandra Day O’Connor:

Well, don’t you think it does when Congress says, we’re passing this law and setting a national standard for health care, or welfare–

Walter E. Dellinger, III:

–I think–

Sandra Day O’Connor:

–or highway safety, and passes it off to the States directly to administer those programs, not giving them an option, not funding it.

Not giving them an option to take money and participate.

Walter E. Dellinger, III:

–I understand that.

My answer is a predictive one, that it would quite likely be the case that such a program would, in fact, run afoul of the principles of sovereignty and accountability because it would place the States in a position of making policy according to a Federal mandate.

Sandra Day O’Connor:

And this is just a smaller version of that example–

Walter E. Dellinger, III:

I–

Sandra Day O’Connor:

–is it not?

Antonin Scalia:

Let me put a hypothetical where it wouldn’t put the states in the position of making any policy.

It’s a federally designed welfare program.

All the… every jot and tiddle of it is set forth in painful detail in the statute.

Your answer, then, would have to be, then it would be okay.

Congress could go home and say, well, we’ve balanced the budget, having left all of the welfare cost to the States.

Your answer would be yes, that’s constitutional, right?

Walter E. Dellinger, III:

–My answer is that that–

Antonin Scalia:

No policy judgments left to the States.

Walter E. Dellinger, III:

–My answer is that such a statute would not, as you define it, violate the principles of sovereignty and accountability set out–

Antonin Scalia:

The answer is yes.

Walter E. Dellinger, III:

–Now… yes, exactly.

Now, I do not–

Antonin Scalia:

Because you think that it is… and this is what the Government’s brief says.

It seems to me totally counterintuitive that it is better when you leave the States no option, no policy judgments at all, and make them simply dance like marionettes on the fingers of the Federal Government.

That’s okay.

But it is bad if you leave the States some policy judgment.

I mean, that’s so counterintuitive.

Why wouldn’t that make it worse, to leave them no policy judgment, rather than make it better?

Walter E. Dellinger, III:

–Because, for the reasons this Court sets forth in New York v. United States.

Antonin Scalia:

New York v. United States gave the States an option.

They could manage the waste or they could, by taking over it themselves, act purely executively rather than legislatively.

Walter E. Dellinger, III:

What Congress–

Antonin Scalia:

That would have been purely executive action.

That option was available in New York, and we nonetheless held that it was bad.

Walter E. Dellinger, III:

–What Congress has done here is, I think, Justice O’Connor, not a smaller version of that large program, because they have been careful to take responsibility for the policy choices and then for the administrative policy choices.

This act is administered by the Departments of Justice and Treasury, by the ATF, the FBI, by Assistant U.S. Attorneys, by the Bureau of–

Sandra Day O’Connor:

Well, I think Justice Scalia has addressed that point in exploring whether taking away the policy choices saves it.

Walter E. Dellinger, III:

–Yes.

Sandra Day O’Connor:

The notion that the Federal Government can just commandeer State and local government totally to administer some federally enacted program, all the details of which are spelled out, is the question.

Walter E. Dellinger, III:

I think it is important to note what Congress cannot do.

First of all, in answer to your question and Justice Scalia’s about the extent of the burden, there is some limit, as this Court suggested in Garcia, to how much of a purely financial burden Congress could put on the States if Congress made all the policy choices itself.

That… and answering those hypothetically is difficult, because it would depend on the degree of the national interest.

In 1917, Congress had every State government devote its entire resources for a brief period of time to registering people for the World War I draft.

You would want to know the degree of flexibility and discretion that were permitted to the States to carry out their own functions.

William H. Rehnquist:

Also you would say there was some difference between wartime and peacetime as to congressional authority.

Walter E. Dellinger, III:

Yes, Mr. Chief Justice.

It would depend upon that and all the other circumstances as to how great a burden Congress could put.

But I want to be clear that we believe that, under the vital principles of New York v. United States, there are provisions that would be unconstitutional, that are different from the provision here.

For example, even if it only cost the State $5 and their officials 5 minutes of their time, the Constitution would be violated if Congress had decided to off-load some of the political responsibility here by requiring each city council and county commission to vote in the provisions of the Brady act.

Even though that’s fairly costless, requiring them to act like puppets and to call the roll saying, all those in favor raise your hand, and they’re required to raise their hand when they’re not in favor, or have some other draconian alternative, such as taking title to handgun liability.

That would violate the sovereignty principles.

Similarly, if Congress had said that the States must, by the year 2010, reduce the number of handgun sales in the State by 50 percent, it would be worse than simply having Congress take the political responsibility for the choices Congress made, because the States would then be forced to undertake what might be politically unpopular choices to solve a problem–

Stephen G. Breyer:

They can do that with the environment, can’t they?

I mean, aren’t there hundreds of billions of dollars of unfunded mandates that the States complain about and create a political issue?

I mean, what’s the line?

From what I read, the CAMEL is lots and lots of money in obligations that Congress imposes upon the States all the time.

Walter E. Dellinger, III:

–Well, under the–

Stephen G. Breyer:

So what’s the principle of federalism that says they can do that but asking a police officer to report a missing child, or asking a police officer to report a safety statistic, or to look something up in a computer, suddenly is a violation of the Tenth Amendment, but imposing hundreds of billions of dollars of costs, as Congress does in many laws, is not?

What’s the principle?

Walter E. Dellinger, III:

–I don’t believe there is any principle.

Antonin Scalia:

I don’t believe there’s any such unfunded mandate.

What unfunded mandates are you talking about?

Stephen G. Breyer:

I know… mandates in… I’m not saying here.

I just read in the newspaper–

Walter E. Dellinger, III:

Well–

Stephen G. Breyer:

–that there is a thing called unfunded mandates–

Walter E. Dellinger, III:

–Yes, but–

Stephen G. Breyer:

–that the States complain about.

Walter E. Dellinger, III:

–Justice Breyer, those are often unfunded within the context of some other provision where the courts… where the States ostensibly have a choice.

I mean, I do believe they–

Antonin Scalia:

If you don’t do it, we’ll do it, and the States do it simply to avoid having the Federal–

Walter E. Dellinger, III:

–Well–

Antonin Scalia:

–But you don’t have to do it.

If you don’t have to do it–

Walter E. Dellinger, III:

–That’s correct.

Antonin Scalia:

–we’ll send the Feds in.

Walter E. Dellinger, III:

Those are not constitutionally impermissible, but if Congress were to pass the Perfectly Clean Air Act of 1998 and say to the States, you’ve got to have 99-44/100 percent pure air by the year 2000, Congress gets all the credit, and the States are then forced to choose between adopting mandatory car-pooling, or exorbitant gasoline taxes.

That’s not what happens here when Congress takes the political responsibility, and I believe that once you’re in this area, although we believe and have as our most difficult question thinking about what the outer limit would be if Congress were, contrary to 200 years of its history, to start imposing burdens so substantial, even though they did not implicate sovereignty and accountability, that the States would be impaired in carrying out their functions.

I think the more serious question is the one that I think that Mr. Halbrook dealt with as well as he can, which is, what is the principle that tells Congress, that has extraordinary legislative power to regulate these mobile items called handguns, that they simply may not impose these duties on gun dealers and local law enforcement officers who are sitting there on the information, if they’ll look it up, to tell Congress when guns are being sold to violent felons and other dangerous buyers.

Antonin Scalia:

Only governmental duties cannot be imposed, is all he’s saying.

If it’s informational… or it’s all he should be saying.

Walter E. Dellinger, III:

Well–

[Laughter]

Antonin Scalia:

It can get information–

Walter E. Dellinger, III:

As Justice Stevens–

Antonin Scalia:

–It can get information from the… from a Government just as it can get information from an individual, but to require a Government to perform governmental functions is something else.

Walter E. Dellinger, III:

–Well, this… it would be, Justice Scalia, in the sense of New York v. United States, if those governmental functions were the kind of policy impositions that Congress was imposing with the Low Level Radioactive Waste Act at issue in New York, that forced the States to undertake the hard policy choices that Congress, in fact, made here.

What they are… here, Congress is simply telling the States to do something that local, State, and Federal Governments have done for a very long time.

Antonin Scalia:

No unpleasant policy choices are left for the local government.

Antonin Scalia:

They… the local government does not have to decide whether (a) to raise taxes, or (b) to divert police officers from hunting murderers and rapists to looking up these records, or (3)… I don’t know what, to declare bankruptcy.

Aren’t these all unpleasant policy choices that the Government has imposed upon the localities?

Walter E. Dellinger, III:

The only policy choice that I think you could honestly call a policy choice that Congress requires the chief local law enforcement officers to engage in here is one that creates the flexibility of the Brady act.

It is telling them that the efforts that they need to make need only be reasonable efforts.

They give them the flexibility to decide–

David H. Souter:

Well, why isn’t that enough of a policy choice to create the problem?

I mean, it seems to me that even assuming that the scheme is not voluntary, and I take it you’re not conceding that it is, the local law enforcement–

Walter E. Dellinger, III:

–We do not… we do not take the position that it is voluntary.

David H. Souter:

–Right, so that the local law enforcement officer has got a real policy choice, number 1, in choosing between his Brady act responsibilities and whatever other local law enforcement abilities he’s got, and number 2, I suppose even independently of that, he’s at least got an initial policy choice to make about how intrusive an investigation is reasonable enough, and I would suppose that that latter decision could be politically a very explosive one in some communities.

So even on your own standard, why isn’t that enough for unconstitutionality?

Walter E. Dellinger, III:

Because the kind of policy choice that he’s making… if you… I have to agree that you can call anything a policy choice.

I don’t agree that the way this act works imposes or forces the CLEO to make these decisions about intrusiveness.

That is to say, he decides what efforts are reasonable.

He gets guidance from… the Alcohol, Tobacco and Firearms Bureau of the Department of Treasury has put out guidance and they have said–

David H. Souter:

Well, that may be fine, but the people who are being investigated I don’t think either know or much care that there may be a BATF memo, and the… to the extent there is flexibility it’s the local officer’s choice and, to the extent that he is even exercising guidance from BATF in his relationship to his constituents, he is still being placed, in effect, in the position of a policymaker.

Walter E. Dellinger, III:

–This is, I think, a difficult point in the case, but I think it is a policy choice so limited and so beneficial in its flexibility… that is, rather than saying you must check a certain number of records, what the Brady act says is, we’re going to give you flexibility to make the kind of choice you have to make already, of how you allocate your resources.

What Brady does is simply to add one more additional item to the list of duties–

Sandra Day O’Connor:

Well, but it has to be done in 5 days, and so the local county has some massive prison escape, or riots going on, and the sheriff can’t send his deputies out to deal with that because he’s only got 5 days to apply, and doesn’t the Bureau of Alcohol, Tobacco, and Firearms take a position in the memo that the criminal penalties do apply to these sheriffs?

I think there are some problems–

Walter E. Dellinger, III:

–Justice O’Connor, first of all, the… it is emphatically the case that where there’s a prison breakout the sheriff has the discretion to do no, zero, Brady act checks where it’s not… where… this is entrusted to his sound discretion.

The reason that the reasonable efforts clause is put in there is precisely so that he could choose to carry out his State functions instead.

The–

Antonin Scalia:

–Doesn’t the reasonableness include the amount of funding that the county gives the sheriff?

Doesn’t the county have to provide enough funding to allow him to do this duty that’s been imposed upon him?

Wouldn’t it be declared unreasonable if the county clearly has not provided the sheriff’s office enough funds to do it?

Walter E. Dellinger, III:

–He is required to make some judgments.

He’s required to make some choices.

He has some political accountability for those choices.

I don’t deny any of those things, but all of the political responsibility that can possibly be claimed has been taken by the Federal agencies in this case.

You can call–

David H. Souter:

Well, what about a situation in which the county says, as a footnote to the budget, not a penny of the sheriff’s budget is going to be spent doing Brady act investigations.

Walter E. Dellinger, III:

–That–

David H. Souter:

It seems to me the point of political accountability at that point is directly on the sheriff.

Walter E. Dellinger, III:

–Justice Souter, when the State says you may not do any Brady act checks, or you may not spend a penny doing Brady act checks, that statute is preempted under the Supremacy Clause by the Brady act.

The… every private who sorts potatoes thinks that… between large and small ones thinks that when you get a medium sized potato you’re making a policy choice, but here, it is only in the flexibility about the amount of resources to be expended.

Think about how… the same choices are going to be made when the State has to have somebody report missing children to a national system–

William H. Rehnquist:

What if the board of supervisors from one of these counties says, you know, you’re doing a lot of stuff for us already, and go ahead and do the Brady act stuff, but put it at the bottom of the list, and then as… it turns out, in fact, that they put it at the bottom of the list and they never get to it.

Walter E. Dellinger, III:

–If there are… this is a law that is entrusted to the sound discretion of the law enforcement officer.

William H. Rehnquist:

Well, and the way they exercise their discretion–

Walter E. Dellinger, III:

My–

William H. Rehnquist:

–is they obey the board of supervisors and put the Brady act stuff last.

Walter E. Dellinger, III:

–My answer would be that it would not be reasonable to make an a priori determination going forward that this was always the last matter to be done.

The fact of the matter is, Justice O’Connor I think asked an important question, don’t many CLEO’s like this law, and they’re happy to comply with it.

I mean, the answer is not just some, the answer is most, but I mean… in fact, they wanted this duty.

They want… the major law enforcement organizations wanted this duty placed on local law enforcement for some of the reasons Justice Kennedy suggested.

William H. Rehnquist:

Well, we don’t ordinarily decide constitutional questions… I mean, are we going to say to someone who raises a First Amendment claim, gee, plenty of other people have obeyed this law, and here you are complaining about it?

[Laughter]

Walter E. Dellinger, III:

No, Mr. Chief Justice.

My point is that they wanted it for a very good reason, for the reason suggested in part by a question from Justice Kennedy, that the alternative of having these duties imposed upon a substantial Federal bureaucracy when they are more easily done in the 3,000 counties that have more local familiarity–

Anthony M. Kennedy:

Well, but I suppose the answer to that is, as the Constitution recognizes, that each branch of the Government, State and Federal, has to make a certain cost-benefit choice, and if Congress wants to have some huge program, I suppose it can pay the political cost for it.

Walter E. Dellinger, III:

–In this case the… given the fact that you have, for example, 56 FBI field offices, one for every 30 counties, it would be extraordinarily inconvenient, as well as inefficient, and the relevant records are where local law enforcement is.

Congress didn’t do this simply to off-load its burdens.

That’s where the arrest warrants are for fugitives from justice that are not on the NCIC, where you could look up the local search warrants.

Justice O’Connor naturally leads to the question why not make it voluntary if most CLEO’s want it?

I think there’s something much more serious than a free ride or problem here.

This is a chain that may be no stronger than its weakest link, and I think the reason that local law enforcement offices wanted Congress to make this mandatory was that they understood that if you have one county in a region or a State that simply announces we are not going to look up and find out whether gun buyers are felons, that’s the counties where felons will buy their guns–

Anthony M. Kennedy:

So federalism is now being used to ensure uniformity.

I thought it was for just the opposite purpose.

Walter E. Dellinger, III:

–Federalism is being used here, Justice Kennedy, to mitigate in this case the effects of the enormous interstate mobility in handguns by ensuring that there is some effort made to see which illegal buyers are doing so before guns are sold.

It–

Anthony M. Kennedy:

Would you agree with me that this is a very rare exercise of Federal power?

I noticed in your brief that you could find very few examples.

It’s surprising how–

Walter E. Dellinger, III:

–I think that observation–

Anthony M. Kennedy:

–And it’s surprising how often the Federal Government tells the State… or how rarely it tells a State you must do something.

Walter E. Dellinger, III:

–Justice Kennedy, yes.

Anthony M. Kennedy:

As opposed to the fact that you shouldn’t do something under the Supremacy–

Walter E. Dellinger, III:

I agree with that observation and I think that in a sense it cuts both ways here.

It shows, I think, that Congress has not abused the fact that when it’s acting under its legislative power it may call upon… impose, require some duties on local offices.

It has not abused that, even though I think the founders would be surprised.

Stephen G. Breyer:

–So if it is necessary and proper in carrying out–

Walter E. Dellinger, III:

Where it’s necessary and proper.

Stephen G. Breyer:

–If it is necessary and proper.

Walter E. Dellinger, III:

If it is necessary and proper.

Stephen G. Breyer:

If it is–

Walter E. Dellinger, III:

Yes.

Stephen G. Breyer:

–necessary and proper on occasion to impose minor duties, but not take over whole programs and implementation of enormous kinds of welfare programs or whatever, what’s the distinction?

What is it that makes it okay to impose a duty upon a State court to hear Federal cases, upon a Governor to extradite officials, upon policemen to report missing children, but doesn’t impose a duty upon those same officials that’s really much more burdensome than that.

What’s the principle?

Walter E. Dellinger, III:

Well–

Stephen G. Breyer:

How do you interpret the Necessary and Proper Clause to get there, in light of the Tenth Amendment interests, et cetera?

Walter E. Dellinger, III:

–I take your question to be, where you have a law such as this that does not implicate the concerns of sovereignty and accountability, what happens if the number of those duties expands so greatly that it begins to inhibit the ability of the States to carry out their functions, unlike this law, which builds in the flexibility to carry out State functions.

I think that is a question that, of course, you need not decide here.

I think you… because of Justice Kennedy’s observation about how rarely Congress has used this, you will probably never have to decide–

Stephen G. Breyer:

But… well, my particular question is–

Walter E. Dellinger, III:

–the standard will be, Justice Breyer… the standard will be whether you have so seriously interfered with the ability of the State to carry out its own functions, in light, perhaps, of whether it’s the war power or some other very serious national emergency that is causing you to do it.

It is not unlike a question that would come up under other issues, even under laws of general applicability that might at some point interfere with the State’s–

Ruth Bader Ginsburg:

–General Dellinger, may I ask–

John Paul Stevens:

–Mr. Dellinger, may I ask you one basic question?

Do you think the Tenth Amendment has different meaning, depending on what affirmative exercise… what power of Congress it is relying on, whether it’s the Commerce Clause, the War Powers Clause, the Spending Clause?

John Paul Stevens:

Does the Tenth Amendment vary in its meaning, depending on the clause, in your view?

Walter E. Dellinger, III:

–It may, Justice Stevens, with respect to the Civil War amendments, which, I think as the Chief Justice has noted, were designed as a–

John Paul Stevens:

All right.

Walter E. Dellinger, III:

–as a limit on it.

I do not think it otherwise varies, except that it is important not to wholly disentangle these issues.

This is so fully within Congress’ commerce power.

Because at the time of the Constitution handguns were made locally by craftsmen and available only locally, it is due in significant measure to commerce among the States and the extraordinary mobility of handguns that guns made anywhere are now available everywhere that roads or waterways or airports can reach, and it was to mitigate the harm of that cheap national availability that Congress tried to take steps in ’68 to prevent those guns from being sold to persons who were convicted felons–

Anthony M. Kennedy:

But what Congress has done here is say local police officers are available throughout the country also, and therefore we can regulate–

Walter E. Dellinger, III:

–Justice Kennedy, I think it is significant that it’s not merely their availability, but the fact that they were uniquely well-situated.

The frustration is that a gun dealer who is forbidden to sell a gun to a convicted felon but doesn’t know who they are… he gets a form that they check off that says they’re not convicted felons.

The information that this individual may be a convicted felon is right there in the same town.

It may be a few blocks away in the office of the local law enforcement chief.

So in the 5 years before we get this national system online, which will itself not contain all of the categories of 922(g)… it’s a rough and ready way to get the most readily available information with minimal efforts to check reasonable records.

It makes all the sense in the world in this interim period.

Why not wait until there’s a national system with these records available at the gun dealer’s desk?

The answer is that there are 13,000 handgun murders a year in this country.

Antonin Scalia:

–A Federal system is often inefficient, is all that you’re saying.

I mean… yeah.

Walter E. Dellinger, III:

Sometimes–

Antonin Scalia:

That’s why not many countries in the world have it.

Walter E. Dellinger, III:

–Sometimes–

Antonin Scalia:

It’s a lot easier to do everything, you know, by command from–

Walter E. Dellinger, III:

–Sometimes the solution to a serious problem can’t be reconciled with the requirements of the Constitution, but this is not such a case.

Ruth Bader Ginsburg:

–General Dellinger, may I ask you–

Walter E. Dellinger, III:

Yes.

Ruth Bader Ginsburg:

–before you finish if you could just address the severability question, because you said something before about, if you… if it was voluntary it wouldn’t work, because everybody would buy their guns in a place that doesn’t participate.

Walter E. Dellinger, III:

Thank you for allowing me to say that it doesn’t work as well–

[Laughter]

–if it were voluntary.

That is to say, if one CLEO could put up a sign saying, we won’t check for records, it will not, but it nonetheless works as Congress intended, and therefore I think there’s no serious question of nonseverability here.

Walter E. Dellinger, III:

Thank you.

William H. Rehnquist:

Thank you, General Dellinger.

The case is submitted.