IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 94-50562

_____________________

J. R. KOOG, Sheriff,

Val Verde County, Texas,

Plaintiff-Appellant,

versus

UNITED STATES OF AMERICA,

Defendant-Appellee.

_________________________________________________________________

Appeal from the United States District Court for the

Western District of Texas

_________________________________________________________________

_____________________

No. 94-60518

_____________________

BILL McGEE, Sheriff,

Forrest County, Mississippi,

Plaintiff-Appellant,

Cross-Appellee,

versus

UNITED STATES OF AMERICA,

Defendant-Appellee,

Cross-Appellant.

_________________________________________________________________

Appeals from the United States District Court for the

Southern District of Mississippi

________________________________________________________________

March 21, 1996
 

* District Judge of the Eastern District of Louisiana, sitting

by designation.

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Before JOLLY and BENAVIDES, Circuit Judges, and DUPLANTIER,*

District Judge.

E. GRADY JOLLY, Circuit Judge:

The question presented is whether the interim provision of the

Brady Handgun Violence Protection Act, 18 U.S.C. § 922(s) (Supp. V.

1993), is consistent with the United States Constitution. The

interim provision requires local law enforcement officers to

conduct background checks, provide written explanations of denials

to prospective purchasers, and to destroy records of the local

background check. These duties are imposed on the local officials

until a national background check system is in place. We conclude

that by imposing these duties on local officials whose offices and

duties are defined by state statutes, Congress has transgressed the

Tenth Amendment principle that it may not "commandeer the

legislative processes of the States by directly compelling them to

enact and enforce a federal regulatory program." United States v.

New York, ___ U.S. ___, ___, 112 S.Ct. 2408, 2428 (1992) (quotation

omitted). We therefore hold that the interim duties imposed on

local law enforcement officers by the Brady Act are

unconstitutional. We further hold that the remainder of the

interim provision, including the duties imposed on federallylicensed firearms dealers and the five-day waiting period prior to
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purchasing a handgun, is severable from the invalidated duties, and

thus survives this constitutional challenge.

 I

A

The Brady Act is designed to prevent federally licensed

firearms importers, manufacturers, and dealers from selling

handguns to ineligible persons. It does so by subjecting all

prospective purchasers to a waiting period of up to five days and

a background check before allowing them to purchase a handgun. By

November 30, 1998, a national automated system will provide the

necessary verification. In the meantime, however--and this is the

focus of this appeal--the Act's interim provision requires the

local Chief Law Enforcement Officer ("CLEO") to perform the

background check. 18 U.S.C. § 922(s)(1)(A)(i)(III),(IV). The CLEO

may be the local chief of police, the local sheriff, or his

equivalent or designee. 18 U.S.C. § 922(s)(8). The mandated

background check by the CLEO applies only where state law does not

provide for an instant background check or state-issued permit

system, 18 U.S.C. § 922(s)(1)(C),(D), as is the case in twenty-four

States, 59 Fed. Reg. 37534 (July 2, 1994).

This interim provision first requires federally-licensed

firearms dealers to obtain the name, address, and date of birth of

each prospective buyer, together with a sworn statement containing

certain personal information of the buyer. 18 U.S.C. § 922(s)(1)

(A)(i)(III),(IV). The dealer is then required promptly to forward
 

1For example, a background check may not be required for

dealers in certain extremely remote locations, for prospective

buyers who demonstrate that they need a handgun "because of a

threat" to the buyer's life or the life of a family member, and for

handgun transfers pre-approved by the Secretary of the Treasury.

18 U.S.C. § 922(s)(1)(F),(B),(E).

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this information to the CLEO where the buyer resides. Id. Upon

receiving the information, 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." 18 U.S.C. §

922(s)(2). The dealer lawfully may sell the handgun to the

prospective buyer if the CLEO notifies the dealer during the fiveday period that he "has no information" that would disqualify the

purchaser, or if the five-day period expires without a response

from the CLEO. 18 U.S.C. § 922(s) (1)(A)(ii)(I),(II). In certain

circumscribed instances, a dealer may dispense with the background

check entirely.1 

 Once the CLEO approves a particular handgun transaction, the

statute requires that he destroy all records of his investigation

within twenty days. 18 U.S.C. § 922(s)(6)(B). In addition, if the

CLEO disapproves of a sale, the denied applicant may demand a

written explanation and the CLEO must furnish it within twenty

days. 18 U.S.C. § 922(s)(6)(C). In instances in which the CLEO

provides erroneous information, which results in a denial of a

firearm application, the disappointed applicant also "may bring an
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action against the State or political subdivision responsible for

providing the erroneous information." 18 U.S.C. § 925A.

B

J. R. Koog and Bill McGee, the elected sheriffs of Val Verde

County, Texas, and Forrest County, Mississippi, respectively,

sought declaratory and injunctive relief from the interim provision

of the Brady Act. In Koog's case, the district court upheld the

Brady Act. Koog v. United States, 852 F.Supp. 1376 (W.D.Tex.

1994). Finding that "no single decision controls the entire

spectrum of Tenth Amendment analysis," the court concluded that the

Brady Act "resemble[d] more" the statute upheld in FERC v.

Mississippi, 456 U.S. 742, 102 S.Ct. 2126 (1982), than the

partially invalidated statute in New York v. United States, 112

S.Ct. 2408 (1992). Koog, 852 F.Supp. at 1387-88. In McGee's case,

the court enjoined the application of the interim provision as to

him. Guided by New York, the court held that "Congress cannot

direct and compel local sheriffs to carry out the provisions of the

Brady Bill." McGee v. United States, 863 F.Supp. 321 (S.D.Miss.

1994). Koog and the United States filed notices of appeal from the

respective judgments of the district courts, and we consolidated

the two cases for this appeal.

C

On appeal, the sheriffs argue that the interim provision of

the Act violates the Tenth Amendment by compelling them to

administer the Brady Act in violation of New York. New York, 112
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S.Ct. at 2435 ("The Federal Government may not compel the States to

enact or administer a federal regulatory program."). The United

States defends the interim provision as an instance of "cooperative

federalism." It argues that by "administer," the New York Court

was referring to administrative rulemaking. Thus, the government

argues that although Congress cannot require a state legislature or

administrative agency to formulate policy, it may, in the spirit of

cooperative federalism, require state and local government

officials in this instance to implement policy decisions that have

been formulated on the national level. 

II

We begin by observing that the essence of the constitutional

question before us is one of means, not ends. No one disputes that

Congress could have established a separate federal system of

background checks, staffed by federal officers, having all the

burdensome features of which the sheriffs complain--background

checks, record destruction and written explanations of denials.

Notwithstanding the power to act directly, Congress chose in the

Brady Act to make CLEOs the exclusive agents of the federal

government for conducting background checks. The issue before us

is whether Congress has exceeded its authority under the

Constitution, contrary to the Tenth Amendment, by ordering the

implementation of federal firearms policy in this manner.

A

(1)
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The Tenth Amendment states 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."

Although the arguments of the parties are couched in Tenth

Amendment terms, the Tenth Amendment does not independently provide

a substantive limitation on the powers of the United States.

Instead, the Tenth Amendment simply makes plain that the federal

government possesses only the powers that have been given to it by

the Constitution--and no more. See United States v. Darby, 312

U.S. 100, 61 S.Ct. 451 (1941), 112 S.Ct at 2417-18. 

Nevertheless, "the Tenth Amendment confirms that the power of

the Federal Government is subject to limits that may, in a given

instance, reserve power to the States." New York, 112 S.Ct. at

2418. The Supreme Court extensively discussed such implied

limitations on federal power in New York v. United States. The

parties argue, and we agree, that New York is central to the

question before us. Because New York guides our decision, we

examine it in some detail. 

In New York, the Supreme Court considered the constitutional

authority for a variety of methods--ranging from outright coercion

to conditional spending grants and threats of preemption--by which

Congress may urge the States to adopt a legislative program

consistent with federal directives. There, the court invalidated

one of the provisions of the Low-Level Radioactive Waste Amendments

of 1985 (the "Amendments"), which ordered state governments either
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to take full legal title to certain radioactive waste created by

private entities, and consequently incur liability for any damage

caused by the waste, or, alternatively, to regulate the waste

according to federal mandates. New York, 112 S.Ct. at 2427-28.

The federal government acted beyond its constitutional powers, the

Court held, because it "crossed the line distinguishing

encouragement from coercion." Id. at 2428. According to the

Court, the take-title provision "'directly compell[ed the States]

to enact and enforce a federal regulatory program,' an outcome that

has never been understood to lie within the authority conferred

upon Congress by the Constitution." Id. (citation omitted). 

In contrast, the Court upheld the Amendments' monetary and

access incentives as permissible efforts to induce a state

regulatory response. The monetary incentive permitted States to

collect a surcharge on radioactive waste they received from other

States, and to pay a percentage of that surcharge to the Secretary

of Energy, to be held in escrow; once the States had achieved a

series of milestones, it was eligible to receive a portion of the

escrowed money. Id. at 2425-26. The access incentives authorized

States with disposal sites within their boundaries gradually to

increase the cost of access to those sites, and then to deny access

altogether, to non-sited States not meeting certain federal

deadlines. Id. at 2427. The Court found these incentives to be

permissible because they allowed state autonomy to be preserved.

Under the monetary and access incentives,
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[a] State whose citizens do not wish it to attain the

Act's milestones may devote its attention and its

resources to issues its citizens deem more worthy; the

choice remains at all times with the residents of the

State, not with Congress. The State need not expend any

funds, or participate in any federal program, if local

residents do not view such expenditures or participation

as worthwhile.

Id. Importantly, when a state's citizens decline a federal grant

or choose not to regulate a particular activity despite a

preemption threat, Congress is forced to act for itself and thus to

"bear the expense of a federally mandated regulatory program." Id.

at 2424.

The boundary between federal power and state power, the

Supreme Court explained, is encased in the Constitution's

structural design. The Framers devised "a Constitution that

confers upon Congress the power to regulate individuals, not

States." Id. at 2423. As such, Congress "lacks the power to

compel the States to require or prohibit [certain] acts," id.,

"even where Congress has the authority under the Constitution to

pass laws requiring" individuals to perform such acts, id. Thus,

Congress may regulate interstate commerce directly pursuant to the

Commerce Clause, but the Commerce Clause "does not authorize

Congress to regulate state governments' regulation of interstate

commerce." Id. The Supreme Court forcefully and emphatically

concluded: 

 States are not mere political subdivisions of the

United States. State governments are neither regional

offices nor administrative agencies of the Federal

Government. The positions occupied by state officials
 

2Even though the federal government sets the terms of

participation, the States are held accountable for opting into the

federal government's "all or nothing, take it or leave it" program.

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appear nowhere on the Federal Government's most detailed

organizational chart. The Constitution instead "leaves to

the several States a residuary and inviolable

sovereignty," The Federalist No. 39, p. 245 (C. Rossiter

ed. 1961), reserved explicitly to the States by the Tenth

Amendment. 

 

 Whatever the outer limits of that sovereignty may be,

one thing is clear: The Federal Government may not compel

the States to enact or administer a federal regulatory

program.

Id. at 2424; see also U.S. Term Limits, Inc. v. Thornton, ___ U.S.

___, ___, 115 S.Ct. 1842, 1872 (1995) (Kennedy, J., concurring)

(observing that the Constitution "establish[es] two orders of

government, each with its own set of mutual rights and obligations

to the people who sustain it and are governed by it").

The Supreme Court explained further that the "two orders of

government" created by the Constitution--state and national--force

each to be accountable and responsive to their respective

constituencies. Id. at 2424. Each method of federal encouragement

of the States blessed in New York--the carrot of conditional

spending grants and the stick of preemption threats--preserve this

political accountability by permitting a State to forego

participation in the federal initiative. Id. It is this ability

to walk away from the federal program that enables a State to

maintain control over its policies, notwithstanding the conditions

and constraints imposed on the States by the federal incentive.2
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Where a State chooses to participate in a federal program, the

State has made a political choice for which it properly may be held

accountable by its constituency. In contrast, a federal demand

that States enact a federal regulatory program strips state

officials of control over state policies and diminishes the

accountability of both state and federal officials. Id. As the

Supreme Court explained:

But where the Federal Government directs the States to

regulate, it may be state officials who will bear the

brunt of public disapproval, while the federal officials

who devised the regulatory program may remain insulated

from the electoral ramifications of their decision.

Accountability is thus diminished when, due to federal

coercion, elected state officials cannot regulate in

accordance with the views of the local electorate in

matters not pre-empted by federal regulation.

Id.

From this rather lengthy review of New York, we derive the

following guiding principles. First, the federal government may

not coerce the States into administering a federal regulatory

program or into legislating according to a federal formula.

Second, the touchstone of this impermissible coercion is whether

the States are precluded from rejecting the role envisioned for

them by the federal government. Third, unconstitutional coercion

of the States threatens state sovereignty because it strips States

of choice and control over state policies. Fourth, and finally,

federal commandeering of state governments blurs political
 

3Eight years prior to the Supreme Court's opinion in New York,

Judge Wisdom succinctly summarized the principles embodied there:

Acts that regulate "states as states" are inconsistent

with the constitutional assumption of federalism, because

such acts force the states to administer congressional

policy judgments. In effect, such acts convert state

agencies into tools of federal policy, and thereby

threaten the independence of the states. The suspect

character of such acts, then, is that the states are

compelled to carry out the federal policy.

State of Tex. v. United States, 730 F.2d 339, 356 (5th Cir. 1984)

(emphasis in original).

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accountability, a democratic value protected by the principles of

federalism.3

(2)

We now must decide whether the interim provision, when

measured against New York's guiding principles, encroaches on the

sovereignty of the States in violation the Tenth Amendment, either

by forcing the States to administer a federal regulatory program or

by compelling the States to enact state legislation according to a

federal formula.

We begin by noting the conceptual difficulty presented by the

Brady Act, which is not neatly categorized as either forced

administration or forced legislation by the States. The Brady Act

artfully skirts the "forced administration box" by issuing mandates

not to the "States as States" directly--that is, not to the state

legislatures or administrative agencies--but to the chief law

enforcement officers of each political subdivision in the State.

Thus, one might argue that Congress engaged in a certain

legislative legerdemain in an attempt to fashion its will to meet
 

4We note, however, that the CLEOs' duties under the Brady Act

appear to constitute "administration" of a federal regulatory

scheme. The government argues that one "administers" a federal

regulatory program only by making "the package of regulatory policy

judgments" a legislative body or executive agency may make.

Because the interim duties are "ministerial," the government

asserts, the CLEO cannot be said to have administered the Brady Act

functions. 

We believe that this definition unreasonably restricts the

meaning of "administration." Administration is commonly understood

to include an action, the purpose of which is "to direct or

superintend the execution, use or conduct of" something. Webster's

Third New International Dictionary of the English Language,

Unabridged 27 (1993). Here, the CLEOs oversee the day-to-day

functions demanded by the Brady Act (background checks, record

destruction, written explanations of denials), functions which

presumably are performed by the CLEOs' deputies and the CLEO

himself. Common sense suggests that when the CLEO oversees

background checks performed by his deputies, he "superintend[s] the

execution" of the interim duties.

Although the term "administration" plainly encompasses the

CLEOs' oversight of the day-to-day functions required by the Brady

Act, the CLEOs, if not the State qua State, fairly can be said to

"administer" Congress' firearms policy even under the government's

more restrictive definition. The Brady Act requires the CLEOs to

make the essential policy choices raised by the Act, namely, to

decide exactly how intrusive a background search to conduct. See

18 U.S.C. § 922(s)(2) (requiring the CLEO must "make a reasonable

effort to ascertain within 5 business days whether receipt or

possession would be in violation of the law") (emphasis added).

The CLEOs, not Congress, are to gauge the intrusiveness and cost,

paid with local tax dollars, of an extensive background check. And

the CLEOs, not Congress, are to weigh these negatives against the

extent of community support for background checks and any benefits

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constitutional muster. Because the Brady Act issues no directives

to state officials, it is difficult to say that Congress has

compelled the States to administer its new federal firearms policy.

Congress, then, escapes the force of New York's bright-line

prohibition that the federal government may not compel the States

to "enforce a federal regulatory program" merely by casting its net

in the direction of local officials rather than state employees.4
that background checks may bring, such as increased safety to the

community. In the most fundamental sense, the CLEOs are crafting

a local solution to what the Brady Act recognized as a national

problem. Congress, thus, foists the core policy decision raised by

the Brady Act onto the CLEOs. This certainly is a regulatory

policy judgment sufficient to constitute "administration" even in

the government's more restricted sense of that term, especially

when the CLEO can be sued for the malperformance of those duties.

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The Brady Act, however, does not so adroitly evade New York's

directive that Congress may not "commandeer[] the legislative

processes of the States." New York, 112 S.Ct. at 2428.

Concededly, Congress has not ordered the States here, as it did in

New York, to draft and then to enact legislation according to a

federal formula--or to risk a federally-mandated penalty for

failing to comply. Nevertheless, Congress has presented the

CLEOs's interim duties to the States as a fait accompli. The Brady

Act imposes new federally-prescribed, non-discretionary tasks on

actors, the CLEOs, whose offices are created by state law and whose

duties are prescribed in the States' criminal codes, all without

the consent or participation of the States. In the face of

Congress' substantive amendment of state policies as to the proper

role and duties of the CLEOs, the States are powerless to change

the result. 

In the discussion that follows, we measure the interim duties

imposed on the CLEOs by the Brady Act against each of the

principles we have discerned in New York. We conclude that the

interim duties effectively "commandeer[] the legislative processes

of the States" and, in violation of the Tenth Amendment, cross the
 

5Article 4413(29ee) permits peace officers, effective

January 1, 1997, to submit an affidavit requesting suspension or

revocation of a concealed weapon carry permit and stating the

reason the officer believes revocation or suspension is warranted.

 

6Section 45-9-101(6)(b) permits sheriffs, with compensation,

to participate "at [their] discretion" in the process of issuing

concealed weapon permits, by submitting a voluntary report to the

state agency issuing such permits.

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line from permissible encouragement of a state regulatory response

into that constitutionally forbidden territory of coercion of the

sovereign States.

(a)

First, we find that the interim duties imposed on the CLEOs

are tantamount to forced state legislation. These provisions of

the Act effectively bypass the state legislative process and

substantively change the enacted policies of state governments.

Prior to the imposition of the Brady Act, neither the Texas nor the

Mississippi criminal code required CLEOs to perform the duties that

the federal government imposes on them under the Act. See TEX. REV.

CIV. STAT. ANN. art. 4413(29ee) (West 1995);5 MISS. CODE ANN. § 45-9-

101(6)(b) (1993).6 The CLEOs' offices are created by state law,

see, e.g., TEX. CRIM. PROC. CODE ANN. § 2.12 (West 1995); MISS. CODE

ANN. §§ 19-25-1 & 21-3-3 (1993), and the state criminal codes

prescribe the CLEOs' duties and powers, see, e.g., TEX. CRIM. PROC.

CODE ANN. § 2.13 (West 1995) (duties of peace officers); MISS. CODE

ANN. § 19-25-1 et seq. (1993) (duties of sheriffs); MISS. CODE ANN.

§ 21-21-1 et seq. (1993) (duties of chiefs of police). Following
 

7The Brady Act readily can be understood as amending a State's

criminal code when the Act adds a new duty to those already

required of the CLEO under state law, as is the case in Mississippi

and Texas. A more problematic question may arise when the State

already requires its CLEOs to perform Brady-like background checks.

Although we expressly do not pass on the question, it seems to us

that the discretion of such States is unconstitutionally infringed

as a result of the Brady Act. Any attempt by these States to pare

back the authority of the CLEOs to perform such checks would simply

have no effect given the fact that federal legislation

independently authorizes and requires a federal background check.

 

8We have considered the possibility that municipalities in

Mississippi and Texas may have enacted local gun control laws that

enlarge the existing duties of their local law enforcement

officials without seeking state legislative approval. Although we

make absolutely no judgment as to the authority of municipalities

in Texas or Mississippi to enact such ordinances absent state

legislation, we note that such local handgun ordinances do not

implicate the federalism concerns raised by the Brady Act. The

Constitution speaks to, and we are concerned here with, legislative

directives foisted upon the States from above--by the federal

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the Act, the federal government imposes additional duties on the

CLEOs beyond those prescribed by state statute--namely, to use

federally-specified law enforcement methods (i.e., background

checks, destruction of records, and written explanations of

denials) to execute and administer a federal policy to prevent the

acquisition of handguns by disqualified individuals, a duty which

is found in no state legislation.7 Simply put, the interim duties

imposed by the Brady Act constitute an edict to CLEOs that

substantively enlarges the duties and authority given the CLEOs by

the States, without the States' consent or participation. Like the

take-title provision in New York, the Brady Act "offers a state

government no option other than that of implementing legislation

enacted by Congress." Id. at 2429.8
government--rather than those imposed upon the States from within.

In the case of local ordinances, moreover, a State retains the

authority to reverse the actions of the municipality by state

legislation (or has contracted that authority away in granting

certain local governments "home rule" powers).

 

9More precisely, the Brady Act provides the State no

alternative to having the CLEOs perform the interim duties other

than to adopt a local permit or background check system. 18 U.S.C.

§ 922 (s)(1)(D).

 

10The government maintains that "FERC makes clear that 'the

Tenth Amendment does not prevent the federal government from

imposing minimal duties on state executive officers,'" citing FERC

v. Mississippi, 456 U.S. 742, 102 S.Ct. 2126 (1982), and South

Carolina v. Baker, 485 U.S. 505, 108 S.Ct. 1355 (1988). We find

these cases inapposite. In FERC, the Supreme Court upheld a

federal statute that encouraged States in various ways to develop

programs to combat the national energy crisis. In New York, the

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(b)

Second, Congress further has encroached on Tenth Amendment

principles by securing the CLEOs' participation only by coercing

the States. The Brady Act gives the States no means by which they

can assist in the implementation of federal policy while leaving

unchanged the duties of the CLEOs as prescribed in the States'

criminal codes.9 The Brady Act mandates that the CLEOs act as the

exclusive agents of the federal government for carrying out the

interim duties. No choice is offered. The States may not say to

Congress, "We are not interested in having state and local

officials in our State, whose offices we create and duties we

define, administer this federal regulatory scheme. If you want to

conduct background searches of all persons purchasing handguns,

look to your own federal background checkers."10 Because the State
Supreme Court explained that permissible encouragement existed in

FERC because the underlying statute "require[d] only consideration

of federal standards. And if a State has no utility commission, or

simply stops regulating in the field, it need not even entertain

the federal proposals." New York, 112 S.Ct. at 2421. Critically,

the underlying statute in FERC, unlike the Brady Act, lacked

anything that "directly compell[ed] the States to enact a

legislative program." Id. 

South Carolina v. Baker is equally inapplicable, albeit for a

somewhat different reason. There, the Supreme Court upheld against

a Tenth Amendment challenge a federal tax code provision that

denied an income tax exemption for unregistered state bonds. The

Court treated the tax provision involved "as if it directly

regulated States by prohibiting outright the issuance of bearer

bonds" and therefore as a "generally applicable federal

regulation." Baker, 485 U.S. at 511, 514, 108 S.Ct. at 1360, 1362.

In New York, the Court announced that it has no occasion to revisit

Baker and other decisions, such as Garcia v. San Antonio

Metropolitan Transit Authority, 469 U.S. 528 (1985), as they

involve instances "in which Congress has subjected a State to the

same legislation applicable to private parties." New York, 112

S.Ct. at 2420. In contrast, the Brady Act, like the statute at

issue in New York, "concerns the circumstances under which Congress

may use the States as implements of regulation; that is, whether

Congress may direct or otherwise motivate the States to regulate in

a particular field or a particular way." Id.

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has no walk-away opportunity, however costly or difficult, the

States are victims of impermissible federal coercion.

(c)

Third, the Brady Act further undermines state sovereignty by

requiring a State to allow CLEOs to perform duties that the State

obviously prefers to avoid. In a world of fixed and limited law

enforcement resources, federally-mandated duties frustrate a

State's ability to have CLEOs perform state-chosen

responsibilities, such as the enforcement of local laws, the

maintenance of jails or the transportation of criminals. Plainly,

the more "federal" duties a CLEO must perform, the fewer "state"
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duties the CLEO has the time and resources for. Whatever the outer

limits of state sovereignty may be, it surely encompasses the right

to set the duties of office for state-created officials and to

regulate the internal affairs of governmental bodies. FERC, 456

U.S. 742, 761, 102 S.Ct. 2126, 2138 (1982) ("[T]he power of the

States to make decisions and set policy is what gives the State its

sovereign nature. It would follow that the ability of a state

legislative . . . body--which makes decisions and sets policy for

the State as a whole--to consider and promulgate regulations of its

choosing must be central to a State's role in the federal system.")

(citations omitted); see also Fay v. Noia, 372 U.S. 452, 466-67, 83

S.Ct. 822, 863 (1963) (Harlan, J. dissenting) ("The right of the

State to regulate its own procedures governing the conduct of

litigants in its courts, and its interest in supervision of those

procedures, stand on the same constitutional plane as its right and

interest in framing `substantive' laws governing other aspects of

the conduct of those within its border."). 

Indeed, Congress' bypass of state legislative processes here

constitutes a greater incursion into state sovereignty than forcing

the States to enact legislation: a bypass disposes of even the

pretext of minimal state discretion that is present when the

federal government forces a State to employ its legislative process

to achieve a particular end. The Brady Act dispenses with the

state legislature altogether and effectively enacts state

legislation requiring CLEOs to perform the interim duties under the
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Act, without even the nominal participation of the States' elected

representatives.

(d)

Fourth, the Brady Act blurs accountability for the policy

choices reflected in this legislation. The voter who must undergo

a background check to purchase a handgun encounters an official

whose office is created by state law and whose every duty (prior to

the Brady Act) is prescribed by the State. Yet it is the national

government that made the decision to subject prospective purchasers

of a handgun to a waiting period of up to five days and to a

background check prior to consummating the purchase. Furthermore,

the Brady Act affects not only disgruntled handgun purchasers and

would-be purchasers, but other individuals as well. Voters also

may blame the States for the federal government's decision to spend

local law enforcement funds on background checks and related

paperwork rather than for matters that may be of far more local

importance.

For citizens that encounter the palpable consequences of this

law, Congress is nowhere to be found. Congress does not employ the

CLEO, supervise his work or pay his salary; the nameplate of no

federal office is on the door. But the diffusion of accountability

does not end at this point. Even if the affected citizen is aware

that the legislation mandating background checks springs from the

national government, and then turns to the Brady Act to determine

political accountability, he will find that the CLEO himself is
-21-

responsible for deciding what is a "reasonable" search. Laying

this responsibility on the CLEO's political doorstep permits

Congress effectively to shift "the political liability for

subsidiary decisions from federal to state officials." Evan H.

Caminker, State Sovereignty and Subordinary: May Congress

Commandeer State Officers to Implement Federal Laws?, 95 Columbia

L. Rev. 1001, 1065 (1995). Even more confusing in properly

locating accountability is the fact that the prospective purchaser

who is disqualified from purchasing a handgun on the basis of an

erroneous background check may sue the responsible State or

political subdivision. 18 U.S.C. § 925(a). In sum, we think it is

clear that the implementation of federal firearms policy in this

manner erodes the clear lines of political accountability that were

of vital concern to the Court in New York.

(e)

Measured against New York's guiding principles, the interim

duties simply will not stand up under a constitutional challenge.

Although Congress here has not issued a mandate directly to the

"States as States"--that is, to state legislatures or state

administrative agencies--we cannot brush away Congress' attempt

substantively to amend the States' criminal codes to require new

federally-prescribed, non-discretionary tasks of officials whose

offices and duties are created by state law. The interim provision

of the Brady Act threatens the same democratic values of state

sovereignty and accountability that were placed at risk by the
-22-

take-title provision in New York. Moreover, we believe that

permitting Congress to circumvent the coercion principle by issuing

commands directly to state and local officials critically

diminishes the separate and sovereign dignity of the States

recognized by New York.

(3)

We are mindful that the Ninth Circuit Court of Appeals, in

concluding that the Act is constitutional, found "nothing unusually

jarring to our system of federalism in the Brady Act's requirements

that CLEOs . . . `make a reasonable effort to ascertain' the

lawfulness of handgun purchases." Mack v. United States, 66 F.3d

1025, 1029 (9th Cir. 1995). For the Ninth Circuit, the interim

provision is "no more remarkable than . . . the federally-imposed

duties of state officers to report missing children or traffic

fatalities." Id. at 1029-30 (citations omitted). The tasks

imposed on the CLEOs are "not alien to [the CLEOs'] usual line of

work, and represent minimal interference with state functions."

Id. at 1031. 

With due respect for our sister circuit and its distinguished

panel of judges, we cannot agree. First, our understanding of the

principles of federalism does not permit us to characterize the

Brady Act as a "minimal interference with state functions." Id. at

1031. We do not consider it a minimal interference when a local

sheriff or chief of police is offered no choice but to devote

purely local manpower and monetary resources to check the
-23-

backgrounds of countless applicants for handgun purchases. In

performing these federally-mandated background checks, CLEOs are

required to parse "whatever State and local recordkeeping systems

are available and [to check] in a national system designated by the

Attorney General." 18 U.S.C. § 922(s)(2). Neither do we consider

it minimal that the CLEOs must provide written explanations of

denials to purchasers and destroy the records of the local

background checks. 18 U.S.C. § 922(s)(6)(C). And surely the

federal intrusion is not minimal when the political subdivision

that employs a CLEO may be subject to suit and judgment if the

CLEO, in administering purely federal legislation against his will

to do so, provides erroneous information that leads to an

applicant's disqualification from purchasing a handgun. 18 U.S.C.

§ 925(a).

Second, and more fundamentally, we cannot accept the Ninth

Circuit's apparent constitutional rationale that, in any event,

federal intrusions on state functions may be of little real concern

when they are essentially a minimal intrusion--in effect, because

"no one's boat is being seriously rocked." The Supreme Court

explicitly rejected such a defense where the federal government

coerces the States to legislate according to a federal formula.

The Supreme Court instructed in New York:

No matter how powerful the federal interest involved, the

Constitution simply does not give Congress the authority

to require the States to regulate. . . . Where a federal

interest is sufficiently strong to cause Congress to
 

11The government cites The Federalist, No. 36 at 227 (Hamilton)

(J. Cooke ed.) (discussing collection of taxes), and The

Federalist, No. 36 at 227 (Madison) (J. Cooke ed.) ("Indeed it is

extremely probable that in other instances, particularly in the

organization of the judicial power, the officers of the States will

be cloathed with the correspondent authority of the Union.").

-24-

legislate, it must do so directly; it may not conscript

state governments as its agents.

New York, 112 S.Ct. at 2429. Because it is clear that the interim

provision amounts effectively to forced legislation, and thus

violates one of the most important of all principles of federalism,

it does not matter "how powerful the federal interest involved" nor

how much the intrusion may be downplayed.

(4)

We pause to address one final justification for the Brady Act.

The government argues, and presents some evidence,11 that the

Framers contemplated that the federal government might "make use of

the State officers and State regulations" in certain matters. From

this evidence of the Framers' intention, the government

extrapolates that the Brady Act may be justified as simply one more

instance of cooperative federalism.

The sparse reference by the Framers to the possibility of

shared state and federal government responsibility makes it

difficult to interpret the Framers' exact intent in this respect.

We nevertheless agree with Justice O'Connor that "[n]one of the

[Framers'] suggestions went so far as to propose congressional

control of state legislative power. The suggestions, moreover,
-25-

seemed to assume that the States would consent to national use of

their officials." FERC, 456 U.S. at 797 n.35, 102 S.Ct. at 2157

n.35 (O'Connor, J., partial concurrence and partial dissent).

Intuitively, it seems to us that there can be no cooperative

federalism where one party prefers not to cooperate. Neither can

there be cooperative federalism where, as is the case here, one

party is never given the opportunity to decide whether to

cooperate. 

(5)

In sum, we conclude that Congress, in directing the CLEOs to

perform the interim duties prescribed in the Act, crosses the line

separating encouragement from coercion and attempts to relegate the

States to acting as subordinate agents of the federal government.

Accordingly, we hold that the background checks, record destruction

and written explanations of denials imposed on the CLEOs by the

Brady Act are unconstitutional in violation of the Tenth Amendment.

III

Having determined that a portion of the interim provision of

the Brady Act is invalid, we must consider whether any other part

of the provision still may be given effect. As a practical matter,

once the interim duties are severed, only the obligations imposed

on federally-licensed firearms dealers and a five-day waiting

period would remain. See, e.g., 18 U.S.C. § 922(s)(1)(A)(i)(1),

(ii)(1). In arguing that the invalidated duties are inseverable

from the remainder of the interim provision, the sheriffs focus
-26-

almost wholly on Congress' intent in enacting the five-day waiting

period.

We again return to New York for our standard: "`Unless it is

evident that the Legislature would not have enacted those

provisions which are within its power, independently of that which

is not, the invalid part may be dropped if what is left is fully

operative as a law.'" 112 S.Ct. at 2434 (quoting Alaska Airlines,

Inc. v. Brock, 480 U.S. 678, 684, 107 S.Ct. 1476, 1480 (1987)).

The relevant inquiry is "whether the statute will function in a

manner consistent with the intent of Congress." Alaska Airlines,

480 U.S. at 685, 107 S.Ct. at 1480 (emphasis omitted). 

Where Congress itself has provided the answer to the question

of severability, however, by including such a provision in the

legislation, a presumption of severability arises. INS v. Chadha,

462 U.S. 923, 932, 103 S.Ct. 2764, 2774 (1983). This presumption

may be overcome only by "strong evidence" that Congress would not

have enacted the law without the invalidated portions of the

statute. Alaska Airlines, 480 U.S. at 686, 107 S.Ct. at 1481. 

We conclude, as the district court in McGee did, that a

presumption of severability applies to the Brady Act. The Act

amends Section 922 of Title 18 of the United States Code, which

codifies the Gun Control Act of 1968. Section 928 of the Gun

Control Act provides that "[i]f any provision of this chapter or

the application thereof to any person or circumstance is held

invalid, the remainder of the chapter and the application of such
 

12The sheriffs argue that a presumption of severability does

not arise because the Brady Act does not amend the Gun Control Act

but instead creates a new "program." In the past, the Supreme

Court has "doubted" the applicability of a severability clause in

pre-existing legislation to a later act because the challenged

section, "unlike many sections of the [new act] . . . does not

amend provisions of . . . [the] pre-existing statute, but instead

establishes a new program." Alaska Airlines, 480 U.S. at 868 n.8,

107 S.Ct. at 1481 n.8. The sheriffs' argument faces two problems.

Foremost, Congress' express intention in the Brady Act was to

"amend" Section 922 of Title 18. See Brady Handgun Violence

Prevention Act, § 102(a)(1), Pub. L. No. 103-159, 107 Stat. 1536

(1993). In addition, the Brady Act arguably does not provide a new

program but instead adds to the Gun Control Act's existing

prohibitions on handgun transfers.

-27-

provision to other persons not similarly situated or to other

circumstances shall not be affected thereby." 18 U.S.C. § 928.

This language is unambiguous and indicates Congress' intent that

the validity of the Gun Control Act as a whole or in part should

not hinge on the validity of any other part. We can only assume

that Congress was fully aware of Section 928 when it chose to

insert the Brady Act into Title 18, and that Congress intended the

severability provision to apply equally to the Brady Act

provisions.12

Moreover, the sheriffs have not provided a convincing argument

that, absent the background check and related duties, Congress

would have declined to enact the remainder of the interim

provision. Although the provision both imposes obligations on

federally-licensed firearms dealers--the constitutionality of which

is not challenged--and mandates a five-day waiting period, the

sheriffs focus solely on the latter in arguing for inseverability.
-28-

Specifically, the sheriffs argue that the five-day waiting period

exists solely to permit the CLEO to perform a background check to

verify that the transaction is not illegal. They point to the fact

that the waiting period applies only where the Brady Act requires

a background check to be performed, see, e.g., 18 U.S.C. §

922(s)(1)(D) (exempting States with an instant check or permit

system from the background check and the waiting period), that the

waiting period may be dispensed within a number of situations, see

18 U.S.C. § 922(a)(1)(A)(ii) (II),(B),(E), and that it expires with

the enactment of the national instant criminal background check or

in sixty months, whichever comes first, see 18 U.S.C. § 922(s)(1).

Given the myriad exceptions to the waiting period, the sheriffs

argue, Congress could not have intended the waiting period

independently to serve as a "cooling off" period. Although we

agree that these exceptions cast doubt on the notion of an

independent "cooling off" period, we cannot conclude, in the light

of the strong presumption of severability created by Section 928,

that Congress would have failed to enact the obligations imposed on

federally-licensed firearms dealers, as well as the waiting period,

if the now-invalidated duties had not been included. Accordingly,

we find that invalidated duties are severable from the remainder of

the interim provision of the Brady Handgun Violence Protection Act.

IV

In sum, we declare that the interim duties imposed on the

CLEOs by the Brady Handgun Violence Protection Act, 18 U.S.C. §
-29-

922(g), including the mandatory background checks, record

destruction and written explanations of denials, are

unconstitutional. We further hold that the remainder of the

interim provision, including the obligations imposed on federallylicensed firearms dealers and the five-day waiting period prior to

purchasing a handgun, is severable from the invalidated duties and

therefore survives this constitutional attack. We thus AFFIRM the

judgment in McGee v. United States and REVERSE the judgment in Koog

v. United States and REMAND Koog for entry of judgment dismissing

the complaint.

No. 94-60518 is AFFIRMED.

No. 94-50562 is REVERSED and REMANDED for entry of judgment.