NCSL scores major victory in Brady Law case.

Sheriff Jay Printz of Ravalli County, Mont., and Sheriff Richard Mack of Graham County, Ariz., were on the receiving end of an unfunded federal mandate. The Brady Gun Law required a waiting period and background check on private handgun purchases. Until a national system to check backgrounds of gun purchasers is established, Congress commanded local law enforcement officers to perform the checks.

Small, rural sheriffs' departments have neither the manpower nor resources to comply with the federal mandate. The "department," after all, in a small western county might consist only of the sheriff and maybe a deputy. Fed up with the federal government's unreasonable demand, Sheriffs Printz and Mack sued the United States. NCSL filed an amicus brief in support of the two sheriffs when the case reached the U.S. Supreme Court.

NCSL recognized that Printz was potentially a landmark federalism case. The issue before the Court was not gun control; the issue was whether Congress has the power, in effect to impress state officials into its service.

NCSL's brief, written by Professor Bruce La Pierre of Washington University, argued that Congress does not have the constitutional power to compel state officials to serve as the "implements" of federal regulation. Congress's action was essentially coercive; states had no opportunity to decline participation. All the administrative and financial costs of the program were imposed on state and local officials, forcing them to reallocate resources away from enforcement of state and and local laws. In short, the Brady law unconstitutionally treated states as administrative subdivisions of the federal government.

The Supreme Court in a 5-4 decision agreed with the LaPierre argument and struck down the background check provisions of the Brady Law as a violation of states' rights under the 10th Amendment. Justice Antonin Scalia's opinion for the Court is a ringing defense of states' rights. "The federal government," said Scalia, "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. It is incontestable that the Constitution established a system of 'dual sovereignty.'"

The mandate on states was declared unconstitutional, a decision that prompted a strong dissenting opinion by Justice John Paul Stevens, joined by Justices David Souter, Stephen Breyer and Ruth Bader Ginsburg.

Stevens sharply contested Scalia's reading of American history, arguing, "The basic change in the character of the government that the framers conceived was designed to enhance the power of the national government..."

The Court obviously is divided on questions of federalism. Printz was decided by a slim 5-4 majority, which might easily be reversed by new appointees to the Court.

Nonetheless, the states have now rung up victories over the national government in a series of important cases in the 1990s. In New York vs. United States, the Court struck down on 10th Amendment grounds federal provisions that required states to dispose of radioactive waste according to federal criteria or risk having to "take title" to the waste for failing to act. In United States vs. Lopez, the Court struck down the Gun Free School Zone Act, finding for the first time since the 1930s that Congress had exceeded its Commerce Clause authority by intruding into a policy area traditionally reserved to the states. And last year, in Seminole Tribe vs. Florida the high court substantially revived the states' sovereign immunity under the 11th Amendment, striking down provisions of the Indian Gaming Regulatory Act allowing tribes to sue the states.

These three cases along with Printz represent a significant development in constitutional law. The conservative majority of the Rehnquist Court has laid a foundation for future decisions that could sharply limit the power of Congress to dictate to the states, particularly if one takes seriously the rhetoric of Justices Scalia and Clarence Thomas.

But a word of caution. Not all members of the five-member conservative majority are revolutionaries. Justice Sandra Day O'Connor, in the majority in Printz, wrote a concurring opinion that is much more moderate and cautious in both tone and substance than the opinion by Scalia. And she gets right to the nub of the issue likely to be presented in future cases: the question of federal grant conditions. O'Connor says the Brady Act, as written in the form of a command to the states, is unconstitutional. But she quickly qualifies her view, saying that Printz "does not spell the end of the objective of the Brady Act." States may participate voluntarily. And most significant of all, she says: "Congress is also free to amend the interim program to provide for its continuance on a contractual basis with the states if it wishes, as it does with a number of federal programs."

Although the federal government may not command, it still may attach conditions to the receipt of federal aid, which the states may not like but will have to accept if they take federal money.

RELATED ARTICLE: PREEMPTION WATCH

The United States is currently negotiating an international agreement, the Multilateral Agreement on Investment (MAI), which could significantly affect states. Its goal is to reduce barriers to the worldwide movement of capital. Renato Ruggerio, the director general of the World Trade Organization, says of the negotiations, "We are writing the constitution of a single global economy."

The agreement is being negotiated under the auspices of the Organization for Economic Cooperation and Development, composed of the leading industrial nations of North America, Europe and East Asia. Negotiators expect to sign an agreement next May.

The MAI seeks to remove restrictions on the movement of capital, require foreign investors to be treated as favorably as domestic ones, and open natural resources, telecommunications and all other economic sectors to foreign investment. Performance requirements (regulations that require investors to meet certain social policy goals) would be barred. Investors would be entitled to compensation for expropriated property. In short, investors would be protected from discriminatory treatment by governments.

The MAI would be binding on American states. State laws would be subject to challenge in the MAI dispute resolution process. In contrast to World Trade Organization proceedings, an MAI challenge to a state law could be initiated by an individual firm (as well as a foreign country). The United States could be held liable for money damages if a state law is found to violate the MAI.

Proponents see the MAI as a boon to states. It could encourage direct foreign investment in the United States, as well as facilitate U.S. investments around the world. Moreover, by reducing investment barriers, the MAI could greatly improve the global economy.

Opponents worry that legitimate government regulations, taxes and economic development programs will be subject to challenge. They also fear reductions in labor, environmental and consumer protection standards, as well as pressure to lower industrial wages.

Federalism questions raised by the agreement relate primarily to the dispute resolution process. Will states be able to defend their legitimate tax and regulatory measures before dispute resolution panels? Will nondiscrimination standards be fairly applied to states? Will the agreement result in a flood of litigation? Will MAI upset the balance of federal and state authority? If states lose an MAI case will the federal government pay for damages as it has promised? In short, will MAI panels of trade experts be sensitive to the needs of America's unique federal system of government?

The U.S. negotiators have been meeting frequently with NCSL and other state groups to respond to such questions. They are confident that all potential problems can be addressed, and that states will be able to support congressional ratification of the agreement in 1998.

RELATED ARTICLE: MANDATE WATCH

The U.S. Environmental Protection Agency announced July 16 the final version of stringent, new clean air standards. EPA ignored NCSL's complaint that it failed to comply with federal law on mandate relief.

Representative Brian Flaherty of Connecticut testified on behalf of NCSL before the U.S. House Judiciary Committee on July 29. "The effective implementation of the Unfunded Mandate Relief Act," he said, "is essential not only in the context of Clean Air Act rulemaking activities, but for all other federal administrative proceedings. The act should not be perceived as a roadblock or even a speed bump, impeding the swift development and implementation of public policy." Flaherty further noted: "Congress and the administration made a commitment, with the passage of UMRA, to provide relief from current and future mandates in order to preserve the financial viability of state governments."

In comments filed with EPA, NCSL stressed that it supports the principles underlying the Clean Air Act of 1990, but objects to the failure of EPA to assess the cost of the new regulations to states as required by the Unfunded Mandate Reform Act.

RELATED ARTICLE: CONSTITUTIONAL FEDERALISM

NCSL won an important victory in the Printz case when the Supreme Court struck down the background check provisions of the Brady Law as a violation of states' rights under the 10th Amendment. But, as noted previously, the federal government retains considerable power to coerce the states by attaching conditions or "strings" to federal grants.

Grant conditions are a particular problem for states when they are attached to federal programs years after the first federal grant is accepted. States become dependent on federal funds, and knowing that it is politically impossible for the state to turn down federal money, Congress exploits the situation by basing the future receipt of federal funds on compliance with federal goals in unrelated policy areas. For example, highway funding bills in Congress have become a favorite "Christmas tree" on which to hang unrelated grant conditions that effectively coerce states into adhering to federal policy.

In 1987, the U.S. Supreme Court issued a decision in South Dakota vs. Dole that was unfavorable to the states. The case resulted from South Dakota's challenge to a federal requirement that states raise their drinking age to 21 if they wanted to receive all their highway money. The Court upheld the constitutionality of this grant condition. This may have been, in part, because this issue is a difficult one for the court to address. What clear and understandable test could the Court apply that would distinguish legitimate grant conditions from illegitimate ones?

Logic would dictate that Congress should be free to make conditions for grants to states in a way that ensures that the money is properly spent. The problem arises when Congress attaches additional, unrelated conditions to grants. This is especially the case where Congress would not have regulatory power under the Commerce Clause to enforce federal policy by preempting state law. For example, if Congress required states to set limits on truck lengths as a condition for receiving highway funds, it might be objectionable to certain states, but it is hard to argue that it is unconstitutional, given that Congress almost certainly has the power under the Commerce Clause to specify nationally uniform truck lengths. But what about a hypothetical highway grant condition that imposed a federal curriculum in the public schools or required local sheriffs to do background checks on prospective gun purchases?

Arguably, Congress does not have authority under the Commerce Clause to regulate public education. Recall the case of United States vs. Lopez where the Court struck down the Gun Free School Zone Act. And under Printz, Congress cannot commandeer sheriffs to perform background checks on gun purchasers. The question is whether Congress can circumvent the limits on its power imposed by Lopez, Printz and similar cases by simply casting its mandates and policy directives in the form of grant conditions.

Sooner or later, the Court will have to revisit the issue of grant conditions. It could be the most important federalism case of all.