Will is joined by UChicago law professor Bridget Fahey to discuss the anti-commandeering doctrine of Printz v. United States, why we shouldn't fear federalism, and what would happen if we took the Tenth Amendment seriously.
Will is joined by UChicago law professor Bridget Fahey to discuss the anti-commandeering doctrine of Printz v. United States, why we shouldn't fear federalism, and what would happen if we took the Tenth Amendment seriously.
Case audio is from Oyez.org
Will Baude: Welcome to Dissenting Opinions, a podcast by the Constitutional Law Institute at the University of Chicago Law School. I'm your host, William Baude, and each episode we'll have top legal minds discuss a Supreme Court case they believe is misunderstood.
[David Currie Audio]: The power is 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.
Will Baude: Today I'm here with one of my newest colleagues, Bridget Fahey, an expert in federalism who's going to have a conversation with me about a Supreme Court case called Printz v. United States. This is a case about what's called the anti-commandeering doctrine, but I guess we'll talk in a second about what it is and why it's important.
[Case Audio]: We'll hear argument now. Number 95-14-78, Jay Printz, the sheriff of Ravalli County, Montana and United States versus Richard Mack, the sheriff of Graham County, Arizona.
Will Baude: Welcome Bridget.
Bridget Fahey: Thanks. I'm happy to be here.
Will Baude: So the basic formula for these conversations is we'll start by talking about this case and just what it is for people who are listening who don't know, then we'll talk about whether it's good or bad and why people might think it's good or bad and then we'll talk about any implications and why it's important. So can we just start by talking about what is Printz? I will confess this year for the first time I did not teach it in Constitutional Law and I actually realized I made a grave error. So tell everybody what it is.
Bridget Fahey: Okay, great. So I am teaching the Com Law course that you taught this winter quarter next quarter and I am maybe most looking forward to my class on Printz. So maybe you have made a grave error. So Printz is the second of two famous duo of cases announcing the anti-commandeering rule. So it's from 1997 and it comes five years after New York versus United States, probably a slightly more famous case, although the cases are frequently discussed and cited together. So New York announces the anti-commandeering rule by name, the rule had existed in various iterations before that, for the first time and New York said the Federal Government can't tell state legislatures that they have to enact a federal regulatory scheme. And then five years later Congress said in a statute called the Brady Handgun Violence Prevention Act that it wanted to not instruct state legislatures to help implement the law but just use the assistance of certain state executive officials and actually not to implement the law on a permanent basis but to provide temporary assistance.
[Case Audio]: The interim provisions of the Brady Act at issue here is not an exercise of any of those powers. The Court of Appeals for the Ninth Circuit held that in essence, Congress may commandeer the sheriff's departments of our country as long as the laws concerned do not interfere unduly with their duties.
Bridget Fahey: So just to give a little nugget of background on this act, the Brady Handgun Act established the national instant background checking system, physically a database that allowed individuals selling firearms to do instant background checks. And the Federal Government had the ambition in the Brady Act to run the system itself but while it got the system up and running it enlisted chief state law enforcement officers, or CLEOs, often municipal officials, to basically run background checks against existing state and federal databases. So a couple of CLEOs in Montana and Arizona challenged the law and said, this is just like New York. This is the Federal Government instructing the state how to regulate by enlisting state executive officials in the administration of federal law and this too should be prescribed under the anti-commandeering rule.
Will Baude: So commandeering I guess is telling state officials, state legislatures, or state executives you guys have to enforce federal law and the Supreme Court says you can't make them do that. And again, this may be obvious to some people, but doesn't the Federal Government tell states what to do all the time? Doesn't the Federal Government pass laws and say you can't discriminate or whatever else all the time? So why would there be some special rule?
Bridget Fahey: Yeah. No, it's such a good question because actually it's a point of some substantial confusion even in Printz and even in the Solicitor General's office, which I have the greatest respect for in kind of mischaracterize federal practice. So yes, the Federal Government regulates states in lots of context, but ordinarily, so in the context you can't discriminate the 14th Amendment specifically refers to state governments and authorizes Congress by appropriate legislation to prevent discrimination by those governments. So there are provisions of the Constitution that imagine the Federal Government instructing states to act in certain ways, but absent those express provisions in general we have a system of dual sovereignty. We have multiple different governments and the most basic logic of New York in Printz is if the Federal Government could just tell states to regulate or to either enact policy as New York prescribes or to administer federal policy as Printz prescribes then we would have one level of government. The states would be, as Justice O'Connor says in her New York opinion, "They would be like little boxes on the Federal Government's organization chart," rather than being independent governments that can exercise the discretion that is constitutive of being a discreet government.
Speaker 5: While the Constitution empowers Congress to hold out incentives to the states in order to urge the states to regulate in accordance with federal interests the Constitution does not authorize Congress to mandate directly that state governments regulate in a particular way.
Will Baude: Okay. So in Printz the Supreme Court says these CLEOs, which is a really terrible acronym...
I think of them as sheriffs. Aren't they just sheriffs?
Bridget Fahey: They're mostly sheriffs, yeah.
Will Baude: Okay. These sheriffs, they don't have to implement federal gun control law or background checks. So what happens? Does that take down the law because now they can't force anybody to do background checks?
Bridget Fahey: Yeah. So the interesting thing about Printz, and this is true as you know reading a lot of Constitutional Law cases, the case is a little bit of a womp womp in the end because it's a temporary program. The Federal Government says we're going to build this big national database. Now, I have lots of thoughts on big national databases, which I'm happy to talk about at a different time, but they're really complex and they take a lot of effort to create. And so in the meantime the Federal Government is like, but we want to implement the Brady Handgun Act right now. And so we're just going to have states do a three quarters job in the meantime. So yeah, so the decision in Printz, written by Justice Scalia, says, "This is the same as legislative commandeering. The Federal Government can't force states to enact policy and it also can't make state officials functionally federal administrative officials and subject to the instructions of Congress." And as a consequence this interim policy was invalidated. The Brady Handgun Act, the federal database was eventually created and now runs instant background checks over the country.
Will Baude: I love the idea of calling a case a womp womp. That's a technical term. A technical term.
Bridget Fahey: But the Constitutional principle in the case is so big and so important and this is why it's a case that I love because I feel like it really anchors in some ways my understanding of federalism as it's practiced today but the issue in the case ends up being, as is often the case, it ends up being a kind of funny one.
Will Baude: Yeah. I think that's especially true in federalism cases, it seems like.
Bridget Fahey: Totally. And one of the reasons is our governments are pretty good at negotiating around issues and so they end up resolving issues offline a lot of the time.
Will Baude: Oh, that's interesting. So it's important it doesn't really come to this. It's just if some sheriffs in Montana don't want to be involved in federal gun control even for a few months then we go all the way to the Supreme Court.
Bridget Fahey: Yeah, yeah, totally.
Will Baude: I think it's fair to say this is not a popular decision. And in fact, as far as I can tell, very few law professors think this decision is right or good or anything. So let's talk about that. My impression is skepticism falls into two camps, but you tell me. It seems like there are formalist type critiques like, where does the Constitution say anything about not being able to commandeer people? Doesn't it say the Federal Government can do things that are necessary and proper, et cetera? And then there are much more policy critiques that are just like, look, the Federal Government needs to able to get stuff done and the states' job is not to stop the Federal Government from getting stuff done. Am I right about the buckets? Is there some other theme?
Bridget Fahey: Yeah. So I would add a third bucket. So even though this is an opinion written by Justice Scalia, a great textualist and originalist, there's an onslaught of criticism for this case from textualist and originalists from textualist who say, this is like free standing federalism, there's no provision of the Constitution that's anchoring this case. And in fact Justice Scalia says at the very beginning of the case, I mean maybe on like the first or second page, he says, "There's no textual provision that resolves this case."
Speaker 6: There is no provision in the Constitution speaking directly to the question of whether Congress may compel state officers to enforce federal law and so our opinion looks to three sources of guidance. First, the historical understanding and practice, secondly, the structure of the Constitution and third, this court's prior jurisprudence.
Bridget Fahey: So he concedes right off the bat. This is not going to be a textualist answer. And then the case relies on a lot of practice from the first Congress and early congresses. There's been some subsequent historical work by I know a person we both know Jud Campbell, that the kind of says it's a little bit more of a mixed bag, the kind of early American practice. So from a purely originalist perspective it's not clear that you can fully support this rule.
And then the final group federalism scholars, who I see myself as talking to all the time who don't seem to love the anti-commandeering rule, are a camp called the new nationalists. People who say the Federal Government and states are working together all the time, they're deeply integrated, they're hardly separate at all. I think all of that is true. In every policy area, things that we think about as being very national, like national security, cities and states play a really significant role. In areas we think about as being very local, like land or education, the Federal Government plays a really significant role. So some of the people who see federalism as this system of integrated co-governance instead of this system of separated governance between the Federal Government and the states say the way states get power in our contemporary system is through the role they perform in implementing federal programs. So if we want states to have the power of voice to influence federal policy, think about statutes like the Affordable Care Act where states are administering health insurance exchanges, when they choose to do that they get a lot of discretion over how those exchanges are run.
So Heather Gerken has popularized this argument and she said commandeering may not be so bad because it gets states in the door. It gives them voice within the context of these joint governance programs. So I would maybe throw that in as a sort of third camp. Even people who are incredibly functionalists about federalism say why do we need to police the boundaries between the states and Federal Government.
Will Baude: Yeah. So the argument is you describe it almost sounds a little bit like...
I mean, it's sort of state paternalism, I guess. It's like, it's good for you states to be forced to execute federal law because then you'll get to have a voice in it. So like compulsory voting would be good for us because then we'd be forced to have a voice in our country. Is that the idea?
Bridget Fahey: Yeah. No, I think that that's totally right. Look looking from above we can see how states in fact exercise power and so we shouldn't run away from context that invite them to exercise power in that way and one of those context is by administering federal policy. It's Michael Lipsky's famous book about line level bureaucrat. It's like the states are the line level bureaucrats here and they exercise a tremendous amount of policy discretion. So if you want to be powerful in our federalist system you throw in with the Federal Government and take a role administering those programs. And if we have lots of commandeering then we'd have lots of state administration of federal law.
Will Baude: Okay. So actually, I'm curious about your thoughts with some of the formalist things, but let's come back to that in a minute because I'm curious, I'm guessing that's not why you are a fan of Printz. And so you're one of these new nationalists. Why would a new nationalist, or are you a new nationalist? Why would a new nationalist or somebody with your views think states should get to say no?
Bridget Fahey: I'm not going to say I'm a new nationalist. I mean, I think the descriptive premise of the new nationalist idea is, and if anybody wants some more context on this school federalism there's a great little symposium published in [inaudible 00:13:44] some five or six years ago that has some short little pieces by a group of scholars who collectively subscribe to these views. So I'm totally on board with the descriptive ideas of the new nationalists, which are like our federalism is not a system in which the Federal Government does some things, states do other things, and they largely do them independently. It's a system in which we have lots of layers of government that are all stepping on each other's toes and there are merits to that system, which we don't need to talk about necessarily today. At that highest level of abstraction maybe I'm a new nationalist. So I'm very interested in how our levels of government interact with each other, much more interested in that than how we keep them apart.
I think some people see the anti-commandeering rule as keeping the states and Federal Government apart. So that's the paternalistic reasoning that you are identifying in some of the arguments, that maybe commandeering is good for the states because it pulls them into national programs. I don't object an iota to cities and states participating in national programs, but what the anti-commandeering rule does is specify the terms on which cities and states join cooperative programs. It makes them voluntary efforts rather than unilateral instructions from the Federal Government. So cities and states play huge roles in all kinds of intergovernmental programs, but they generally do that a consensual basis and they do it even in a more concrete sense through legal instruments that basically look like contracts or treaties, legal instruments that are themselves premised on consent.
So one of the reasons I still like Printz is that you see Justice Scalia developing this understanding of federal state interaction, and it's a contrary Scalia view, which is that the Federal Government and states will interact and do interact and have always interacted. I mean, he's looking at examples from the early founding period, but he's pointing out that those interactions have been consensual and voluntary. So in the same way that contract bargains happen in the shadow of contract law, which requires things like consideration and mutual exchange and prohibits duress. I think federal state interactions largely take place in the shadow of the anti-commandeering rule since 1997 and the anti-commandeering norm since way before that.
Will Baude: Right. Okay. And this is good also for the point about practical effects you were making before, that all the federal programs people have actually heard of, like Medicaid or whatever are administered by the Federal Government and the states because the states are happy to be involved. They've got a role. So I guess you say this now it actually sounds very Chicago. So are you a free market Federalist in the sense that the state and the Federal Government should have to bargain over the terms of federalism and the bargain is presumed to be, make both parties better off the way we presume in markets? Or is that the idea?
Bridget Fahey: Yeah. So I know it kind of pains me. I've been teaching contracts this quarter and I feel like at every turn my students will bring a concept that they learned in one of the great core Chicago classes from a professor who's a specialist in law and economics and I'll say, "That's not quite right." So I feel like I'm often in the posture of being the anti-Chicago of Chicago or the counter-Chicago of Chicago, but in this area I think that that's right. I think there are lots of benefits to seeing inter government interactions as bargains. I mean, for one the Constitution does envision certain distribution of power between the Federal Government and states but there's just no way modern governance can function if we hew to that exact distribution of power.
Will Baude: Why not? What are you thinking of?
Bridget Fahey: Yeah. So I mean, I could name like a million laws for you, but in some cases, for instance, we need to solve certain collective action problems and so we need the federal government to take a role, but we don't necessarily need the federal government to do all of the governing in those areas. So having Congress enact a statute that performs a coordinating function, like the Affordable Care Act, and can create a national market can be positive, but in order to get a national market we don't necessarily need to divest states of all role in regulating healthcare, which has traditionally been a state function. So governance sometimes demands that we have multiple levels of government participate in the same projects. So the question is, and this is the conversation I would have with the new nationalist, the question is, how do they get into those projects. Do they get in an exchange like way or do they get in in a kind of directive like way?
Will Baude: Yeah. Okay. So, what about money? So it seems like one of the main ways you get states to opt in is you give them tons of money and it seems like that's expensive, inefficient, and politically fraught. I mean, sure, maybe the answer is the anti-commandeering doctrine is no big deal because the Federal Government can print money and it can tax us all for money and so it can always just buy off the states that are causing trouble. But why would we want a system where they have to buy off the states that are causing trouble rather than give the money wherever it needs to go?
Bridget Fahey: One argument, so let let's look at Medicaid because Medicaid is, as we know from NFIB, which sites very favorably the rationales given in Printz, that Medicaid constitutes a huge portion of state of state budgets. If you look at the intergovernmental agreements that implement the Medicaid program, they are hundreds of pages long. I mean, they represent a real body of law, of consider decisions. You know, look, we can all have our critiques about administrative officials at state and Federal Government not making the best decisions in all cases.
So I'm of course not arguing that these Medicaid agreements always reflect the very best policy, but in different states you see different policy, you see a lot of different kinds of policy. I mean, different states have radically different state structures. You know, some state legislatures meet a couple weeks a year. Some states legislatures meet all the time. States have different approaches to how they conduct their governance and so how they're going to implement a program like Medicaid will also be different. So you actually see 50 different federal state Medicaid programs. Would it be better and more efficient for the Federal Government to do it directly? It's a really enticing argument to lots of people in lots of fields, but one, you get less variation and adaptation to the circumstances on the ground. Two, you get a lot of calcification because you have just one body doing the regulating. And three, you get some sways. There's a new group of federalism scholars that are really emphasizing the hedging benefits of federalism, of federal state implementation of programs, which are, rather than wide shifts in policy between Republican administrations and Democratic administrations, which we might see if the Federal Government regulated all of these significant areas alone, you entrench policy by having that regulation happen in a cooperative way between the Federal Government and the state.
Will Baude: So Barack Obama implements the Affordable Care Act in an attempt to actually make it work. The Trump Administration maybe influenced the act in a attempt to make it not work. And so with that swinging back and forth it gives us more stability if we know in Illinois we've always got kind of the same attitude and in Arkansas they do something different.
Bridget Fahey: Yeah, meanwhile you have states and state officials whose job it is to just keep implementing the program, not withstanding those things. And those swings have an effect, but I actually think there's a big body of hidden law in these intergovernmental agreements that implement these programs that have relatively more, I mean, I'm going to make an empirical claim that I'm not prepared to support, so this is a hypothesis, but that I think have relatively more stability than we might might see in alternative ways of implementing these laws.
Will Baude: Okay. So the contracts have more stability in a way than the administrative agencies. Is that the empirical claim? You can't cite site sources on a podcast, so there're no footnotes. So you can say whatever you want.
Bridget Fahey: Yeah, exactly. The hypothesis would be that when you have agreements between the Federal Government and the states, and this can be a pro and a con, there might be in either federal or state government some administrative law issues you might have with this, but that one benefit of having the implementation of programs come as collaborations between governments instead of within one government alone is the chance to have a little bit more stability.
Will Baude: Yeah. Okay. So I have one more question on this, which I guess is the swings, it seems like though another thing that happens is the partisanship itself sometimes seems to drive policy. Like it seemed like during the Obama years there were states that were against the Affordable Care Act not because they didn't want many of its policies but just because it was identified with a Democratic president and vice versa. So in some ways it seems like it almost drives the states in both directions to madness.
Bridget Fahey: Yeah. Well, I mean, federalism isn't a politically neutral territory. So the idea that federal politics doesn't influence state politics, especially relatively, state politics that are pegged to relational issues, like where states are taking some stance against the Federal Government. I mean, it was a surprise. My understanding is it was a surprise of the Obama Administration that more states didn't choose to implement the Affordable Care Act for precisely the reasons that Heather Gerken has described. You would have more power, more control if you opted to take a role in implementing the program than if you just left it to the Federal Government. And just for those of you who aren't super in on the details of the Affordable Care Act because this was a long time ago, the Obama Administration said states can run their own health insurance exchanges, but if they don't the Federal Government will run the exchanges for them. Now the federal exchange did not work. Some of us also remember very well right off the bat. So states that had opted to from their own exchanges in many cases stood in better stead right at the beginning.
Will Baude: Yeah. So I'm just curious for you, I get the story that when the states and Federal Government cooperate that'll be the best of both worlds and we'll reach a good term so we should implement the programs, but when they decide not to cooperate and they decide to fight and yell at each other all the time, for you is that just the cost of the cooperation or is there benefit in that too?
Bridget Fahey: Sure. Yeah. I think there can be benefit in that too. I mean, and there are areas, and this is the topic of some of my ongoing scholarship, I think there are areas where federalism unifies power too much where we should want more division of power. I think that having muscular rules like the anti-commandeering rule, which say if the states are going to surrender some power, some regulatory power, they better get something in return and vice versa. If the Federal Government's going to surrender something to the states it should get something in return.
A lot of federalism cases, including Printz, talk about achieving a healthy balance of power and a lot of people say like, what is a healthy balance, totally. It certainly would be hard to put a precise point on what constitutes a healthy balance of power but if you have a system in which the states and Federal Government have to bargain to get powers that the other government possesses and they want and bargain to give those up, then you at least maintain some distribution of power. Whereas without a muscular anti-commandeering rule you start to see the unification of power. That might feel really appealing in certain context where we think Congress has the right regulatory policy. It might be less appealing in context where Congress doesn't seem to have the right regulatory policy. You know a lot of people who had opposed the anti-commandeering rule thought about reconsidering those views in light of the sanctuary city litigation over the last five years. And it might look different in areas like policing where we're already acutely concerned about the concentration of power. So forcing bargains can also maintain a dispersion of power in a way that can get the benefits of coordination between levels of government without the problems of deeply concentrated power in one government.
Will Baude: That's the perfect segue to a couple of the broader, theoretical questions I was curious about. So one is, and this is something I hear a lot, I'm sure you must hear it even more often than I do, is the complaint that, well nobody actually cares about federalism outside of Constitutional Law professors maybe on this podcast. Like, the number of people who think federalism principles actually matter in their own right is zero. Everybody just thinks the National Government should have control when the National Government is implementing their policies and the National Government should not have control when they're implementing the other guys' policies. So all Republicans stopped believing in federalism when they wanted to force states to enforce immigration law and vice versa for healthcare law. So is this all a charade?
Bridget Fahey: I don't think so. I mean, at most those people would like federalism half the time and hate federalism the other half of the time so federalism is at least still half valuable. I mean, you see the same kind of critiques of separation of powers and other areas where we're striving at least for sort of neutral ideas that don't rest on, I like what a particular government is doing and dislike what another government is doing.
One first response I would have to that idea is that I think it is way more complex than that. That's still a pretty binary world, which envisions that when the Federal Government is in power it even has the capacity to implement its policy and in areas where states get to regulate that they have the capacity to implement their policies. I mean, I just think in some ways a little bit of my reaction to that is we're so far beyond that world.
What really drives policy in a lot of big cooperative federalism programs is really boring. It's like the devils in the details. I think it's in these inter government agreements that nobody reads and often aren't even made available. It's in phone calls and interactions between state administrative officials and federal administrative officials. It's like the deep, deep, deep state. It's the deep federalism state. It's like almost premature to make a judgment about the quality of governance that happens in those spaces because we know so little about them. What I do think we know is that we're very, very deep into governance happening in those spaces. And so it is just such a radical simplification to believe that even when Congress passes a statute that that statute is going to be the final word on particular policy question.
Will Baude: Yeah. They're not the people who actually have to get it done on the ground.
Bridget Fahey: Right. Yeah. And it's just almost inconceivable to me that those people would ever be within one government or the other. The implementers aren't constantly drawing on for all sorts of reasons, probably political and sociological and intellectual. There're counterparts in other levels of government.
Will Baude: Right. Although you could imagine a world where the states really were on the federal government's org chart, where we'd say the Federal Government is in charge of setting national power and you guys are in charge of making things happen on the ground.
Bridget Fahey: No, I mean, there is a kind of interesting sort of critiques of the administrative state that it lacks sort of democratic accountability. I suppose you could imagine saying the states are administrative agencies of the Federal Government but they are elected from below by certain jurisdictions within state boundaries. I mean, I think there's something tempting in that view. I think it would be a really radical understanding of what administration looks like.
I mean, maybe here's a question back at you. I've been a little puzzled by the idea that there's not a strong textual hook for federalism doctrines because the 10th Amendment is such a strong statement about reserving power to the states. And if we took the 10th Amendment really seriously from a textualist perspective presumably the power of the Federal Government would be quite small and the power of the states would be quite large, but because the Court has long had a little bit of a love, hate relationship with the 10th Amendment and sort of sites it at convenience instead of taking it really seriously, by the time we get to Printz in 1997 it's like, oh, there's no textual hook, but of course the 10th Amendment is a pretty strong textual hook for the idea that we have two separate levels of government, I think there are more levels of government by the way, cities and counties and Native American tribes, which we talk about less, but should certainly be starring players in this story, but that we have at least two levels of government and we have to do what we can to maintain their distinctness as levels of government. I mean, that feels pretty textually supported in the 10th Amendment because it's just one step from no anti-commandeering role to jurisdiction stripping of state legislatures and state governors.
Will Baude: Yeah. Okay, good. So, my view is the 10th Amendment says, "Everything not delegated to the Federal Government is reserved to the states," and the Supreme Court has called this a truism because the federal government only has limited enumerated of powers so obviously anything not delegated to the federal government is limited to the states. I just think that's kind of right, except that it's only a truism if it's true. So if you're interpreting the Constitution in a way that gives all the power to the federal government and makes the states not exist the 10th Amendment is a reminder that you've done something wrong, but I don't see it as a useful guide to what you did wrong.
And for people who believe in federalism there are so many choices. Maybe we could talk about why the federal government can pass handgun legislation when it doesn't have a handgun power and it's all supposedly part of interstate commerce, which is kind of a reach. This is what I ended up spending all my time on in Con Law is like all the different choices to expand the federal government's power. So I'm most sympathetic to Printz as a like, here we are in the 1990s, Congress has power over virtually everything. We've got to stop it somehow. Or they're saying like, something must be done. This is something, therefore it must be done. So like, we must draw a line somewhere. This is somewhere so we're going to draw the line here, but I don't know that it makes a lot of sense if you were thinking about it theoretically, that this is the place you'd draw the line.
Bridget Fahey: I mean, it makes sense in the very basic intuitive way that you just have to run, I mean, you don't even have to run a sophisticated counterfactual. You just have to run like the most crude counterfactual. You just have to say, if the federal government could instruct state legislatures what laws to pass what would be the purpose of having state legislatures? If the federal government could instruct state governors and state administrative officials who are often elected what to do what would be the point of having those elections? What would be the point of having state governors and state administrative officials? What would be the point of having state Constitutions? And in fact, even setting aside the question in Printz, a huge part of the debate between Justice Scalia in the majority and Justice Stevens in the dissent is about the distinction between legislatures and executive officials. But even that really quickly collapses with even the crudest logical next step, which is what if the legislature of Montana says, I forbid the CLEOs from running any background checks. Now the Brady Handgun Act is raising exactly the issue presented in New York.
Will Baude: That's a perfect addendum. So my confession is I thought it would be a brilliant idea to take Printz out and teach Murphy instead, both because I am more skeptical, I actually still believe in the legislature executive line so I think Murphy is right on formalist grounds and Printz is not, and I love Justice Alito's blasé attempt to make it that commandeering sound like a totally...
It's just like, this may sound arcane, but it's just totally natural, and explains it.
[Case Audio]: Although the term anti-commandeering sounds arcane, the anti-commandeering doctrine actually simply recognizes a fundamental feature of our Constitution's design.
Will Baude: And it did not succeed. So, it was my experiment and probably my biggest mistake this year in the Con Law syllabus.
Bridget Fahey: Interesting. Well, I hope your students get Printz next year.
Will Baude: Definitely. Definitely.
Bridget Fahey: Very good.
Will Baude: Special thanks to Barbara Flynn Currie and David Currie for the reading of the Constitution in our introduction. Be sure to hit subscribe and follow us on Twitter at U Chicago Con Law.