Antonin Scalia

“ Executive action that has utterly no policymaking component is rare, particularly at an executive level as high as a jurisdiction's chief law enforcement officer. Is it really true that there is no policymaking involved in deciding, for example, what "reasonable efforts" shall be expended to conduct a background check? ”

“ The distinction between judicial writs and other government action directed against individuals in their personal capacity, on the one hand, and in their official capacity, on the other hand, is an ancient one, principally because it is dictated by common sense. We have observed that "a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office. ”

“ And the same must be said of a directive to an official in his or her official capacity. To say that the Federal Government cannot control the State, but can control all of its officers, is to say nothing of significance. [15] Indeed, it merits the description "empty formalistic reasoning of the highest order," post, at 15. By resorting to this, the dissent not so much distinguishes New York as disembowels it. ”

“ The dissent makes no attempt to defend the Government's basis for distinguishing New York, but instead advances what seems to us an even more implausible theory. The Brady Act, the dissent asserts, is different from the "take title" provisions invalidated in New York because the former is addressed to individuals—namely CLEOs—while the latter were directed to the State itself. That is certainly a difference, but it cannot be a constitutionally significant one. While the Brady Act is directed to "individuals," it is directed to them in their official capacities as state officers ”

“ It reasons, post, at 3-5, that the power to regulate the sale of handguns under the Commerce Clause, coupled with the power to "make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers," Art. I, §8, conclusively establishes the Brady Act's constitutional validity, because the Tenth Amendment imposes no limitations on the exercise of delegated powers but merely prohibits the exercise of powers "not delegated to the United States." ”

“ It is the mere existence of all federal laws that is said to make state officers "incorporated" and "auxiliary."↑ Justice Souter seeks to avoid incompatibility with New York (a decision which he joined and purports to adhere to) , by saying, post, at 3-4, that the passage does not mean "any conceivable requirement maybe imposed on any state official," and that "the essence of legislative power . . . is a discretion not subject to command," so that legislatures, at least, cannot be commanded. ”

“ The Brady Act creates two significant alternatives to the foregoing scheme. A dealer may sell a handgun immediately if the purchaser possesses a state handgun permit issued after a background check, §922 (s) (1) (C) , or if state law provides for an instant background check, §922 (s) (1) (D) . In States that have not rendered one of these alternatives applicable to all gun purchasers, CLEOs are required to perform certain duties. ”

“ Our system of dual sovereignty is reflected in numerous constitutional provisions, see supra, at 19-20, and not only those, like the Tenth Amendment, that speak to the point explicitely. It is not at all unusual for our resolution of a significant constitutional question to rest upon reasonable implications. See, e.g., Myers v. United States, 272 U.S. 52 (1926) (finding by implication from Art. II, §§1, 2, that the President has the exclusive power to remove executive officers) ”

“ It is quite impossible, in short, to draw the Government's proposed line at "no policymaking," and we would have to fall back upon a line of "not too much policymaking." How much is too much is not likely to be answered precisely ”

“ It also forbids possession of a firearm by, and transfer of a firearm to, convicted felons, fugitives from justice, unlawful users of controlled substances, persons adjudicated as mentally defective or committed to mental institutions, aliens unlawfully present in the United States, persons dishonorably discharged from the Armed Forces, persons who have renounced their citizenship, and persons who have been subjected to certain restraining orders or been convicted of a misdemeanor offense involving domestic violence. ”

“ Some of these are connected to federal funding measures, and can perhaps be more accurately described as conditions upon the grant of federal funding than as mandates to the States; others, which require only the provision of information to the Federal Government, do not involve the precise issue before us here, which is the forced participation of the States' executive in the actual administration of a federal program. We of course do not address these or other currently operative enactments that are not before us ”

“ Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself." The Federalist No. 51, at 323. See also The Federalist No. 28, at 180-181 (A. Hamilton) . The power of the Federal Government would be augmented immeasurably if it were able to impress into its service—and at no cost to itself—the police officers of the 50 States. ”

“ Perhaps legislatures are inherently uncommandable as to the outcome of their legislation, but they are commanded all the time as to what subjects they shall legislate upon—commanded, that is, by the people, in constitutional provisions that require, for example, the enactment of annual budgets or forbid the enactment of laws permitting gambling. ”

“ But then why were legislatures mentioned in the passage? It seems to us assuredly not a "natural reading" that being "rendered auxiliary to the enforcement of [the national government's] laws" means impressibility into federal service for "courts and magistrates" but something quite different for "legislatures." Moreover, the novel principle of political science that Justice Souter invokes in order to bring forth disparity of outcome from parity of language—namely, that " [t] he essence of legislative power . ”

“ United States, 217 U.S. 509, 516-517 (1910) (explaining that the Act of March 26, 1790 "conferred authority upon state courts to admit aliens to citizenship" and refraining from addressing the question "whether the States can be required to enforce such naturalization laws against their consent") ; United States v. Jones, 109 U.S. 513, 519-520 (1883) (stating that these obligations were imposed "with the consent of the States" and-could not be enforced against the consent of the States") . ”

“ Petitioners also challenge, however, two other provisions of the Act: (1) the requirement that any CLEO "to whom a [Brady Form] is transmitted" destroy the form and any record containing information derived from it, §922 (s) (6) (B) (i) , and (2) the requirement that any CLEO who "determines that an individual is ineligible to receive a handgun" provide the would be purchaser, upon request, a written statement of the reasons for that determination, §922 (s) (6) (C) . ”

“ Even assuming, moreover, that the Brady Act leaves no "policymaking" discretion with the States, we fail to see how that improves rather than worsens the intrusion upon state sovereignty. Preservation of the States as independent and autonomous political entities is arguably less undermined by requiring them to make policy in certain fields than (as Judge Sneed aptly described it over two decades ago) by "reduc [ing] [them] to puppets of a ventriloquist Congress," Brown v. ”

“ That argument, however, was squarely rejected by the Court in New York, supra, at 161-166, and with good reason. Many of Congress's powers under Art. I, § 8, were copied almost verbatim from the Articles of Confederation, indicating quite clearly that " [w] here the Constitution intends that our Congress enjoy a power once vested in the Continental Congress, it specifically grants it." ”

“ II, §3, personally and through officers whom he appoints (save for such inferior officers as Congress may authorize to be appointed by the "Courts of Law" or by "the Heads of Departments" who are themselves presidential appointees) , Art. II, §2. The Brady Act effectively transfers this responsibility to thousands of CLEOs in the 50 States, who are left to implement the program without meaningful Presidential control (if indeed meaningful Presidential control is possible without the power to appoint and remove) . ”

“ The passage says that (1) federal laws will be supreme, and (2) all state officers will be oath bound to observe those laws, and thus (3) state officers will be "incorporated" and "rendered auxiliary." The reason the progression is automatic is that there is not included between (2) and (3) : " (2a) those laws will include laws compelling action by state officers." ”

“ Extinguished with it, of course, is the duty implicit in the background check requirement that the CLEO accept notice of the contents of, and a copy of, the completed Brady Form, which the firearms dealer is required to provide to him, §§922 (s) (1) (A) (i) (III) and (IV) . ”

“ Justice Souter contends that his interpretation of Federalist No. 27 is "supported by No. 44," written by Madison, wherefore he claims that "Madison and Hamilton" together stand opposed to our view. Post, at 4. In fact, Federalist No. 44 quite clearly contradicts Justice Souter's reading. In that Number, Madison justifies the requirement that state officials take an oath to support the Federal Constitution on the ground that they "will have an essential agency in giving effect to the federal Constitution." If the dissent's reading of Federalist No. ”

“ The Federalist No. 33, at 204 (A. Hamilton) . See Lawson & Granger, The "Proper" Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause, 43 Duke L. J. 267, 297-326, 330-333 (1993) . We in fact answered the dissent's Necessary and Proper Clause argument in New York: " [E] ven where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts. . . . [T] he Commerce Clause, for example, authorizes Congress to regulate interstate commerce directly ”