The enumerated objects over which the federal government was given its jurisdiction during the ratification debates in 1787-89 have been heavily disputed within the court system to this day, with such disagreements frequently appearing before the jurisprudence of the Supreme Court itself. The debate over the separation of the sovereignty of the states from the sovereignty of the national government itself still remains unresolved today (see Federalist No. 39). In Printz v. United States, specifically, the issue at hand involved whether the federal government could issue directives to state law enforcement officers in Montana and Arizona to uphold and enforce federal background checks as required under The Brady Handgun Prevention Act passed by Congress in 1993, which created a National Instant Criminal Background Check System (NICS) in order to track the potential criminal histories of consumers wishing to purchase firearms. Upon a writ of certiorari, the Supreme Court agreed to review the issue in greater depth.
Writing for the Opinion of the Court, Associate Justice Antonin Scalia disagreed with the government’s assertion that the federal directive only goes so far as to enlist state officials in minimal non-policymaking to help with the enforcement of the federal law, somehow giving the implication that any federal legislation that does not issue direct policy directives is somehow congruent with the doctrine of respecting state sovereignty.
Justice Scalia first establishes his arguments on this assumption: “Not only do the enactments of the early Congresses…contain no evidence of an assumption that the Federal Government may command the States’ executive power in the absence of a particularized constitutional authorization, they contain some indication of precisely the opposite.” In essence, the directives that would be issued to state officers under the guise of “non-policy making” had no historical legal ground or precedent upon which such provisions could stand constitutionally. Justice Scalia drew examples from as far back as the First Congress, where the barriers between state and federal jurisdictions were already being addressed. One of the earliest pieces of legislation enacted prior to the institution of the Bill of Rights dealt with the matter of holding federal prisoners in state prison facilities at the expense of the federal government. Rather than issuing directives forcing the states to provide security for these prisoners, the rhetoric within the act (as Scalia analyzed), merely provided recommendations of policy-making to the state legislatures, of which the implication is that the states retained the right to reject those recommendations as Georgia had done.
Essentially, Scalia argued that the authority granting power to the states as well as the federal government made them both coequal to one another. Both the states and the federal government would deal with the people directly within their own separate jurisdictions, but Scalia recognized the logic of Madison and Hamilton in reasserting the important ethic that only the people shall be the true objects of government. In essence, Scalia adopted the Federalist Papers’ assumption that there cannot be a “government of governments”. As Scalia critiques, “…the Framers rejected the concept of a central government that would act upon and through the states, and instead designed a system in which the state and federal governments would exercise concurrent authority over the people – who were, in Hamilton’s words, ‘the only proper objects of government…’”
In turn, by drafting legislation that would essentially govern agents of the state from the federal level (despite it being in a non-policymaking manner per the dissenters’ objections), the federal government was guilty of violating the doctrine set forth by Hamilton and Madison that decried a “government over governments”. Scalia highlighted the incontestability of “dual sovereignty” as envisioned by the Framers, but these sovereignties were to remain inviolable, especially regarding the residuary powers left to the states. In essence, both governments should deal directly with the people, but neither government could explicitly direct the agency of the other. Under this logic, the sovereignty of the state could not infringe on the sovereignty of the federal government and vice versa. The New York Times analyzed that Scalia, in delineating the Opinion of the Court, was not merely addressing one separate constitutional provision. Rather, he attempted to address the case as a fundamental question on the constitutional structures of the Union as a whole.
Justice Scalia also drew from the Court’s logic in a previous decision in New York v. United States (1992), which involved a question of Congressional authority to hold the states liable in a “take-title” provision for “…low-level waste…” under the Low Level Radioactive Waste Policy Amendments Act of 1985. The Court’s opinion, written by Sandra Day O’Connor, posited that any federal action under that provision would be commandeering the states into federal regulatory service, which was considered unconstitutional. The federal government, in essence, was guilty of “…requiring the States either to legislate pursuant to Congress’ directions, or to implement an administrative solution.” A similar kind of federal encroachment on the sovereignty of the states, argued Justice Scalia, was occurring in the litigation in Printz v. United States.
Scalia drew directly from the logic of Madison in delineating the Court’s view of the separation of powers from Federalist No. 51. Citing Madison, “ In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments.” Such a system, Madison argued, provides a “double-security” for the people. Therefore, when the federal government attempts to consolidate its authority by making state officials quasi-federal agents, that double-security separating the obligations of the federal and state governments would be placed in jeopardy.
Scalia’s logic is virtually congruent with the doctrine of Madison. In specifying the specific obligations of federal and state governments, Madison argues in Federalist No. 45 that “The powers delegated by the proposed constitution to the federal government are few and defined. Those which are to remain in the states are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation and foreign commerce… The powers reserved to the several states will extend to all those objects, which…concern the lives, liberties and properties of the people…” The only power that is implied by Madison to be connected at the federal and state levels involved the power of taxation, but it appears that none of the other powers of the states or federal government shared such similar connections in Madison’s view. Scalia, perhaps unknowingly, employed the logic of Madison’s argument in Federalist No. 45 in Printz v. United States. He reasoned that “By forcing the state governments to absorb the financial burden of implementing a federal regulatory program, Members of Congress can take credit for ‘solving’ problems without having to ask their constituents to pay for the solutions with higher federal taxes.” In essence, without the presence of the connected power of taxation, Congress would be essentially violating the principle of enumerated powers delegated separately to both the states and the federal government. It is reasonable then to assert that Madison would perhaps conclude the controversy along the same lines as Justice Scalia did.
The defense of “non-policymaking directives” by the dissenters on the Court did not convince Scalia that the government wasn’t infringing on a state’s ability to formulate its own policies within its jurisdiction. In fact, Scalia went as far as to say that the lack of policymaking discretion to the states within the Brady Act was perhaps even more dangerous than if the issue had been a matter of the federal government directing state policy. Scalia said that such arguments reduce states to becoming mere “…puppets of a ventriloquist Congress”, which would make the matter in Printz much more of an egregious case of federal overreach than what was previously litigated in New York five years earlier.
Madison would theoretically concur with the logic employed by Justice Scalia. His view of the operation of the federal government extended only to individual citizens within their individual capacities, eliminating again the plausibility of any argument for a “government over governments”. The officials that were to be ordered to assist the implementations of federal background checks on prospective gun owners, according to Scalia, were not being directed as individual citizens within their individual capacities. Rather, the directives were being issued to them “…in their official capacities as state officers…as agents of the State.”
Madison would see no issues with this line of reasoning, for even he recognized that the local and municipal authorities formed “…distinct and independent portions of the supremacy, no more subject within their respective spheres to the general authority, than the general authority is subject to them within its own sphere.”
The principle of the separation of powers between the states and the federal governments is vital to the preservation of liberty. The states, as both Scalia and Madison would reason, should not be agents of the federal government nor should the federal government be an agent of the states. It is a minimally connected and yet independent and coequal relationship. They are both given enumerated objects of policymaking jurisdiction, but allowing one to encroach on the rightful authorities of the other will only inevitably lead to some form of tyranny that is completely foreign to the constitutional structure fashioned by the Framers and defended by reputable justices like Antonin Scalia.
Printz v. United States, 521 U.S. 898 (1997)
Madison, James. Federalist No. 45. Quoted in James Madison Writings. Edited by Jack Rakove. New York: Literary Classics of The United States, 1999.
Greenhouse, Linda. 1997. “Justices Limit Brady Gun Law As Intrusion On States’ Rights”. The New York Times. June 28. Accessed March 6, 2018. http://www.nytimes.com/1997/06/28/us/justices-limit-brady-gun-law-as-intrusion-on-states-rights.html
“New York v. United States.” Oyez. Accessed March 6, 2018. https://www.oyez.org/cases/1991/91-543.
Madison, James. Federalist No. 51. Quoted in Printz v. United States, 521 U.S. 898 (1997)
Madison, James. Federalist No. 39. Quoted in James Madison Writings. Edited by Jack Rakove. New York: Literary Classics of The United States, 1999