Printz, state sovereignty, and the limits of formalism

Supreme Court Review

Volumn 1997, Issue 1, 1997, Pages 199-247

  Caminker, Evan H ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 0010191861     PISSN: 00819557     EISSN: None     Source Type: Book Series    
DOI: 10.1086/scr.1997.3109742     Document Type: Article

References (156)

1. See, for example, United States v Lopez, 514 US 549 (1995) (limiting the scope of the Commerce Clause power); Seminole Tribe v Florida, 116 S Ct 1114 (1996) (holding Congress cannot abrogate states' Eleventh Amendment immunity from suit in federal court pursuant to its Article I powers); City of Boerne v Flores, 117 S Ct 2157 (1997) (limiting scope of Fourteenth Amendment's Section 5 power).
2. 117 S Ct 2365 (1997).
3. 505 US 144 (1992).
4. Id at 176 (citation omitted).
5. 18 USC §§ 922, 924, 925A (1994).
6. The Court did invalidate key provisions of the Brady Act, which many thought an important weapon in the national fight against violent crime. But there are only a handful of other recent commandeering statutes that clearly fall within the decision's ambit. See Lead Contamination Control Act of 1988, 42 USC §§ 300j-21-26 (1994) (requiring states to assist local educational agencies in remedying lead contamination in drinking water coolers located in schools and day-care centers); Forest Resources Conservation and Shortage Relief Act of 1990, 16 USC §§ 620a-620J (1994) (requiring certain western states to promulgate regulations reducing their export of unprocessed timber harvested from state public lands). A plausible, though I think ultimately unpersuasive, commandeering claim has been made against the 1993 Indian Gaming Regulatory Act, 25 USC §§ 2701-21 (1994) (requiring, among other things, that states follow various procedures in negotiating with Native American tribes seeking to establish gaming ventures within the state). Furthermore, two district courts have used dubious reasoning to invalidate on commandeering grounds the Driver's Privacy Protection Act of 1994, 18 USC §§ 2721-25, see Oklahoma v United States, 1997 US Dist LEXIS 14455 (WD Ok); Condon v Reno, 972 F Supp 977 (DSC 1997), even though this federal statute merely restrains state action and does not impose affirmative obligations on state officials. Various statutes require state officials to gather and report information to federal authorities. These include 15 USC § 2224 (1994) (states must report lists of places of public accommodation affecting interstate commerce); 15 USC § 2645 (1994) (governors must conduct certain reporting and approval activities with respect to local educational agencies); 20 USC § 4013 (1994) (governors must submit plans for asbestos abatement and follow certain reporting procedures); 42 USC § 5779(a) (1994) (state and local law enforcement agencies must report cases of missing children); 42 USC § 6933 (1994) (states must inventory hazardous waste sites); 42 USC § 6991(a) (1994) (governors must inventory underground storage tanks); 42 USC §§ 11001, 11003 (1994) (state must collect and report comprehensive data concerning the release of hazardous substances, and must create emergency response commissions). Printz purported not to decide whether such reporting requirements fall within the Court's anti-commandeering rule. 117 S Ct at 2376; see also id at 2385 (O'Connor concurring). I discuss this question at text and notes 108-15.
7. 117 S Ct at 2376.
8. See, for example, INS v Chadha, 462 US 919 (1983) (enforcing bicameralism and presentment limitations on one-House legislative veto); Freytag v Commission, 501 US 868 (1991) (enforcing Appointments Clause limitations on organization of court systems).
9. 18 USC §§ 921 et seq (1994).
10. 18 USC §§ 922, 924, 925A (1994).
11. Printz, 117 S Ct at 2380.
12. Justice Scalia's opinion was joined in full by Chief Justice Rehnquist and Justices O'Connor, Kennedy, and Thomas. Both Justices O'Connor and Thomas wrote brief concurring opinions.
13. 117 S Ct at 2376.
14. Id at 2377.
15. Id, quoting New York v United States, 505 US 144, 166 (1992).
16. Printz, 117 S Ct at 2384.
17. See id at 2378.
18. Id at 2389-94, 2393 (Stevens dissenting).
19. Id at 2401 (Stevens dissenting). Justice Stevens's dissent was joined by Justices Souter, Ginsburg, and Breyer. Justices Souter and Breyer (joined by Justice Stevens) contributed their own shorter dissents as well. Justice Souter suggested that Congress must reimburse states for the "fair value" of their services rendered. Id at 2404.
20. Id at 2376.
21. Id at 2381 (citation omitted).
22. US Const, Art VI, § 2.
23. Claflin v Houseman, 93 US 130, 136 (1876).
24. See also Tarble's Case, 80 US 397 (1871), and Ex parte Young, 209 US 123 (1908) (together suggesting that state courts cannot issue injunctions against federal officials, even though federal courts can issue injunctions against state officials).
25. See Printz, 117 S Ct at 2371-72.
26. See id at 2383.
27. The only constitutional provision that specifically authorizes state governments to direct federal government activity is Article V, which empowers two-thirds of the state legislatures to require Congress to call a convention for the purpose of considering constitutional amendments.
28. See id at 2397 (Stevens dissenting).
29. See id at 2370. The opinion later refers to various provisions in Articles III, IV, and V guaranteeing the separate existence of states, see id at 2376-77, but these provisions provide no assistance in choosing among the plausible constructs of state sovereignty. The Tenth Amendment does not itself define any limitation on congressional power. And the Necessary and Proper Clause provides no help. Even if the word "proper" excludes congressional means that violate the principle of state sovereignty, see id at 2379, that principle is not defined by this or any other clause. At most, therefore, the constitutional text confirms the existence of some implicit principle, but this begs the question of what that principle is.
30. Id at 2376.
31. Id at 2377 (citations omitted).
32. 117 S Ct at 2389 (Stevens dissenting).
33. Justice Scalia's only argument, that the Constitution would have expressly conferred commandeering authority had it meant to do so, is patently weak. Unless one has already determined that conscription of state officials is not a "proper" means for Congress to carry its enumerated powers into execution, see note 29, the Necessary and Proper Clause suffices to confer such authority.
34. 117 S Ct at 2378 (citation omitted).
35. Id at 2372-75.
36. See, for example, id at 2372, 2374. For discussion of the historical evidence, see Evan H. Caminker, State Sovereignty and Subordinacy: May Congress Commandeer State Officers to Implement Federal Law? 95 Colum L Rev 1001 (1995); Saikrishna B. Prakash, Field Office Federalism, 79 Va L Rev 1957 (1993); H. Jefferson Powell, The Oldest Question of Constitutional Law, 79 Va L Rev 633 (1993); Richard E. Levy, New York v. United States: An Essay on the Uses and Misuses of Precedent, History, and Policy in Determining the Scope of Federal Power, 41 U Kan L Rev 493 (1993).
37. See, for example, id at 2372, 2374. For discussion of the historical evidence, see Evan H. Caminker, State Sovereignty and Subordinacy: May Congress Commandeer State Officers to Implement Federal Law? 95 Colum L Rev 1001 (1995); Saikrishna B. Prakash, Field Office Federalism, 79 Va L Rev 1957 (1993); H. Jefferson Powell, The Oldest Question of Constitutional Law, 79 Va L Rev 633 (1993); Richard E. Levy, New York v. United States: An Essay on the Uses and Misuses of Precedent, History, and Policy in Determining the Scope of Federal Power, 41 U Kan L Rev 493 (1993).
38. See, for example, id at 2372, 2374. For discussion of the historical evidence, see Evan H. Caminker, State Sovereignty and Subordinacy: May Congress Commandeer State Officers to Implement Federal Law? 95 Colum L Rev 1001 (1995); Saikrishna B. Prakash, Field Office Federalism, 79 Va L Rev 1957 (1993); H. Jefferson Powell, The Oldest Question of Constitutional Law, 79 Va L Rev 633 (1993); Richard E. Levy, New York v. United States: An Essay on the Uses and Misuses of Precedent, History, and Policy in Determining the Scope of Federal Power, 41 U Kan L Rev 493 (1993).
39. See Printz, 117 S Ct at 2370-72. Justice Scalia's characterization of the early statutes as commandeering judicial rather than executive activities is sometimes quite adventurous. See id at 2391 (Stevens dissenting) (arguing that the "majority's description of these early statutes is both incomplete and at times misleading").
40. Id at 2370.
41. Id at 2375-76. The majority's statutory interpretation is particularly forced here. For example, with respect to a World War I selective draft law, Justice Scalia claimed that "it is far from clear that the authorization [for the President] 'to utilize the service' of state officers was an authorization to compel the service of state officers." Id at 2375. But the statute clearly directs that "all officers and agents . . . of the several States . . . are hereby required to perform such duty as the President shall order or direct." Act of May 18, 1917, ch 15, § 6, 40 Stat 80.
42. "[O]ne must ignore rudimentary principles of political science to draw any conclusions regarding [congressional] intent from the failure to enact legislation." Johnson v Transportation Agency, 480 US 616, 671-72 (1987) (Scalia dissenting). In McIntyre v Ohio Elections Commission, Justice Scalia acknowledged that a historical pattern of nonregulation provides strong evidence against the constitutionality of such regulation only if "there is ample evidence that the reason [the governmental regulation] was not engaged in is that it was thought to violate the [Constitution]." 514 US 334, 372 (1995) (Scalia dissenting).
43. See Printz, 117 S Ct at 2371-72 (referring to the Extradition Clause, the Full Faith and Credit Clause, and the Supremacy Clause). One could certainly add to this list the Militia Clauses, US Const, Art I, § 8, els 15 & 16, which specifically authorize Congress to conscript the states' primary military institutions for certain national purposes, including to "execute the Laws of the Union." Also, three courts of appeals have held that the National Voter Registration Act of 1993, 42 USC § 1973gg (1994), which requires state executive officials to take specific affirmative measures to facilitate voter registration in federal elections, is authorized pursuant to the Article I, § 4 congressional power to "alter" state election regulations. See Association of Community Orgs. for Reform Now v Miller, 129 F3d 833 (6th Cir 1997); Voting Rights Coalition v Wilson, 60 F3d 1411 (9th Cir 1995), cert denied, 116 S Ct 815 (1996); Association of Community Orgs. for Reform Now v Edqar, 56 F3d 791 (7th Cir 1995).
44. The canon expressio unius est exclusio alterius does not necessarily apply here, as there is a plausible explanation of why the Constitution would sensibly include these specific commandeering provisions even if the Necessary and Proper Clause generally authorizes commandeering pursuant to Congress's Article I, Section 8 powers. Because the two Extradition Clauses define legal duties owed by states to one another and implicitly empower Congress to enforce those duties, they grant Congress regulatory authority beyond that already secured in Article I. The Militia Clauses specifically limit the federal commandeering power they grant by securing an enclave of state authority. The Article I provisions dictating state participation in the selection process for federal officials commandeer states to help establish the federal government, not to implement its regulatory goals. Each of these provisions has a special function, therefore, even assuming that Congress may commandeer states to implement its Article I regulatory objectives.
45. US Const, Art VI, cl 2 (stating that all species of federal law "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").
46. 330 US 386 (1947).
47. See, for example, Second Employers' Liability Cases, 223 US 1, 57 (1912) ("When Congress, in the exertion of the power confided to it by the Constitution, adopted that [federal] act, it spoke for all the people and all the States, and thereby established a policy for all. That policy is as much the policy of Connecticut as if the act had emanated from its own legislature, and should be respected accordingly in the courts of the State.").
48. Printz, 117 S Ct at 2400 n 31 (Stevens dissenting). For elaboration of this point, see Caminker, 95 Colum L Rev at 1036-38 (cited in note 36).
49. This choice-of-law interpretation follows the text's historical derivation. The Clause emerged from a Convention dispute concerning the best mechanism for securing the supremacy of federal over state law. Originally, the Convention approved a congressional power "[t]o negative all laws, passed by the several States, contravening, in the opinion of the national legislature, the articles of union or any Treaties subsisting under the authority of the union." Max Farrand, ed, 1 The Records of the Federal Convention of 1787 47 (Yale Univ Press, 1966). The delegates later rejected this "congressional veto" approach in favor of a judicial alternative. 2 id at 27-28. Immediately thereafter, the Convention unanimously approved the following supremacy provision: that the Legislative acts of the U.S. made by virtue & in pursuance of the articles of Union, and all treaties made & ratified under the authority of the US shall be the supreme law of the respective States, as far as those acts or treaties shall relate to the said States, or their Citizens and inhabitants - & that the Judiciaries of the several States shall be bound thereby in their decisions, any thing in the respective laws of the individual States to the contrary notwithstanding. 2 id at 28-29. The first phrase affirmed the principle of federal supremacy, and the second phrase endorsed judicial rather than congressional authority to "guard against conflicts between State statutes and Federal laws." Charles Warren, The Making of the Constitution 322 (Little, Brown, 1928).
50. This choice-of-law interpretation follows the text's historical derivation. The Clause emerged from a Convention dispute concerning the best mechanism for securing the supremacy of federal over state law. Originally, the Convention approved a congressional power "[t]o negative all laws, passed by the several States, contravening, in the opinion of the national legislature, the articles of union or any Treaties subsisting under the authority of the union." Max Farrand, ed, 1 The Records of the Federal Convention of 1787 47 (Yale Univ Press, 1966). The delegates later rejected this "congressional veto" approach in favor of a judicial alternative. 2 id at 27-28. Immediately thereafter, the Convention unanimously approved the following supremacy provision: that the Legislative acts of the U.S. made by virtue & in pursuance of the articles of Union, and all treaties made & ratified under the authority of the US shall be the supreme law of the respective States, as far as those acts or treaties shall relate to the said States, or their Citizens and inhabitants - & that the Judiciaries of the several States shall be bound thereby in their decisions, any thing in the respective laws of the individual States to the contrary notwithstanding. 2 id at 28-29. The first phrase affirmed the principle of federal supremacy, and the second phrase endorsed judicial rather than congressional authority to "guard against conflicts between State statutes and Federal laws." Charles Warren, The Making of the Constitution 322 (Little, Brown, 1928).
51. 456 US 742 (1982).
52. Id at 751. See also 16 USC § 824a (1994).
53. Printz, 117 S Ct at 2401 (Stevens dissenting).
54. Id at 2381-82 n 14 (citation omitted).
55. For example, two centuries ago, state judges (and associated judicial personnel) did many of the things that would today be performed by executive officers, including laying city streets and ensuring the seaworthiness of vessels. For discussion, see Caminker, 95 Colum L Rev at 1045 n 176 (cited in note 36).
56. Printz, 117 S Ct at 2371.
57. See Testa v Katt, 330 US 386, 390-91 (1947) ("repudiat[ing] the assumption that federal laws can be considered by the states as though they were laws emanating from a foreign sovereign").
58. Tafflin v Levitt, 493 US 455, 469 (1990) (Scalia concurring) (citations omitted).
59. 117 S Ct at 2402 n 1 (Souter dissenting).
60. Id at 2373-74 n 5 (emphasis added).
61. FERC v Mississippi, 456 US 742, 761 (1982).
62. Printz, 117 S Ct at 2380.
63. Id at 2381.
64. Id.
65. Leaving this potential bright-line distinction aside, even if there is a grey area along the spectrum between law creation and law enforcement, some congressional commands can easily be placed at one end or the other. The conclusion that the CLEOs' mandated duties are more properly characterized as "law implementation" rather than "lawmaking" seems hard to deny. The Brady Act does not require CLEOs to make general pronouncements about "reasonable effortsat all; each CLEO can leave that decision up to each individual officer. And any CLEO pronouncement at most would establish policy only for a local jurisdiction, not the entire state. Finally, as just explained, the CLEO's discretion is not located at the intersection between government and the individual, since any pronouncement about "reasonable efforts" does not affect in any way gun purchasers' legal rights and disabilities under the Act. Rather, any CLEO pronouncement would merely dictate how subordinate executive officers perform their ministerial tasks of enforcing the Act's rules governing private conduct.
66. The irony here is acute: the dissenters in Garcia v San Antonio Metro. Transit Auth. (including two members of the Printz majority) lambasted the Court in that case for eschewing the proper, though concededly difficult, task of linedrawing and balancing in favor of an assertedly improper categorical rule - one which happened to provide states no protection from congressional regulation at all. See 469 US 528, 561-63 (1985) (Powell dissenting), id at 588-89 (O'Connor dissenting). Justice Scalia's own claim in Printz is also ironic, given his earlier reliance on a supposed historical but quite fuzzy distinction between commandeering of quasi-judicial and quasi-executive functions.
67. 117 S Ct at 2381 (citation omitted).
68. Justice Souter proposed a modified version of the administrative supremacy model. He distinguished between state legislatures on the one hand and executive and judicial officials on the other, contending that Congress may commandeer state executive and judicial officials, but may not compel legislators to enact legislation. This is because "[t]he core power of a legislator acting within the legislature's subject-matter jurisdiction is to make a discretionary decision on what the law should be; that is why a legislator may not be legally ordered to exercise discretion a particular way without damaging the legislative power as such." 117 S Ct at 2402 n 1 (Souter dissenting). This version is subtly different from that discussed in the text, in that it does not appear to deny Congress the authority to require nonlegislative officers to engage in lawmaking of sorts appropriate to their offices, e.g., through administrative rulemaking or adjudication. As explained earlier, see text at notes 56-57, Justice Scalia dismissed Justice Souter's proposed distinction by simply asserting that the distinction "seems to us untrue."
69. See 117 S Ct at 2381.
70. Garcia, 469 US at 550.
71. See Caminker, 95 Colum L Rev at 1060-81 (cited in note 36) (evaluating normative claims that commandeering unfairly shifts political liability from federal to state officials, unduly constrains state autonomy, undermines the "double security" of opposing governments against each other, threatens to diminish local political participation, or undermines experimentation through diversification).
72. See Roderick M. Hills, The Political Economy of Cooperative Federalism: Why State Autonomy Makes Sense and "Dual Sovereignty" Doesn't, 96 Mich L Rev (forthcoming 1998).
73. See Deborah Jones Merritt, Federalism as Empowerment, 47 U Fla L Rev 541, 553-55 (1995).
74. The New York decision emphasized a concern that commandeering might undermine political accountability, see 505 US at 168-69, while the Printz Court adverted to this concern only in passing to rebut a contrary claim. See 117 S Ct at 2382. See David L. Shapiro, Federalism: A Dialogue 111-13 (Northwestern Univ Press, 1995) (citing accountability problems and defending New York as maintaining states' "continued existence as politically functioning entities").
75. Plant v Spendthrift Farm, Inc., 514 US 211, 239 (1995).
76. For a contemporary version of how these political safeguards might operate, see Larry Kramer, Understanding Federalism, 47 Vand L Rev 1485 (1994).
77. 117 S Ct at 2378 (citations omitted).
78. See id at 2378 n 12.
79. Parts of this section build upon a discussion in a symposium essay, see Evan H. Caminker, The Unitary Executive and State Administration of Federal Law, 45 U Kan L Rev 1075 (1997).
80. For a full explication of the argument outlined in the text, see Steven G. Calabresi and Saikrishna B. Prakash, The President's Power to Execute the Laws, 104 Yale L J 541 (1994). For variations on the theme, see, for example, Steven G. Calabresi, Some Normative Arguments for the Unitary Executive, 48 Ark L Rev 23 (1995); Gary Lawson, The Rise and Rise of the Administrative State, 107 Harv L Rev 1231 (1994); Lee S. Liberman, Morrison v. Olson: A Formalist Perspective on Why the Court Was Wrong, 38 Am U L Rev 313 (1989).
81. For a full explication of the argument outlined in the text, see Steven G. Calabresi and Saikrishna B. Prakash, The President's Power to Execute the Laws, 104 Yale L J 541 (1994). For variations on the theme, see, for example, Steven G. Calabresi, Some Normative Arguments for the Unitary Executive, 48 Ark L Rev 23 (1995); Gary Lawson, The Rise and Rise of the Administrative State, 107 Harv L Rev 1231 (1994); Lee S. Liberman, Morrison v. Olson: A Formalist Perspective on Why the Court Was Wrong, 38 Am U L Rev 313 (1989).
82. For a full explication of the argument outlined in the text, see Steven G. Calabresi and Saikrishna B. Prakash, The President's Power to Execute the Laws, 104 Yale L J 541 (1994). For variations on the theme, see, for example, Steven G. Calabresi, Some Normative Arguments for the Unitary Executive, 48 Ark L Rev 23 (1995); Gary Lawson, The Rise and Rise of the Administrative State, 107 Harv L Rev 1231 (1994); Lee S. Liberman, Morrison v. Olson: A Formalist Perspective on Why the Court Was Wrong, 38 Am U L Rev 313 (1989).
83. See, for example, Calabresi and Prakash, 104 Yale L J at 560-64, 566-68 (cited in note 77) (explaining why the maxim expressio unius est exclusio alterius applies to the trinity of powers and institutions).
84. US Const, Art II, § 1, cl 1.
85. For example, the Vesting Clauses of Articles II and III are linguistically and structurally similar to each other; the Article III Vesting Clause is necessarily the textual grant of the judicial power; and thus the Article II Vesting Clause should be understood analogously as the textual grant of the executive power. See Calabresi and Prakash 104 Yale L J at 570-72 (cited in note 77). The more detailed presidential powers and duties explicitly provided in Sections 2 and 3 qualify or constrain the general grant of executive power in Section 1. See id at 576-79.
86. See 1 Annals of Cong. 481 (Gales ed, 1789) (James Madison) ("if any power whatsoever is in its nature executive, it is the power of appointing, overseeing, and controlling those who execute the laws").
87. It is somewhat surprising that Justice Scalia referred to the Take Care Clause rather than the Vesting Clause as the font of the President's executive power. Compare Mormon v Olson, 487 US 654 705 (1988) (Scalia dissenting) (invoking Vesting Clause). The predominant (and better) view is that the Take Care Clause does not grant any power but rather imposes a duty, prohibiting the President from ignoring or otherwise subverting statutory directives. See Calabresi and Prakash, 104 Yale L J at 583-84 (cited in note 77) (the Take Care Clause "mak[es] it clear that the President has no royal prerogative to suspend statutes"). While the President ultimately is responsible for all discretionary decisions concerning the implementation of federal law, the scope of that discretion, if any, turns on Congress's definition of the statutory duty. It is also somewhat surprising that Justice Scalia did not mention the Appointments Clause; some unitary executive theorists believe this poses an additional constitutional obstacle to state administration of federal law.
88. For scholarship both defending and challenging the unitarian position, see the articles cited in Calabresi and Prakash, 104 Yale L J at 545 nn 3-7 (cited in note 77).
89. For arguments that unitary executive theory cannot be defended purely on originalist grounds, see, for example, Lawrence Lessig and Cass R. Sunstein, The President and the Administration, 94 Colum L Rev 1 (1994); Martin S. Flaherty, The Most Dangerous Branch, 105 Yale L J 1725 (1996).
90. For arguments that unitary executive theory cannot be defended purely on originalist grounds, see, for example, Lawrence Lessig and Cass R. Sunstein, The President and the Administration, 94 Colum L Rev 1 (1994); Martin S. Flaherty, The Most Dangerous Branch, 105 Yale L J 1725 (1996).
91. Compare Lessig and Sunstein, 94 Colum L Rev at 85-106 (cited in note 84) (outlining argument that, due to "changed circumstances," Article II might now be best interpreted as mandating a unitary executive), with Abner S. Greene, Checks and Balances in an Era of Presidential Lawmaking, 61 U Chi L Rev 123 (1994) (the Framers' separation of powers commitments, when best translated to account for present conditions, argue against a unitary executive), and Flaherty, 105 Yale L J at 1810-36 (cited in note 84) (same).
92. See, for example, Harold J. Krent, Fragmenting the Unitary Executive: Congressional Delegations of Administrative Authority Outside the Federal Government, 85 Nw U L Rev 62, 84-93 (1990) (discussing private delegations).
93. 504 US 555, 576-77 (1992) (opinion by Justice Scalia holding that congressional grant of standing to private parties lacking discrete injuries contravened the President's exclusive power to execute federal law on behalf of the public).
94. 487 US 654 (1988).
95. It is conceivable, of course, that Justice Scalia did not intend his Article II argument to constitute a truly independent basis for invalidating the Brady Act. Perhaps he intended this discussion merely as additional confirmation of his earlier surmise that the Framers would have considered commandeering to be an illegitimate means of congressional regulation; if so, had he earlier determined the Brady Act to be consistent with federalism principles, perhaps he would not have invalidated the Act on Article II grounds alone. Alternatively, even if Justice Scalia himself considered the Article II argument to constitute a fully independent basis for decision, perhaps some of his joining colleagues viewed the argument as supplementary if colorful musings that, if and when appropriate, could later be qualified or explained away as dicta unnecessary to the resolution of this case. But whatever subjective intentions may explain its creation and subsequent joinder by a majority, the structure and language of Justice Scalia's argument do make it read like an alternative (if brusque) basis for decision. Certainly a statute's conformity with separation of powers requirements is typically thought to be independent of its conformity with federalism principles. And in any event, emphatic language such as this often takes on a doctrinal life of its own, driving both lower court deliberations and subsequent Supreme Court decision making as well. It therefore seems best to take the Article II discussion quite seriously, as meaning precisely what it says.
96. For example, early Congresses relied heavily on private qui tam actions to enforce a wide variety of federal statutory duties. See Evan H. Caminker, The Constitutionality of Qui Tam Actions, 99 Yale L J 341, 341-42 (1989). Moreover, as discussed previously, early Congresses frequently required state officials to assist in the implementation of various federal laws. See text at note 37 above; see also Harold J. Krent, Executive Control Over Criminal Law Enforcement: Some Lessons from History, 38 Am U L Rev 275, 303-10 (1989). Whether this tradition of unsupervised execution of federal law through private persons or state officials is significant enough to cast doubt on the unitary executive theory in its entirety, the tradition certainly raises questions concerning the theory's application beyond subordinate federal officials. Of course, to the extent that the early tradition of state administration involved judicial rather than executive tasks, the requirement of presidential supervision would not have applied. But whatever the merit of the majority's contention that the tasks were fairly characterized as judicial from the perspective of state separation of powers doctrine, see Printz, 11.7 S Ct at 2371 n 2, many of the tasks (such as prosecuting violations of federal law, assessing vessels' seaworthiness, arresting and detaining fugitive seamen, and arresting and returning slaves and fugitives from justice - the latter characterized by Scalia himself as executive) certainly seem more fairly characterized as executive rather than judicial from the perspective of federal separation of powers principles, which of course should dictate the scope of presidential authority.
97. For example, early Congresses relied heavily on private qui tam actions to enforce a wide variety of federal statutory duties. See Evan H. Caminker, The Constitutionality of Qui Tam Actions, 99 Yale L J 341, 341-42 (1989). Moreover, as discussed previously, early Congresses frequently required state officials to assist in the implementation of various federal laws. See text at note 37 above; see also Harold J. Krent, Executive Control Over Criminal Law Enforcement: Some Lessons from History, 38 Am U L Rev 275, 303-10 (1989). Whether this tradition of unsupervised execution of federal law through private persons or state officials is significant enough to cast doubt on the unitary executive theory in its entirety, the tradition certainly raises questions concerning the theory's application beyond subordinate federal officials. Of course, to the extent that the early tradition of state administration involved judicial rather than executive tasks, the requirement of presidential supervision would not have applied. But whatever the merit of the majority's contention that the tasks were fairly characterized as judicial from the perspective of state separation of powers doctrine, see Printz, 11.7 S Ct at 2371 n 2, many of the tasks (such as prosecuting violations of federal law, assessing vessels' seaworthiness, arresting and detaining fugitive seamen, and arresting and returning slaves and fugitives from justice - the latter characterized by Scalia himself as executive) certainly seem more fairly characterized as executive rather than judicial from the perspective of federal separation of powers principles, which of course should dictate the scope of presidential authority.
98. The Federalist No 70, at 471 (Alexander Hamilton) (Jacob E. Cooke ed 1961).
99. See Calabresi, 48 Ark L Rev at 48-70 (cited in note 77).
100. See id at 85.
101. Unless the nature of the federal policy is such that underenforcement in a particular state allows that state's inhabitants to enjoy spillover benefits from more zealous enforcement in neighboring states, there should be no concern that the underenforcing state is in any appreciable sense warping the national policy through local (non)enforcement to serve its parochial interests. It is difficult to see, for example, how Montana or Arizona CLEOs could siphon significant benefits from the rest of the nation through their particular decision as to how (even whether) to enforce the Brady Act. And while underenforcement decisions by Montana or Arizona CLEOs might frustrate neighboring states (assuming residents of those states cross the border to purchase guns and return home), one cannot argue that this form of "externality" is caused by the Brady Act such that the neighboring states are any worse off than they were before.
102. See Printz, 117 S Ct at 2378.
103. See Calabresi and Prakash, 104 Yale L J at 639 (cited in note 77).
104. See, for example, Lawson, 107 Harv L Rev at 1243 (cited in note 77); Liberman, 38 Am U L Rev at 353 (cited in note 77).
105. See Myers v United States, 272 US 52, 132-35 (1926).
106. Moreover the possibility of supervision through judicial injunction provides no realistic alternative to a meaningful removal power. In theory, the President might sue particular CLEOs, seeking injunctive relief requiring those officers (under threat of contempt) to implement federal law consistent with the President's specific orders or general policy objectives. But in practice, this avenue would prove unwieldy because a court could not easily fashion an appropriate injunction. A CLEO could be ordered to obey specific presidential policy directives, but then if the President wanted to change his directives, he'd have to seek judicial modification of the injunction. A CLEO could be ordered more broadly to obey "any policy directive articulated by the President," but such an injunction might be too broad and vague to be enforceable. Moreover, oversight-by-injunction would at the very least be very time consuming and ensure an ongoing adversarial relationship between President and CLEO.
107. Printz, 117 S Ct at 2378.
108. Indeed Professor Harold Krent has suggested that the unitary executive theory applies broadly enough to include the entire range of "voluntary" joint federal-state programs. See Krent, 85 Nw U L Rev at 81 & n 56 (cited in note 86).
109. Printz, 117 S Ct at 2396-97 (Stevens dissenting).
110. Even this relatively clean dichotomy between federal and state laws raises some interesting questions of classification. For a suggestion that a particular federal statute might for some purposes "incorporate" state laws designed to satisfy federal criteria, see, for example Ashoff v City of Ukiah, 130 F3d 409 (9th Cir 1997). For a discussion of whether interstate compacts, which are treated as "federal law" for purposes of Article III jurisdiction, should similarly be treated as "federal law" for purposes of Article II superintendence see Caminker, 45 Kan L Rev at 1103 n 115 (cited in note 76).
111. The majority opinion refused to invalidate two provisions of the Brady Act because they "have conceivable application to a CLEO . . . only if he has chosen, voluntarily, to participate in administration of the federal scheme." Printz, 117 S Ct at 2384. Justice O'Connor declared more directly that "[s]tates and chief law enforcement officers may voluntarily continue to participate in the federal program." Id at 2385 (O'Connor concurring).
112. Id at 2378 n 12.
113. See, for example, INS v Chadha, 462 US 919, 963 (1983).
114. Plant v Spendthrift Farm, Inc., 514 US 211, 228 (1995).
115. See Printz, 117 S Ct at 2376; see also, for example, id at 2381 ("administering federal law"); id at 2383 ("direct the functioning of the state executive"); id at 2384 ("administer or enforce a federal regulatory program").
116. Id at 2376; id at 2385 (O'Connor concurring).
117. Id at 2385 (O'Connor concurring) (referring specifically to 42 USC § 5779(a), which requires state and local law enforcement officials to report cases of missing children to the Department of Justice).
118. Id at 2381.
119. Id at 2383, 2384. For the same reasons, the Court's approach would also seem to reject any attempt to draw distinctions among the various reporting requirements based on the varying extent of the burdens they impose. For example, some so-called reporting requirements do not merely require state officials to disclose information they already possess to the federal government; in some cases, state officials must first gather, create, and/ or structure the information in a manner prescribed by federal law. See note 6 above. Moreover, the fact that states might be better situated than the federal government to gather certain types of data fails to distinguish pure reporting requirements from the Brady Act itself, which was defended in part on this very ground. See 117 S Ct at 2383 (rejecting relevance of claim that the Brady Act "is most efficiently administered by CLEOs during the interim period").
120. See Printz, 117 S Ct at 2380.
121. For example, in Printz, the Court characterized the take-tide provision as "effectively requiring the States either to legislate pursuant to Congress's directions, or to implement an administrative solution." Id at 2380; see id at 2398 (Stevens dissenting) (provision operates as a compelled subsidy, which is "almost certainly a legislative act" or perhaps an act of "purely executive policymaking").
122. New York, 505 US at 175.
123. See 117 S Ct at 2370-71, 2380.
124. Id at 2371-72 (footnote omitted).
125. US Const, Art I, § 8, cls 15 & 16.
126. 42 USC § 1973gg (1994).
127. US Const, Art I, § 4, cl 1.
128. See Ex parte Siebold, 100 US 371, 388-91 (1879) (affirming Congress's power to leave in place a state election scheme while creating additional sanctions for state officials who violate that scheme, based on the view that "the [state] officers of election, in elections for [federal] representatives, owe a duty to the United States, and are amenable to that government as well as to the State. . . .").
129. As Judge Posner concluded: Congress could have established a separate system of voter registration for federal elections, manned by federal officers . . . . If Congress had done that, however, the burden would fall on the federal fisc alone. . . . But Article I section Four does not authorize Congress only to establish a system of federal voter registration. The first sentence, remember, requires the states to create and operate such a system and the second authorizes Congress to alter the state's system - but it is still the state's system, manned by state officers and hence paid for by the state. Association of Community Orgs. for Reform Now v Edgar, 56 F3d 791, 795 (7th Cir 1995); see also Association of Community Orgs. for Reform Now v Miller, 129 F3d 833 (6th Cir 1997); Voting Rights Coalition v Wilson, 60 F3d 1411 (9th Cir 1995), cert denied, 116 S Ct 815 (1996).
130. The Motor Voter Act was also defended on this ground, with proponents arguing that Congress's effort to encourage voter registration was designed to protect the fundamental right to vote and to remedy subtle forms of racial discrimination perpetuated by existing state registration schemes. See Association of Community Orgs. for Reform Now v Edgar, 800 F Supp 1215 (ND Ill 1995) (holding Act authorized pursuant to Congress's Section 5 as well as Article I, § 4 powers), aff'd on Section 4 grounds, 56 F3d 791 (7th Cir 1995). Similarly, the United States has invoked Congress's Section 5 power to defend the Driver's Privacy Protection Act of 1994, 18 USC §§ 2721-25 (1994), which regulates the dissemination and use of certain information contained in state motor vehicle records in order to protect privacy rights purportedly secured by the Fourteenth Amendment. But see Condon v Reno, 972 F Supp 977 (DSC 1995) (rejecting the Section 5 defense on the ground that the disclosure of this particular information does not implicate Fourteenth Amendment privacy rights; and rejecting the Commerce Clause defense on anti-commandeering grounds). While I focus here on Congress's Section 5 power, the same question arises with respect to Congress's Section 2 powers to enforce the Thirteenth and Fifteenth Amendments. Indeed, the latter has also been invoked to defend the Motor Voter Act.
131. See 427 US 445, 452-56 (1976); see also Seminole Tribe v Florida, 116 S Ct 1114 (1996) (reaffirming Section 5 power to override Eleventh Amendment immunity even while holding that the Commerce Clause does not similarly authorize Congress to override such immunity).
132. City of Rome v United States, 446 US 156, 179 (1980); see also, for example, Gregory v Ashcroft, 501 US 452, 468 (1991); EEOC v Wyoming, 460 US 226, 243 n 18 (1983); South Carolina v Katzenbach, 383 US 301, 324 (1966).
133. Indeed, if anything, it is more likely that the Framers contemplated the question whether Section 5 would override an anti-commandeering principle, because at least such a principle had been previously mentioned by Justices of the Court. See Kentucky v Dennison, 65 US 66 (1861); Prigg v Pennsylvania, 41 US 539 (1842). By contrast, the Court did not clearly suggest that the Eleventh Amendment generally barred federal question suits against states until Louisiana v Jumel, 107 US 711 (1883), and Hans v Louisiana, 134 US 1 (1890), well after Section 5 was enacted.
134. Of course, even if commandeering is a legitimate means of congressional regulation under Section 5, any such statute must still "enforce . . . the provisions" of the Fourteenth Amendment with respect to its subject matter. The Supreme Court's decision in City of Boerne v Flores, 117 S Ct 2157 (1997), issued the same week as Printz, made clear that in this respect, the scope of Congress's Section 5 power is limited to measures designed to "remedy or prevent" Fourteenth Amendment violations as defined by the judiciary (rather than Congress). The Motor Voter Act and Driver's Privacy Protection Act aside, other existing commandeering statutes (including the Brady Act) may raise questions under Boerne's subject matter limitation.
135. One might argue that the Extradition Act does not implicate Article II concerns by conceptualizing the obligation imposed on the asylum state as a duty to aid in the execution of a sister state's laws, rather than a duty to aid in the execution of federal law. If so, then state compliance does not implicate the principles underlying the unitary executive, mirroring my proposal that congressionally induced state administration of state law designed to secure federal objectives should not be held to violate Article II. See text at note 103 above. But I find this conceptualization unpersuasive. The asylum state's duty to respect the demanding state's extradition request is imposed by the congressional statute to give effect to a federal principle of interstate comity - even if the ultimate goal of such comity is to help the demanding state enforce its own criminal laws. Thus, asylum state officials are required to implement federal law, which would seem to trigger the unitary executive requirement.
136. Of course, Article II's requirement of presidential supervision might still apply to the extent that specific supervisory means are not inherently inconsistent with the very notion of conscripting state officials. For example, while the President could not assert removal power over state officials implementing federal law, Article II might still empower the President to issue directives to those state officials in an effort to guide their administrative decision making.
137. See California v Superior Court, 482 US 400, 406-08 (1987).
138. The standard cannot be so lax that any authority to commandeer is considered specific enough to escape Article II scrutiny. Otherwise, Article II would cease to operate as an independent ground for decision in Printz, contrary to my assumption here. For the Article II argument to have any bite at all, there must be some commandeering that is authorized notwithstanding any federalism objections, and yet not be so "specifically authorized" as to merit automatic exemption from Article II constraints.
139. See New York v United States, 505 US 144, 167 (1992); see also Printz, 117 S Ct at 2385 (O'Connor concurring).
140. See New York, 505 US at 167-68. For example, assuming this would be a valid exercise of its Commerce Clause power, Congress could enact a law preempting any and all state regulations of gun purchases unless CLEOs enforced the Brady Act. Or, Congress could do precisely the opposite (if allowed by the Second Amendment) and enact a law prohibiting the sale of guns within a state unless its CLEOs enforced the Brady Act.
141. See Printz, 117 S Ct at 2387 (Stevens dissenting). For a further discussion of the ways in which commandeering can serve legitimate federal interests not easily achievable through the use of incentives, see Caminker, 95 Colum L Rev at 1083-86 (cited in note 36).
142. Printz, 117 S Ct at 2378.
143. 426 US 833 (1976).
144. 392 US 183 (1968).
145. See 426 US at 845, 852-55.
146. 469 US 528 (1985).
147. See id at 580 (Rehnquist dissenting); id at 589 (O'Connor dissenting).
148. See Printz, 117 S Ct at 2384.
149. Id at 2376. The majority did not rely - at least explicitly - on a governmental/ proprietary distinction that might purport to save generally applicable burdens from its anti-commandeering rule. Such a distinction is notoriously difficult to draw and defend.
150. See id at 2382.
151. Id at 2383 (footnote omitted). In footnote 17, the Court responded to Justice Stevens's claim that if the Brady Act had imposed a similar burden on both police officers and private persons, the burden on the former would have been permissible. Although the Court conceded "[t]hat is undoubtedly true," the Court might have agreed with the dissent not because the hypothesized law was generally applicable, but instead because it burdened police officers only in their individual rather than official capacities. Id at 2383 n 17. Accordingly, the burden would not run afoul of any resurrected National League of Cities-like balancing test.
152. Indeed, four days before Printz, Justice Scalia refused to join Justice Kennedy's lead opinion reformulating the doctrine of Ex parte Young, 209 US 123 (1908), into a case-by-case balancing test concerning the particular need for federal court control of state officials through injunctive relief. See Idaho v Coeur d'Alene Tribe, 117 S Ct 2028 (1997). Justice Scalia instead joined Justice O'Connor's concurring opinion, which preserved the traditional bright-line rule that federal courts may enjoin state officials with regard to prospective but not retrospective relief. Id at 2045-47.
153. If this is Justice Scalia's view, it is somewhat surprising that he did not attempt to draw support from the mid-century New York v United States decision concerning the doctrine of intergovernmental tax immunity. See 326 US 572 (1946). There the Supreme Court upheld a nondiscriminatory federal tax on the sale of mineral waters as applied to New York, which engaged in the bottling and sale of such waters. Various Justices suggested, however, that a federal tax targeting "state activities and state-owned property that partake of uniqueness" (such as state taxation and owning a Statehouse) would be invalid as "taxing the State as a State." Id at 582 (opinion of Frankfurter); see also id at 586 (Stone concurring). This first New York case seems a natural precursor of the second; perhaps it goes unmentioned because the relevant discussion is dicta.
154. See, for example, Employment Div., Ore. Dept. of Human Resources v Smith, 494 US 872, 878 (1990) ("[I]f prohibiting the exercise of religion (or burdening the activity of printing) is not the object of the tax but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended."); Barnes v Glen Theatre, Inc., 501 US 560, 577 (1991) (Scalia concurring in the judgment) ("In each of the foregoing cases [invalidating regulations on First Amendment grounds], we explicitly found that suppressing communication was the object of the regulation of conduct. Where that has not been the case, however - where suppression of communicative use of the conduct was merely the incidental effect of forbidding the conduct for other reasons - we have allowed the regulation to stand.").
155. See Church of the Lukumi Babalu Aye, Inc. v Hialeab, 508 US 520, 558-59 (1993) (Scalia concurring in part) (distinguishing between improper focus on "subjective motivation of the lawmakers" and proper focus on "object of the laws").
156. This distinguishes the sovereignty context from the First Amendment context. In the latter arena, Justice Scalia has expressed concern that, if the