Koog v. United States

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 94-50562
_____________________
J. R. KOOG, Sheriff,
Val Verde County, Texas,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court for the
Western District of Texas
_________________________________________________________________
_____________________
No. 94-60518
_____________________
BILL McGEE, Sheriff,
Forrest County, Mississippi,
Plaintiff-Appellant,
Cross-Appellee,
versus
UNITED STATES OF AMERICA,
Defendant-Appellee,
Cross-Appellant.
_________________________________________________________________
Appeals from the United States District Court for the
Southern District of Mississippi
________________________________________________________________
March 21, 1996
Before JOLLY and BENAVIDES, Circuit Judges, and DUPLANTIER,*
District Judge.
E. GRADY JOLLY, Circuit Judge:
The question presented is whether the interim provision of the
Brady Handgun Violence Protection Act, 18 U.S.C. § 922(s) (Supp. V.
1993), is consistent with the United States Constitution. The
interim provision requires local law enforcement officers to
conduct background checks, provide written explanations of denials
to prospective purchasers, and to destroy records of the local
background check. These duties are imposed on the local officials
until a national background check system is in place. We conclude
that by imposing these duties on local officials whose offices and
duties are defined by state statutes, Congress has transgressed the
Tenth Amendment principle that it may not "commandeer the
legislative processes of the States by directly compelling them to
enact and enforce a federal regulatory program." United States v.
New York, ___ U.S. ___, ___, 112 S. Ct. 2408, 2428 (1992) (quotation
omitted). We therefore hold that the interim duties imposed on
local law enforcement officers by the Brady Act are
unconstitutional. We further hold that the remainder of the
interim provision, including the duties imposed on federally-
licensed firearms dealers and the five-day waiting period prior to
*
District Judge of the Eastern District of Louisiana, sitting
by designation.
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purchasing a handgun, is severable from the invalidated duties, and
thus survives this constitutional challenge.
I
A
The Brady Act is designed to prevent federally licensed
firearms importers, manufacturers, and dealers from selling
handguns to ineligible persons. It does so by subjecting all
prospective purchasers to a waiting period of up to five days and
a background check before allowing them to purchase a handgun. By
November 30, 1998, a national automated system will provide the
necessary verification. In the meantime, however--and this is the
focus of this appeal--the Act's interim provision requires the
local Chief Law Enforcement Officer ("CLEO") to perform the
background check. 18 U.S.C. § 922(s)(1)(A)(i)(III),(IV). The CLEO
may be the local chief of police, the local sheriff, or his
equivalent or designee. 18 U.S.C. § 922(s)(8). The mandated
background check by the CLEO applies only where state law does not
provide for an instant background check or state-issued permit
system, 18 U.S.C. § 922(s)(1)(C),(D), as is the case in twenty-four
States, 59 Fed. Reg. 37534 (July 2, 1994).
This interim provision first requires federally-licensed
firearms dealers to obtain the name, address, and date of birth of
each prospective buyer, together with a sworn statement containing
certain personal information of the buyer. 18 U.S.C. § 922(s)(1)
(A)(i)(III),(IV). The dealer is then required promptly to forward
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this information to the CLEO where the buyer resides. Id. Upon
receiving the information, the CLEO must "make a reasonable effort
to ascertain within 5 business days whether receipt or possession
would be in violation of the law, including research in whatever
State and local recordkeeping systems are available and in a
national system designated by the Attorney General." 18 U.S.C. §
922(s)(2). The dealer lawfully may sell the handgun to the
prospective buyer if the CLEO notifies the dealer during the five-
day period that he "has no information" that would disqualify the
purchaser, or if the five-day period expires without a response
from the CLEO. 18 U.S.C. § 922(s) (1)(A)(ii)(I),(II). In certain
circumscribed instances, a dealer may dispense with the background
check entirely.1
Once the CLEO approves a particular handgun transaction, the
statute requires that he destroy all records of his investigation
within twenty days. 18 U.S.C. § 922(s)(6)(B). In addition, if the
CLEO disapproves of a sale, the denied applicant may demand a
written explanation and the CLEO must furnish it within twenty
days. 18 U.S.C. § 922(s)(6)(C). In instances in which the CLEO
provides erroneous information, which results in a denial of a
firearm application, the disappointed applicant also "may bring an
1
For example, a background check may not be required for
dealers in certain extremely remote locations, for prospective
buyers who demonstrate that they need a handgun "because of a
threat" to the buyer's life or the life of a family member, and for
handgun transfers pre-approved by the Secretary of the Treasury.
18 U.S.C. § 922(s)(1)(F),(B),(E).
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action against the State or political subdivision responsible for
providing the erroneous information." 18 U.S.C. § 925A.
B
J. R. Koog and Bill McGee, the elected sheriffs of Val Verde
County, Texas, and Forrest County, Mississippi, respectively,
sought declaratory and injunctive relief from the interim provision
of the Brady Act. In Koog's case, the district court upheld the
Brady Act. Koog v. United States, 852 F. Supp. 1376 (W.D.Tex.
1994). Finding that "no single decision controls the entire
spectrum of Tenth Amendment analysis," the court concluded that the
Brady Act "resemble[d] more" the statute upheld in FERC v.
Mississippi, 456 U.S. 742, 102 S. Ct. 2126 (1982), than the
partially invalidated statute in New York v. United States, 112
S. Ct. 2408 (1992). Koog, 852 F. Supp. at 1387-88. In McGee's case,
the court enjoined the application of the interim provision as to
him. Guided by New York, the court held that "Congress cannot
direct and compel local sheriffs to carry out the provisions of the
Brady Bill." McGee v. United States, 863 F. Supp. 321 (S.D.Miss.
1994). Koog and the United States filed notices of appeal from the
respective judgments of the district courts, and we consolidated
the two cases for this appeal.
C
On appeal, the sheriffs argue that the interim provision of
the Act violates the Tenth Amendment by compelling them to
administer the Brady Act in violation of New York. New York, 112
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S.Ct. at 2435 ("The Federal Government may not compel the States to
enact or administer a federal regulatory program."). The United
States defends the interim provision as an instance of "cooperative
federalism." It argues that by "administer," the New York Court
was referring to administrative rulemaking. Thus, the government
argues that although Congress cannot require a state legislature or
administrative agency to formulate policy, it may, in the spirit of
cooperative federalism, require state and local government
officials in this instance to implement policy decisions that have
been formulated on the national level.
II
We begin by observing that the essence of the constitutional
question before us is one of means, not ends. No one disputes that
Congress could have established a separate federal system of
background checks, staffed by federal officers, having all the
burdensome features of which the sheriffs complain--background
checks, record destruction and written explanations of denials.
Notwithstanding the power to act directly, Congress chose in the
Brady Act to make CLEOs the exclusive agents of the federal
government for conducting background checks. The issue before us
is whether Congress has exceeded its authority under the
Constitution, contrary to the Tenth Amendment, by ordering the
implementation of federal firearms policy in this manner.
A
(1)
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The Tenth Amendment states that "[t]he powers not delegated to
the United States by the Constitution, nor prohibited by it to the
States, are reserved to the States respectively, or to the people."
Although the arguments of the parties are couched in Tenth
Amendment terms, the Tenth Amendment does not independently provide
a substantive limitation on the powers of the United States.
Instead, the Tenth Amendment simply makes plain that the federal
government possesses only the powers that have been given to it by
the Constitution--and no more. See United States v. Darby, 312
U.S. 100, 61 S. Ct. 451 (1941), 112 S.Ct at 2417-18.
Nevertheless, "the Tenth Amendment confirms that the power of
the Federal Government is subject to limits that may, in a given
instance, reserve power to the States." New York, 112 S. Ct. at
2418. The Supreme Court extensively discussed such implied
limitations on federal power in New York v. United States. The
parties argue, and we agree, that New York is central to the
question before us. Because New York guides our decision, we
examine it in some detail.
In New York, the Supreme Court considered the constitutional
authority for a variety of methods--ranging from outright coercion
to conditional spending grants and threats of preemption--by which
Congress may urge the States to adopt a legislative program
consistent with federal directives. There, the court invalidated
one of the provisions of the Low-Level Radioactive Waste Amendments
of 1985 (the "Amendments"), which ordered state governments either
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to take full legal title to certain radioactive waste created by
private entities, and consequently incur liability for any damage
caused by the waste, or, alternatively, to regulate the waste
according to federal mandates. New York, 112 S. Ct. at 2427-28.
The federal government acted beyond its constitutional powers, the
Court held, because it "crossed the line distinguishing
encouragement from coercion." Id. at 2428. According to the
Court, the take-title provision "'directly compell[ed the States]
to enact and enforce a federal regulatory program,' an outcome that
has never been understood to lie within the authority conferred
upon Congress by the Constitution." Id. (citation omitted).
In contrast, the Court upheld the Amendments' monetary and
access incentives as permissible efforts to induce a state
regulatory response. The monetary incentive permitted States to
collect a surcharge on radioactive waste they received from other
States, and to pay a percentage of that surcharge to the Secretary
of Energy, to be held in escrow; once the States had achieved a
series of milestones, it was eligible to receive a portion of the
escrowed money. Id. at 2425-26. The access incentives authorized
States with disposal sites within their boundaries gradually to
increase the cost of access to those sites, and then to deny access
altogether, to non-sited States not meeting certain federal
deadlines. Id. at 2427. The Court found these incentives to be
permissible because they allowed state autonomy to be preserved.
Under the monetary and access incentives,
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[a] State whose citizens do not wish it to attain the
Act's milestones may devote its attention and its
resources to issues its citizens deem more worthy; the
choice remains at all times with the residents of the
State, not with Congress. The State need not expend any
funds, or participate in any federal program, if local
residents do not view such expenditures or participation
as worthwhile.
Id. Importantly, when a state's citizens decline a federal grant
or choose not to regulate a particular activity despite a
preemption threat, Congress is forced to act for itself and thus to
"bear the expense of a federally mandated regulatory program." Id.
at 2424.
The boundary between federal power and state power, the
Supreme Court explained, is encased in the Constitution's
structural design. The Framers devised "a Constitution that
confers upon Congress the power to regulate individuals, not
States." Id. at 2423. As such, Congress "lacks the power to
compel the States to require or prohibit [certain] acts," id.,
"even where Congress has the authority under the Constitution to
pass laws requiring" individuals to perform such acts, id. Thus,
Congress may regulate interstate commerce directly pursuant to the
Commerce Clause, but the Commerce Clause "does not authorize
Congress to regulate state governments' regulation of interstate
commerce." Id. The Supreme Court forcefully and emphatically
concluded:
States are not mere political subdivisions of the
United States. State governments are neither regional
offices nor administrative agencies of the Federal
Government. The positions occupied by state officials
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appear nowhere on the Federal Government's most detailed
organizational chart. The Constitution instead "leaves to
the several States a residuary and inviolable
sovereignty," The Federalist No. 39, p. 245 (C. Rossiter
ed. 1961), reserved explicitly to the States by the Tenth
Amendment.
Whatever the outer limits of that sovereignty may be,
one thing is clear: The Federal Government may not compel
the States to enact or administer a federal regulatory
program.
Id. at 2424; see also U.S. Term Limits, Inc. v. Thornton, ___ U.S.
___, ___, 115 S. Ct. 1842, 1872 (1995) (Kennedy, J., concurring)
(observing that the Constitution "establish[es] two orders of
government, each with its own set of mutual rights and obligations
to the people who sustain it and are governed by it").
The Supreme Court explained further that the "two orders of
government" created by the Constitution--state and national--force
each to be accountable and responsive to their respective
constituencies. Id. at 2424. Each method of federal encouragement
of the States blessed in New York--the carrot of conditional
spending grants and the stick of preemption threats--preserve this
political accountability by permitting a State to forego
participation in the federal initiative. Id. It is this ability
to walk away from the federal program that enables a State to
maintain control over its policies, notwithstanding the conditions
and constraints imposed on the States by the federal incentive.2
2
Even though the federal government sets the terms of
participation, the States are held accountable for opting into the
federal government's "all or nothing, take it or leave it" program.
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Where a State chooses to participate in a federal program, the
State has made a political choice for which it properly may be held
accountable by its constituency. In contrast, a federal demand
that States enact a federal regulatory program strips state
officials of control over state policies and diminishes the
accountability of both state and federal officials. Id. As the
Supreme Court explained:
But where the Federal Government directs the States to
regulate, it may be state officials who will bear the
brunt of public disapproval, while the federal officials
who devised the regulatory program may remain insulated
from the electoral ramifications of their decision.
Accountability is thus diminished when, due to federal
coercion, elected state officials cannot regulate in
accordance with the views of the local electorate in
matters not pre-empted by federal regulation.
Id.
From this rather lengthy review of New York, we derive the
following guiding principles. First, the federal government may
not coerce the States into administering a federal regulatory
program or into legislating according to a federal formula.
Second, the touchstone of this impermissible coercion is whether
the States are precluded from rejecting the role envisioned for
them by the federal government. Third, unconstitutional coercion
of the States threatens state sovereignty because it strips States
of choice and control over state policies. Fourth, and finally,
federal commandeering of state governments blurs political
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accountability, a democratic value protected by the principles of
federalism.3
(2)
We now must decide whether the interim provision, when
measured against New York's guiding principles, encroaches on the
sovereignty of the States in violation the Tenth Amendment, either
by forcing the States to administer a federal regulatory program or
by compelling the States to enact state legislation according to a
federal formula.
We begin by noting the conceptual difficulty presented by the
Brady Act, which is not neatly categorized as either forced
administration or forced legislation by the States. The Brady Act
artfully skirts the "forced administration box" by issuing mandates
not to the "States as States" directly--that is, not to the state
legislatures or administrative agencies--but to the chief law
enforcement officers of each political subdivision in the State.
Thus, one might argue that Congress engaged in a certain
legislative legerdemain in an attempt to fashion its will to meet
3
Eight years prior to the Supreme Court's opinion in New York,
Judge Wisdom succinctly summarized the principles embodied there:
Acts that regulate "states as states" are inconsistent
with the constitutional assumption of federalism, because
such acts force the states to administer congressional
policy judgments. In effect, such acts convert state
agencies into tools of federal policy, and thereby
threaten the independence of the states. The suspect
character of such acts, then, is that the states are
compelled to carry out the federal policy.
State of Tex. v. United States, 730 F.2d 339, 356 (5th Cir. 1984)
(emphasis in original).
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constitutional muster. Because the Brady Act issues no directives
to state officials, it is difficult to say that Congress has
compelled the States to administer its new federal firearms policy.
Congress, then, escapes the force of New York's bright-line
prohibition that the federal government may not compel the States
to "enforce a federal regulatory program" merely by casting its net
in the direction of local officials rather than state employees.4
4
We note, however, that the CLEOs' duties under the Brady Act
appear to constitute "administration" of a federal regulatory
scheme. The government argues that one "administers" a federal
regulatory program only by making "the package of regulatory policy
judgments" a legislative body or executive agency may make.
Because the interim duties are "ministerial," the government
asserts, the CLEO cannot be said to have administered the Brady Act
functions.
We believe that this definition unreasonably restricts the
meaning of "administration." Administration is commonly understood
to include an action, the purpose of which is "to direct or
superintend the execution, use or conduct of" something. Webster's
Third New International Dictionary of the English Language,
Unabridged 27 (1993). Here, the CLEOs oversee the day-to-day
functions demanded by the Brady Act (background checks, record
destruction, written explanations of denials), functions which
presumably are performed by the CLEOs' deputies and the CLEO
himself. Common sense suggests that when the CLEO oversees
background checks performed by his deputies, he "superintend[s] the
execution" of the interim duties.
Although the term "administration" plainly encompasses the
CLEOs' oversight of the day-to-day functions required by the Brady
Act, the CLEOs, if not the State qua State, fairly can be said to
"administer" Congress' firearms policy even under the government's
more restrictive definition. The Brady Act requires the CLEOs to
make the essential policy choices raised by the Act, namely, to
decide exactly how intrusive a background search to conduct. See
18 U.S.C. § 922(s)(2) (requiring the CLEO must "make a reasonable
effort to ascertain within 5 business days whether receipt or
possession would be in violation of the law") (emphasis added).
The CLEOs, not Congress, are to gauge the intrusiveness and cost,
paid with local tax dollars, of an extensive background check. And
the CLEOs, not Congress, are to weigh these negatives against the
extent of community support for background checks and any benefits
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The Brady Act, however, does not so adroitly evade New York's
directive that Congress may not "commandeer[] the legislative
processes of the States." New York, 112 S. Ct. at 2428.
Concededly, Congress has not ordered the States here, as it did in
New York, to draft and then to enact legislation according to a
federal formula--or to risk a federally-mandated penalty for
failing to comply. Nevertheless, Congress has presented the
CLEOs's interim duties to the States as a fait accompli. The Brady
Act imposes new federally-prescribed, non-discretionary tasks on
actors, the CLEOs, whose offices are created by state law and whose
duties are prescribed in the States' criminal codes, all without
the consent or participation of the States. In the face of
Congress' substantive amendment of state policies as to the proper
role and duties of the CLEOs, the States are powerless to change
the result.
In the discussion that follows, we measure the interim duties
imposed on the CLEOs by the Brady Act against each of the
principles we have discerned in New York. We conclude that the
interim duties effectively "commandeer[] the legislative processes
of the States" and, in violation of the Tenth Amendment, cross the
that background checks may bring, such as increased safety to the
community. In the most fundamental sense, the CLEOs are crafting
a local solution to what the Brady Act recognized as a national
problem. Congress, thus, foists the core policy decision raised by
the Brady Act onto the CLEOs. This certainly is a regulatory
policy judgment sufficient to constitute "administration" even in
the government's more restricted sense of that term, especially
when the CLEO can be sued for the malperformance of those duties.
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line from permissible encouragement of a state regulatory response
into that constitutionally forbidden territory of coercion of the
sovereign States.
(a)
First, we find that the interim duties imposed on the CLEOs
are tantamount to forced state legislation. These provisions of
the Act effectively bypass the state legislative process and
substantively change the enacted policies of state governments.
Prior to the imposition of the Brady Act, neither the Texas nor the
Mississippi criminal code required CLEOs to perform the duties that
the federal government imposes on them under the Act. See TEX. REV.
CIV. STAT. ANN. art. 4413(29ee) (West 1995);5 MISS. CODE ANN. § 45-9-
101(6)(b) (1993).6 The CLEOs' offices are created by state law,
see, e.g., TEX. CRIM. PROC. CODE ANN. § 2.12 (West 1995); MISS. CODE
ANN. §§ 19-25-1 & 21-3-3 (1993), and the state criminal codes
prescribe the CLEOs' duties and powers, see, e.g., TEX. CRIM. PROC.
CODE ANN. § 2.13 (West 1995) (duties of peace officers); MISS. CODE
ANN. § 19-25-1 et seq. (1993) (duties of sheriffs); MISS. CODE ANN.
§ 21-21-1 et seq. (1993) (duties of chiefs of police). Following
5
Article 4413(29ee) permits peace officers, effective
January 1, 1997, to submit an affidavit requesting suspension or
revocation of a concealed weapon carry permit and stating the
reason the officer believes revocation or suspension is warranted.
6
Section 45-9-101(6)(b) permits sheriffs, with compensation,
to participate "at [their] discretion" in the process of issuing
concealed weapon permits, by submitting a voluntary report to the
state agency issuing such permits.
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the Act, the federal government imposes additional duties on the
CLEOs beyond those prescribed by state statute--namely, to use
federally-specified law enforcement methods (i.e., background
checks, destruction of records, and written explanations of
denials) to execute and administer a federal policy to prevent the
acquisition of handguns by disqualified individuals, a duty which
is found in no state legislation.7 Simply put, the interim duties
imposed by the Brady Act constitute an edict to CLEOs that
substantively enlarges the duties and authority given the CLEOs by
the States, without the States' consent or participation. Like the
take-title provision in New York, the Brady Act "offers a state
government no option other than that of implementing legislation
enacted by Congress." Id. at 2429.8
7
The Brady Act readily can be understood as amending a State's
criminal code when the Act adds a new duty to those already
required of the CLEO under state law, as is the case in Mississippi
and Texas. A more problematic question may arise when the State
already requires its CLEOs to perform Brady-like background checks.
Although we expressly do not pass on the question, it seems to us
that the discretion of such States is unconstitutionally infringed
as a result of the Brady Act. Any attempt by these States to pare
back the authority of the CLEOs to perform such checks would simply
have no effect given the fact that federal legislation
independently authorizes and requires a federal background check.
8
We have considered the possibility that municipalities in
Mississippi and Texas may have enacted local gun control laws that
enlarge the existing duties of their local law enforcement
officials without seeking state legislative approval. Although we
make absolutely no judgment as to the authority of municipalities
in Texas or Mississippi to enact such ordinances absent state
legislation, we note that such local handgun ordinances do not
implicate the federalism concerns raised by the Brady Act. The
Constitution speaks to, and we are concerned here with, legislative
directives foisted upon the States from above--by the federal
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(b)
Second, Congress further has encroached on Tenth Amendment
principles by securing the CLEOs' participation only by coercing
the States. The Brady Act gives the States no means by which they
can assist in the implementation of federal policy while leaving
unchanged the duties of the CLEOs as prescribed in the States'
criminal codes.9 The Brady Act mandates that the CLEOs act as the
exclusive agents of the federal government for carrying out the
interim duties. No choice is offered. The States may not say to
Congress, "We are not interested in having state and local
officials in our State, whose offices we create and duties we
define, administer this federal regulatory scheme. If you want to
conduct background searches of all persons purchasing handguns,
look to your own federal background checkers."10 Because the State
government--rather than those imposed upon the States from within.
In the case of local ordinances, moreover, a State retains the
authority to reverse the actions of the municipality by state
legislation (or has contracted that authority away in granting
certain local governments "home rule" powers).
9
More precisely, the Brady Act provides the State no
alternative to having the CLEOs perform the interim duties other
than to adopt a local permit or background check system. 18 U.S.C.
§ 922 (s)(1)(D).
10
The government maintains that "FERC makes clear that 'the
Tenth Amendment does not prevent the federal government from
imposing minimal duties on state executive officers,'" citing FERC
v. Mississippi, 456 U.S. 742, 102 S. Ct. 2126 (1982), and South
Carolina v. Baker, 485 U.S. 505, 108 S. Ct. 1355 (1988). We find
these cases inapposite. In FERC, the Supreme Court upheld a
federal statute that encouraged States in various ways to develop
programs to combat the national energy crisis. In New York, the
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has no walk-away opportunity, however costly or difficult, the
States are victims of impermissible federal coercion.
(c)
Third, the Brady Act further undermines state sovereignty by
requiring a State to allow CLEOs to perform duties that the State
obviously prefers to avoid. In a world of fixed and limited law
enforcement resources, federally-mandated duties frustrate a
State's ability to have CLEOs perform state-chosen
responsibilities, such as the enforcement of local laws, the
maintenance of jails or the transportation of criminals. Plainly,
the more "federal" duties a CLEO must perform, the fewer "state"
Supreme Court explained that permissible encouragement existed in
FERC because the underlying statute "require[d] only consideration
of federal standards. And if a State has no utility commission, or
simply stops regulating in the field, it need not even entertain
the federal proposals." New York, 112 S. Ct. at 2421. Critically,
the underlying statute in FERC, unlike the Brady Act, lacked
anything that "directly compell[ed] the States to enact a
legislative program." Id.
South Carolina v. Baker is equally inapplicable, albeit for a
somewhat different reason. There, the Supreme Court upheld against
a Tenth Amendment challenge a federal tax code provision that
denied an income tax exemption for unregistered state bonds. The
Court treated the tax provision involved "as if it directly
regulated States by prohibiting outright the issuance of bearer
bonds" and therefore as a "generally applicable federal
regulation." Baker, 485 U.S. at 511, 514, 108 S. Ct. at 1360, 1362.
In New York, the Court announced that it has no occasion to revisit
Baker and other decisions, such as Garcia v. San Antonio
Metropolitan Transit Authority, 469 U.S. 528 (1985), as they
involve instances "in which Congress has subjected a State to the
same legislation applicable to private parties." New York, 112
S. Ct. at 2420. In contrast, the Brady Act, like the statute at
issue in New York, "concerns the circumstances under which Congress
may use the States as implements of regulation; that is, whether
Congress may direct or otherwise motivate the States to regulate in
a particular field or a particular way." Id.
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duties the CLEO has the time and resources for. Whatever the outer
limits of state sovereignty may be, it surely encompasses the right
to set the duties of office for state-created officials and to
regulate the internal affairs of governmental bodies. FERC, 456
U.S. 742, 761, 102 S. Ct. 2126, 2138 (1982) ("[T]he power of the
States to make decisions and set policy is what gives the State its
sovereign nature. It would follow that the ability of a state
legislative . . . body--which makes decisions and sets policy for
the State as a whole--to consider and promulgate regulations of its
choosing must be central to a State's role in the federal system.")
(citations omitted); see also Fay v. Noia, 372 U.S. 452, 466-67, 83
S. Ct. 822, 863 (1963) (Harlan, J. dissenting) ("The right of the
State to regulate its own procedures governing the conduct of
litigants in its courts, and its interest in supervision of those
procedures, stand on the same constitutional plane as its right and
interest in framing ``substantive' laws governing other aspects of
the conduct of those within its border.").
Indeed, Congress' bypass of state legislative processes here
constitutes a greater incursion into state sovereignty than forcing
the States to enact legislation: a bypass disposes of even the
pretext of minimal state discretion that is present when the
federal government forces a State to employ its legislative process
to achieve a particular end. The Brady Act dispenses with the
state legislature altogether and effectively enacts state
legislation requiring CLEOs to perform the interim duties under the
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Act, without even the nominal participation of the States' elected
representatives.
(d)
Fourth, the Brady Act blurs accountability for the policy
choices reflected in this legislation. The voter who must undergo
a background check to purchase a handgun encounters an official
whose office is created by state law and whose every duty (prior to
the Brady Act) is prescribed by the State. Yet it is the national
government that made the decision to subject prospective purchasers
of a handgun to a waiting period of up to five days and to a
background check prior to consummating the purchase. Furthermore,
the Brady Act affects not only disgruntled handgun purchasers and
would-be purchasers, but other individuals as well. Voters also
may blame the States for the federal government's decision to spend
local law enforcement funds on background checks and related
paperwork rather than for matters that may be of far more local
importance.
For citizens that encounter the palpable consequences of this
law, Congress is nowhere to be found. Congress does not employ the
CLEO, supervise his work or pay his salary; the nameplate of no
federal office is on the door. But the diffusion of accountability
does not end at this point. Even if the affected citizen is aware
that the legislation mandating background checks springs from the
national government, and then turns to the Brady Act to determine
political accountability, he will find that the CLEO himself is
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responsible for deciding what is a "reasonable" search. Laying
this responsibility on the CLEO's political doorstep permits
Congress effectively to shift "the political liability for
subsidiary decisions from federal to state officials." Evan H.
Caminker, State Sovereignty and Subordinary: May Congress
Commandeer State Officers to Implement Federal Laws?, 95 Columbia
L. Rev. 1001, 1065 (1995). Even more confusing in properly
locating accountability is the fact that the prospective purchaser
who is disqualified from purchasing a handgun on the basis of an
erroneous background check may sue the responsible State or
political subdivision. 18 U.S.C. § 925(a). In sum, we think it is
clear that the implementation of federal firearms policy in this
manner erodes the clear lines of political accountability that were
of vital concern to the Court in New York.
(e)
Measured against New York's guiding principles, the interim
duties simply will not stand up under a constitutional challenge.
Although Congress here has not issued a mandate directly to the
"States as States"--that is, to state legislatures or state
administrative agencies--we cannot brush away Congress' attempt
substantively to amend the States' criminal codes to require new
federally-prescribed, non-discretionary tasks of officials whose
offices and duties are created by state law. The interim provision
of the Brady Act threatens the same democratic values of state
sovereignty and accountability that were placed at risk by the
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take-title provision in New York. Moreover, we believe that
permitting Congress to circumvent the coercion principle by issuing
commands directly to state and local officials critically
diminishes the separate and sovereign dignity of the States
recognized by New York.
(3)
We are mindful that the Ninth Circuit Court of Appeals, in
concluding that the Act is constitutional, found "nothing unusually
jarring to our system of federalism in the Brady Act's requirements
that CLEOs . . . ``make a reasonable effort to ascertain' the
lawfulness of handgun purchases." Mack v. United States, 66 F.3d
1025, 1029 (9th Cir. 1995). For the Ninth Circuit, the interim
provision is "no more remarkable than . . . the federally-imposed
duties of state officers to report missing children or traffic
fatalities." Id. at 1029-30 (citations omitted). The tasks
imposed on the CLEOs are "not alien to [the CLEOs'] usual line of
work, and represent minimal interference with state functions."
Id. at 1031.
With due respect for our sister circuit and its distinguished
panel of judges, we cannot agree. First, our understanding of the
principles of federalism does not permit us to characterize the
Brady Act as a "minimal interference with state functions." Id. at
1031. We do not consider it a minimal interference when a local
sheriff or chief of police is offered no choice but to devote
purely local manpower and monetary resources to check the
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backgrounds of countless applicants for handgun purchases. In
performing these federally-mandated background checks, CLEOs are
required to parse "whatever State and local recordkeeping systems
are available and [to check] in a national system designated by the
Attorney General." 18 U.S.C. § 922(s)(2). Neither do we consider
it minimal that the CLEOs must provide written explanations of
denials to purchasers and destroy the records of the local
background checks. 18 U.S.C. § 922(s)(6)(C). And surely the
federal intrusion is not minimal when the political subdivision
that employs a CLEO may be subject to suit and judgment if the
CLEO, in administering purely federal legislation against his will
to do so, provides erroneous information that leads to an
applicant's disqualification from purchasing a handgun. 18 U.S.C.
§ 925(a).
Second, and more fundamentally, we cannot accept the Ninth
Circuit's apparent constitutional rationale that, in any event,
federal intrusions on state functions may be of little real concern
when they are essentially a minimal intrusion--in effect, because
"no one's boat is being seriously rocked." The Supreme Court
explicitly rejected such a defense where the federal government
coerces the States to legislate according to a federal formula.
The Supreme Court instructed in New York:
No matter how powerful the federal interest involved, the
Constitution simply does not give Congress the authority
to require the States to regulate. . . . Where a federal
interest is sufficiently strong to cause Congress to
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legislate, it must do so directly; it may not conscript
state governments as its agents.
New York, 112 S. Ct. at 2429. Because it is clear that the interim
provision amounts effectively to forced legislation, and thus
violates one of the most important of all principles of federalism,
it does not matter "how powerful the federal interest involved" nor
how much the intrusion may be downplayed.
(4)
We pause to address one final justification for the Brady Act.
The government argues, and presents some evidence,11 that the
Framers contemplated that the federal government might "make use of
the State officers and State regulations" in certain matters. From
this evidence of the Framers' intention, the government
extrapolates that the Brady Act may be justified as simply one more
instance of cooperative federalism.
The sparse reference by the Framers to the possibility of
shared state and federal government responsibility makes it
difficult to interpret the Framers' exact intent in this respect.
We nevertheless agree with Justice O'Connor that "[n]one of the
[Framers'] suggestions went so far as to propose congressional
control of state legislative power. The suggestions, moreover,
11
The government cites The Federalist, No. 36 at 227 (Hamilton)
(J. Cooke ed.) (discussing collection of taxes), and The
Federalist, No. 36 at 227 (Madison) (J. Cooke ed.) ("Indeed it is
extremely probable that in other instances, particularly in the
organization of the judicial power, the officers of the States will
be cloathed with the correspondent authority of the Union.").
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seemed to assume that the States would consent to national use of
their officials." FERC, 456 U.S. at 797 n.35, 102 S. Ct. at 2157
n.35 (O'Connor, J., partial concurrence and partial dissent).
Intuitively, it seems to us that there can be no cooperative
federalism where one party prefers not to cooperate. Neither can
there be cooperative federalism where, as is the case here, one
party is never given the opportunity to decide whether to
cooperate.
(5)
In sum, we conclude that Congress, in directing the CLEOs to
perform the interim duties prescribed in the Act, crosses the line
separating encouragement from coercion and attempts to relegate the
States to acting as subordinate agents of the federal government.
Accordingly, we hold that the background checks, record destruction
and written explanations of denials imposed on the CLEOs by the
Brady Act are unconstitutional in violation of the Tenth Amendment.
III
Having determined that a portion of the interim provision of
the Brady Act is invalid, we must consider whether any other part
of the provision still may be given effect. As a practical matter,
once the interim duties are severed, only the obligations imposed
on federally-licensed firearms dealers and a five-day waiting
period would remain. See, e.g., 18 U.S.C. § 922(s)(1)(A)(i)(1),
(ii)(1). In arguing that the invalidated duties are inseverable
from the remainder of the interim provision, the sheriffs focus
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almost wholly on Congress' intent in enacting the five-day waiting
period.
We again return to New York for our standard: "``Unless it is
evident that the Legislature would not have enacted those
provisions which are within its power, independently of that which
is not, the invalid part may be dropped if what is left is fully
operative as a law.'" 112 S. Ct. at 2434 (quoting Alaska Airlines,
Inc. v. Brock, 480 U.S. 678, 684, 107 S. Ct. 1476, 1480 (1987)).
The relevant inquiry is "whether the statute will function in a
manner consistent with the intent of Congress." Alaska Airlines,
480 U.S. at 685, 107 S.Ct. at 1480 (emphasis omitted).
Where Congress itself has provided the answer to the question
of severability, however, by including such a provision in the
legislation, a presumption of severability arises. INS v. Chadha,
462 U.S. 923, 932, 103 S. Ct. 2764, 2774 (1983). This presumption
may be overcome only by "strong evidence" that Congress would not
have enacted the law without the invalidated portions of the
statute. Alaska Airlines, 480 U.S. at 686, 107 S.Ct. at 1481.
We conclude, as the district court in McGee did, that a
presumption of severability applies to the Brady Act. The Act
amends Section 922 of Title 18 of the United States Code, which
codifies the Gun Control Act of 1968. Section 928 of the Gun
Control Act provides that "[i]f any provision of this chapter or
the application thereof to any person or circumstance is held
invalid, the remainder of the chapter and the application of such
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provision to other persons not similarly situated or to other
circumstances shall not be affected thereby." 18 U.S.C. § 928.
This language is unambiguous and indicates Congress' intent that
the validity of the Gun Control Act as a whole or in part should
not hinge on the validity of any other part. We can only assume
that Congress was fully aware of Section 928 when it chose to
insert the Brady Act into Title 18, and that Congress intended the
severability provision to apply equally to the Brady Act
provisions.12
Moreover, the sheriffs have not provided a convincing argument
that, absent the background check and related duties, Congress
would have declined to enact the remainder of the interim
provision. Although the provision both imposes obligations on
federally-licensed firearms dealers--the constitutionality of which
is not challenged--and mandates a five-day waiting period, the
sheriffs focus solely on the latter in arguing for inseverability.
12
The sheriffs argue that a presumption of severability does
not arise because the Brady Act does not amend the Gun Control Act
but instead creates a new "program." In the past, the Supreme
Court has "doubted" the applicability of a severability clause in
pre-existing legislation to a later act because the challenged
section, "unlike many sections of the [new act] . . . does not
amend provisions of . . . [the] pre-existing statute, but instead
establishes a new program." Alaska Airlines, 480 U.S. at 868 n.8,
107 S. Ct. at 1481 n.8. The sheriffs' argument faces two problems.
Foremost, Congress' express intention in the Brady Act was to
"amend" Section 922 of Title 18. See Brady Handgun Violence
Prevention Act, § 102(a)(1), Pub. L. No. 103-159, 107 Stat. 1536
(1993). In addition, the Brady Act arguably does not provide a new
program but instead adds to the Gun Control Act's existing
prohibitions on handgun transfers.
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Specifically, the sheriffs argue that the five-day waiting period
exists solely to permit the CLEO to perform a background check to
verify that the transaction is not illegal. They point to the fact
that the waiting period applies only where the Brady Act requires
a background check to be performed, see, e.g., 18 U.S.C. §
922(s)(1)(D) (exempting States with an instant check or permit
system from the background check and the waiting period), that the
waiting period may be dispensed within a number of situations, see
18 U.S.C. § 922(a)(1)(A)(ii) (II),(B),(E), and that it expires with
the enactment of the national instant criminal background check or
in sixty months, whichever comes first, see 18 U.S.C. § 922(s)(1).
Given the myriad exceptions to the waiting period, the sheriffs
argue, Congress could not have intended the waiting period
independently to serve as a "cooling off" period. Although we
agree that these exceptions cast doubt on the notion of an
independent "cooling off" period, we cannot conclude, in the light
of the strong presumption of severability created by Section 928,
that Congress would have failed to enact the obligations imposed on
federally-licensed firearms dealers, as well as the waiting period,
if the now-invalidated duties had not been included. Accordingly,
we find that invalidated duties are severable from the remainder of
the interim provision of the Brady Handgun Violence Protection Act.
IV
In sum, we declare that the interim duties imposed on the
CLEOs by the Brady Handgun Violence Protection Act, 18 U.S.C. §
-28-
922(g), including the mandatory background checks, record
destruction and written explanations of denials, are
unconstitutional. We further hold that the remainder of the
interim provision, including the obligations imposed on federally-
licensed firearms dealers and the five-day waiting period prior to
purchasing a handgun, is severable from the invalidated duties and
therefore survives this constitutional attack. We thus AFFIRM the
judgment in McGee v. United States and REVERSE the judgment in Koog
v. United States and REMAND Koog for entry of judgment dismissing
the complaint.
No. 94-60518 is AFFIRMED.
No. 94-50562 is REVERSED and REMANDED for entry of judgment.
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