John Paul Stevens

“ Given the fact that the Members of Congress are electedby the people of the several States, with each State receiving an equivalent number of Senators in order to ensure that even the smallest States have a powerful voice in the legislature, it is quite unrealistic to assume that they will ignore the sovereignty concerns of their constituents. ”

“ Nor is there force to the assumption undergirding the Court's entire opinion that if this trivial burden on state sovereignty is permissible, the entire structure of federalism will soon collapse. These cases do not involve any mandate to state legislatures to enact new rules. When legislative action, or even administrative rule making, is at issue, it may be appropriate for Congress either to pre-empt the State's lawmaking power and fashion the federal rule itself, or to respect the State's power to fashion its own rules. ”

“ Congress' discretion, contrary to the majority's suggestion, indicates not that the power does not exist, but rather that the interests of the States are more than sufficiently protected by their participation in the National Government. ”

“ Because indirect control over individual citizens ("the only proper objects of government") was ineffective under the Articles of Confederation, Alexander Hamilton explained that "we must extend the authority of the Union to the persons of the citizens." ”

“ But the mere fact that the Supremacy Clause is the source of the obligation of state officials to implement congressional directives does not remotely suggest that they might be " `incorporat [ed] into the operations of the national government' " before their obligations have been defined by Congress. Federal law establishes policy for the States just as firmly as laws enacted by state legislatures, but that does not mean that state or federal officials must implement directives that have not been specified in any law. ”

“ A structural problem that vanishes when the statute affects private individuals as well as public officials is not much of a structuralproblem.
Far more important than the concerns that the Court musters in support of its new rule is the fact that the Framers entrusted Congress with the task of creating a working structure of intergovernmental relationships around the framework that the Constitution authorized. Neither explicitly nor implicitly did the Framers issue any command that forbids Congress from imposing federal duties on private citizens or on local officials. ”

“ But it is difficult to see how state sovereignty and individual liberty are more seriously threatened by federal reliance on state police officers to fulfill this minimal request than by the aggrandizement of a national police force. The Court's alarmist hypothetical is no more persuasive than the likelihood that Congress would actually enact any such program.↑ Moreover, with respect to programs that directly enlist the local government officials, the majority's position rests on nothing more than a fanciful hypothetical. ”

“ There is not a clause, sentence, or paragraph in the entire text of the Constitution of the United States that supports the proposition that a local police officer can ignore a command contained in a statute enacted by Congress pursuant to an express delegation of power enumerated in Article I.
Under the Articles of Confederation the National Government had the power to issue commands to the several sovereign states, but it had no authority to govern individuals directly. ”

“ Even plausible rebuttals of evidence consistently pointing in the other direction are no substitute for affirmative evidence. In short, a neutral historian would have to conclude that the Court's discussion of history does not even begin to establish a prima facie case.↑ The majority's argument is particularly peculiar because these cases do not involve the enlistment of state officials at all, but only an effort to have federal policy implemented by officials of local government. ”

“ It is appropriate for state officials to make an oath or affirmation to support the Federal Constitution because, as explained in The Federalist, they "have an essential agency in giving effect to the federal Constitution." ”

“ See Recent Legislation, Unfunded Mandates Reform Act of 1995, 109 Harv. L. Rev. 1469 (1996) (describing functioning of statute) . Whatever the ultimate impact of the new legislation, its passage demonstrates that unelected judges are better off leaving the protection of federalism to the political process in all but the most extraordinary circumstances. [20]
Perversely, the majority's rule seems more likely to damage than to preserve the safeguards against tyranny provided by the existence of vital state governments. ”

“ As for the majority's suggestion that the substantial administrative requirements imposed on state court clerks under the naturalization statutes are merely "ancillary" and therefore irrelevant, this conclusion is in considerable tension with the Court's holding that the minor burden imposed by the Brady Act violates the Constitution. Finally, the majority's suggestion that the early statute requiring federal courts to assess the seaworthiness of vessels is essentially adjudicative in nature is not compelling. ”

“ We are far truer to the historical record by applying a functional approach in assessing the role played by these early state officials. The use of state judges and their clerks to perform executive functions was, in historical context, hardly unusual. As one scholar has noted, "two centuries ago, state and local judges and associated judicial personnel performed many of the functions today performed by executive officers, including such varied tasks as laying city streets and ensuring the seaworthiness of vessels." ”

“ Matters such as the enlistment of air raid wardens, the administration of a military draft, the mass inoculation of children to forestall an epidemic, or perhaps the threat of an international terrorist, may require a national response before federal personnel can be made available to respond. ”

“ But such a suggestion is itself an expression of a policy judgment. And Congress' view of the matter is quite different from that implied by the Court today.
The Brady Act was passed in response to what Congress described as an "epidemic of gun violence." H. R. Rep. No. 103-344, p. 8 (1993) . The Act's legislative history notes that 15,377 Americans were murdered with firearms in 1992, and that 12,489 of these deaths were caused by handguns. Ibid. Congress expressed special concern that " [t] he level of firearm violence in this country is, by far, the highest among developed nations." ”

“ Moreover, the additional grant of authority in that section of the Constitution " [t] o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers" is surely adequate to support the temporary enlistment of local police officers in the process of identifying persons who should not be entrusted with the possession of handguns. In short, the affirmative delegation of power in Article I provides ample authority for the congressional enactment. ”

“ Chambers, 463 U.S. 783, 790 (1983) ) , we have never suggested that the failure of the early Congresses to address the scope of federal power in a particular area or to exercise a particular authority was an argument against its existence. ”