From: [d--ar--y] at [indirect.com] (David T. Hardy) Newsgroups: talk.politics.guns Subject: Supreme Court argument--Brady cases (Mack & Printz v. US) Date: 5 Dec 1996 16:03:27 GMT Just got off plane--here are my notes on the argument. First, general calls: (1) Petitioners are likely to win, perhaps 6-3. Swing votes (Kennedy & Souter) were weighing in strongly on their side by end. They already prob. have Rehnquist, O'Connor, Scalia & Thomas. Stevens & Breyer would be against, prob. joined by Ginsburg. (2) Counsel arguing for petitioners made mis-step (reported in media) arguing that Feds could not, constitutionally, even require a chance to look at state records themselves. Mis-step does not, however, go to heart of case. Embarrassing, but not fatal. (3) Counsel for gov't was by end trapped (not by his error, but by facts). The major precedent is New York v. US (1992). Gov't read this to have ruled that feds cannot force States to legislate or make "policy decisions" in their own names (so that they would be blamed by voters), but *not* to forbid Congress to order States to carry out, without use of discretion, a federal mandate (for which, gov't argued, state could not be blamed). Critical problem is that US could not come up with a definition of "policymaking" such that it did not apply to Brady administration--i.e., decisions as to how much of a background check to perform, legislative decisions as to how to fund the expenses, etc., etc. Notes on oral argument, Brady cases, 12/3/96 [Notes made longhand--not complete--emphasis on Court reactions] [Comments in brackets] For petitioners: Stephen Halbrook For U.S.: Walter Dellinger. Halbrook: Discusses facts. 9th Cir. held only commandeering legislation. Only alternative. O'CONNOR: You represent both sheriffs? Halbrook: Yes. O'CONNOR: Mack lost election--when leave office? Halbrook: Jan. 1, believe. O'CONNOR: Moot? Halbrook: Successor in office identified to Clerk. Succession in suit automatic unless he objects. Mack may be employed by police dept in county, with same duties. STEVENS: Not CLEO. Halbrook: Would continue to be. O'CONNOR: Where in record is extent of burden on these sheriffs? Halbrook: Affidavit and hearing. Printz Joint App... Mack JA. O'CONNOR: Could you file with clerk? Halbrook: Yes. O'CONNOR: Could you summarize how many & time required for checks? Halbrook: Printz--dozen officers. Hrs. Mack, 1-2 hrs a day. Has only 1 1/2 officers average on duty. REHNQUIST: Hard to have 1 1/2 officers on patrol. [laughter] Halbrook: Is average. SCALIA: You think degree of burden is determinative? Halbrook: Not at all. O'CONNOR: Hasn't Congress imposed burden on state to report traffic fatalities? Halbrook: Done under spending power. [I.e., as a condition of highway grants in aid] O'CONNOR: Govt brief cites number of instances of requirements [on states to furnish data to feds--fatal highway accidents, missing children, environmental contamination, etc.]. You assert that *every* one based on funding? Halbrook: Yes. REHNQUIST: Early cases--immigration duties? [duties imposed on state courts to handle naturalizations--issue orders and send copies to US Sec. of State-- in the 1790-1820 timeframe]. Halbrook: Court clerks under Art. VI power--duty to hear cases. Constitution gave express Congressional power to establish uniform law of naturalization. KENNEDY: You don't think that under naturalization power Congress could compel sheriffs to do background checks of aliens? Halbrook: No. KENNEDY [? I think it was him]: Must act [require state action?] within appropriate sphere, just as with commerce clause. Halbrook: We cite case of jails [1790's legislation on jailing of federal prisoners]. Was voluntary. When states no do voluntarily, congress authorized feds to provide own. GINSBURG: Govt brief at 31, fn.--lists several laws requiring states to provide data to feds--you say *all* involved spending power or a this-for that? Halbrook: No know that all did. Some very obscure. Not tested. GINSBURG: You say nothing like this [enacted before]. Mandates involved either explicit federal power or funding. Is first of kind? Halbrook: Obscure--underground storage facilities. STEVENS: Your position--under commerce clause, Congress not have authority to order states to report traffic fatalities? Halbrook: No provision in constitution authorizes that. STEVENS: Nothing? Halbrook: No. Coercion. O'CONNOR: Could condition, under spending power. SOUTER: CLEO only has to make "reasonable effort." Are there any mechanisms to review if he did make a reasonable effort? Halbrook: No. SOUTER: So is open to use to construe duty as turning on CLEO's own view of his reasonableness? Halbrook: To some extent. If no effort whatsoever, hard to argue was reasonable effort. SOUTER: If CLEO was sole judge would you have a case? Halbrook: No case if totally optional--but to do that, must rewrite "shall" in statute to "may." SCALIA: Don't agree you wouldn't have case if totally optional. If I'm compelled to be an honest judge of my own conduct, won't perjure self, you indeed have case. Halbrook: If voluntary. SOUTER: so question is [illegible--whether voluntary?] Halbrook: Voluntary still problem. Perception of sheriff as law abiding if doesn't do them. SOUTER: Point well taken--but would sheriff be agent of fed. gov't under New York case? Halbrook: Still under [illegible] O'CONNOR: Statute has criminal penalties, doesn't it? So a jury would interpret "reasonable effort." Halbrook: 922(s) does. All violations of statute punishable. One district ct. said meant what said, others didn't, and all circuits said no penalty against CLEOs. Justice said interpreted couldn't prosecute CLEOs. SOUTER: Your position? Halbrook: Criminal penalties do apply to CLEOs. In bit of a personal dilemma. If represented them in criminal cases, would be arguing other way. SCALIA: Lots of statutes have penalties for any violation, and require agency rulemaking within deadlines. Agencies miss deadlines all the time, and agency heads never prosecuted. STEVENS: In your view, would be equally unconstitutional with or without criminal penalty? Halbrook: Gov't contends it has power to bring mandamus to force. KENNEDY: Paradox. If you prevail, gov't may establish huge federal bureaucracy, or withdraw funding from states. Might strike a blow for big government. Halbrook: By Nov. 1998 will have permanent Brady act anyway. Feds undertake checks. 10th Amendment problems go away. O'CONNOR: Would go away if they offered money, too. Then you wouldn't be here. Halbrook: Agree. O'CONNOR: Lots of CLEOs voluntarily comply. Halbrook: Some are complying. O'CONNOR: 40 states or so. Halbrook: Some are [on books?] O'CONNOR: Some are complying without protest. STEVENS: Suppose law amended so all investigations done by feds, but states must make records available to them. BREYER: Have same question--Federal requirement to report missing kids to feds--okay if just require states to make state make info available? Halbrook: No, it would be unconstitutional. [Major mis-step--Court will keep returning to it]. BREYER: No? Period? You say that's unconstitutional? Why does Common Market, Germany, etc., think it's more respectful of local gov't to set up local uses [rather than national systems]. Why difference here? Give me law or history--why more consistent with respect for local? Halbrook: Text of constitution. Framers rejected New Jersey Plan. SCALIA: When feds execute, must pay for it--must vote for taxes. Much easier if just impose on states. REHNQUIST: You say if feds sent out people to look at records, would still be impermissible? Is rather strange answer. Feds look at voter registration rolls, for instance. Just look at, that's all. [A hint from a friendly Justice--that was a mistake--change position quickly]. Halbrook:15th Amendment power involved there. REHNQUIST: And commerce clause power here. Halbrook: Always voluntary sharing of data. SOUTER: You're arguing would be unconstitutional to require it- unconstitutional to require access to state conviction records? [Hint from another friendly Justice, offering easy way out--conviction records are public records, after all, anyone can see them]. Halbrook: Perhaps--there's no federal power to require. O'CONNOR: [Showing visible anger]: That's an extreme position. Thought you were here to argue this [party & this program?] Totally different issue. Halbrook: Was a hypothetical. STEVENS: You contend is total lack of fed. power here--even to require 10 minutes a year? Halbrook: Yes. BREYER: Even if feds pd. $1 million? SCALIA: That's 10 minutes carry out fed. law. Not to just look at documents--could subpoena documents. Halbrook: [If?] no objection. STEVENS: Private citizen [illegible--can or can't?] consult files--can fed command State to obtain access? You say no. Walter Dellinger, for US: Dellinger: Halbrook answers are consistent with his brief, for understandable reasons..... [Attempt to link the mis-step with core of petitioners' arguments, fortunately broken off at once by questioning] KENNEDY: State can't require feds to carry out its orders, right? Why isn't reverse true also? Dellinger: Supremacy clause. KENNEDY: relations between governments. Dellinger: Supremacy clause resolves if Congress acts within one of its designated powers. Brady does not require state to govern, just requires it to apply federal law. Until nat'l system ready, Brady uses states since they have best access to local records. KENNEDY: Suppose Congress said that nat'l system isn't up and running, so gun traffic will be regulated by House of Representatives--their home offices will do the checks. That would violate separation of powers, right? Dellinger: Yes. Congress cannot saddle self with execution of laws. KENNEDY: Because core concept of separation of powers: but then why can Congress ignore barrier between sovereigns? O'CONNOR: You think under constitution Congress could require states to administer a federal welfare plan, or health plan? Give state no options, no funding, just hard federal criteria to meet. Dellinger: Congress can impose on state officials a duty to assist in execution of law if two tests are met. First, it must not implicate state sovereignty..... O'CONNOR: Don't you think it does? Suppose Congress sets nat'l standards for welfare or health care, no options to states, tells states to impose. Dellinger: Likely it would run afoul of accountability, since states must make policy. O'CONNOR: Precisely! Brady is just smaller example of that. SCALIA: Feds dictate every jot and tittle of duties. Is that constitutional? Dellinger: Such a statute would not violate.... SCALIA: Is counterintuitive--is it better when leaves state no options? Makes state dance like marionette on fingers of feds. Why isn't that worse? Dellinger: New York case. SCALIA: New York statute gave states options--can manage waste or take it over. Dellinger: Justice O'Connor, Brady isn't smaller version. Administration handled by Dept of Justice, FBI, ATF. O'CONNOR: Justice SCALIA's question addressed my point. Dellinger: What Congress cannot do--some limit--Garcia--must balance economic burden, degree of national interest. WWI draft statute required states to assist. REHNQUIST--Was wartime, right? Dellinger: All [illegible--sorts of things?]. In our view, would be invalid if Congress required a city council to vote in the Brady Act, to raise hands and vote, or if it required states to reduce handgun sales by 50%, let state decide whether to tax or restrict. [Souter will soon turn this argument against Dellinger] BREYER: We do that with environmental laws all time, don't we? Billions of unfunded mandates. What principle of fed [eralism?] says can do that? But require to look up in computer isn't. SCALIA: What unfunded mandates? BREYER: Just know I read about them in papers. (laughter). SCALIA: Can say, if you don't do it, we will send feds in to do it. Did it in Clean Air Act. Dellinger: [?]is one Halbrook dealt with to extent he can. Legislative power--mobility of handguns. SCALIA: If gov't has info, is all he says. Or all he should be saying. (Laughter). Under Brady, Congress accepts no unpleasant policy choices--no raising of taxes, no diversion of officers--aren't those all unpleasant policy choices? Dellinger: Only choice required is [?]--Brady leaves flexibility--only requires "reasonable effort." SOUTER: Isn't that enough to create the accountability problem? Can be held accountable for determining "reasonable effort." Do you assume the check is voluntary? [Souter here begins pressing Dellinger into corner, with argument that the flexibility he praises in fact causes State officials to be held accountable by the electorate for administering the Federal program]. Dellinger: We don't take position it's voluntary. SOUTER: Then state must choose how intrusive background check will be. Issue itself could be explosive. By your own standard, why isn't this enough to be unconstitutional? Dellinger: Anything can be called policy choice. Guy told to peel potatoes thinks of sorting them into small, medium, large as policy choice. ATF gave guidance. SOUTER: People being investigated neither know nor care. Is policymaking. Dellinger: Difficult point in case. But Brady so limited and beneficial. O'CONNOR: Sheriff must check within 5 days? What if prison escape or riots? ATF says criminal sanctions do apply. Are some tough choices. Dellinger: Sheriff has discretion to do no checks. SOUTER: Does "reasonable effort" consideration include county funding? Would it be "unreasonable" if county supervisors provide no funding to CLEO for checks? [Gov't had conceded that a federal law requiring states to enact legislation would be unconstitutional: Souter here drives Dellinger into another corner--resource allocation in fact requires some legislative decisionmaking] Dellinger: Requirement to make choices--some political accountability. SOUTER: What if county says not a penny for Brady checks? Puts sheriff on point. Dellinger: That state decision would be pre-empted under Supremacy clause. REHNQUIST: What if Board of Supervisors says, okay, do the checks, but put them at the bottom of your priority list--and never gets to them? Dellinger: We'd say, is not reasonable to make an a priori decision--that checks are always last priority. Lots of CLEOs like to do them & don't object. REHNQUIST: So? Same occurs in First Amendment questions all the time- we don't say "Others obey the law, but here you are complaining." (Laughter). KENNEDY: Each branch has to make cost/benefit--if Congress wants the law, it can pay the costs. Dellinger: 3,000 counties. Congress didn't do it to offload duties on State. Congress couldn't make it voluntary because if one county in a State refused to do checks, criminals from rest of state would go there to buy. KENNEDY: So federalism is now to be used to create uniformity--that's opposite of usual understanding. Would you agree this is a very rare exercise of federal power? BREYER: If necessary and proper on occasion to impose minor duties... what's okay about letting feds require extradition, enforcement of fed law in state court, but not okay about requiring an "effort?" Is less burdensome. Dellinger: Flexibility allowed by Brady. Would be a constitutional problem only if it so seriously interfered with state ability to carry out its own functions. STEVENS: Think 10th amendment different meaning--commerce vs. spending--war powers. Dellinger: Civil war amendments. Brady fully within commerce power. At framing, handguns only available locally. Now available in nationwide market. KENNEDY: You could also say that local police are available throughout country, too, so you can regulate them? Dellinger: Info may be available only few blocks away from local police- system only for 5 yrs--Congress couldn't wait for permanent system- 13,000 handgun murders. SCALIA: You're saying a federal system is inefficient. We know that. GINSBURG: Would you address severability, please? You said previously that a voluntary check would not work--severability is also issue. [A hint that if voluntary system wouldn't work, Court can hardly sever the mandatory requirement from the rest of the system, such as waiting period and submission of records to CLEO: to strike the mandatory nature of duties would be to destroy the only thing that makes the entire system workable. The Justice here hints to Dellinger that he'd better climb out of that hole in the few seconds he has left.]. Dellinger: Thank you for letting me say I meant to say Ra voluntary system will not work as well.S _____________________________________________________________________ I'm not an attorney; I'm just) [d--ar--y] at [indirect.com] morally-challenged. ) http://www.indirect.com/www/dhardy )____________________________________