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States and Background Checks

I’ve had this article from National Review in my tabs for a while, but I wanted to comment on something:

So watch out. If the Obama administration proposes money for states to conduct background checks, according to federal instructions, or “permission” for states to do background checks, according to federal instructions, the governments of the several states should answer with one voice: Absolutely not. Washington should pay for, implement, and be accountable for its own policies

In most cases, states don’t conduct background checks. That is done by the FBI on the federal dime. There are states that do conduct their own background checks and act as a point-of-contact with the federal system. There is little doubt the federal government will make monies available to the states to report mental health records to the federal system. Indeed, such monies are already available. I don’t think that’s really a violation of the principle of dual sovereignty, to merely hold federal money out to entice a state to do something. In Printz v. United States the Court ruled that the federal government may not commandeer state agencies or officers, and in NFIB v. Sebelius, the Court ruled the federal government may also not threaten to cut certain funds in order to coerce states. But it can hold out money as an enticement to do the federal government’s bidding.

One Response to “States and Background Checks”

  1. gattsuru says:

    The problem is that, even post-Sebelius, it’s not only possible but plausible for the federal government to still put fairly ruinous fiscal ‘offerings’ on the table to coerce states into decisions they would not themselves normally make. Sebelius distinguishes itself from Dole, the national alcohol age case, by noting the former revolves a threat to 10% of a state’s budget while the latter offered only 0.5% — but 0.5% of state budgets is still billions of dollars. Not a single state resisted it for the drinking age question, despite a law that large swathes of the population detest and do not hesitate to ignore.

    Constitutionally, yes, the federal government can wave out free money in exchange for this little favour and it’ll be A-OK with the courts. Practically speaking, it’s a camel’s nose in the tent matter. The more the federal government can argue there’s a “program” that is “rationally related” in interest or goals, the easier it’ll be to argue stuff down the road. And there’s already a lot of camel nose in terms of grants to the states.

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