(Bench Opinion)

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

challenge must be sought in historical understanding and practice, in the Constitution's structure, and in this Court's jurisprudence. P. 4.
        (b) Relevant constitutional practice tends to negate the existence of the congressional power asserted here, but is not conclusive. Enactments of the early Congresses seem to contain no evidence of an assumption that the Federal Government may command the States' executive power in the absence of a particularized constitutional authorization. The early enactments establish, at most, that the Constitution was originally understood to permit imposition of an obligation on state judges to enforce federal prescriptions related to matters appropriate for the judicial power. The Government misplaces its reliance on portions of The Federalist suggesting that federal responsibilities could be imposed on state officers. None of these statements necessarily implies_what is the critical point here_that Congress could impose these responsibilities without the States' consent. They appear to rest on the natural assumption that the States would consent, see FERC v. Mississippi, 456 U. S. 742, 796, n. 35 (O'Connor, J., concurring in judgment and dissenting in part). Finally, there is an absence of executive-commandeering federal statutes in the country's later history, at least until very recent years. Even assuming that newer laws represent an assertion of the congressional power challenged here, they are of such recent vintage that they are not probative of a constitutional tradition. Pp. 4_18.
        (c) The Constitution's structure reveals a principle that controls these cases: the system of "dual sovereignty." See, e.g., Gregory v. Ashcroft, 501 U. S. 452, 457. Although the States surrendered many of their powers to the new Federal Government, they retained a residuary and inviolable sovereignty that is reflected throughout the Constitution's text. See, e.g., Lane County v. Oregon, 7 Wall. 71, 76. 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. The Federal Government's power would be augmented immeasurably and impermissibly if it were able to impress into its service_and at no cost to itself_the police officers of the 50 States. Pp. 18_22.
        (d) Federal control of state officers would also have an effect upon the separation and equilibration of powers between the three branches of the Federal Government itself. The Brady Act effectively transfers the President's responsibility to administer the laws enacted by Congress, Art. II, §§2 and 3, to thousands of CLEOs in the 50 States, who are left to implement the program without meaningful Presidential control. The Federal Executive's unity would be shattered, and the power of the President would be subject to reduction, if

Congress could simply require state officers to execute its laws. Pp. 22_23.
        (e) Contrary to the dissent's contention, the Brady Act's direction of the actions of state executive officials is not constitutionally valid under Art. I, §8, as a law "necessary and proper" to the execution of Congress's Commerce Clause power to regulate handgun sales. Where, as here, a law violates the state sovereignty principle, it is not a law "proper for carrying into Execution" delegated powers within the Necessary and Proper Clause's meaning. Cf. New York v. United States, 505 U. S. 144, 166. The Supremacy Clause does not help the dissent, since it makes "Law of the Land" only "Laws of the United States which shall be made in Pursuance [of the Constitution.]" Art. VI, cl. 2. Pp. 24_25.
        (f) Finally, and most conclusively in these cases, the Court's jurisprudence makes clear that the Federal Government may not compel the States to enact or administer a federal regulatory program. See, e.g., New York, supra, at 188. The attempts of the Government and the dissent to distinguish New York_on grounds that the Brady Act's background-check provision does not require state legislative or executive officials to make policy; that requiring state officers to perform discrete, ministerial federal tasks does not diminish the state or federal officials' accountability; and that the Brady Act is addressed to individual CLEOs while the provisions invalidated in New York were directed to the State itself_are not persuasive. A ``balancing'' analysis is inappropriate here, since the whole object of the law is to direct the functioning of the state executive, and hence to compromise the structural framework of dual sovereignty; it is the very principle of separate state sovereignty that such a law offends. See e.g., New York, supra, at 187. Pp. 25_34.
    2.  With the Act's background-check and implicit receipt-of-forms requirements invalidated, the Brady Act requirements that CLEOs destroy all Brady Forms and related records, §922(s)(6)(B)(i), and give would-be purchasers written statements of the reasons for determining their ineligibility to receive handguns, §922(s)(6)(C), require no action whatsoever on the part of CLEOs such as petitioners, who are not voluntary participants in administration of the federal scheme. As to them, these provisions are not unconstitutional, but simply inoperative. Pp. 34_36.
    3.  The Court declines to address the severability question briefed and argued by the parties: whether firearms dealers remain obliged to forward Brady Forms to CLEOs, §§922(s)(1)(A)(i)(III) and (IV), and to wait five business days thereafter before consummating a firearms sale, §922(s)(1)(A)(ii). These provisions burden only dealers and

firearms purchasers, and no plaintiff in either of those categories is before the Court. P. 36.
     66 F. 3d 1025, reversed.
    Scalia, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O'Connor, Kennedy, and Thomas, JJ., joined. O'Connor, J., and Thomas, J., filed concurring opinions. Stevens, J., filed a dissenting opinion, in which Souter, Ginsburg, and Breyer, JJ., joined. Souter, J., filed a dissenting opinion. Breyer, J., filed a dissenting opinion, in which Stevens, J., joined.

    NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash-ington, D.C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

these alternatives applicable to all gun purchasers, CLEOs are required to perform certain duties. When a CLEO receives the required notice of a proposed transfer from the firearms dealer, 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." §922(s)(2). The Act does not require the CLEO to take any particular action if he determines that a pending transaction would be unlawful; he may notify the firearms dealer to that effect, but is not required to do so. If, however, the CLEO notifies a gun dealer that a prospective purchaser is ineligible to receive a handgun, he must, upon request, provide the would-be purchaser with a written statement of the reasons for that determination. §922(s)(6)(C). Moreover, if the CLEO does not discover any basis for objecting to the sale, he must destroy any records in his possession relating to the transfer, including his copy of the Brady Form. §922(s)(6)(B)(i). Under a separate provision of the GCA, any person who "knowingly violates [the section of the GCA amended by the Brady Act] shall be fined under this title, imprisoned for no more than 1 year, or both." §924(a)(5).
    Petitioners Jay Printz and Richard Mack, the CLEOs for Ravalli County, Montana, and Graham County, Arizona, respectively, filed separate actions challenging the constitutionality of the Brady Act's interim provisions. In each case, the District Court held that the provision requiring CLEOs to perform background checks was unconstitutional, but concluded that that provision was severable from the remainder of the Act, effectively leaving a voluntary background-check system in place. 856 F. Supp. 1372 (Ariz. 1994); 854 F. Supp. 1503 (Mont. 1994). A divided panel of the Court of Appeals for the Ninth Circuit reversed, finding none of the Brady

Act's interim provisions to be unconstitutional. 66 F. 3d 1025 (1995). We granted certiorari. 518 U. S. ___ (1996).

"the earliest Congresses enacted statutes that required the participation of state officials in the implementation of federal laws," Brief for United States 28. The Government's contention demands our careful consideration, since early congressional enactments "provid[e] `contemporaneous and weighty evidence' of the Constitution's meaning," Bowsher v. Synar, 478 U. S. 714, 723_724 (1986) (quoting Marsh v. Chambers, 463 U. S. 783, 790 (1983)). Indeed, such "contemporaneous legislative exposition of the Constitution . . . , acquiesced in for a long term of years, fixes the construction to be given its provisions." Myers v. United States, 272 U. S. 52, 175 (1926) (citing numerous cases). Conversely if, as petitioners contend, earlier Congresses avoided use of this highly attractive power, we would have reason to believe that the power was thought not to exist.
    The Government observes that statutes enacted by the first Congresses required state courts to record applications for citizenship, Act of Mar. 26, 1790, ch. 3, §1, 1 Stat. 103, to transmit abstracts of citizenship applications and other naturalization records to the Secretary of State, Act of June 18, 1798, ch. 54, §2, 1 Stat. 567, and to register aliens seeking naturalization and issue certificates of registry, Act of Apr. 14, 1802, ch. 28, §2, 2 Stat. 154_155. It may well be, however, that these requirements applied only in States that authorized their courts to conduct naturalization proceedings. See Act of Mar. 26, 1790, ch. 3, §1, 1 Stat. 103; Holmgren v. United States, 217 U. S. 509, 516_517 (1910) (explaining that the Act of March 26, 1790 "conferred authority upon state courts to admit aliens to citizenship" and refraining from addressing the question "whether the States can be required to enforce such naturalization laws against their consent"); United States v. Jones, 109 U. S. 513, 519_520 (1883) (stating that these obligations were imposed "with the consent of the States" and

"could not be enforced against the consent of the States").See footnote 1 Other statutes of that era apparently or at least arguably required state courts to perform functions unrelated to naturalization, such as resolving controversies between a captain and the crew of his ship concerning the seaworthiness of the vessel, Act of July 20, 1790, ch. 29, §3, 1 Stat. 132, hearing the claims of slave owners who had apprehended fugitive slaves and issuing certificates authorizing the slave's forced removal to the State from which he had fled, Act of Feb. 12, 1793, ch. 7, §3, 1 Stat. 302_305, taking proof of the claims of Canadian refugees who had assisted the United States during the Revolutionary War, Act of Apr. 7, 1798, ch. 26, §3, 1 Stat. 548, and ordering the deportation of alien enemies in times of war, Act of July 6, 1798, ch. 66, §2, 1 Stat. 577_578.
    These early laws establish, at most, that the Constitution was originally understood to permit imposition of an obligation on state judges to enforce federal prescriptions, insofar as those prescriptions related to matters appropriate for the judicial power. That assumption was perhaps implicit in one of the provisions of the Constitution, and was explicit in another. In accord with the so-called Madisonian Compromise, Article III, §1, established only a Supreme Court, and made the creation of lower federal courts optional with the Congress_even though it was obvious that the Supreme Court alone could not hear all federal cases throughout the United States. See C. Warren, The Making of the Constitution 325_327 (1928). And the Supremacy Clause, Art. VI, cl. 2, announced that "the Laws of the United States . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby." It is understandable why courts should have been viewed distinctively in this regard; unlike legislatures and executives, they applied the law of other sovereigns all the time. The principle underlying so-called "transitory" causes of action was that laws which operated elsewhere created obligations in justice that courts of the forum state would enforce. See, e.g., McKenna v. Fisk, 1 How. 241, 247_249 (1843). The Constitution itself, in the Full Faith and Credit Clause, Art. IV, §1, generally required such enforcement with respect to obligations arising in other States. See Hughes v. Fetter, 341 U. S. 609 (1951).
    For these reasons, we do not think the early statutes imposing obligations on state courts imply a power of Congress to impress the state executive into its service. Indeed, it can be argued that the numerousness of these statutes, contrasted with the utter lack of statutes imposing obligations on the States' executive (notwithstanding the attractiveness of that course to Congress), suggests an assumed absence of such power.See footnote 2 The only

early federal law the Government has brought to our attention that imposed duties on state executive officers is the Extradition Act of 1793, which required the "executive authority" of a State to cause the arrest and delivery of a fugitive from justice upon the request of the executive authority of the State from which the fugitive had fled. See Act of Feb. 12, 1793, ch. 7, §1, 1 Stat. 302. That was in direct implementation, however,

of the Extradition Clause of the Constitution itself, see Art. IV, §2.See footnote 3
    Not only do the enactments of the early Congresses, as far as we are aware, 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 assumption. On September 23, 1789_the day before its proposal of the Bill of Rights, see 1 Annals of Congress 912_913_the First Congress enacted a law aimed at obtaining state assistance of the most rudimentary and necessary sort for the enforcement of the new Government's laws: the holding of federal prisoners in state jails at federal expense. Significantly, the law issued not a command to the States' executive, but a recommendation to their legislatures. Congress "recommended to the legislatures of the several States to pass laws, making it expressly the duty of the keepers of their gaols, to receive and safe keep therein all prisoners committed under the authority of the United States," and offered to pay 50 cents per month for each prisoner. Act of Sept. 23, 1789, 1 Stat. 96. Moreover, when Georgia refused to comply with the request, see L. White, The Federalists

402 (1948), Congress's only reaction was a law authorizing the marshal in any State that failed to comply with the Recommendation of September 23, 1789, to rent a temporary jail until provision for a permanent one could be made, see Resolution of Mar. 3, 1791, 1 Stat. 225.
    In addition to early legislation, the Government also appeals to other sources we have usually regarded as indicative of the original understanding of the Constitution. It points to portions of The Federalist which reply to criticisms that Congress's power to tax will produce two sets of revenue officers_for example, "Brutus's" assertion in his letter to the New York Journal of December 13, 1787, that the Constitution "opens a door to the appointment of a swarm of revenue and excise officers to prey upon the honest and industrious part of the community, eat up their substance, and riot on the spoils of the country," reprinted in 1 Debate on the Constitution 502 (B. Bailyn ed. 1993). "Publius" responded that Congress will probably "make use of the State officers and State regulations, for collecting" federal taxes, The Federalist No. 36, p. 221 (C. Rossiter ed. 1961) (A. Hamilton) (hereinafter The Federalist), and predicted that "the eventual collection [of internal revenue] under the immediate authority of the Union, will generally be made by the officers, and according to the rules, appointed by the several States," id., No. 45, at 292 (J. Madison). The Government also invokes the Federalist's more general observations that the Constitution would "enable the [national] government to employ the ordinary magistracy of each [State] in the execution of its laws," id., No. 27, at 176 (A. Hamilton), and that it was "extremely probable that in other instances, particularly in the organization of the judicial power, the officers of the States will be clothed in the correspondent authority of the Union," id., No. 45, at 292 (J. Madison). But none of these statements necessarily implies_what is the critical point here_that Congress could impose

these responsibilities without the consent of the States. They appear to rest on the natural assumption that the States would consent to allowing their officials to assist the Federal Government, see FERC v. Mississippi, 456 U. S. 742, 796, n. 35 (1982) (O'Connor, J., concurring in judgment in part and dissenting in part), an assumption proved correct by the extensive mutual assistance the States and Federal Government voluntarily provided one another in the early days of the Republic, see generally White, supra, at 401_404, including voluntary federal implementation of state law, see, e.g., Act of Apr. 2, 1790, ch. 5, §1, 1 Stat. 106 (directing federal tax collectors and customs officers to assist in enforcing state inspection laws).
    Another passage of The Federalist reads as follows:

"It merits particular attention . . . , that the laws of the Confederacy as to the enumerated and legitimate objects of its jurisdiction will become the supreme law of the land; to the observance of which all officers, legislative, executive, and judicial in each State will be bound by the sanctity of an oath. Thus, the legislatures, courts, and magistrates, of the respective members will be incorporated into the operations of the national government as far as its just and constitutional authority extends; and will be rendered auxiliary to the enforcement of its laws." The Federalist No. 27, at 177 (A. Hamilton) (emphasis in original).

be that the National Government will have "authority . . . , when exercising an otherwise legitimate power (the commerce power, say), to require state `auxiliaries' to take appropriate action." Post, at 2. There are several obstacles to such an interpretation. First, the consequences in question ("incorporated into the operations of the national government" and "rendered auxiliary to the enforcement of its laws") are said in the quoted passage to flow automatically from the officers' oath to observe the "the laws of the Confederacy as to the enumerated and legitimate objects of its jurisdiction."See footnote 4 Thus, if the passage means that state officers must take an active role in the implementation of federal law, it means that they must do so without the necessity for a congressional directive that they implement it. But no one has ever thought, and no one asserts in the present litigation, that that is the law. The second problem with Justice Souter's reading is that it makes state legislatures subject to federal direction. (The passage in question, after all, does not include legislatures merely incidentally, as by referring to "all state officers"; it refers to legislatures specifically and first of all.) We have held, however, that state leglislatures are not subject to federal direction. New York v. United States, 505 U. S. 144 (1992).See footnote 5

    These problems are avoided, of course, if the calculatedly vague consequences the passage recites_ "incorporated into the operations of the national government" and "rendered auxiliary to the enforcement of its laws"_are taken to refer to nothing more (or less) than the duty owed to the National Government, on the part of all state officials, to enact, enforce, and interpret state law in such fashion as not to obstruct the operation of federal law, and the attendant reality that all state actions constituting such obstruction, even legislative acts, are ipso facto invalid.See footnote 6 See Silkwood v. Kerr-McGee Corp., 464 U. S. 238, 248 (1984) (federal pre-emption of conflicting state law). This meaning

accords well with the context of the passage, which seeks to explain why the new system of federal law directed to individual citizens, unlike the old one of federal law directed to the States, will "bid much fairer to avoid the necessity of using force" against the States, The Federalist No. 27, at 176. It also reconciles the passage with Hamilton's statement in Federalist No. 36, at 222, that the Federal Government would in some circumstances do well "to employ the state officers as much as possible, and to attach them to the Union by an accumulation of their emoluments"_which surely suggests inducing state officers to come aboard by paying them, rather than merely commandeering their official services.See footnote 7
    Justice Souter contends that his interpretation of Federalist No. 27 is "supported by No. 44," written by Madison, wherefore he claims that "Madison and Hamilton" together stand opposed to our view. Post, at 4. In fact, Federalist No. 44 quite clearly contradicts Justice Souter's reading. In that Number, Madison justifies the requirement that state officials take an oath to support the Federal Constitution on the ground that they "will have an essential agency in giving effect to the federal Constitution." If the dissent's reading of Federalist No. 27 were correct (and if Madison agreed with it), one would surely have expected that "essential agency" of state executive officers (if described further) to be described as their responsibility to execute the laws enacted under the Constitution. Instead, however, Federalist No. 44 continues with the following

description:

"The election of the President and Senate will depend, in all cases, on the legislatures of the several States. And the election of the House of Representatives will equally depend on the same authority in the first instance; and will, probably, forever be conducted by the officers and according to the laws of the States." Id., at 287 (emphasis added).

If it was indeed Hamilton's view that the Federal Government could direct the officers of the States, that view has no clear support in Madison's writings, or as far as we are aware, in text, history, or early commentary elsewhere.See footnote 9
    To complete the historical record, we must note that there is not only an absence of executive-commandeering statutes in the early Congresses, but there is an absence of them in our later history as well, at least until very recent years. The Government points to the Act of August 3, 1882, ch. 376, §§2, 4, 22 Stat. 214, which enlisted state officials "to take charge of the local affairs of immigration in the ports within such State, and to provide for the support and relief of such immigrants therein landing as may fall into distress or need of

public aid"; to inspect arriving immigrants and exclude any person found to be a "convict, lunatic, idiot," or indigent; and to send convicts back to their country of origin "without compensation." The statute did not, however, mandate those duties, but merely empowered the Secretary of the Treasury "to enter into contracts with such State . . . officers as may be designated for that purpose by the governor of any State." (Emphasis added.)
    The Government cites the World War I selective draft law that authorized the President "to utilize the service of any or all departments and any or all officers or agents of the United States and of the several States, Territories, and the District of Columbia, and subdivisions thereof, in the execution of this Act," and made any person who refused to comply with the President's directions guilty of a misdemeanor. Act of May 18, 1917, ch. 15, §6, 40 Stat. 80_81 (emphasis added). However, it is far from clear that the authorization "to utilize the service" of state officers was an authorization to compel the service of state officers; and the misdemeanor provision surely applied only to refusal to comply with the President's authorized directions, which might not have included directions to officers of States whose governors had not volunteered their services. It is interesting that in implementing the Act President Wilson did not commandeer the services of state officers, but instead requested the assistance of the States' governors, see Proclamation of May 18, 1917, 40 Stat. 1665 ("call[ing] upon the Governor of each of the several States . . . and all officers and agents of the several States . . . to perform certain duties"); Registration Regulations Prescribed by the President Under the Act of Congress Approved May 18, 1917, Part I, §7 ("the governor [of each State] is requested to act under the regulations and rules prescribed by the President or under his direction") (emphasis added), obtained the

consent of each of the governors, see Note, The President, the Senate, the Constitution, and the Executive Order of May 8, 1926, 21 Ill. L. Rev. 142, 144 (1926), and left it to the governors to issue orders to their subordinate state officers, see Selective Service Regulations Prescribed by the President Under the Act of May 18, 1917, §27 (1918); J. Clark, The Rise of a New Federalism 91 (1965). See generally Note, 21 Ill. L. Rev., at 144. It is impressive that even with respect to a wartime measure the President should have been so solicitous of state independence.
    The Government points to a number of federal statutes enacted within the past few decades that require the participation of state or local officials in implementing federal regulatory schemes. Some of these are connected to federal funding measures, and can perhaps be more accurately described as conditions upon the grant of federal funding than as mandates to the States; others, which require only the provision of information to the Federal Government, do not involve the precise issue before us here, which is the forced participation of the States' executive in the actual administration of a federal program. We of course do not address these or other currently operative enactments that are not before us; it will be time enough to do so if and when their validity is challenged in a proper case. For deciding the issue before us here, they are of little relevance. Even assuming they represent assertion of the very same congressional power challenged here, they are of such recent vintage that they are no more probative than the statute before us of a constitutional tradition that lends meaning to the text. Their persuasive force is far outweighed by almost two centuries of apparent congressional avoidance of the practice. Compare INS v. Chadha, 462 U. S. 919 (1983), in which the legislative veto, though enshrined in perhaps hundreds of federal statutes, most of which

were enacted in the 1970's and the earliest of which was enacted in 1932, see id., at 967_975 (White, J., dissenting), was nonetheless held unconstitutional.

but only discrete, enumerated ones, Art. I, §8, which implication was rendered express by the Tenth Amendment's assertion 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."
    The Framers' experience under the Articles of Confederation had persuaded them that using the States as the instruments of federal governance was both ineffectual and provocative of federal-state conflict. See The Federalist No. 15. Preservation of the States as independent political entities being the price of union, and "[t]he practicality of making laws, with coercive sanctions, for the States as political bodies" having been, in Madison's words, "exploded on all hands," 2 Records of the Federal Convention of 1787, p. 9 (M. Farrand ed. 1911), 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," The Federalist No. 15, at 109. We have set forth the historical record in more detail elsewhere, see New York v. United States, 505 U. S., at 161_166, and need not repeat it here. It suffices to repeat the conclusion: "The Framers explicitly chose a Constitution that confers upon Congress the power to regulate individuals, not States." Id., at 166.See footnote 10 The great innovation of this design was that "our citizens would have two political capacities, one state and one federal, each protected from incursion by the other"_"a legal system unprecedented in form and design, establishing two orders of government, each with its own direct relationship, its own privity, its own set of mutual rights and obligations to the people who sustain it and are governed by it." U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 838 (1995) (Kennedy, J., concurring). The Constitution thus contemplates that a State's government will represent and remain accountable to its own citizens. See New York, supra, at 168_169; United States v. Lopez, 514 U. S. 549, 576_577 (1995) (Kennedy, J., concurring). Cf. Edgar v. MITE Corp., 457 U. S. 624, 644 (1982) ("the State has no legitimate interest in protecting nonresident[s]"). As Madison expressed it: "[T]he local or municipal authorities form 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 Federalist No. 39, at 245.See footnote 11

    This separation of the two spheres is one of the Constitution's structural protections of liberty. "Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front." Gregory, supra, at 458. To quote Madison once again:

"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. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself." The

Federalist No. 51, at 323.

could act as effectively without the President as with him, by simply requiring state officers to execute its laws.See footnote 12

the Commerce Clause violates the principle of state sovereignty reflected in the various constitutional provisions we mentioned earlier, supra, at 19_20, it is not a "La[w] . . . proper for carrying into Execution the Commerce Clause," and is thus, in the words of The Federalist, "merely [an] ac[t] of usurpation" which "deserve[s] to be treated as such." The Federalist No. 33, at 204 (A. Hamilton). See Lawson & Granger, The "Proper" Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause, 43 Duke L. J. 267, 297_326, 330_333 (1993). We in fact answered the dissent's Necessary and Proper Clause argument in New York: "[E]ven where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts. . . . [T]he Commerce Clause, for example, authorizes Congress to regulate interstate commerce directly; it does not authorize Congress to regulate state governments' regulation of interstate commerce." 505 U. S., at 166.
    The dissent perceives a simple answer in that portion of Article VI which requires that "all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution," arguing that by virtue of the Supremacy Clause this makes "not only the Constitution, but every law enacted by Congress as well," binding on state officers, including laws requiring state-officer enforcement. Post, at 6. The Supremacy Clause, however, makes "Law of the Land" only "Laws of the United States which shall be made in Pursuance [of the Constitution]"; so the Supremacy Clause merely brings

us back to the question discussed earlier, whether laws conscripting state officers violate state sovereignty and are thus not in accord with the Constitution.

after assuring ourselves that they did not require the States to enforce federal law. In Hodel we cited the lower court cases in EPA v. Brown, supra, but concluded that the Surface Mining Control and Reclamation Act did not present the problem they raised because it merely made compliance with federal standards a precondition to continued state regulation in an otherwise pre-empted field, Hodel, supra, at 288. In FERC, we construed the most troubling provisions of the Public Utility Regulatory Policies Act of 1978, to contain only the "command" that state agencies "consider" federal standards, and again only as a precondition to continued state regulation of an otherwise pre-empted field. 456 U. S., at 764_765. We warned that "this Court never has sanctioned explicitly a federal command to the States to promulgate and enforce laws and regulations," id., at 761_762.
    When we were at last confronted squarely with a federal statute that unambiguously required the States to enact or administer a federal regulatory program, our decision should have come as no surprise. At issue in New York v. United States, 505 U. S. 144 (1992), were the so-called "take title" provisions of the Low-Level Radioactive Waste Policy Amendments Act of 1985, which required States either to enact legislation providing for the disposal of radioactive waste generated within their borders, or to take title to, and possession of the waste_effectively requiring the States either to legislate pursuant to Congress's directions, or to implement an administrative solution. Id., at 175_176. We concluded that Congress could constitutionally require the States to do neither. Id., at 176. "The Federal Government," we held, "may not compel the States to enact or administer a federal regulatory program." Id., at 188.
    The Government contends that New York is distinguishable on the following ground: unlike the "take title"

provisions invalidated there, the background-check provision of the Brady Act does not require state legislative or executive officials to make policy, but instead issues a final directive to state CLEOs. It is permissible, the Government asserts, for Congress to command state or local officials to assist in the implementation of federal law so long as "Congress itself devises a clear legislative solution that regulates private conduct" and requires state or local officers to provide only "limited, non-policymaking help in enforcing that law." "[T]he constitutional line is crossed only when Congress compels the States to make law in their sovereign capacities." Brief for United States 16.
    The Government's distinction between "making" law and merely "enforcing" it, between "policymaking" and mere "implementation," is an interesting one. It is perhaps not meant to be the same as, but it is surely reminiscent of, the line that separates proper congressional conferral of Executive power from unconstitutional delegation of legislative authority for federal separation-of-powers purposes. See A. L. A. Schechter Poultry Corp. v. United States, 295 U. S. 495, 530 (1935); Panama Refining Co. v. Ryan, 293 U. S. 388, 428_429 (1935). This Court has not been notably successful in describing the latter line; indeed, some think we have abandoned the effort to do so. See FPC v. New England Power Co., 415 U. S. 345, 352_353 (1974) (Marshall, J., concurring in result); Schoenbrod, The Delegation Doctrine: Could the Court Give it Substance? 83 Mich. L. Rev. 1223, 1233 (1985). We are doubtful that the new line the Government proposes would be any more distinct. Executive action that has utterly no policymaking component is rare, particularly at an executive level as high as a jurisdiction's chief law-enforcement officer. Is it really true that there is no policymaking involved in deciding, for example, what "reasonable efforts" shall be expended to conduct a background

check? It may well satisfy the Act for a CLEO to direct that (a) no background checks will be conducted that divert personnel time from pending felony investigations, and (b) no background check will be permitted to consume more than one-half hour of an officer's time. But nothing in the Act requires a CLEO to be so parsimonious; diverting at least some felony-investigation time, and permitting at least some background checks beyond one-half hour would certainly not be unreasonable. Is this decision whether to devote maximum "reasonable efforts" or minimum "reasonable efforts" not preeminently a matter of policy? It is quite impossible, in short, to draw the Government's proposed line at "no policymaking," and we would have to fall back upon a line of "not too much policymaking." How much is too much is not likely to be answered precisely; and an imprecise barrier against federal intrusion upon state authority is not likely to be an effective one.
    Even assuming, moreover, that the Brady Act leaves no "policymaking" discretion with the States, we fail to see how that improves rather than worsens the intrusion upon state sovereignty. Preservation of the States as independent and autonomous political entities is arguably less undermined by requiring them to make policy in certain fields than (as Judge Sneed aptly described it over two decades ago) by "reduc[ing] [them] to puppets of a ventriloquist Congress," Brown v. EPA, 521 F. 2d, at 839. It is an essential attribute of the States' retained sovereignty that they remain independent and autonomous within their proper sphere of authority. See Texas v. White, 7 Wall, at 725. It is no more compatible with this independence and autonomy that their officers be "dragooned" (as Judge Fernandez put it in his dissent below, 66 F. 3d, at 1035) into administering federal law, than it would be compatible with the independence and autonomy of the United States that its officers be impressed into service for the execution of state laws.

    The Government purports to find support for its proffered distinction of New York in our decisions in Testa v. Katt, 330 U. S. 386 (1947), and FERC v. Mississippi, 456 U. S. 742 (1982). We find neither case relevant. Testa stands for the proposition that state courts cannot refuse to apply federal law_a conclusion mandated by the terms of the Supremacy Clause ("the Judges in every State shall be bound [by federal law]"). As we have suggested earlier, supra, at 6_7, that says nothing about whether state executive officers must administer federal law. Accord New York, 505 U. S., at 178_179. As for FERC, it stated (as we have described earlier) that "this Court never has sanctioned explicitly a federal command to the States to promulgate and enforce laws and regulations," 456 U. S., at 761_762, and upheld the statutory provisions at issue precisely because they did not commandeer state government, but merely imposed preconditions to continued state regulation of an otherwise pre-empted field, in accord with Hodel, 452 U. S., at 288, and required state administrative agencies to apply federal law while acting in a judicial capacity, in accord with Testa, See FERC, supra, at 759_771, and n. 24.See footnote 14

    The Government also maintains that requiring state officers to perform discrete, ministerial tasks specified by Congress does not violate the principle of New York because it does not diminish the accountability of state or federal officials. This argument fails even on its own terms. By forcing 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. And even when the States are not forced to absorb the costs of implementing a federal program, they are still put in the position of taking the blame for its burdensomeness and for its defects. See Merritt, Three Faces of Federalism: Finding a Formula for the Future, 47 Vand. L. Rev. 1563, 1580, n. 65 (1994). Under the present law, for example, it will be the CLEO and not some federal official who stands between the gun purchaser and immediate possession of his gun. And it will likely be the CLEO, not some federal official, who will be blamed for any error (even one in the designated federal database) that causes a purchaser to be mistakenly rejected.
    The dissent makes no attempt to defend the Government's basis for distinguishing New York, but instead advances what seems to us an even more implausible theory. The Brady Act, the dissent asserts, is different from the "take title" provisions invalidated

in New York because the former is addressed to individuals_namely CLEOs_while the latter were directed to the State itself. That is certainly a difference, but it cannot be a constitutionally significant one. While the Brady Act is directed to "individuals," it is directed to them in their official capacities as state officers; it controls their actions, not as private citizens, but as the agents of the State. The distinction between judicial writs and other government action directed against individuals in their personal capacity, on the one hand, and in their official capacity, on the other hand, is an ancient one, principally because it is dictated by common sense. We have observed that "a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office. . . . As such, it is no different from a suit against the State itself." Will v. Michigan Dept. of State Police, 491 U. S. 58, 71 (1989). And the same must be said of a directive to an official in his or her official capacity. To say that the Federal Government cannot control the State, but can control all of its officers, is to say nothing of significance.See footnote 15 Indeed, it merits the description "empty formalistic reasoning of the highest order," post, at 15. By resorting to this, the

dissent not so much distinguishes New York as disembowels it.See footnote 16
    Finally, the Government puts forward a cluster of arguments that can be grouped under the heading: "The Brady Act serves very important purposes, is most efficiently administered by CLEOs during the interim period, and places a minimal and only temporary burden upon state officers." There is considerable disagreement over the extent of the burden, but we need not pause over that detail. Assuming all the mentioned factors were true, they might be relevant if we were evaluating whether the incidental application to the States of a federal law of general applicability excessively interfered with the functioning of state governments. See, e.g., Fry v. United States, 421 U. S. 542, 548 (1975); National League of Cities v. Usery, 426 U. S. 833, 853 (1976) (overruled by Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528 (1985)); South Carolina v. Baker, 485 U. S. 505, 529 (1988) (Rehnquist, C. J., concurring in judgment). But where, as here, it is the whole object of the law to direct the functioning of the state executive, and hence to compromise the structural framework of dual sovereignty, such a "balancing"

analysis is inappropriate.See footnote 17 It is the very principle of separate state sovereignty that such a law offends, and no comparative assessment of the various interests can overcome that fundamental defect. Cf. Bowsher, 478 U. S., at 736 (declining to subject principle of separation of powers to a balancing test); Chadha, 462 U. S., at 944_946 (same); Plaut v. Spendthrift Farm, Inc., 514 U. S. 211, 239_240 (1995) (holding legislated invalidation of final judgments to be categorically unconstitutional). We expressly rejected such an approach in New York, and what we said bears repeating:

"Much of the Constitution is concerned with setting forth the form of our government, and the courts have traditionally invalidated measures deviating from that form. The result may appear `formalistic' in a given case to partisans of the measure at issue, because such measures are typically the product of the era's perceived necessity. But the Constitution protects us from our own best intentions: It divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day." Id.,

at 187.

when he has received none, and the obligation to give reasons for a determination of ineligibility when he never makes a determination of ineligibility, are no obligations at all. These two provisions have conceivable application to a CLEO, in other words, only if he has chosen, voluntarily, to participate in administration of the federal scheme. The present petitioners are not in that position.See footnote 18 As to them, these last two challenged provisions are not unconstitutional, but simply inoperative.
    There is involved in this Brady Act conundrum a severability question, which the parties have briefed and argued: whether firearms dealers in the jurisdictions at issue here, and in other jurisdictions, remain obliged to forward to the CLEO (even if he will not accept it) the requisite notice of the contents (and a copy) of the Brady Form, §§922(s)(1)(A)(i)(III) and (IV); and to wait five business days before consummating the sale, §922(s)(1)(A)(ii). These are important questions, but we have no business answering them in these cases. These provisions burden only firearms dealers and purchasers, and no plaintiff in either of those categories is before us here. We decline to speculate regarding the rights and

obligations of parties not before the Court. Cf., e.g., New York, supra, at 186_187 (addressing severability where remaining provisions at issue affected the plaintiffs).

follow (which is doubtful), the premise of the argument is in any case wrong. None of the early statutes directed to state judges or court clerks required the performance of functions more appropriately characterized as executive than judicial (bearing in mind that the line between the two for present purposes is not necessarily identical with the line established by the Constitution for federal separation-of-powers purposes, see Sweezy v. New Hampshire, 354 U. S. 234, 255 (1957)). Given that state courts were entrusted with the quintessentially adjudicative task of determining whether applicants for citizenship met the requisite qualifications, see Act of Mar. 26, 1790, ch. 3, §1, 1 Stat. 103, it is unreasonable to maintain that the ancillary functions of recording, registering, and certifying the citizenship applications were unalterably executive rather than judicial in nature.
    The dissent's assertion that the Act of July 20, 1790, ch. 29, §3, 1 Stat. 132_133, which required state courts to resolve controversies between captain and crew regarding seaworthiness of a vessel, caused state courts to act "like contemporary regulatory agencies," post, at 14, is cleverly true_because contemporary regulatory agencies have been allowed to perform adjudicative ("quasi-judicial") functions. See 5 U. S. C. §554; Humphrey's Executor v. United States, 295 U. S. 602 (1935). It is foolish, however, to mistake the copy for the original, and to believe that 18th-century courts were imitating agencies, rather than 20th-century agencies imitating courts. The Act's requirement that the court appoint "three persons in the neighbourhood . . . most skilful in maritime affairs" to examine the ship and report on its condition certainly does not change the proceeding into one "supervised by a judge but otherwise more characteristic of executive activity," post, at 14; that requirement is not significantly different from the contemporary judicial practice of appointing expert witnesses, see e.g., Fed. Rule Evid. 706. The ultimate function of the judge under the Act was purely adjudicative; he was, after receiving the report, to "adjudge and determine . . . whether said ship or vessel is fit to proceed on the intended voyage . . . ." 1 Stat. 132.

be imposed on any state official," and that "the essence of legislative power . . . is a discretion not subject to command," so that legislatures, at least, cannot be commanded. But then why were legislatures mentioned in the passage? It seems to us assuredly not a "natural reading" that being "rendered auxiliary to the enforcement of [the national government's] laws" means impressibility into federal service for "courts and magistrates" but something quite different for "legislatures." Moreover, the novel principle of political science that Justice Souter invokes in order to bring forth disparity of outcome from parity of language_namely, that "[t]he essence of legislative power . . . is a discretion not subject to command"_seems to us untrue. Perhaps legislatures are inherently uncommandable as to the outcome of their legislation, but they are commanded all the time as to what subjects they shall legislate upon_commanded, that is, by the people, in constitutional provisions that require, for example, the enactment of annual budgets or forbid the enactment of laws permitting gambling. We do not think that state legislatures would be betraying their very "essence" as legislatures (as opposed to their nature as sovereigns, a nature they share with the other two branches of government) if they obeyed a federal command to enact laws, for example, criminalizing the sale of marijuana.

in the surrender of fugitives from justice." 2 Story, Commentaries on the Constitution of the United States 577 (1851).

the Articles of Confederation, indicating quite clearly that "[w]here the Constitution intends that our Congress enjoy a power once vested in the Continental Congress, it specifically grants it." Prakash, Field Office Federalism, 79 Va. L. Rev. 1957, 1972 (1993).

Antifederalists, on the other hand, pointed specifically to Switzerland_and its then-400 years of success as a "confederate republic"_as proof that the proposed Constitution and its federal structure was unnecessary. See Patrick Henry, Speeches given before the Virginia Ratifying Convention, 4 and 5 June, 1788, reprinted in The Essential Antifederalist 123, 135_136 (W. Allen & G. Lloyd ed. 1985). The fact is that our federalism is not Europe's. It is "the unique contribution of the Framers to political science and political theory." United States v. Lopez, 514 U. S. 549, 575 (1995) (Kennedy, J., concurring) (citing Friendly, Federalism: A Forward, 86 Yale L. J. 1019 (1977)).

(1926) (finding by implication from Art. II, §§1, 2, that the President has the exclusive power to remove executive officers); Plaut v. Spendthrift Farm, Inc., 514 U. S. 211 (1995) (finding that Article III implies a lack of congressional power to set aside final judgments).

within the power of Congress to prescribe, explicitly or by implication (as in the legislation at issue in FERC), that those adjudications must take account of federal law. The existence of this latter power should not be unacceptable to a dissent that believes distinguishing among officers on the basis of their title rather than the function they perform is "empty formalistic reasoning of the highest order," post, at 15. We have no doubt that FERC would not have been decided the way it was if nonadjudicative responsibilities of the state agency were at issue.

    "Additional cases cited by the United States discuss the power of federal courts to order state officials to comply with federal law. . . . Again, however, the text of the Constitution plainly confers this authority on the federal courts . . . . The Constitution contains no analogous grant of authority to Congress." Id., at 179.

of federal funds for highway safety program on compliance with federal requirements).
    In addition, the Court appropriately refrains from deciding whether other purely ministerial reporting requirements imposed by Congress on state and local authorities pursuant to its Commerce Clause powers are similarly invalid. See, e.g., 42 U. S. C. §5779(a) (requiring state and local law enforcement agencies to report cases of missing children to the Department of Justice). The provisions invalidated here, however, which directly compel state officials to administer a federal regulatory program, utterly fail to adhere to the design and structure of our constitutional scheme.

right safeguarded by the Second Amendment.See footnote 1 If, however, the Second Amendment is read to confer a personal right to "keep and bear arms," a colorable argument exists that the Federal Government's regulatory scheme, at least as it pertains to the purely intrastate sale or possession of firearms, runs afoul of that Amendment's protections.See footnote 2 As the parties did not raise

this argument, however, we need not consider it here. Perhaps, at some future date, this Court will have the opportunity to determine whether Justice Story was correct when he wrote that the right to bear arms "has justly been considered, as the palladium of the liberties of a republic." 3 J. Story, Commentaries §1890, p. 746 (1833). In the meantime, I join the Court's opinion striking down the challenged provisions of the Brady Act as inconsistent with the Tenth Amendment.

certainly engendered considerable academic, as well as public, debate.

people of the entire Nation, may require local law enforcement officers to perform certain duties during the interim needed for the development of a federal gun control program. It is remarkably similar to the question, heavily debated by the Framers of the Constitution, whether the Congress could require state agents to collect federal taxes. Or the question whether Congress could impress state judges into federal service to entertain and decide cases that they would prefer to ignore.
    Indeed, since the ultimate issue is one of power, we must consider its implications in times of national emergency. Matters such as the enlistment of air raid wardens, the administration of a military draft, the mass inoculation of children to forestall an epidemic, or perhaps the threat of an international terrorist, may require a national response before federal personnel can be made available to respond. If the Constitution empowers Congress and the President to make an appropriate response, is there anything in the Tenth Amendment, "in historical understanding and practice, in the structure of the Constitution, [or] in the jurisprudence of this Court," ante, at 4, that forbids the enlistment of state officers to make that response effective? More narrowly, what basis is there in any of those sources for concluding that it is the Members of this Court, rather than the elected representatives of the people, who should determine whether the Constitution contains the unwritten rule that the Court announces today?
    Perhaps today's majority would suggest that no such emergency is presented by the facts of these cases. But such a suggestion is itself an expression of a policy judgment. And Congress' view of the matter is quite different from that implied by the Court today.
    The Brady Act was passed in response to what Congress described as an "epidemic of gun violence."

H. R. Rep. No. 103_344, p. 8 (1993). The Act's legislative history notes that 15,377 Americans were murdered with firearms in 1992, and that 12,489 of these deaths were caused by handguns. Ibid. Congress expressed special concern that "[t]he level of firearm violence in this country is, by far, the highest among developed nations." Ibid. The partial solution contained in the Brady Act, a mandatory background check before a handgun may be purchased, has met with remarkable success. Between 1994 and 1996, approximately 6,600 firearm sales each month to potentially dangerous persons were prevented by Brady Act checks; over 70% of the rejected purchasers were convicted or indicted felons. See U. S. Dept. of Justice, Bureau of Justice Statistics Bulletin, A National Estimate: Presale Firearm Checks 1 (Feb. 1997). Whether or not the evaluation reflected in the enactment of the Brady Act is correct as to the extent of the danger and the efficacy of the legislation, the congressional decision surely warrants more respect than it is accorded in today's unprecedented decision.

identifying persons who should not be entrusted with the possession of handguns. In short, the affirmative delegation of power in Article I provides ample authority for the congressional enactment.
    Unlike the First Amendment, which prohibits the enactment of a category of laws that would otherwise be authorized by Article I, the Tenth Amendment imposes no restriction on the exercise of delegated powers. Using language that plainly refers only to powers that are "not" delegated to Congress, it provides:

"The 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." U. S. Const., Amdt. 10.

imposed on ordinary citizens.See footnote 2 Indeed, it would be more reasonable to infer that federal law may impose greater duties on state officials than on private citizens because another provision of the Constitution requires that "all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution." U. S. Const., Art. VI, cl. 3.
    It is appropriate for state officials to make an oath or affirmation to support the Federal Constitution because, as explained in The Federalist, they "have an essential

agency in giving effect to the federal Constitution."See footnote 3 The Federalist No. 44, p. 312 (E. Bourne ed. 1947) (J. Madison). There can be no conflict between their duties to the State and those owed to the Federal Government because Article VI unambiguously provides that federal law "shall be the supreme Law of the Land," binding in every State. U. S. Const., Art. VI, cl. 2. Thus, not only the Constitution, but every law enacted by Congress as well, establishes policy for the States just as firmly as do laws enacted by state legislatures.
    The reasoning in our unanimous opinion explaining why state tribunals with ordinary jurisdiction over tort litigation can be required to hear cases arising under the Federal Employers' Liability Act applies equally to local law enforcement officers whose ordinary duties parallel the modest obligations imposed by the Brady Act:

"The suggestion that the act of Congress is not in harmony with the policy of the State, and therefore that the courts of the State are free to decline jurisdiction, is quite inadmissible, because it presupposes what in legal contemplation does not exist. When Congress, in the exertion of the power confided to it by the Constitution, adopted that act, it spoke for all the people and all the States, and

thereby established a policy for all. That policy is as much the policy of Connecticut as if the act had emanated from its own legislature, and should be respected accordingly in the courts of the State. As was said by this court in Claflin v. Houseman, 93 U. S. 130, 136, 137:
`The laws of the United States are laws in the several States, and just as much binding on the citizens and courts thereof as the State laws are. The United States is not a foreign sovereignty as regards the several States, but is a concurrent, and, within its jurisdiction, paramount sovereignty.'" Second Employers' Liability Cases, 223 U. S. 1, 57 (1912).

more deferential to state sovereignty concerns than a national government that uses its own agents to impose its will directly on the citizenry. The basic change in the character of the government that the Framers conceived was designed to enhance the power of the national government, not to provide some new, unmentioned immunity for state officers. Because indirect control over individual citizens ("the only proper objects of government") was ineffective under the Articles of Confederation, Alexander Hamilton explained that "we must extend the authority of the Union to the persons of the citizens." The Federalist No. 15, at 101 (emphasis added).
    Indeed, the historical materials strongly suggest that the Founders intended to enhance the capacity of the federal government by empowering it_as a part of the new authority to make demands directly on individual citizens_to act through local officials. Hamilton made clear that the new Constitution, "by extending the authority of the federal head to the individual citizens of the several States, will enable the government to employ the ordinary magistracy of each, in the execution of its laws." The Federalist No. 27, at 180. Hamilton's meaning was unambiguous; the federal government was to have the power to demand that local officials implement national policy programs. As he went on to explain: "It is easy to perceive that this will tend to destroy, in the common apprehension, all distinction between the sources from which [the state and federal governments] might proceed; and will give the federal government the same advantage for securing a due obedience to its authority which is enjoyed by the government of each State." Ibid.See footnote 4

    More specifically, during the debates concerning the ratification of the Constitution, it was assumed that state agents would act as tax collectors for the federal government. Opponents of the Constitution had repeatedly expressed fears that the new federal government's ability to impose taxes directly on the citizenry would result in an overbearing presence of federal tax collectors in the States.See footnote 5 Federalists rejoined that this problem would not arise because, as Hamilton explained, "the United States . . . will make use of the State officers and State regulations for collecting" certain taxes. Id., No. 36, at 235. Similarly, Madison made clear that the new central government's power to raise taxes directly from the citizenry would "not be resorted to, except for supplemental purposes of revenue . . . and that the eventual collection, under the immediate authority of the Union, will generally be made by the officers . . . appointed by the several States." Id., No. 45, at 318.See footnote 6
    The Court's response to this powerful historical evidence is weak. The majority suggests that "none of these statements necessarily implies . . . Congress could impose these responsibilities without the consent of the States." Ante, at 10_11 (emphasis omitted). No fair reading of these materials can justify such an interpretation. As Hamilton explained, the power of the government to act on "individual citizens"_including "employ[ing] the ordinary magistracy" of the States_was an answer to the problems faced by a central government that could act only directly "upon the States in their political or collective capacities." The Federalist, No. 27, at 179_180. The new Constitution would avoid this problem, resulting in "a regular and peaceable execution of the law of the Union." Ibid.
    This point is made especially clear in Hamilton's statement that "the legislatures, courts, and magistrates, of the respective members, will be incorporated into the operations of the national government as far as its just and constitutional authority extends; and will be rendered auxiliary to the enforcement of its laws." Ibid. (second emphasis added). It is hard to imagine a more unequivocal statement that state judicial and executive branch officials may be required to implement federal law where the National Government acts within the scope of its affirmative powers.See footnote 7

    The Court makes two unpersuasive attempts to discount the force of this statement. First, according to the majority, because Hamilton mentioned the Supremacy Clause without specifically referring to any "congressional directive," the statement does not mean what it plainly says. Ante, at 12. But the mere fact that the Supremacy Clause is the source of the obligation of state officials to implement congressional directives does not remotely suggest that they might be "`incorporat[ed] into the operations of the national government'" before their obligations have been defined by Congress. Federal law establishes policy for the States just as firmly as laws enacted by state legislatures, but that does not mean that state or federal officials must implement directives that have not been specified in any law.See footnote 8 Second, the majority suggests that interpreting this passage to mean what it says would conflict with our decision in New York v. United States. Ante, at 12. But since the New York opinion did not mention Federalist No. 27, it does not affect either the relevance or the weight of the historical evidence provided by No. 27 insofar as it relates to state courts and magistrates.
    Bereft of support in the history of the founding, the Court rests its conclusion on the claim that there is little evidence the National Government actually exercised such a power in the early years of the Republic. See ante, at 5. This reasoning is misguided in principle and in fact. While we have indicated that the express

consideration and resolution of difficult constitutional issues by the First Congress in particular "provides `contemporaneous and weighty evidence' of the Constitution's meaning since many of [its] Members . . . `had taken part in framing that instrument,'" Bowsher v. Synar, 478 U. S. 714, 723_724 (1986) (quoting Marsh v. Chambers, 463 U. S. 783, 790 (1983)), we have never suggested that the failure of the early Congresses to address the scope of federal power in a particular area or to exercise a particular authority was an argument against its existence. That position, if correct, would undermine most of our post-New Deal Commerce Clause jurisprudence. As Justice O'Connor quite properly noted in New York, "[t]he Federal Government undertakes activities today that would have been unimaginable to the Framers." 505 U. S., at 157.
    More importantly, the fact that Congress did elect to rely on state judges and the clerks of state courts to perform a variety of executive functions, see ante, at 5_6, is surely evidence of a contemporary understanding that their status as state officials did not immunize them from federal service. The majority's description of these early statutes is both incomplete and at times misleading.
    For example, statutes of the early Congresses required in mandatory terms that state judges and their clerks perform various executive duties with respect to applications for citizenship. The First Congress enacted a statute requiring that the state courts consider such applications, specifying that the state courts "shall administer" an oath of loyalty to the United States, and that "the clerk of such court shall record such application." Act of Mar. 26, 1790, ch. 3, §1, 1 Stat. 103 (emphasis added). Early legislation passed by the Fifth Congress also imposed reporting requirements relating to naturalization on court clerks, specifying that failure to perform those duties would result in a fine. Act of

June 18, 1798, ch. 54, §2, 1 Stat. 567 (specifying that these obligations "shall be the duty of the clerk" (emphasis added)). Not long thereafter, the Seventh Congress mandated that state courts maintain a registry of aliens seeking naturalization. Court clerks were required to receive certain information from aliens, record that data, and provide certificates to the aliens; the statute specified fees to be received by local officials in compensation. Act of Apr. 14, 1802, ch. 28, §2, 2 Stat. 154_155 (specifying that these burdens "shall be the duty of such clerk" including clerks "of a . . . state" (emphasis added)).See footnote 9

    Similarly, the First Congress enacted legislation requiring state courts to serve, functionally, like contemporary regulatory agencies in certifying the seaworthiness of vessels. Act of July 20, 1790, ch. 29, §3, 1 Stat. 132_133. The majority casts this as an adjudicative duty, ante, at 6, but that characterization is misleading. The law provided that upon a complaint raised by a ship's crew members, the state courts were (if no federal court was proximately located) to appoint an investigative committee of three persons "most skilful in maritime affairs" to report back. On this basis, the judge was to determine whether the ship was fit for its intended voyage. The statute sets forth, in essence, procedures for an expert inquisitorial proceeding, supervised by a judge but otherwise more characteristic of executive activity.See footnote 10
    The Court assumes that the imposition of such essentially executive duties on state judges and their clerks sheds no light on the question whether executive officials might have an immunity from federal obligations. Ante, at 6. Even assuming that the enlistment of state judges in their judicial role for federal purposes is irrelevant to the question whether executive officials may be asked to perform the same function_a claim disputed below, see infra, at 32_the majority's analysis

is badly mistaken.
    We are far truer to the historical record by applying a functional approach in assessing the role played by these early state officials. The use of state judges and their clerks to perform executive functions was, in historical context, hardly unusual. As one scholar has noted, "two centuries ago, state and local judges and associated judicial personnel performed many of the functions today performed by executive officers, including such varied tasks as laying city streets and ensuring the seaworthiness of vessels." Caminker, State Sovereignty and Subordinacy: May Congress Commandeer State Officers to Implement Federal Law?, 95 Colum. L. Rev. 1001, 1045, n. 176 (1995). And, of course, judges today continue to perform a variety of functions that may more properly be described as executive. See, e.g., Forrester v. White, 484 U. S. 219, 227 (1988) (noting "intelligible distinction between judicial acts and the administrative, legislative, or executive functions that judges may on occasion be assigned to perform"). The majority's insistence that this evidence of federal enlistment of state officials to serve executive functions is irrelevant simply because the assistance of "judges" was at issue rests on empty formalistic reasoning of the highest order.See footnote 11

    The Court's evaluation of the historical evidence, furthermore, fails to acknowledge the important difference between policy decisions that may have been influenced by respect for state sovereignty concerns, and decisions that are compelled by the Constitution.See footnote 12 Thus, for example, the decision by Congress to give President Wilson the authority to utilize the services of state officers in implementing the World War I draft, see Act of May 18, 1917, ch. 15, §6, 40 Stat. 80_81, surely indicates that the national legislature saw no constitutional impediment to the enlistment of state assistance during a federal emergency. The fact that the President was able to implement the program by respectfully "request[ing]" state action, rather than bluntly commanding it, is evidence that he was an effective statesman, but surely does not indicate that he doubted either his or Congress' power to use mandatory language if necessary.See footnote 13 If there were merit to the Court's appraisal of this incident, one would assume that there would have been some contemporary comment on the supposed constitutional concern that hypothetically might have motivated the President's choice of language.See footnote 14
    The Court concludes its review of the historical materials with a reference to the fact that our decision in INS v. Chadha, 462 U. S. 919 (1983), invalidated a large number of statutes enacted in the 1970's, implying that recent enactments by Congress that are similar to the Brady Act are not entitled to any presumption of validity. But in Chadha, unlike this case, our decision rested on the Constitution's express bicameralism and presentment requirements, id., at 946, not on judicial inferences drawn from a silent text and a historical record that surely favors the congressional understanding. Indeed, the majority's opinion consists almost entirely of arguments against the substantial evidence

weighing in opposition to its view; the Court's ruling is strikingly lacking in affirmative support. Absent even a modicum of textual foundation for its judicially crafted constitutional rule, there should be a presumption that if the Framers had actually intended such a rule, at least one of them would have mentioned it.See footnote 15

    As we explained in Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528 (1985): "[T]he principal means chosen by the Framers to ensure the role of the States in the federal system lies in the structure of the Federal Government itself. It is no novelty to observe that the composition of the Federal Government was designed in large part to protect the States from overreaching by Congress." Id., at 550_551. Given the fact that the Members of Congress are elected

by the people of the several States, with each State receiving an equivalent number of Senators in order to ensure that even the smallest States have a powerful voice in the legislature, it is quite unrealistic to assume that they will ignore the sovereignty concerns of their constituents. It is far more reasonable to presume that their decisions to impose modest burdens on state officials from time to time reflect a considered judgment that the people in each of the States will benefit therefrom.
    Indeed, the presumption of validity that supports all congressional enactmentsSee footnote 17 has added force with respect to policy judgments concerning the impact of a federal statute upon the respective States. The majority points to nothing suggesting that the political safeguards of federalism identified in Garcia need be supplemented by a rule, grounded in neither constitutional history nor text, flatly prohibiting the National Government from enlisting state and local officials in the implementation of federal law.
    Recent developments demonstrate that the political safeguards protecting Our Federalism are effective. The

majority expresses special concern that were its rule not adopted the Federal Government would be able to avail itself of the services of state government officials "at no cost to itself." Ante, at 23; see also ante, at 31 (arguing that "Members of Congress can take credit for `solving' problems without having to ask their constituents to pay for the solutions with higher federal taxes"). But this specific problem of federal actions that have the effect of imposing so-called "unfunded mandates" on the States has been identified and meaningfully addressed by Congress in recent legislation.See footnote 18 See Unfunded Mandates Reform Act of 1995, Pub. L. 104_4, 109 Stat. 48.
     The statute was designed "to end the imposition, in the absence of full consideration by Congress, of Federal mandates on State . . . governments without adequate Federal funding, in a manner that may displace other essential State . . . governmental priorities." 2 U. S. C. A. §1501(2) (Supp. 1997). It functions, inter alia, by permitting Members of Congress to raise an objection by point of order to a pending bill that contains an "unfunded mandate," as defined by the statute, of over $50 million.See footnote 19 The mandate may not then be enacted unless the Members make an explicit decision to proceed anyway. See Recent Legislation, Unfunded Mandates Reform Act of 1995, 109 Harv. L. Rev. 1469 (1996) (describing functioning of statute). Whatever the ultimate impact of the new legislation, its passage demonstrates that unelected judges are better off leaving the protection of federalism to the political process in all but the most extraordinary circumstances.See footnote 20

    Perversely, the majority's rule seems more likely to damage than to preserve the safeguards against tyranny provided by the existence of vital state governments. By limiting the ability of the Federal Government to enlist state officials in the implementation of its programs, the Court creates incentives for the National Government to aggrandize itself. In the name of State's rights, the majority would have the Federal Government create vast national bureaucracies to implement its policies. This is exactly the sort of thing that the early Federalists promised would not occur, in part as a result of the National Government's ability to rely on the magistracy of the states. See, e.g., The Federalist No. 36, at 234_235 (Hamilton); id., No. 45, at 318 (Madison).See footnote 21
    With colorful hyperbole, the Court suggests that the unity in the Executive Branch of the Federal Government "would be shattered, and the power of the President would be subject to reduction, if Congress could . . . require . . . state officers to execute its laws." Ante, at 23_24. Putting to one side the obvious tension between the majority's claim that impressing state police officers will unduly tip the balance of power in favor of the federal sovereign and this suggestion that it will emasculate the Presidency, the Court's reasoning

contradicts New York v. United States.See footnote 22
    That decision squarely approved of cooperative federalism programs, designed at the national level but implemented principally by state governments. New York disapproved of a particular method of putting such programs into place, not the existence of federal programs implemented locally. See New York, 505 U. S., at 166 ("Our cases have identified a variety of methods . . . by which Congress may urge a State to adopt a legislative program consistent with federal interests"). Indeed, nothing in the majority's holding calls into question the three mechanisms for constructing such programs that New York expressly approved. Congress may require the States to implement its programs as a condition of federal spending,See footnote 23 in order to avoid the threat of unilateral federal action in the area,See footnote 24 or as a part of a program that affects States and private parties alike.See footnote 25 The majority's suggestion in response to this dissent that Congress' ability to create such programs is limited, ante, at 24, n. 12, is belied by the importance and sweep of the federal statutes that meet this description, some of which we described in New York. See id., at 167_168 (mentioning, inter alia, the Clean Water Act, the Occupational Safety and Health Act of 1970, and

the Resource Conservation and Recovery Act of 1976).
    Nor is there force to the assumption undergirding the Court's entire opinion that if this trivial burden on state sovereignty is permissible, the entire structure of federalism will soon collapse. These cases do not involve any mandate to state legislatures to enact new rules. When legislative action, or even administrative rule-making, is at issue, it may be appropriate for Congress either to pre-empt the State's lawmaking power and fashion the federal rule itself, or to respect the State's power to fashion its own rules. But this case, unlike any precedent in which the Court has held that Congress exceeded its powers, merely involves the imposition of modest duties on individual officers. The Court seems to accept the fact that Congress could require private persons, such as hospital executives or school administrators, to provide arms merchants with relevant information about a prospective purchaser's fitness to own a weapon; indeed, the Court does not disturb the conclusion that flows directly from our prior holdings that the burden on police officers would be permissible if a similar burden were also imposed on private parties with access to relevant data. See New York, 505 U. S., at 160; Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528 (1985). A structural problem that vanishes when the statute affects private individuals as well as public officials is not much of a structural problem.
    Far more important than the concerns that the Court musters in support of its new rule is the fact that the Framers entrusted Congress with the task of creating a working structure of intergovernmental relationships around the framework that the Constitution authorized. Neither explicitly nor implicitly did the Framers issue any command that forbids Congress from imposing federal duties on private citizens or on local officials. As a general matter, Congress has followed the sound

policy of authorizing federal agencies and federal agents to administer federal programs. That general practice, however, does not negate the existence of power to rely on state officials in occasional situations in which such reliance is in the national interest. Rather, the occasional exceptions confirm the wisdom of Justice Holmes' reminder that "the machinery of government would not work if it were not allowed a little play in its joints." Bain Peanut Co. of Tex. v. Pinson, 282 U. S. 499, 501 (1931).

governments to take title to the waste, the "option" really amounted to a simple command to the States to enact and enforce a federal regulatory program. Id., at 176. The Court explained:

"A choice between two unconstitutionally coercive regulatory techniques is no choice at all. Either way, `the Act commandeers the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program,' Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., supra, at 288, an outcome that has never been understood to lie within the authority conferred upon Congress by the Constitution." Ibid.

we are not bound by the dicta of our prior opinions. See, e.g., U. S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U. S. 18, 24 (1994) (Scalia, J.) ("invoking our customary refusal to be bound by dicta"). To the extent that it has any substance at all, New York's administration language may have referred to the possibility that the State might have been able to take title to and devise an elaborate scheme for the management of the radioactive waste through purely executive policymaking. But despite the majority's effort to suggest that similar activities are required by the Brady Act, see ante, at 28_29, it is hard to characterize the minimal requirement that CLEOs perform background checks as one involving the exercise of substantial policymaking discretion on that essentially legislative scale.See footnote 27

    Indeed, Justice Kennedy's recent comment about another case that was distinguishable from New York applies to these cases as well:

"This is not a case where the etiquette of federalism has been violated by a formal command from the National Government directing the State to enact a certain policy, cf. New York v. United States, 505 U. S. 144 (1992), or to organize its governmental functions in a certain way, cf. FERC v. Mississippi, 456 U. S., at 781, (O'Connor, J., concurring in judgment in part and dissenting in part)." Lopez, 514 U. S., at 583 (Kennedy, J., concurring).

    Importantly, the majority either misconstrues or ignores three cases that are more directly on point. In FERC, we upheld a federal statute requiring state utilities commissions, inter alia, to take the affirmative step of considering federal energy standards in a manner complying with federally specified notice and comment procedures, and to report back to Congress periodically. The state commissions could avoid this obligation only by ceasing regulation in the field, a "choice" that we recognized was realistically foreclosed, since Congress had put forward no alternative regulatory scheme to govern this very important area. 456 U. S., at 764, 766, 770. The burden on state officials that we approved in FERC was far more extensive than the minimal, temporary imposition posed by the Brady Act.See footnote 29
    Similarly, in Puerto Rico v. Branstad, 483 U. S. 219 (1987), we overruled our earlier decision in Kentucky v. Dennison, 24 How. 66 (1861), and held that the Extradition Act of 1793 permitted the Commonwealth of Puerto Rico to seek extradition of a fugitive from its laws without constitutional barrier. The Extradition Act, as the majority properly concedes, plainly imposes duties on state executive officers. See ante, at 8. The majority suggests that this statute is nevertheless of little importance because it simply constitutes an implementation of the authority granted the National Government by the Constitution's Extradition Clause, Art. IV, §2. But in Branstad we noted ambiguity as to whether Puerto Rico benefits from that Clause, which applies on its face only to "States." Avoiding the question of the Clause's applicability, we held simply that under the Extradition Act Puerto Rico had the power to request that the State of Iowa deliver up the fugitive the Commonwealth sought. 483 U. S., at 229_230. Although Branstad relied on the authority of the Act alone, without the benefit of the Extradition Clause, we noted no barrier to our decision in the principles of federalism_despite the fact that one Member of the Court brought the issue to our attention, see id., at 231 (Scalia, J., concurring in part and concurring in judgment).See footnote 30
    Finally, the majority provides an incomplete explana- tion of our decision in Testa v. Katt, 330 U. S. 386 (1947), and demeans its importance. In that case the Court unanimously held that state courts of appropriate jurisdiction must occupy themselves adjudicating claims brought by private litigants under the federal Emergency Price Control Act of 1942, regardless of how otherwise crowded their dockets might be with state law matters. That is a much greater imposition on state sovereignty than the Court's characterization of the case as merely holding that "state courts cannot refuse to apply federal law," ante, at 30. That characterization describes only the narrower duty to apply federal law in cases that the state courts have consented to entertain.
    The language drawn from the Supremacy Clause upon which the majority relies ("the Judges in every State shall be bound [by federal law], any Thing in the Constitution or Laws of any state to the Contrary notwithstanding"), expressly embraces that narrower conflict of laws principle. Art. VI, cl. 2. But the Supremacy Clause means far more. As Testa held, because the "Laws of the United States . . . [are] the supreme Law of the Land," state courts of appropriate jurisdiction must hear federal claims whenever a federal statute, such as the Emergency Price Control Act, requires them to do so. Ibid.
    Hence, the Court's textual argument is quite misguided. The majority focuses on the Clause's specific attention to the point that "Judges in every State shall be bound." Ibid. That language commands state judges to "apply federal law" in cases that they entertain, but it is not the source of their duty to accept jurisdiction of federal claims that they would prefer to ignore. Our opinions in Testa, and earlier the Second Employers' Liability Cases, rested generally on the language of the Supremacy Clause, without any specific focus on the

    Even if the Court were correct in its suggestion that it was the reference to judges in the Supremacy Clause, rather than the central message of the entire Clause, that dictated the result in Testa, the Court's implied expressio unius argument that the Framers therefore did not intend to permit the enlistment of other state officials is implausible. Throughout our history judges, state as well as federal, have merited as much respect as executive agents. The notion that the Framers would have had no reluctance to "press state judges into federal service" against their will but would have regarded the imposition of a similar_indeed, far lesser_ burden on town constables as an intolerable affront to principles of state sovereignty, can only be considered perverse. If such a distinction had been contemplated by the learned and articulate men who fashioned the basic structure of our government, surely some of them would have said so.See footnote 33

Control Center of the Department of Justice than to an offensive federal command to a sovereign state. If Congress believes that such a statute will benefit the people of the Nation, and serve the interests of cooperative federalism better than an enlarged federal bureaucracy, we should respect both its policy judgment and its appraisal of its constitutional power.
    Accordingly, I respectfully dissent.

observed: "At the time the Constitution was being framed . . . Massachusetts had virtually no administrative apparatus of its own but used the towns for such purposes as tax gathering. In the 1830s Tocqueville observed this feature of government in New England and praised it for its ideal combination of centralized legislation and decentralized administration." S. Beer, To Make a Nation: The Rediscovery of American Federalism 252 (1993). This may have provided a model for the expectation of "Madison himself . . . [that] the new federal government [would] govern through the state governments, rather in the manner of the New England states in relation to their local governments." Ibid.

but rejecting opponents' "sophist[ic]" arguments to the effect that this position would "tend to the destruction of the State governments." The Federalist No. 27, at 180, *.

neither seems likely.

purposes, a justifiable Congressional grant of all state powers into the President's hands." Note, The President, The Senate, The Constitution, and the Executive Order of May 8, 1926, 21 U. Ill. L. Rev. 142, 144 (1926).

police, the sheriff, or an equivalent officer," 18 U. S. C. §922(s)(8), it seems likely that most cases would similarly involve local government officials.
    This Court has not had cause in its recent federalism jurisprudence to address the constitutional implications of enlisting non-state officials for federal purposes. (We did pass briefly on the issue in a footnote in National League of Cities v. Usery, 426 U. S. 833, 855, n. 20 (1976), but that case was overruled in its entirety by Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528 (1985). The question was not called to our attention in Garcia itself.) It is therefore worth noting that the majority's decision is in considerable tension with our Eleventh Amendment sovereign immunity cases. Those decisions were designed to "accor[d] the States the respect owed them as members of the federation." Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U. S. 139, 146 (1993). But despite the fact that "political subdivisions exist solely at the whim and behest of their State," Port Authority Trans-Hudson Corp. v. Feeney, 495 U. S. 299, 313 (1990) (Brennan, J., concurring in part and concurring in judgment), we have "consistently refused to construe the Amendment to afford protection to political subdivisions such as counties and municipalities." Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U. S. 391, 401 (1979); see also Hess v. Port Authority Trans-Hudson Corporation, 513 U. S. 30, 47 (1994). Even if the protections that the majority describes as rooted in the Tenth Amendment ought to benefit state officials, it is difficult to reconcile the decision to extend these principles to local officials with our refusal to do so in the Eleventh Amendment context. If the federal judicial power may be exercised over local government officials, it is hard to see why they are not subject to the legislative power as well.

decision does not control the disposition of these cases.

the majority relies, which refers quite explicitly to "Judges" and not administrative officials. In addition, it directly contradicts the majority's position that early statutes requiring state courts to perform executive functions are irrelevant to our assessment of the original understanding because "Judges" were at issue. In short, the majority's adoption of a proper functional analysis gives away important ground elsewhere without shoring up its argument here.

Government's position here, and that this reading is both supported by No. 44 and consistent with Nos. 36 and 45.
    Hamilton in No. 27 first notes that because the new Constitution would authorize the National Government to bind individuals directly through national law, it could "employ the ordinary magistracy of each [State] in the execution of its laws." The Federalist No. 27, p. 174 (J. Cooke ed. 1961) (A. Hamilton). Were he to stop here, he would not necessarily be speaking of anything beyond the possibility of cooperative arrangements by agreement. But he then addresses the combined effect of the proposed Supremacy Clause, U. S. Const., Art. VI, cl. 2, and state officers's oath requirement, U. S. Const., Art. VI, cl. 3, and he states that "the Legislatures, Courts and Magistrates of the respective members will be incorporated into the operations of the national government, as far as its just and constitutional authority extends; and will be rendered auxiliary to the enforcement of its laws." The Federalist No. 27, at 174_175 (emphasis in original). The natural reading of this language is not merely that the officers of the various branches of state governments may be employed in the performance of national functions; Hamilton says that the state governmental machinery "will be incorporated" into the Nation's operation, and because the "auxiliary" status of the state officials will occur because they are "bound by the sanctity of an oath," id., at 175, I take him to mean that their auxiliary functions will be the products of their obligations thus undertaken to support federal law, not of their own, or the States', unfettered choices.See footnote 1

    Two such examples of anticipated state collection of federal revenue are instructive, each of which is put forward to counter fears of a proliferation of tax collectors. In No. 45, Hamilton says that if a State is not given (or declines to exercise) an option to supply its citizens' share of a federal tax, the "eventual collection [of the federal tax] under the immediate authority of the Union, will generally be made by the officers, and

according to the rules, appointed by the several States." The Federalist No. 45, at 313. And in No. 36, he explains that the National Government would more readily "employ the State officers as much as possible, and to attach them to the Union by an accumulation of their emoluments," The Federalist No. 36, at 228, than by appointing separate federal revenue collectors.
    In the light of all these passages, I cannot persuade myself that the statements from No. 27 speak of anything less than the authority of the National Government, when exercising an otherwise legitimate power (the commerce power, say), to require state "auxiliaries" to take appropriate action. To be sure, it does not follow that any conceivable requirement may be imposed on any state official. I continue to agree, for example, that Congress may not require a state legislature to enact a regulatory scheme and that New York v. United States, 505 U. S. 144 (1992) was rightly decided (even though I now believe its dicta went too far toward immunizing state administration as well as state enactment of such a scheme from congressional mandate); after all, the essence of legislative power, within the limits of legislative jurisdiction, is a discretion not subject to command. But insofar as national law would require nothing from a state officer inconsistent with the power proper to his branch of tripartite state government (say, by obligating a state judge to exercise law enforcement powers), I suppose that the reach of federal law as Hamilton described it would not be exceeded, cf. Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 554, 556_567 (1985) (without precisely delineating the outer limits of Congress's Commerce Clause power, finding that the statute at issue was not "destructive of state sovereignty").
    I should mention two other points. First, I recognize that my reading of The Federalist runs counter to the view of Justice Field, who stated explicitly in United States v. Jones, 109 U. S. 513, 519_520 (1883), that the early examples of state execution of federal law could

not have been required against a State's will. But that statement, too, was dictum, and as against dictum even from Justice Field, Madison and Hamilton prevail. Second, I do not read any of The Federalist material as requiring the conclusion that Congress could require administrative support without an obligation to pay fair value for it. The quotation from No. 36, for example, describes the United States as paying. If, therefore, my views were prevailing in these cases, I would remand for development and consideration of petitioners' points, that they have no budget provision for work required under the Act and are liable for unauthorized expenditures. Brief for Petitioner in No. 95_1478, pp. 4_5; Brief for Petitioner in No. 95_1503, pp. 6_7.

automatically from the officers' oath," ante, at 12; from this, the Court infers that on my reading, state officers' obligations to execute federal law must follow "without the necessity for a congressional directive that they implement it," ibid. But neither Hamilton nor I use the word "automatically"; consequently, there is no reason on Hamilton's view to infer a state officer's affirmative obligation without a textual indication to that effect. This is just what Justice Stevens says, ante at 11, and n. 8.
    Second, the Court reads Federalist No. 27 as incompatible with our decision in New York v. United States, 505 U. S. 144 (1992), and credits me with the imagination to devise a "novel principle of political science," ante at 12_13, n. 5, "in order to bring forth disparity of outcome from parity of language," ibid.; in order, that is, to salvage New York, by concluding that Congress can tell state executive officers what to execute without at the same time having the power to tell state legislators what to legislate. But the Court is too generous. I simply realize that "parity of language" (i.e., all state officials who take the oath are "incorporated" or are "auxiliar[ies]") operates on officers of the three branches in accordance with the quite different powers of their respective branches. The core power of an executive officer is to enforce a law in accordance with its terms; that is why a state executive "auxiliary" may be told what result to bring about. The core power of a legislator acting within the legislature's subject-matter jurisdiction is to make a discretionary decision on what the law should be; that is why a legislator may not be legally ordered to exercise discretion a particular way without damaging the legislative power as such. The discretionary nature of the authorized legislative Act is probably why Madison's two examples of legislative "auxiliary" obligation address the elections of the President and Senators, see infra, at 4 (discussing the Federalist No. 44, p. 307 (J. Cooke ed. 1961) (J. Madison), not the passage of legislation to please Congress.
    The Court reads Hamilton's description of state officers' role in carrying out federal law as nothing more than a way of describing the duty of state officials "not to obstruct the operation of federal law," with the consequence that any obstruction is invalid. Ante, at 13. But I doubt that Hamilton's English was quite as bad as all that. Someone whose virtue consists of not obstructing administration of the law is not described as "incorporated into the operations" of a government or as an "auxiliary" to its law enforcement. One simply cannot escape from Hamilton by reducing his prose to inapposite figures of speech.

would exercise its powers. The answer to the Court's question (and objection), then, is that Madison was expressly choosing one example of state officer agency, not purporting to exhaust the examples possible.
    There is, therefore, support in Madison's No. 44 for the straightforward reading of Hamilton's No. 27 and, so, no occasion to discount the authority of Hamilton's views as expressed in The Federalist as somehow reflecting the weaker side of a split constitutional personality. Ante, at 16, n. 9. This, indeed, should not surprise us, for one of the Court's own authorities rejects the "split personality" notion of Hamilton and Madison as being at odds in The Federalist, in favor of a view of all three Federalist writers as constituting a single personality notable for its integration:
    "In recent years it has been popular to describe Publius [the nominal author of the Federalist] as a `split personality' who spoke through Madison as a federalist and an exponent of limited government, [but]through Hamilton as a nationalist and an admirer of energetic government. . . . Neither the diagnosis of tension between Hamilton and Madison nor the indictment of each man for self-contradiction strikes me as a useful of perhaps even fair-minded exercise. Publius was, on any large view_the only correct view to take of an effort so sprawling in size and concentrated in time_a remarkably `whole personality,' and I am far more impressed by the large area of agreement between Hamilton and Madison than by the differences in emphasis that have been read into rather than in their papers. . . . The intellectual tensions of The Federalist and its creators are in fact an honest reflection of those built into the Constitution it expounds and the polity it celebrates." C. Rossiter, Alexander Hamilton and the Constitution 58 (1964).
    While Hamilton and Madison went their separate ways in later years, see id., at 78, and may have had differing personal views, the passages from The Federalist discussed here show no sign of strain.

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.