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P['CP& UC%D4C P['CJP& F66 P['CP&F *q>4lc q P['C0PG *q>4lc q P['C0Pdp *w=50wX pTC&]I(!PPIe xzChX u![2*P[e xzCX&[G' ԦGG P['C^PKtEM>QtiIȀQjIY[XPSQRVUFM3Kt YޠK2K>|Rv fuS96S~6S6|R=K~+GKt >KtKuiQSC;2kselgogHmiOpin InitInitial Opinion codesdpЊ #  ( (    П I. A. 1. a.(1)(a) i) a) I A 1 a (1)(a) i) a)@@BQck QuoteSingle spaced indented quote - Circv C   (  Cd  ( ( ( FTNFormats for each footnote,  X` hp x (#%'0*,.8135@8: thereof, Art. IV, 1. See California v. Superior Court of Cal., San  uB Bernardino Cty., 482 U.S. 400, 407 (1987).  Not only do the enactments of the early Congresses, as far as we are aware, contain no evidence of an assumption that the Federal Government may command the States' executive power in the absence of a particularized constitutional authorization, they contain some indication of precisely the opposite assumption. On September 23, 1789"the day before its proposal of the Bill of Rights, see 1 Annals of Congress 912!913"the First Congress enacted a law aimed at obtaining state assistance of the most rudimentary and necessary sort for the enforcement of the new Government's laws: the holding of federal prisoners in state jails at federal expense. Significantly, the law issued not a command to the States' executive, but a recommendation to their legislatures. Congress recommended to the legislatures of the several States to pass laws, making it expressly the duty of the keepers of their gaols, to receive and safe keep therein all prisoners committed under the authority of the United States, and offered to pay 50 cents per month for each prisoner. Act of Sept. 23, 1789, 1 Stat. 96. Moreover, when Georgia refused to comply with the request, see L. White, The Federalistsh "   402 (1948), Congress's only reaction was a law authorizing the marshal in any State that failed to comply with the Recommendation of September 23, 1789, to rent a temporary jail until provision for a permanent one could be made, see Resolution of Mar. 3, 1791, 1 Stat. 225.  In addition to early legislation, the Government also appeals to other sources we have usually regarded as indicative of the original understanding of the Constitution. It points to portions of The Federalist which reply to criticisms that Congress's power to tax will produce two sets of revenue officers"for example, Brutus's assertion in his letter to the New York Journal of December 13, 1787, that the Constitution opens a door to the appointment of a swarm of revenue and excise officers to prey upon the honest and industrious part of the community, eat up their substance, and riot on the spoils of the country, reprinted in 1 Debate on the Constitution 502 (B. Bailyn ed. 1993). Publius responded that Congress will probably make use of the State officers and State regulations, for collecting federal taxes, The Federalist No. 36, p.221 (C. Rossiter ed. 1961) (A. Hamilton) (hereinafter The Federalist), and predicted that the eventual collection [of internal revenue] under the immediate authority of the Union, will generally be made by the officers, and according to  J the rules, appointed by the several States, id., No. 45, at 292 (J.Madison). The Government also invokes the Federalist's more general observations that the Constitution would enable the [national] government to employ the ordinary magistracy of each [State] in the execution  JP of its laws, id., No. 27, at 176 (A.Hamilton), and that it was extremely probable that in other instances, particularly in the organization of the judicial power, the officers of the States will be clothed in the correspondent  J authority of the Union, id., No. 45, at 292 (J.Madison). But none of these statements necessarily implies"what is the critical point here"that Congress could impose` "    J these responsibilities without the consent of the States. They appear to rest on the natural assumption that the States would consent to allowing their officials to assist  J the Federal Government, see FERC v. Mississippi, 456  J` U.S. 742, 796, n.35 (1982) (O'Connor, J., concurring in judgment in part and dissenting in part), an assumption proved correct by the extensive mutual assistance the States and Federal Government voluntarily provided one another in the early days of the Republic, see  J generally White, supra, at 401!404, including voluntary  Jp federal implementation of state law, see, e.g., Act of Apr. 2, 1790, ch. 5, 1, 1 Stat. 106 (directing federal tax collectors and customs officers to assist in enforcing state inspection laws).  Another passage of The Federalist reads as follows: BQ C  , , (  It merits particular attention ... , that the laws of  J the Confederacy as to the enumerated and legitimate  J objects of its jurisdiction will become the supreme  Js law of the land; to the observance of which all officers, legislative, executive, and judicial in each State will be bound by the sanctity of an oath. Thus, the legislatures, courts, and magistrates, of the respective members will be incorporated into the  J operations of the national government as far as its  J just and constitutional authority extends; and will be rendered auxiliary to the enforcement of its laws. The Federalist No. 27, at 177 (A.Hamilton) (emphasis in original).7gBQ d   ( , , The Government does not rely upon this passage, but  J Justice Souter (with whose conclusions on this point  J the dissent is in agreement, see post, at 11) makes it the very foundation of his position; so we pause to  J examine it in some detail. Justice Souter finds  [t]he 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  J take appropriate action. Post, at 2. There are several obstacles to such an interpretation. First, the consequences in question ( incorporated into the operations of the national government and rendered auxiliary to the enforcement of its laws) are said in the quoted passage  J to flow automatically from the officers' oath to observe  J the the laws of the Confederacy as to the enumerated  Jp and legitimate objects of its jurisdiction.op uB ԍ FTN    XgEpXFr  ddf < Both the dissent and Justice Souter dispute that the consequences are said to flow automatically. They are wrong. The passage says that (1) federal laws will be supreme, and (2) all state  uB officers will be oathbound to observe those laws, and thus (3) state officers will be incorporated and rendered auxiliary. The reason  uBk the progression is automatic is that there is not included between (2) and (3): (2a) those laws will include laws compelling action by  uB state officers. It is the mere existence of all federal laws that is said to make state officers incorporated and auxiliary. Thus, if the passage means that state officers must take an active role in the implementation of federal law, it means that they must do so without the necessity for a congressional directive that they implement it. But no one has ever thought, and no one asserts in the present litigation, that that is the law. The second problem with  JX Justice Souter's reading is that it makes state legis J0 latures subject to federal direction. (The passage in question, after all, does not include legislatures merely incidentally, as by referring to all state officers; it  J refers to legislatures specifically and first of all.) We  J have held, however, that state leglislatures are not  Jh subject to federal direction. New York v. United States,  J@ 505 U.S. 144 (1992).w%L@ uB ԍJustice Souter seeks to avoid incompatibility with New York (a  uB decision which he joined and purports to adhere to), by saying, post, at 3!4, that the passage does not mean any conceivable requirement may"## be imposed on any state official, and that the essence of legislative power ... is a discretion not subject to command, so that legislatures, at least, cannot be commanded. But then why were legislatures men uB tioned in the passage? It seems to us assuredly not a natural reading that being rendered auxiliary to the enforcement of [the national government's] laws means impressibility into federal service for courts and magistrates but something quite different for legislatures.  uB Moreover, the novel principle of political science that Justice Souter invokes in order to bring forth disparity of outcome from parity of language"namely, that [t]he essence of legislative power ... is a discretion not subject to command"seems to us untrue. Perhaps legislatures are inherently uncommandable as to the outcome of their legislation, but they are commanded all the time as to what subjects they shall legislate upon"commanded, that is, by the people, in constitutional provisions that require, for example, the enactment of annual budgets or forbid the enactment of laws permitting gambling. We do not think that state legislatures would be betraying their very essence as legislatures (as opposed to their nature as sovereigns, a nature they share with the other two branches of government) if they obeyed a federal command to enact  uB% laws, for example, criminalizing the sale of marijuana. FTN  & XgEpXFr  ddf < w @ "  Ԍ These problems are avoided, of course, if the calculatedly vague consequences the passage recites" incorporated into the operations of the national government and rendered auxiliary to the enforcement of its laws"are taken to refer to nothing more (or less) than the duty owed to the National Government, on the  J part of all state officials, to enact, enforce, and interpret state law in such fashion as not to obstruct the operation of federal law, and the attendant reality that all state actions constituting such obstruction, even legis Jp lative acts, are ipso facto invalid.7Jp uB$ ԍ FTN    XgEpXFr  ddf < If Justice Souter finds these obligations too insignificant, see  uB post, at 3, n. 1, then perhaps he should subscribe to the interpreta uB tions of essential agency given by Madison, see infra, at 15 and uBI n. 8, or by Story, see infra, n. 9. The point is that there is no necessity to give the phrase the problematic meaning which alone enables him to use it as a basis for deciding this case.7 See Silkwood v.  JH Kerr-McGee Corp., 464 U.S. 238, 248 (1984) (federal preemption of conflicting state law). This meaning &"   accords well with the context of the passage, which seeks to explain why the new system of federal law directed to individual citizens, unlike the old one of federal law directed to the States, will bid much fairer to avoid the necessity of using force against the States, The Federalist No. 27, at 176 . It also reconciles the passage with Hamilton's statement in Federalist No. 36, at 222, that the Federal Government would in some circumstances do well to employ the state officers as much as possible, and to attach them to the Union by an accumulation of their emoluments"which surely suggests inducing state officers to come aboard by paying them, rather than merely commandeering their  J official services.J  uB` ԍ FTN    XgEpXFr  ddf < Justice Souter deduces from this passage in No. 36 that al uB though the Federal Government may commandeer state officers, it  uB must compensate them for their services. This is a mighty leap, which would create a constitutional jurisprudence (for determining when the compensation was adequate) that would make takings cases appear clear and simple.  J  Justice Souter contends that his interpretation of Federalist No. 27 is supported by No. 44, written by Madison, wherefore he claims that Madison and Hamil JX ton together stand opposed to our view. Post, at 4. In  J0 fact, Federalist No. 44 quite clearly contradicts Justice  J 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 followingx"   description: BQ C  , , (  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,  JS forever be conducted by the officers and according to  J+ the laws of the States. Id., at 287 (emphasis added).  J svBQ d  ( , , 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,  J that they had a responsibility to execute federal laws.K n  uB/ ԍ FTN    XgEpXFr  ddf <  Justice Souter's discussion of this passage omits to mention  uB that it contains an example of state executives' essential agen uB cy"and indeed implies the opposite by observing that other num uBT bers of the Federalist give examples of the essential agency of  uB  state executive officers. Post, at 4 (emphasis added). In seeking to  uB explain the curiousness of Madison's not mentioning the state  uBy executives' obligation to administer federal law, Justice Souter says that in speaking of an essential agency in giving effect to the Federal Constitution, Federalist No. 44, Madison was not talking about executing congressional statutes; he was talking about putting  uBU the National Constitution into effect, post, at 4, n. 2. Quite so,  uB  which is our very point.  It is interesting to observe that Story's Commentaries on the Constitution, commenting upon the same issue of why state officials are required by oath to support the Constitution, uses the same essential agency language as Madison did in Federalist No. 44, and goes on to give more numerous examples of state executive agency than Madison did; all of them, however, involve not state administration of federal law, but merely the implementation of duties imposed on state officers by the Constitution itself: The executive authority of the several states may be often called upon to exert Powers or allow Rights given by the Constitution, as in filling vacancies in the senate during the recess of the leislature; in issuing writs of election to fill vacancies in the house of representatives; in officering the militia, and giving effect to laws for calling them; andW"## in the surrender of fugitives from justice. 2 Story, Commentaries on the Constitution of the United States 577 (1851).K  "    J 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 commen J` tary elsewhere. ` uB6 ԍEven if we agreed with Justice Souter's reading of the Federalist No. 27, it would still seem to us most peculiar to give the view expressed in that one piece, not clearly confirmed by any other writer, the determinative weight he does. That would be crediting the most expansive view of federal authority ever expressed, and from the pen of the most expansive expositor of federal power. Hamilton was from first to last the most nationalistic of all nationalists in his interpretation of the clauses of our federal Constitution. C. Rossiter, Alexander Hamilton and the Constitution 199 (1964). More specifically, it is widely recognized that The Federalist reads with a split personality on matters of federalism. See D. Braveman, W. Banks, & R. Smolla, Constitutional Law: Structure and Rights in Our Federal System 198!199 (3d ed. 1996). While overall The Federalist reflects a large area of agreement between  uB Hamilton and Madison, Rossiter, supra, at 58, that is not the case with  uB8 respect to the subject at hand, see Braveman, supra, at 198!199. To  uB choose Hamilton's view, as Justice Souter would, is to turn a blind eye to the fact that it was Madison's"not Hamilton's"that prevailed, not only at the Constitutional Convention and in popular sentiment, see  uB Rossiter, supra, at 44!47, 194, 196; 1 Records of the Federal Convention (M. Farrand ed. 1911) 366, but in the subsequent struggle to fix the  uB meaning of the Constitution by early congressional practice, see supra,  uB9 at 5!10. FTN  a  XgEpXFr  ddf <   To complete the historical record, we must note that there is not only an absence of executivecommandeering statutes in the early Congresses, but there is an absence of them in our later history as well, at least until very recent years. The Government points to the Act of August 3, 1882, ch. 376, 2, 4, 22 Stat. 214, which enlisted state officials to take charge of the local affairs of immigration in the ports within such State, and to provide for the support and relief of such immigrants therein landing as may fall into distress or need of  "   public aid; to inspect arriving immigrants and exclude any person found to be a convict, lunatic, idiot, or indigent; and to send convicts back to their country of origin without compensation. The statute did not,  J` however, mandate those duties, but merely empowered  J8 the Secretary of the Treasury to enter into contracts  J with such State ... officers as may be designated for  J that purpose by the governor of any State. (Emphasis added.)  The Government cites the World War I selective draft law that authorized the President to utilize the service of any or all departments and any or all officers or  J agents of the United States and of the several States, Territories, and the District of Columbia, and subdivisions thereof, in the execution of this Act, and made any person who refused to comply with the President's directions guilty of a misdemeanor. Act of May 18, 1917, ch. 15, 6, 40 Stat. 80!81 (emphasis added). However, it is far from clear that the authorization to utilize the service of state officers was an authorization  J to compel the service of state officers; and the misdemeanor provision surely applied only to refusal to  J comply with the President's authorized directions, which might not have included directions to officers of States whose governors had not volunteered their services. It is interesting that in implementing the Act President Wilson did not commandeer the services of state officers, but instead requested the assistance of the States' governors, see Proclamation of May 18, 1917, 40 Stat. 1665 ( call[ing] upon the Governor of each of the several States ... and all officers and agents of the several States ... to perform certain duties); Registration Regulations Prescribed by the President Under the Act of Congress Approved May 18, 1917, Part I, 7 ( the  J governor [of each State] is requested to act under the regulations and rules prescribed by the President or under his direction) (emphasis added), obtained the` "   consent of each of the governors, see Note, The President, the Senate, the Constitution, and the Executive Order of May 8, 1926, 21 Ill. L. Rev. 142, 144 (1926), and left it to the governors to issue orders to their subordinate state officers, see Selective Service Regulations Prescribed by the President Under the Act of May 18, 1917, 27 (1918); J.Clark, The Rise of a New Federalism 91 (1965). See generally Note, 21 Ill. L. Rev., at 144. It is impressive that even with respect to a wartime measure the President should have been so solicitous of state independence.  The Government points to a number of federal statutes enacted within the past few decades that require the participation of state or local officials in implementing federal regulatory schemes. Some of these are connected to federal funding measures, and can perhaps be more accurately described as conditions upon the grant of federal funding than as mandates to the States; others, which require only the provision of information to the Federal Government, do not involve the precise issue before us here, which is the forced participation of the States' executive in the actual administration of a federal program. We of course do not address these or other currently operative enactments that are not before us; it will be time enough to do so if and when their validity is challenged in a proper case. For deciding the issue before us here, they are of little relevance. Even assuming they represent assertion of the very same congressional power challenged here, they are of such recent vintage that they are no more probative than the statute before us of a constitutional tradition that lends meaning to the text. Their persuasive force is far outweighed by almost two centuries of apparent congressional avoidance of the  J practice. Compare INS v. Chadha, 462 U.S. 919 (1983), in which the legislative veto, though enshrined in perhaps hundreds of federal statutes, most of which` "   were enacted in the 1970's and the earliest of which was  J enacted in 1932, see id., at 967!975 (White, J., dissenting), was nonetheless held unconstitutional.  9H1 d dy7III؃  2  The constitutional practice we have examined above tends to negate the existence of the congressional power asserted here, but is not conclusive. We turn next to consideration of the structure of the Constitution, to see if we can discern among its essential postulate[s],  J. Principality of Monaco v. Mississippi, 292 U.S. 313, 322 (1934), a principle that controls the present cases.  ;H2 d d8A؃   2  It is incontestible that the Constitution established a  J$ system of dual sovereignty. Gregory v. Ashcroft, 501  J U.S. 452, 457 (1991); Tafflin v. Levitt, 493 U.S. 455, 458 (1990). Although the States surrendered many of their powers to the new Federal Government, they retained a residuary and inviolable sovereignty, The Federalist No. 39, at 245 (J.Madison). This is reflected  J4 throughout the Constitution's text, Lane County v.  J  Oregon, 7 Wall. 71, 76 (1869); Texas v. White, 7 Wall. 700, 725 (1869), including (to mention only a few examples) the prohibition on any involuntary reduction or combination of a State's territory, Art. IV, 3; the Judicial Power Clause, Art. III, 2, and the Privileges and Immunities Clause, Art. IV, 2, which speak of the Citizens of the States; the amendment provision, Article V, which requires the votes of threefourths of the States to amend the Constitution; and the Guarantee Clause, Art. IV, 4, which presupposes the continued existence of the states and ... those means and instrumentalities which are the creation of their sover J, eign and reserved rights, Helvering v. Gerhardt, 304 U.S. 405, 414!415 (1938). Residual state sovereignty was also implicit, of course, in the Constitution's conferral upon Congress of not all governmental powers, "   but only discrete, enumerated ones, Art. I, 8, which implication was rendered express by the Tenth Amendment's assertion that [t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.  The Framers' experience under the Articles of Confederation had persuaded them that using the States as the instruments of federal governance was both ineffectual and provocative of federalstate conflict. See The Federalist No. 15. Preservation of the States as independent political entities being the price of union, and [t]he practicality of making laws, with coercive sanctions, for the States as political bodies having been, in Madison's words, exploded on all hands, 2 Records of the Federal Convention of 1787, p.9 (M. Farrand ed. 1911), the Framers rejected the concept of a central government that would act upon and through the States, and instead designed a system in which the state and federal governments would exercise concurrent authority over the people"who were, in Hamilton's words, the only proper objects of government, The Federalist No. 15, at 109. We have set forth the historical record in  Jh more detail elsewhere, see New York v. United States, 505 U.S., at 161!166, and need not repeat it here. It suffices to repeat the conclusion: The Framers explicitly chose a Constitution that confers upon Congress the  J power to regulate individuals, not States. Id., at  J 166.  uB ԍThe dissent, reiterating Justice Stevens' dissent in New York, 505  uB U.S., at 210!213, maintains that the Constitution merely augmented the preexisting power under the Articles to issue commands to the States with the additional power to make demands directly on individuals. See  uB post, at 7!8. That argument, however, was squarely rejected by the  uB Court in New York, supra, at 161!166, and with good reason. Many of  uBR Congress's powers under Art. I,  8, were copied almost verbatim fromR "## the Articles of Confederation, indicating quite clearly that [w]here the Constitution intends that our Congress enjoy a power once vested in theContinental Congress, it specifically grants it. Prakash, Field OfficeFederalism, 79 Va. L. Rev. 1957, 1972 (1993). The great innovation of this design was thatl "  ԑ our citizens would have two political capacities, one state and one federal, each protected from incursion by the other" a legal system unprecedented in form and design, establishing two orders of government, each with its own direct relationship, its own privity, its own set of mutual rights and obligations to the people who  J sustain it and are governed by it. U. S. Term Limits,  J Inc. v. Thornton, 514 U.S. 779, 838 (1995) (Kennedy, J.,  J concurring). The Constitution thus contemplates that a State's government will represent and remain account Jp able to its own citizens. See New York, supra, at  JH Ԛ168!169; United States v. Lopez, 514 U.S. 549, 576!577  J (1995) (Kennedy, J., concurring). Cf. Edgar v. MITE  J Corp., 457 U.S. 624, 644 (1982) ( the State has no legitimate interest in protecting nonresident[s]). As Madison expressed it: [T]he local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority than the general authority is subject to them, within its own sphere.  J The Federalist No. 39, at 245.\ K l uB$ ԍJustice Breyer's dissent would have us consider the benefits that other countries, and the European Union, believe they have derived from  uB federal systems that are different from ours. FTN  _ XgEpXFr  ddf <  We think such comparative analysis inappropriate to the task of interpreting a constitution, though it was of course quite relevant to the task of writing one. The Framers were familiar with many federal systems, from classical antiquity down to their own time; they are discussed in Nos. 18!20 of The Federalist. Some were (for the purpose here under discussion) quite similar to the modern federal systems that uB Justice Breyer favors. Madison's and Hamilton's opinion of such systems could not be clearer. Federalist No. 20, after an extended critique of the system of government established by the Union of Utrecht for the United Netherlands, concludes: "##Ԍ  I make no apology for having dwelt so long on the contemplation of these federal precedents. Experience is the oracle of truth; and where its responses are unequivocal, they ought to be conclusive and sacred. The important truth, which it unequivocally pronounces in the present case, is that a sovereignty over sovereigns, a government over governments, a legislation for communities, as contradistinguished from individuals, as it is a solecism in theory, so in practice it is subversive of the order and ends of civil polity ....  uBH Id., at 138. Antifederalists, on the other hand, pointed specifically to Switzerland"and its then400 years of success as a confederate republic"as proof that the proposed Constitution and its federal structure was unnecessary. See Patrick Henry, Speeches given before the Virginia Ratifying Convention, 4 and 5 June, 1788, reprinted in The Essential Antifederalist 123, 135!136 (W. Allen & G. Lloyd ed. 1985). The fact is that our federalism is not Europe's. It is the unique contribution of the Framers to political science and political  uBn theory. United States v. Lopez, 514 U.S. 549, 575 (1995) (Kennedy, J., concurring) (citing Friendly, Federalism: A Forward, 86 Yale L. J. 1019 (1977)).\  "  Ԍ This separation of the two spheres is one of the Constitution's structural protections of liberty. Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and  J abuse from either front. Gregory, supra, at 458. To quote Madison once again: BQ C  , , (  In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself. The  "   Federalist No. 51, at 323. vBQ d  ( , , See also The Federalist No. 28, at 180!181 (A. Hamilton). The power of the Federal Government would be augmented immeasurably if it were able to impress into its service"and at no cost to itself"the police officers of the 50 States.  ;H2 d d8B؃  2  We have thus far discussed the effect that federal control of state officers would have upon the first element of the double security alluded to by Madison: the division of power between State and Federal Governments. It would also have an effect upon the second element: the separation and equilibration of powers between the three branches of the Federal Government itself. The Constitution does not leave to speculation who is to administer the laws enacted by Congress; the President, it says, shall take Care that the Laws be faithfully executed, Art. II, 3, personally and through officers whom he appoints (save for such inferior officers as Congress may authorize to be appointed by the Courts of Law or by the Heads of Departments who are themselves presidential appointees), Art. II, 2. The Brady Act effectively transfers this responsibility to thousands of CLEOs in the 50 States, who are left to implement the program without meaningful Presidential control (if indeed meaningful Presidential control is possible without the power to appoint and remove). The insistence of the Framers upon unity in the Federal Executive"to insure both vigor and accountability"is well known. See The Federalist No. 70 (A.Hamilton); 2 Documentary History of the Ratification of the Constitution 495 (M. Jensen ed. 1976) (statement of James Wilson); see also Calabresi & Prakash, The President's Power to Execute the Laws, 104 Yale L. J. 541 (1994). That unity would be shattered, and the power of the President would be subject to reduction, if Congress "   could act as effectively without the President as with him, by simply requiring state officers to execute its  J laws.]  uB ԍThere is not, as the dissent believes, post, at 23, tension between the proposition that impressing state police officers into federal service  uB will massively augment federal power, and the proposition that it will  uB= also sap the power of the Federal Presidency. It is quite possible to have a more powerful Federal Government that is, by reason of the destruction of its Executive unity, a less efficient one. The dissent is correct,  uBb post, at 24, that control by the unitary Federal Executive is also sacrificed when States voluntarily administer federal programs , but the condition of voluntary state participation significantly reduces the ability of Congress to use this device as a means of reducing the power of the Presidency.]  ;H2 d d8C؃  2  The dissent of course resorts to the last, best hope of  J those who defend ultra vires congressional action, the  J Necessary and Proper Clause. It reasons, post, at 3!5, that the power to regulate the sale of handguns under the Commerce Clause, coupled with the power to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, Art. I, 8, conclusively establishes the Brady Act's constitutional validity, because the Tenth Amendment imposes no  J limitations on the exercise of delegated powers but  Jf merely prohibits the exercise of powers not delegated to the United States. What destroys the dissent's Necessary and Proper Clause argument, however, is not the Tenth Amendment but the Necessary and Proper Clause  J  itself. m  uB  ԍThis argument also falsely presumes that the the Tenth Amendment is the exclusive textual source of protection for principles of federalism. Our system of dual sovereignty is reflected in numerous constitutional  uB0 provisions, see supra, at 19!20, and not only those, like the Tenth Amendment, that speak to the point explicitely. It is not at all unusual for our resolution of a significant constitutional question to rest upon  uBU reasonable implications. See, e.g., Myers v. United States, 272 U.S. 52U "## (1926) (finding by implication from Art. II, 1, 2, that the President has  uBG the exclusive power to remove executive officers); Plaut v. Spendthrift  uB Farm, Inc., 514 U.S. 211 (1995) (finding that Article III implies a lack of congressional power to set aside final judgments). When a La[w] ... for carrying into Executionl "    the Commerce Clause violates the principle of state sovereignty reflected in the various constitutional  J provisions we mentioned earlier, supra, at 19!20, it is  J not a La[w] ... proper for carrying into Execution the Commerce Clause, and is thus, in the words of The Federalist, merely [an] ac[t] of usurpation which deserve[s] to be treated as such. The Federalist No. 33, at 204 (A. Hamilton). See Lawson & Granger, The Proper Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause, 43 Duke L. J. 267, 297!326, 330!333 (1993). We in fact answered the  JH dissent's Necessary and Proper Clause argument in New  J York: [E]ven where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts.... [T]he Commerce Clause, for example, authorizes Congress to regulate interstate commerce directly; it does not authorize Congress to regulate state governments'  J regulation of interstate commerce. 505 U.S., at 166.  The dissent perceives a simple answer in that portion of Article VI which requires that all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution, arguing that by virtue of the Supremacy Clause this makes not only the Constitution, but every law enacted by Congress as well, binding on state officers, including laws requiring state J officer enforcement. Post, at 6. The Supremacy Clause, however, makes Law of the Land only Laws of the United States which shall be made in Pursuance [of the Constitution]; so the Supremacy Clause merely brings(l "   us back to the question discussed earlier, whether laws conscripting state officers violate state sovereignty and are thus not in accord with the Constitution.  9H1 d d7IV؃  2  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 carpool lanes. The Courts of Appeals for the Fourth and Ninth Circuits invalidated the regulations on statutory grounds in order to avoid what they perceived  J> to be grave constitutional issues, see Maryland v. EPA,  J 530 F.2d 215, 226 (CA4 1975); Brown v. EPA, 521 F.2d 827, 838!842 (CA9 1975); and the District of Columbia Circuit invalidated the regulations on both  J constitutional and statutory grounds, see District of  Jv Columbia v. Train, 521 F.2d 971, 994 (CADC 1975). After we granted certiorari to review the statutory and constitutional validity of the regulations, the Government declined even to defend them, and insteadrescinded some and conceded the invalidity of those that remained, leading us to vacate the opinions below and  J remand for consideration of mootness. EPA v. Brown, 431 U.S. 99 (1977).  Although we had no occasion to pass upon the subject  J 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  J regulatory programs. In Hodel v. Virginia Surface  Jn Mining & Reclamation Assn., Inc., 452 U.S. 264 (1981),  JF 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  J States to enforce federal law. In Hodel we cited the  J 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 other J wise preempted field, Hodel, supra, at 288. In FERC, we construed the most troubling provisions of the Public Utility Regulatory Policies Act of 1978, to contain only the command that state agencies consider federal standards, and again only as a precondition to continued  J state regulation of an otherwise preempted 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,  J id., at 761!762.  When we were at last confronted squarely with a federal statute that unambiguously required the States to enact or administer a federal regulatory program, our decision should have come as no surprise. At issue in  J New York v. United States, 505 U.S. 144 (1992), were the socalled take title provisions of the LowLevel Radioactive Waste Policy Amendments Act of 1985, which required States either to enact legislation providing for the disposal of radioactive waste generated within their borders, or to take title to, and possession of the waste"effectively requiring the States either to legislate pursuant to Congress's directions, or to imple Jx ment an administrative solution. Id., at 175!176. We concluded that Congress could constitutionally require  J( the States to do neither. Id., at 176. The Federal Government, we held, may not compel the States to  J enact or administer a federal regulatory program. Id., at 188.  J  The Government contends that New York is distinguishable on the following ground: unlike the take title` "   provisions invalidated there, the backgroundcheck 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, nonpolicymaking 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 J ofpowers purposes. See A. L. A. Schechter Poultry  J Corp. v. United States, 295 U.S. 495, 530 (1935);  J 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  J abandoned the effort to do so. See FPC v. New England  J 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 lawenforcement 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 onehalf hour of an officer's time.  J8 But nothing in the Act requires a CLEO to be so  J parsimonious; diverting at least some felonyinvestigation  J time, and permitting at least some background checks  J beyond onehalf hour would certainly not be unreasonable. Is this decision whether to devote maximum reasonable efforts or minimum reasonable efforts not preeminently a matter of policy? It is quite impossible, in short, to draw the Government's proposed line at no policymaking, and we would have to fall back upon a line of not too much policymaking. How much is too much is not likely to be answered precisely; and an imprecise barrier against federal intrusion upon state authority is not likely to be an effective one.  Even assuming, moreover, that the Brady Act leaves no policymaking discretion with the States, we fail to see how that improves rather than worsens the intrusion upon state sovereignty. Preservation of the States as independent and autonomous political entities is arguably less undermined by requiring them to make policy in certain fields than (as Judge Sneed aptly described it over two decades ago) by reduc[ing] [them] to puppets  J 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  JP Texas v. White, 7 Wall, at 725. It is no more compatible with this independence and autonomy that their officers be dragooned (as Judge Fernandez put it in his dissent below, 66 F.3d, at 1035) into administering federal law, than it would be compatible with the independence and autonomy of the United States that its officers be impressed into service for the execution of state laws.` "  Ԍ The Government purports to find support for its prof J fered distinction of New York in our decisions in Testa  J v. Katt, 330 U.S. 386 (1947), and FERC v. Mississippi, 456 U.S. 742 (1982). We find neither case relevant.  J` 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  J have suggested earlier, supra, at 6!7, that says nothing about whether state executive officers must administer  Jp federal law. Accord New York, 505 U.S., at 178!179.  JH 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  J not commandeer state government, but merely imposed preconditions to continued state regulation of an other J0 wise preempted 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  J accord with Testa, See FERC, supra, at 759!771, and J n.24.i  uB ԍThe dissent points out that FERC cannot be construed as merely  uB following the principle recognized in Testa that state courts must apply relevant federal law because [a]lthough the commission was serving an adjudicative function, the commissioners were unquestionably not  uB `judges' within the meaning of [the Supremacy Clause]. Post, at 33. That is true enough. But the answer to the question of which state  uBB officers must apply federal law (only  ! `judges' within the meaning of [the Supremacy Clause]) is different from the answer to the question of  uB which state officers may be required by statute to apply federal law (officers who conduct adjudications similar to those traditionally performed by judges). It is within the power of the States, as it is within  uB the power of the Federal Government, see Crowell v. Benson, 285 U.S.  uB 22 (1932), to transfer some adjudicatory functions to administrative agencies, with opportunity for subsequent judicial review. But it is alsoC "## within the power of Congress to prescribe, explicitly or by implication (as  uBG in the legislation at issue in FERC), that those adjudications must take account of federal law. The existence of this latter power should not be unacceptable to a dissent that believes distinguishing among officers on the basis of their title rather than the function they perform is empty  uB# formalistic reasoning of the highest order, post, at 15. We have no  uB doubt that FERC would not have been decided the way it was if  uB nonadjudicative responsibilities of the state agency were at issue.iH"  Ԍ The Government also maintains that requiring state officers to perform discrete, ministerial tasks specified by  J Congress does not violate the principle of New York because it does not diminish the accountability of state or federal officials. This argument fails even on its own terms. By forcing state governments to absorb the financial burden of implementing a federal regulatory program, Members of Congress can take credit for solving problems without having to ask their constituents to pay for the solutions with higher federal taxes. And even when the States are not forced to absorb the costs of implementing a federal program, they are still put in the position of taking the blame for its burdensomeness and for its defects. See Merritt, Three Faces of Federalism: Finding a Formula for the Future, 47 Vand. L. Rev. 1563, 1580, n. 65 (1994). Under the present law, for example, it will be the CLEO and not some federal official who stands between the gun purchaser and immediate possession of his gun. And it will likely be the CLEO, not some federal official, who will be blamed for any error (even one in the designated federal database) that causes a purchaser to be mistakenly rejected.  The dissent makes no attempt to defend the  J@ ԚGovernment's basis for distinguishing New York, but instead advances what seems to us an even more  J implausible theory. The Brady Act, the dissent asserts, is different from the take title provisions invalidatedH"    J in New York because the former is addressed to individuals"namely CLEOs"while the latter were directed to the State itself. That is certainly a difference, but it cannot be a constitutionally significant one. While the Brady Act is directed to individuals, it is directed to them in their official capacities as state officers; it controls their actions, not as private citizens, but as the agents of the State. The distinction between judicial writs and other government action directed against individuals in their personal capacity, on the one hand, and in their official capacity, on the other hand, is an ancient one, principally because it is dictated by common sense. We have observed that a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office.... As such, it is no different from a  J suit against the State itself. Will v. Michigan Dept. of  JX 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  J officers, is to say nothing of significance.PK  uB  ԍContrary to the dissent's suggestion, post, at 18!19, n. 16, and 29, the distinction in our Eleventh Amendment jurisprudence between States and municipalities is of no relevance here. We long ago made clear that the distinction is peculiar to the question of whether a governmental entity is entitled to Eleventh Amendment sovereign immunity, see  uB Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 690, n. 55 (1978); we have refused to apply it to the question of whether a governmental entity is protected by the Constitution's guarantees of  uB federalism, including the Tenth Amendment, see National League of  uB Cities v. Ursery, 426 U.S. 833, 855!856, n. 20 (1976) (overruled on other  uBF grounds by Garcia v. San Antonio Metropolitan Transit Authority, 469  uB U.S. 528 (1985)); see also Garcia, supra (resolving Tenth Amendment issues in suit brought by local transit authority).P Indeed, it merits the description empty formalistic reasoning of  Jh the highest order, post, at 15. By resorting to this, theh "    J dissent not so much distinguishes New York as disem J bowels it.  uB@ ԍThe dissent's suggestion, post, at 28!29, n. 27, that New York v.  uB United States, 505 U.S. 144 (1992), itself embraced the distinction between congressional control of States (impermissible) and congressional control of state officers (permissible) is based upon the most egregious wrenching of statements out of context. It would take too much to reconstruct the context here, but by examining the entire passage cited,  uB id., at 178!179, the reader will readily perceive the distortion. The passage includes, for example, the following:   Additional cases cited by the United States discuss the power of  uBf federal courts to order state officials to comply with federal law.... Again, however, the text of the Constitution plainly confers this authority on the federal courts .... The Constitution contains no  uB analogous grant of authority to Congress. Id., at 179.  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  J 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  J with the functioning of state governments. See, e.g., Fry  J v. United States, 421 U.S. 542, 548 (1975); National  J League of Cities v. Usery, 426 U.S. 833, 853 (1976)  J (overruled by Garcia v. San Antonio Metropolitan  JX Transit Authority, 469 U.S. 528 (1985)); South Carolina  J0 v. Baker, 485 U.S. 505, 529 (1988) (Rehnquist, C.J., concurring in judgment). But where, as here, it is the  J 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! "    J analysis is inappropriate.7  uBh ԍThe dissent observes that Congress could require private persons, such as hospital executives or school administrators, to provide arms merchants with relevant information about a prospective purchaser's fitness to own a weapon, and that the burden on police officers [imposed by the Brady Act] would be permissible if a similar burden  uB were also imposed on private parties with access to relevant data. Post, at 25. That is undoubtedly true, but it does not advance the dissent's case. The Brady Act does not merely require CLEOs to report information in their private possession. It requires them to provide information that belongs to the State and is available to them only in their official capacity; and to conduct investigation in their official capacity, by examining databases and records that only state officials have access to. In other words, the suggestion that extension of this statute to private citizens would eliminate the constitutional problem posits the impossible.7 It is the very principle of separate state sovereignty that such a law offends, and no comparative assessment of the various interests can  J overcome that fundamental defect. Cf. Bowsher, 478 U.S., at 736 (declining to subject principle of separation  J8 of powers to a balancing test); Chadha, 462 U.S., at  J 944!946 (same); Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 239!240 (1995) (holding legislated invalidation of final judgments to be categorically unconstitutional).  J We expressly rejected such an approach in New York, and what we said bears repeating: BQ H C  , , (  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  J an expedient solution to the crisis of the day. Id.," "   at 187. NvBQ d  ( , , We adhere to that principle today, and conclude categori J cally, as we concluded categorically in New York: The Federal Government may not compel the States to enact  J or 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.  9H1 d d8V؃  `2  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 a 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 recordkeeping 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 backgroundcheck requirement that the CLEO accept notice of the contents of, and a copy of, the completed Brady Form, which the firearms dealer is required to provide to him, 922(s)(1)(A)(i)(III) and (IV).  Petitioners also challenge, however, two other provisions of the Act: (1) the requirement that any CLEO to whom a [Brady Form] is transmitted destroy the form and any record containing information derived from it, 922(s)(6)(B)(i), and (2) the requirement that any CLEO who determines that an individual is ineligible to receive a handgun provide the wouldbe purchaser, upon request, a written statement of the reasons for that determination, 922(s)(6)(C). With the backgroundcheck and implicit receiptofforms 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 J not in that position.  uBP ԍWe note, in this regard, that both CLEOs before us here assert that they are prohibited from taking on these federal responsibilities under state law. That assertion is clearly correct with regard to Montana law, which expressly enjoins any county ... or other local government unit from prohibit[ing] ... or regulat[ing] the purchase, sale or other transfer (including delay in purchase, sale, or other transfer), ownership, [or] possession ... of any ... handgun, Mont. Code 45!8!351(1) (1995). It is arguably correct with regard to Arizona law as well, which states that [a] political subdivision of this state shall not ... prohibit the ownership, purchase, sale or transfer of firearms, Ariz. Rev. Stat. 13!3108(B) (1989). We need not resolve that question today; it is at least clear that Montana and Arizona do not require their CLEOs to implement the Brady Act, and CLEOs Printz and Mack have chosen not to do so. 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$ "    J obligations of parties not before the Court. Cf., e.g.,  J New York, supra, at 186!187 (addressing severability where remaining provisions at issue affected the plaintiffs). 2* * *  J  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, norcommand 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 casebycase weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty. Accordingly, the judgment of the Court of Appeals for the Ninth Circuit isreversed.  J B It is so ordered.