Watchman Willie Martin Archive

Green Gestapo, by William F. Jasper: Professor David Schoenbrod of the New York Law School is one who definitely knows how this insidious game of Eco-politics is played. In an important confessional essay in the March 1999 PERC Reports, entitled “Legislating Ideals,” Dr. Schoenbrod admits his own role as an early apostle of environmental statism.

“Around 1970, the government began to go beyond enforcing society’s norms and began imposing intellectually generated ideals on society,” says Schoenbrod. “As a graduate of Yale Law School in 1968. I was a part of this process. My contemporaries and I were instrumental in helping to launch the (governmental) Environmental Protection Agency, as well as the (private) other ‘public interest’ environmental groups. We felt entitled to remake society. We wanted new kinds of statutes that would force agencies to bend society to our ideals on a timetable. One of the first of the kind of statutes we wanted was the 1970 Clean Air Act. It became the prototype for many statutes regulating both the environment and other fields.

As my generation of petulant young elitists came to understand the ways of power, we learned the trick of using the magic wand of idealism to obtain power,” Schoenbrod explains. ‘The trick was to put off the hard choices to another time or place. Thus, the 1970 Clean Air Act could be enacted because neither clean air nor the laws needed to produce it would have to be produced now. The deadline was instead, 1977...” The enviro activists knew, of course, that the standards and the deadline would be impossible to attain. That was part of the plan. ‘So, in the Clean Air Act of 1977, the EPA and its allies allowed the 1977 deadline to be eased to 1982 for some pollutants and 1987 for others, in exchange for vast increases in the EPS’s power.” Good trick, no? Those deadlines, too, proved impossible to meet, so the EPA permitted extensions to the deadlines to stretch out as far as 2010 ‘in exchange for still greater increases in power.’ Under this scheme, the EPA will hold the power to determine on a case-by-case basis whether cities and states will get more time to comply with its dictates. ‘Thus, the EPA and the president will have tremendous leverage on governors and mayors.”

The growth in the EPA’s power,’ notes the professor, “can be roughly gauged by the growth in the length of the Clean Air Act; from 8 double spaced typed pages in 195, to 76 pages in 1970, to 272 pages in 1977, to 718 pages in 1990...The Clean Air Act, and many other statutes modeled on it,” says Schoenbrod, “allow a federal agency to run major segments of civil society on quasi-military lines running from Congress down through the EPA to states and ultimately the regulated entities. Operating this chain of command entails compiling a great mountain of statutes, regulations, guidance documents, plans, permits, and reports.” Yes, the federal leviathan is becoming a Green Gestapo.

Yet the EPA was declared unconstitutional! I have watched for several years now, the EPA running roughshod over the Dallas-Ft. Worth and the satellite cites around them, with their unconstitutional rulings and etc. Therefore, I did a little research and have found that the EPA was declared UNCONSTITUTIONAL several years ago, and that any orders they issue are null and void. Please review the following: {Subject: Printz/Mack vs US (Brady Bill) {Supreme Court of the United States: Nos. 95-1478 and 95-1503

Jay Printz, Sheriff/Coroner, Ravalli County, Montana, Petitioner 95-1478 v. United States; Richard Mack, Petitioner 95-1503 v. United States on writs of certiorari to the united states court of appeals for the ninth circuit [June 27, 1997] Justice Scalia delivered the opinion of the Court.

I am not a lawyer, so I may not be presenting the following in the prescribed manner, but I believe that if you will have the information checked out with the city or county attorney, you will find it to be accurate. It would appear that in the last few years the Federal Government has determined to dictate to the several States and the County and City Government its dictates, regardless of what they may think about the rulings. It is past time the States, County and City Governments begin to fight back against some of the illegal and unconstitutional dictates (called laws) by the Federal Government.

Now for Justice Scalia's opinion of the Supreme Court in the several cases cited:

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. 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 ("calling] upon the Governor of each of the several States 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"), 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 III. L. Rev. 142, 144 (1926), and left it to the governors to issue orders to their subordinate state officers, see Selective Service Regulations 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 III. 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 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.

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.

It is most implausible that the person who labored for that example of state executive officers' assisting the Federal Government believed, but neglected to mention, that they had a responsibility to execute federal laws.1 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.

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. The Government does not rely upon this passage, but Justice Souter (with whose conclusions on this point the dissent is in agreement, see post, at 11) makes it the very foundation of his position; so we pause to examine it in some detail. Justice Souter finds "[t]the natural reading" of the phrases "will be incorporated into the operations of the national government" and "will be rendered auxiliary to the enforcement of its laws" to 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 to the quoted passage to flow automatically from the officers' oath to observe the "laws of the Confederacy as to the enumerated and legitimate objects of its jurisdiction."

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 is the law. The second problem with Justice Souter's reading is 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 legislatures are not subject to federal direction. New York v. United States, 505 U.S. 144 (1992).

These problems are avoided, of course, if the calculatedly vague consequences the passages 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 constitution such obstruction, even legislative acts, are ipso facto invalid. See Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248 (1984) (federal pre-emption of conflicting state law).

Finally, and most conclusively in the present litigation, we turn to the prior jurisprudence of this Court. Federal commandeering of state governments is such a novel phenomenon that this Court's first experience with it did not occur until the 1970's, when the Environmental Protection Agency promulgated regulations requiring States to prescribe auto emissions testing, monitoring and retrofit programs, and to designate preferential bus and car pool lanes. The Courts of Appeals for the Fourth and Ninth Circuits invalidated the regulations on statutory grounds in order to avoid what they perceived to be grave constitutional issues, see Maryland v. EPA, 530 F.2d 215, 226 (CA 4 1975); Brown v. EPA, 521 F.2d 827, 838-842 (CA 9 1975); and the District of Columbia Circuit invalidated the regulations on both constitutional and statutory grounds, see District of Columbia v. Train, 521 F.2d 971, 994 (CADC 1975). After we granted certiorari to review the statuary and constitutional validity of the regulations, the Government declined even to defend them, and instead rescinded some and conceded the invalidity of those that remained, leading us to vacate the opinions below and remand for consideration of mootness. EPA v. Brown, 431 U.S. 99 (1977).

Although we had no occasion to pass upon the subject in Brown, later opinions of ours have made clear that the Federal Government may not compel the States to implement, by legislation or executive action, federal regulatory programs. In Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264 (1981), and FERC v. Mississippi, 456 U.S. 742 (1982), we sustained statutes against constitutional challenge only 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-emptied field, Hodel, supra, at 288. In FERC, we construed the most troubling provision 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-emptied 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. 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 wold 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 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 is 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-emptied 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.24.1

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 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 CELO, 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 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.2 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.3

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. Usury, 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.4 It is the very principle of separate state sovereignty that such a law offends, and no comparative assessment of the various interest 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. Spendhtrift Farm, Inc., 514 U.S. 211, 239-240 (1995) (holding 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. We adhere to that principle today, and conclude categorically, as we concluded categorically in New York: The Federal Government may not compel the States to enactor administer a federal regulatory program." Id., at 188. The mandatory obligation imposed on CLEOs to perform background checks on prospective handgun purchasers plainly runs afoul of that rule.


What we have said makes it clear enough that the central obligation imposed upon CLEOs by the interim provisions of the Brady Act—the obligation to "make reasonable effort to ascertain within 5 business days whether receipt or possession [of a handgun] would be in violation of the law, including research in whatever State and local record keeping systems are available and in a national system designated by the Attorney General," 18 U.S.C. §922(s)(2)—is unconstitutional. Extinguished with it, of course, is the duty implicit in the background-check requirement that the CLEO accept notice of the contents of, and a copy o, the completed Brady Form, which the firearms dealer is required to provide to him, §§922(s)(6)(B)(i), and (2) the requirement that any CLEO who "determines that an individuals ineligible to receive a handgun" provide the would-be purchaser, upon request, a written statement of the reasons for that determination, §922(s)(6)(C). With the background-check and implicit receipt-of-forms requirements invalidated, however, these provisions require no action whatsoever on the part of the CLEO. Quite obviously, the obligation to destroy all Brady Forms that he has received 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.5 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).

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We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the State's officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policymaking is involved, and no case-by-case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty. Accordingly, the judgement of the Court of Appeals for the Ninth Circuit is reversed. It is so ordered.

Therefore, if the above information is correct, and I believe it is the EPA is Unconstitutional and any mandates it issues are invalid and not to be obeyed. However, I respectfully ask that you check out the information for its accuracy before any attempt to apply it.

Dr. Schonbrod realizes full well that environmental idealism is a cover for more ulterior motives. “The point of this system is power, not environmental quality,” he states. Thank you, professor, we have been saying that for decades.

Justice Joseph Story, who was appointed to the Supreme Court by President James Madison and became one of America’s most revered jurists, put it this way: “That government can scarcely (be) deemed to be free, where the rights of property are left solely dependent upon the will of a legislative body without any restraint. The fundamental maxims of a free government seem to require the rights of personal liberty and private property should be held sacred.” (The New America, 10/25/99, P.O. Box 8040, Appleton, WI 54912; The Gospel News Alert, Gospel Ministries, P.O. Box 9411, Boise, Idaho 83707)

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