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 ...to perform certain duties");
Registration Regulations Prescribed by the President Under the Act of Congress
Approved May 18, 1917, Part I, �7 ("the governor [of each State] is
requested to act under the regulations and rules prescribed by the President
or under his direction"), 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. 7, 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).
* * *
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)
"Political freedom is an idea but not a fact..." (Protocol 1:6)
