964
Stevens, J., dissenting
the extent that it has any substance at all, New York's administration language may have referred to the possibility that the State might have been able to take title to and devise an elaborate scheme for the management of the radioactive waste through purely executive policymaking. But despite the majority's effort to suggest that similar activities are required by the Brady Act, see ante, at 927-928, it is hard to characterize the minimal requirement that CLEO's perform background checks as one involving the exercise of substantial policymaking discretion on that essentially legislative scale.27
Indeed, Justice Kennedy's recent comment about another case that was distinguishable from New York applies to these cases as well:
"This is not a case where the etiquette of federalism has been violated by a formal command from the Na-27 Indeed, this distinction is made in the New York opinion itself. In that case, the Court rejected the Government's argument that earlier decisions supported the proposition that "the Constitution does, in some circumstances, permit federal directives to state governments." New York, 505 U. S., at 178. But in doing so, it distinguished those cases on a ground that applies to the federal directive in the Brady Act: "[A]ll involve congressional regulation of individuals, not congressional requirements that States regulate. . . .
. . . . . "[T]he cases relied upon by the United States hold only that federal law is enforceable in state courts and that federal courts may in proper circumstances order state officials to comply with federal law, propositions that by no means imply any authority on the part of Congress to mandate state regulation." Id., at 178-179. The Brady Act contains no command directed to a sovereign State or to a state legislature. It does not require any state entity to promulgate any federal rule. In these cases, the federal statute is not even being applied to any state official. See n. 16, supra. It is a "congressional regulation of individuals," New York, 505 U. S., at 178, including gun retailers and local police officials. Those officials, like the judges referred to in the New York opinion, are bound by the Supremacy Clause to comply with federal law. Thus if we accept the distinction identified in the New York opinion itself, that decision does not control the disposition of these cases.
Page: Index Previous 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 NextLast modified: October 4, 2007