In Printz v. United States (1997), the Court held that certain sections of the Brady Handgun Violence Prevention Act were unconstitutional. Until the Attorney General set up a national system, the Act required the chief local law enforcement official to make certain background checks. The Court held that Congress exceeded its authority by requiring local law enforcement officials to take this action. Writing for the majority, Justice Scalia “conclude[d] categorically . . . ‘The Federal Government may not compel the States to enact or administer a federal regulatory program.” ’ The Court offered two justifications. First, these commands to the states are “fundamentally incompatible with our constitutional system of dual sovereignty.” Second, the Brady Act violated the separation of powers because it assigned the enforcement of federal law to state officials, thereby “reducing the power of the Presidency.”
Although the first justification commanded the immediate attention of a majority of the Court, four justices in dissent, lower courts, the national press, and the academy, almost no one noticed Justice Scalia's ever-so-brief aside on separation of powers. Some observers may have ignored the point because they thought it was dicta. Perhaps others failed to notice because Justice Scalia's separation of powers analysis sounded so familiar and, thus, appeared unexceptional. The analysis should have been familiar. Justice Scalia's separation of powers principle has been expounded before—namely, by Justice Scalia in his dissent in Morrison v. Olson.
In fact, Justice Scalia took his brief separation of powers argument in Printz—analytically and rhetorically—straight out of his Morrison dissent. Justice Scalia has argued for a theory of the unitary executive that the remainder of the Court has never supported. Remarkably, Justice Scalia offered his argument without any hint of its provenance or its potential. Taken to its logical conclusion, Justice Scalia's separation of powers principle in Printz would not only resuscitate his dissent in Morrison, it would threaten Humphrey's Executor v. United States and the independence of the fourth branch of government, the independent regulatory agencies. Although six Justices wrote opinions in Printz and they had more than their share of give-and-take, somewhere in the process no one was watching Justice Scalia. And despite vigorous dissents by Justices Stevens, Souter, and Breyer, Justice Scalia picked the Court's pocket clean on separation of powers.
77 Notre Dame L. Rev. 269 (2001).
Bybee, Jay S., "Printz, the Unitary Executive, and the Fire in the Trash Can: Has Justice Scalia Picked the Court's Pocket?" (2001). Scholarly Works. Paper 348.