The Trouble with Tarble's: An Excerpt from an Alternative Casebook

By Farber, Daniel A. | Constitutional Commentary, Winter 1999 | Go to article overview

The Trouble with Tarble's: An Excerpt from an Alternative Casebook


Farber, Daniel A., Constitutional Commentary


Chief Justice O'CONNOR delivered the judgment of the Court and an opinion joined by Justices REHNQUIST, THOMAS, and KENNEDY, and by Justice SCALIA except for footnote 1.

[The Gun Control Act, 18 U.S.C. [sections] 921 et seq., prohibits firearms dealers from selling handguns to any person under 21, to anyone not resident in the,, dealer's state, to convicted felons, and to certain others. In 1993, the Brady Act (passed after an unsuccessful attempt to assassinate the President) amended the statute, imposing a system of "interim" background checks for purchasers before a system of instant electronic checks goes into effect. The Brady Act requires a "chief law enforcement officer" to make a "reasonable effort to ascertain within 5 business days whether receipt or possession would be in violation of the law." Printz, a local sheriff, refused to comply with the statute, and the Attorney General obtained a federal injunction requiring him to do so. When Printz refused to obey the injunction, he was convicted of criminal contempt and received a three-month sentence. He thereupon filed a petition in state court for a writ of habeas corpus, which the state courts granted.]

The state courts held that the Brady Act violates the Tenth Amendment and the guaranty clause of the Constitution. We reverse without reaching the merits of this claim. Printz relies on Tarble's Case, 80 U.S. (13 Wall.) 397 (1872), as the basis for state court jurisdiction. It is true that this Court held in Tarble's Case that state courts have jurisdiction to inquire into the validity of federal custody--in that case itself, into whether the petitioner was unlawfully enlisted into the Army while a minor.(1) We do not have occasion to question that holding today, though it has been severely criticized by commentators and has been eroded by recent decisions of this Court. See, e.g., Richard H. Fallon, Jr., Daniel J. Meltzer & David L. Shapiro, Hart and Wechsler's The Federal Courts and the Federal System 459-461 (4th ed. 1996).

Nevertheless, on the facts of this case, it is clear that the state courts lacked jurisdiction. Inasmuch as Printz is seeking an unprecedented expansion of an existing constitutional rule, his habeas petition is barred by Teague v. Lane, 489 U.S. 288 (1989). Teague squarely held that a habeas court lacks jurisdiction to consider a "new rule" of constitutional law. This is just such a case.(2)

The sweeping interpretation of the Tenth Amendment sought by Printz would unquestionably be a "new rule" under Teague. The lower courts relied largely on our holding in New York v. United States, 505 U.S. 144 (1992). But as both the plurality opinion by Justice Stevens and the concurring opinion of Justice White make clear, New York stands at most for the principle that Congress lacks the power to commandeer state legislatures. It would be an extraordinary expansion of New York to extend this principle to state executive officers, particularly in the face of substantial evidence that the Framers intended the state executives to play a central role in enforcing federal law. See Saikrishna Prakash, Field Office Federalism, 79 Va. L. Rev. 1957 (1993).

It surely "would not have been an illogical or even a grudging application" of prior law "to decide that it did not extend to the facts" of this case. See .Edwards v. Arizona, 451 U.S. 477 (1981).(3) That being true, Teague blocks the use of state collateral review.

Consequently, the judgment of the lower court is reversed and remanded with instructions to dismiss for lack of jurisdiction.

Justice SCALIA concurring in part and concurring in the judgment.

*** Power. That is what this suit is about. The allocation of power among the federal government and the state courts in such a fashion as to preserve the equilibrium the Constitution sought to establish. Frequently, an issue of this sort will come before the Court clad, so to speak, in sheep's clothing: the potential of a novel principle to undermine the equilibrium of power is not apparent and must be discerned by a careful and perceptive analysis. …

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