Human Rights Commentator

• Pages: 192
• Publication year: 2021

Connecticut Bar Journal Volume 71.

71 CBJ 192. Human Rights Commentator

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Human Rights Commentator

By EMANUEL MARGOLIS (fn*)

"Judicial activism" has long been a pejorative of the political right. Since the days of the Warren Court, it has been a form of shorthand for judges, especially U.S. Supreme Court justices, who have given broad interpretations of constitutional provisions in order to protect and promote human rights.

The shoe is now on the other foot. More specifically, our current "judicial activism" is being manifested by a group of five conservative Supreme Court justices. In its perennial rush to judgments in June, the Supreme Court ended its 1996-97 Term with a flourish of decisions, several of which radically altered our constitutional landscape. (fn1)

The Court's "activism" of the 1960's took the form of expanding the reach and the depth of the Bill of Rights and the Fourteenth Amendment. The landmark cases expanded, although certainly were not limited to, the Civil (fn2) and criminal (fn3) rights of individuals. "States' rights" were constricted; dual sovereignty lost much of its doctrinal force.

The activism of the past ten years is almost exactly in the reverse direction. "States' rights"-both civil and criminal are not only being reasserted successfully as against the individual, but, perhaps more ominously, as against the authority

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of the Congress itself. The duel between the sovereigns, state and federal, would appear to be, in the clich6 of current sports vernacular, changing momentum.

Several of the recently decided Supreme Court cases are particularly illustrative. They impact directly on the very structure of our government. They invoke federalism and separation-of-powers concerns, seriously crimping the parameters of federal statutory remedies. The "judicial activism" of the conservative members of the Supreme Court can no longer be doubted. (fn4)

In a manner reminiscent of the post-Civil War Supreme Court, which undermined Congress's efforts to provide fundamental civil rights to the Negro (fn5) pursuant to the then newly enacted Thirteenth, Fourteenth and Fifteenth Constitutional Amendments, the current Court majority is reasserting the principle of federalism as a weapon against Congressional statutory reform. The Court's deference to the branch of government constitutionally empowered to enact "the Supreme Law of the Land" (fn6) is diminishing dramatically.

A. Printz v. United States: The Brady Act Under the Gun

The "Commerce Power" clause (fn7) of the federal constitution has become a major source of Congressional authority. (fn8)

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This trend began in 1937 with the landmark decision in NLRB v. Jones & Laughlin Steel Corp. (fn9) For almost six decades following Jones & Laughlin, the Court consistently deferred to Congressional action taken under its commerce clause power. (fn10) But the pattern changed in abrupt fashion in 1995, (fn11) and this tremor was followed by the jurisprudential earthquakes of 1996 and 1997

The Court's decision in PYintz v. United States (fn12) was eagerly awaited by constitutional scholars and Court watchers generally (fn13)-less so for its effect on federal control regulation than for its longer-term effect on fundamental constitutional principles of separation of powers, federalism and dual sovereignty. (fn14) In words that might as readily apply to the Pyintz case, justice O'Connor, writing for the Court five years ago, declared: "This case implicates one of our Nation's newest problems of public policy and perhaps our oldest question of constitutional law." (fn15)

Delivering the opinion for the Court, justice Scalia articulates the "question presented" in these terms:

. . . whether certain interim provisions of the Brady Handgun Violence Prevention Act . . . commanding state and local law enforcement officers to conduct background checks on prospective handgun purchasers and to perform certain related tasks, violate the Constitution. (fn16)

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It was almost thirty years ago that Congress began its gun-control odyssey, one which is far from concluded. In 1968, it passed a statute creating the first detailed federal statutory program regulating the distribution of firearms (fn17) In 1993, Congress amended the law by enacting the "Brady Act," which required the U.S. Attorney General to create a national instant background-check system by November 10, 1998. (fn18) As a transitional measure, and until a computerized system could be placed "on line," the statute required the chief law enforcement officer (CLEO) in local communities to "make a reasonable effort to ascertain within 5 business days whether receipt or possession [by the applicant for the handgun] would be in violation of the law . . . (fn19)

Messrs. Printz and Mack were sheriffs from Montana and Arizona, respectively. They objected to being pressed into service, even temporarily, to help administer a federal regulatory scheme. While the Court could find no constitutional provision speaking to the precise question raised, (fn20) it held that the answer to the CLEO's challenge is to be found in the legislative history (fn21) and ultimate structure of the Constitution, as well as the Court's jurisprudence. (fn22) In arriving at his ultimate conclusion that this component of the Brady Act does not pass constitutional muster, justice Scalia, speaking for the Court, emphasizes not only the separation of powers, but the separation of the federal and state sovereignties (dual sovereignty), as essential components of "the Constitution's stru

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ctural protection[s] of liberty." (fn23)

Printz speaks at one point of the "compelled enlistment" (fn24) of CLEOs, at another of "executive commandeering," characterizing it as a novel phenomenon which was unknown to the federal courts until the 19701S. (fn25) While conceding that the Court had earlier shown a measure of tolerance for such a federal command to the states to enforce federal law, (fn26) Justice Scalia relies heavily on its more recent decision in New York v. United States. (fn27) The constitutional crux of the New York case was the Court's invalidation of a provision of a congressional statute (fn28) which gave states the option of either adopting regulations required by Congress for disposing of radioactive wastes within their borders or taking title to and possession of such wastes. The court treated the "option" as tantamount to a command:

A choice between two unconstitutionally coercive regulatory techniques is no choice at all. Either way, "the Act commandeers the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program," [citation omitted] . . . an outcome that has never been understood to lie within the authority conferred upon Congress by the Constitution. (fn29)

Citing both the language and rationale of the Court in New York v. United States, justice Scalia concluded "categorically" that "[t]he Federal Government may not compel-the States to enact or administer a federal regulatory...