Printz v. United States and the sheriffs who refused to be drafted by Washington

Suppose the sheriff of a small county in the mountains gets a letter from Washington. It does not ask. It tells him that, starting next month, he is to spend part of every working week performing background checks on behalf of the federal government, for which the federal government will not pay him, and for which he will answer to no federal supervisor, and if he does a poor job the blame will fall on him, because the voters of his county will know his name and not the name of the Congress that gave the order.

That sheriff would not have thought of himself as a rebel. He would have thought of himself as an elected official who works for the people who elected him. Two such sheriffs took the letter to the Supreme Court, and in 1997 the Court agreed with them. Printz v. United States is remembered as a gun case. It is better understood as a case about who works for whom in the American system, and it matters to a great many policy fights that have nothing to do with firearms.

What was the Brady Act?

On March 30, 1981, John Hinckley Jr. shot President Ronald Reagan outside a Washington hotel. The president recovered. Press Secretary James Brady was gravely wounded and lived with permanent disability for the rest of his life. His wife, Sarah Brady, and others campaigned for years for a federal law that would require a waiting period and a background check on handgun purchases. Congress passed the Brady Handgun Violence Prevention Act, and President Bill Clinton signed it on November 30, 1993.

The Act had two stages. The long-term plan was a national instant criminal background check system, run by the federal government, which the Act directed the Attorney General to establish. That system was not ready on day one, and so Congress added interim provisions that would apply until it was, set to last until November 1998. Under the interim provisions, a firearms dealer who was about to sell a handgun had to receive from the buyer a statement with the buyer's identifying information, and then send a copy to the "chief law enforcement officer" of the buyer's place of residence, usually the local sheriff or police chief. That officer was required to make a "reasonable effort" to find out, within five business days, whether the sale would violate the law.

The federal government did not set up a system to do the checking. It handed the job to local officers. Local officers were to do the work, with their own staff and their own budgets, under a federal command.

Who were Printz and Mack?

Jay Printz was the sheriff of Ravalli County, Montana. Richard Mack was the sheriff of Graham County, Arizona. Each objected to the interim provision, and each sued. Their cases were consolidated at the Supreme Court as Printz v. United States. Their objection was not primarily to background checks as such. It was that Congress had no authority to conscript them.

The Supreme Court decided the case on June 27, 1997, by a vote of five to four. Justice Antonin Scalia wrote the opinion of the Court, joined by Chief Justice Rehnquist and Justices O'Connor, Kennedy and Thomas. The Court held that the interim provisions were unconstitutional because they compelled state officers to execute federal law.

The reasoning, in numbered steps

Scalia's opinion is a model of the constitutionalist method: history first, structure second, precedent third. Here is the argument as I read it.

1. History. Scalia looked to the early Congresses, which had the best claim to understand what the Constitution allowed. He found, in the Court's words, an absence of executive commandeering statutes in the early Congresses. The Founding generation, in his reading, did not believe that the national government could order state officials around. The examples the dissenters cited, he argued, either were not commands to state executives or involved state judges, who stand in a different position because the Supremacy Clause binds them.
2. Structure. The Constitution does not make the states mere administrative arms of the national government. It preserves them as separate sovereigns. Madison's account in Federalist No. 39, which the opinion quotes, speaks of the states retaining a "residuary and inviolable sovereignty." Scalia reasoned that the system of dual sovereignty would collapse if Washington could command the officers of the states.
3. Precedent. In New York v. United States (1992), the Court had struck down a provision of a federal law on radioactive waste that forced states either to regulate according to Congress's instructions or to take title to the waste. Justice O'Connor wrote that Congress may not "commandeer" the legislative processes of the states. The question in Printz was whether the same rule applies to executive officers. Scalia said it does. Congress cannot circumvent the prohibition on commandeering the legislature by commandeering the officers directly. The Court's formulation is that the Federal Government may neither issue directives requiring the States to address particular problems, nor command the States' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.
4. Accountability. When Washington conscripts local officers, the public cannot tell who is responsible. The sheriff takes the criticism for a policy he did not choose. Federal officials get the credit and avoid the cost, and the costs are paid by taxpayers in the county.
5. The executive branch. There is also an argument from Article II. The President is to "take Care that the Laws be faithfully executed." If Congress can give the job of executing federal law to officials who do not answer to the President, it weakens the unity of the executive that the Constitution establishes.

The concurrences

Two concurrences are worth reading. Justice O'Connor wrote briefly to note that the Court appropriately refrained from deciding whether other purely ministerial reporting requirements that Congress imposes on state and local authorities under the commerce power are similarly invalid.

Justice Thomas wrote separately, and what he said looks ahead. He cross-referred to his Lopez concurrence on whether the Commerce Clause reaches wholly intrastate sales of handguns, and he wrote that the Court had not had recent occasion to consider the nature of the right the Second Amendment safeguards, citing scholars who argue that it secures a personal right and scholars who argue that it does not. It was a signal flare, and the Court took up the question eleven years later in District of Columbia v. Heller.

The dissent, stated fairly

Four Justices dissented: Stevens, Souter, Ginsburg and Breyer. Justice Stevens wrote a dissent, and Justices Souter and Breyer wrote separate ones.

Stevens argued that the Constitution contains nothing that prohibits Congress from requiring state officers to carry out federal laws, and that the Necessary and Proper Clause and the Supremacy Clause together authorize it. He pointed to the early history, including some of the first federal statutes and the Federalist, which he read as contemplating that the new government would use state officials. Justice Souter's separate dissent built on Hamilton's Federalist No. 27, which the majority read as describing federal laws that bind individuals, not as authority to command the States. On policy, he emphasized that the gun violence problem was national, that the temporary program imposed a small burden, and that the practical need was great.

That is a respectable case, and I'd rather meet it than caricature it. The answer is in four points.

1. Judges bound by the Supremacy Clause are not executive officers. Federal law may bind state judges, because the Constitution says so in Article VI. It does not follow that the executive officers of a state may be drafted.
2. A request is not an order. If the government wants help, it can ask, and it can pay. Many states cooperate with federal programs voluntarily and receive federal funding in return. The Constitution protects the choice.
3. A "small burden" is the wrong test. If a federal command to the sheriff is permitted because it is small, the next one may be larger. A structural limit exists to be a line, not a balancing test of burdens.
4. The danger is accountability, not inconvenience. The Founders divided power so that voters could tell who to blame. A system in which Washington sets policy and local officers carry it out, at local expense, defeats that design.

What happened next

The practical effect on the gun law was small, which is one reason people forget how important the case was. The interim provisions were already scheduled to end. The Act set November 30, 1998 as the date for the national instant check system, the NICS, run by the FBI, to take over. Gun dealers now call the system directly, and local sheriffs are not in the loop. After Printz, many sheriffs continued voluntarily to run checks, but they were no longer required to.

The legal effect was large. The "anti-commandeering doctrine," built on New York and Printz, became a major part of federalism law. In Murphy v. National Collegiate Athletic Association (2018), Justice Alito's opinion for the Court applied the doctrine to strike down a federal law that barred states from authorizing sports betting, reasoning that Congress "cannot issue direct orders to state legislatures." The doctrine is not a gun-rights doctrine. It protects states against Congress whatever the subject, which is why it matters to so many people on so many sides.

Why sanctuary policies invoke the same doctrine

Here is the irony that conservatives should face squarely. The same doctrine that protected the sheriffs also protects the states and cities that decline to help federal immigration authorities. Sanctuary jurisdictions argue that they cannot be required to hold individuals for federal immigration officers, citing Printz and Murphy. That argument rests on the same structural reasoning as the sheriffs' case, though how far it reaches in immigration cases is a question for the courts, so check the current rulings. How Sanctuary Became a Brand, From a 1979 Police Order to City Hall traces that policy's history, and its defenders are right that the Constitution protects their position to a point.

What should a consistent constitutionalist say? That the principle is a principle. We cannot cheer when it protects a Montana sheriff from the Brady Act and jeer when it protects a city police department from a federal immigration request. The honest position is that the doctrine protects both, and that the proper response where we disagree with the policy is to change the law within the lines the Constitution draws. Congress can condition grants of money on cooperation, within limits the Court has set, and it can pass federal law governing individuals directly. It can also prosecute people who harbor, or violate other federal provisions, as a matter of its own enforcement. What it cannot do is order the states to do its work. The distinction between federal power over individuals and federal power over states is the heart of the doctrine, and it gets lost in the slogans. For the structural reasoning behind it, see Federalism Lets Fifty States Experiment, and the Constitution Planned It, and for the companion case about the commerce power, see How a Texas student's gun at school produced the Court's Commerce Clause limit.

The same logic is what lies behind the "Second Amendment sanctuary" resolutions adopted by some counties and states, which declare that local officials will not enforce certain gun laws. Whatever one thinks of the policy, their legal theory is a cousin of Printz: a local government is entitled to decline to enforce a federal rule, although it cannot override the rule itself.

A word of humor about federal arithmetic

One feature of the interim provisions is hard to ignore. The system asked an unpaid local officer to perform, within five business days, a check that Washington had not yet figured out how to perform itself. This was the federal government's way of saying that the computer was not ready, so the sheriff should use his best judgment. Anyone who has ever dealt with a bureaucracy that outsourced its to-do list to someone else's budget will recognize the maneuver. The Court, to its credit, noticed it and declined to treat the sheriff as a free employee.

For the larger picture of how federal gun law developed, including the Brady Act in context, see ninety years of federal gun law in the dates that changed the rules. For the nature of the federal form that the checks relate to, see Lying on Form 4473 is a felony, so why is it so rarely charged.

The case in brief

1. The Brady Act of 1993 required local chief law enforcement officers to make a reasonable effort to check handgun buyers during an interim period before the national instant check system opened.
2. In Printz v. United States (1997), the Court held five to four that Congress cannot command state officers to administer or enforce a federal regulatory program, extending New York v. United States (1992).
3. The reasoning rests on history, the structure of dual sovereignty, accountability to voters and the unity of the executive.
4. The dissent's best points, the Supremacy Clause and the early statutes, are answered by the difference between binding judges and conscripting executives, and by the fact that Congress may ask, pay and condition funds.
5. The anti-commandeering rule protects states and cities on every subject, including sanctuary policies, and consistency requires accepting that.

What you can do: look up what your county sheriff's office does and does not do under federal programs, and attend a county meeting where the budget is discussed.