Printz v. United States/Dissent Breyer

Justice Breyer, with whom Justice Stevens joins, dissenting.

I would add to the reasons Justice Stevens sets forth the fact that the United States is not the only nation that seeks to reconcile the practical need for a central authority with the democratic virtues of more local control. At least some other countries, facing the same basic problem, have found that local control is better maintained through application of a principle that is the direct opposite of the principle the majority derives from the silence of our Constitution. The federal systems of Switzerland, Germany, and the European Union, for example, all provide that constituent states, not federal bureaucracies, will themselves implement many of the laws, rules, regulations, or decrees enacted by the central "federal" body. Lenaerts, Constitutionalism and the Many Faces of Federalism, 38 Am. J. Comp. L. 205, 237 (1990); D. Currie, The Constitution of the Federal Republic of Germany 66, 84 (1994); Mackenzie Stuart, Foreward, Comparative Constitutional Federalism: Europe and America ix (M. Tushnet ed. 1990); Kimber, A Comparison of Environmental Federalism in the United States and the European Union, 54 Md. L. Rev. 1658, 1675-1677 (1995). They do so in part because they believe that such a system interferes less, not more, with the independent authority of the "state," member nation, or other subsidiary government, and helps to safeguard individual liberty as well. See Council of European Communities, European Council in Edinburgh, 11-12 December 1992, Conclusions of the Presidency 20-21 (1993); D. Lasok & K. Bridge, Law and Institutions of the European Union 114 (1994); Currie, supra, at 68, 81-84, 100-101; Frowein, Integration and the Federal Experience in Germany and Switzerland, 1 Integration Through Law 573, 586-587 (M. Cappelletti, M. Seccombe, & J. Weiler eds. 1986); Lenaerts, supra, at 232, 263.

Of course, we are interpreting our own Constitution, not those of other nations, and there may be relevant political and structural differences between their systems and our own. Cf. The Federalist No. 20, pp. 134-138 (C. Rossiter ed. 1961) (J. Madison and A. Hamilton) (rejecting certain aspects of European federalism). But their experience may nonetheless cast an empirical light on the consequences of different solutions to a common legal problem—in this case the problem of reconciling central authority with the need to preserve the liberty enhancing autonomy of a smaller constituent governmental entity. Cf. id., No. 42, p. 268 (J. Madison) (looking to experiences of European countries); id., No. 43, pp. 275, 276 (J. Madison) (same). And that experience here offers empirical confirmation of the implied answer to a question Justice Stevens asks: Why, or how, would what the majority sees as a constitutional alternative—the creation of a new federal gun law bureaucracy,or the expansion of an existing federal bureaucracy— better promote either state sovereignty or individual liberty? See ante, at 7-8, 23 (Stevens, J., dissenting).

As comparative experience suggests, there is no need to interpret the Constitution as containing an absolute principle—forbidding the assignment of virtually any federal duty to any state official. Nor is there a need to read the Brady Act as permitting the Federal Government to overwhelm a state civil service. The statute uses the words "reasonable effort," 18 U.S.C. § 922(s)(2)--words that easily can encompass the considerations of, say, time or cost, necessary to avoid any such result.

Regardless, as Justice Stevens points out, the Constitution itself is silent on the matter. Ante, at 7, 18, 25 (Stevens, J., dissenting). Precedent supports the Government's position here. Ante, at 19, 23-25, 26-34 (Stevens, J., dissenting). And the fact that there is not more precedent—that direct federal assignment of duties to state officers is not common—likely reflects, not a widely shared belief that any such assignment is incompatible with basic principles of federalism, but rather a widely shared practice of assigning such duties in other ways. See, e.g., South Dakota v. Dole, 483 U.S. 203 (1987) (spending power); Garcia v. United States, 469 U.S. 70 (1984); New York v. United States, 505 U.S. 144, 160 (1992) (general statutory duty); FERC v. Mississippi, 456 U.S. 742 (1982) (pre emption). See also ante, at 4-5 (Souter, J., dissenting). Thus, there is neither need nor reason to find in the Constitution an absolute principle, the inflexibility of which poses a surprising and technical obstacle to the enactment of a law that Congress believed necessary to solve an important national problem.

For these reasons and those set forth in Justice Stevens' opinion, I join his dissent.