No. 94-16940, 94-17002 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT RICHARD MACK, Sheriff of Graham County, Arizona, Plaintiff-Appellee v. UNITED STATES OF AMERICA, Defendant-Appellant ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA BRIEF FOR APPELLEE / CROSS APPELLANT SHERIFF RICHARD MACK David T. Hardy Stephen P. Halbrook 8987 E. Tanque Verde 10560 Main Street Suite 265 Suite 404 Tucson, AZ 85749 Fairfax, VA 22030 (602) 749-0241 (703) 352-7276 Attorney for Appellee Attorney for Appellee TABLE OF CONTENTS STATEMENT OF JURISDICTION 1 STANDARD OF REVIEW 2 SUMMARY OF ARGUMENT 3 ARGUMENT 4 I. THE DISTRICT COURT CORRECTLY FOUND THAT CONGRESS, IN REQUIRING STATE OFFICIALS TO ADMINISTER 18 U.S.C. Sec. 922(s) UNDER PAIN OF LAW, VIOLATED THE TENTH AMENDMENT AND EXCEEDED ITS COMMERCE CLAUSE POWERS 4 A. By requiring State officials to administer a Federal program under pain of law, the Brady Act violates the parameters of the Tenth Amendment as recognized by both Supreme Court and Ninth Circuit Caselaw. 4 1. The Tenth Amendment Bars Legislation which Singles out State Officials and Imposes upon them the Duty of Administering Federal Programs. 5 a. Evolution of Caselaw Prior to New York v. United States. 5 b. New York v. United States and its progeny. 7 2. 18 U.S.C. Sec. 922(s) Imposes Substantial Duties Upon State Officials, in Violation of the Tenth Amendment. 9 3. Appellant's Attempts to Distinguish New York v. United States Fail. 11 B. The Trial Court correctly Ruled that Appellee is not Engaged in or Affecting Interstate Commerce, so that Requiring him to Regulate such Commerce is beyond the Powers given Congress by Article I, Sec. 8. 15 C. Appellant's Historical References Support its Position Neither as to the Tenth Amendment Nor as to the Commerce Clause. 17 II. THE MANDATE OF 18 U.S.C. Sec. 922(S) THAT CHIEF LAW ENFORCEMENT OFFICERS MAKE A "REASONABLE EFFORT" TO INVESTIGATE WHETHER EACH FIREARM SALE VIOLATES ANY FEDERAL, STATE OR LOCAL LAW IS VOID FOR VAGUENESS. 18 A. The District Court Correctly Found that 18 U.S.C. Sec. 922(s) was Void for Vagueness in Violation of the Fifth Amendment's Due Process Clause. 18 B. The District Court Correctly Held that the Issue was Ripe and Justiciable. 20 1. Appellee, a Public Official Bound to Comply with Statute as Part of his Employment, Has Standing to Seek a Determination of Constitutionality Even Absent Imminent Threat of Prosecution. 20 2. Appellee is Exposed to the Threat of Criminal Prosecution 21 a. 18 U.S.C. Sec. 922 and Sec. 924 Subject Chief Law Enforcement Officers to Criminal Penalties Should They Fail to Comply. 21 b. The Memorandum is a Self-Serving Litigation Tool which Contradicts the Position of the Agency with Arrest Powers and Does Not Bind the Agency with Prosecutive Powers. 24 3. The Issues Presented are Ripe and Justiciable. 27 III. BY REQUIRING A NON-FEDERAL EMPLOYEE TO DEVOTE SUBSTANTIAL LABOR TO A FEDERAL PROJECT UNDER PENALTY OF LAW, 18 U.S.C. Sec. 922(S) VIOLATES THE THIRTEENTH AMENDMENT 29 IV. THE DISTRICT COURT DID NOT ERR IN THE EXERCISE OF ITS EQUITABLE POWERS 31 V. THE UNCONSTITUTIONAL PORTIONS OF 18 U.S.C. Sec. 922(S) CANNOT BE SEVERED FROM ITS VALID PORTIONS 31 A.Unconstitutional Provisions of Statute may be Severed only where the Remainder is Fully Operative and in the Manner which the Legislature Intended. 31 B.The Unchallenged Portions of 18 U.S.C. Sec. 922(s) are not Fully Operative Absent the Invalid Portions 32 CONCLUSION 35 AUTHORITIES CITED Cases: Abbott Laboratories v. Gardner, 387 U.S. 136 (1967) 28 Alaska Airlines v. Brock, 480 U.S. 678 (1987) 31-32, 34 Aptheker v. Secretary of State, 378 U.S. 500 (1964) 24 Arizona v. EPA, 521 F.2d 825 (9th Cir. 1975) 6 Babbit v. Farm Workers Nat'l Union, 442 U.S. 289 (1979) 21 Bailey v. Alabama, 219 U.S. 219 (1911) 30 Beacon Journal Pub. Co. v. Unger, 532 F. Supp. 55 (N.D. Ohio 1982) 20 Board of Natural Resources v. Brown, 992 F.2d 937 (9th Cir. 1993) 8, 11, 13-15, 20-21, 24, 32, 34 Bowen v. American Hospital Ass'n, 476 U.S. 610 (1986) 13 Bresgal v. Brock, 843 F.2d 1163 (9th Cir. 1987) 31 Brown v. EPA, 521 F.2d 827 (9th Cir. 1975) 6, 8, 15, 21 Butler v. Perry, 240 U.S. 328 (1916) 29 Connally v. General Construction Co., 269 U.S. 385 (1926) 19 District of Columbia v. Train, 521 F.2d 971 (1975) 6 Doe v. Boulton, 410 U.S. 179 (1973). 28 Epperson v. Arkansas, 393 U.S. 97 (1968) 20 Federal Energy Regulatory Comm'n v. Mississippi, 456 U.S. 742 (1982) 6-8, 17 Ford Motor Co. v. Nat'l Highway Safety Admin., 473 F.2d 1241 (6th Cir. 1973) 32 Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985) 5, 7-8 Gentile v. State Bar, 501 U.S. 1030 (1991) 21 Grayned v. Rockford, 408 U.S. 104 (1972) 19 Greene v. McElroy, 360 US 474 (1959) 30 Gregory v. Ashcroft, 501 U.S. 452 (1991) 24, 31 Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966) 14 Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264 (1982) 6-8, 17 Hotel and Restaurant Workers' Union v. Smith, 846 F.2d 1499 (D.C. Cir. 1988). 28 Hurtado v. United States, 410 U.S. 578 (1973) 29 Kentucky v. Dennison, 65 U.S. (24 How.) 66 (1861) 18 Kolender v. Lawson, 461 U.S. 352 (1983) 19 Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304 (1816) 14 Maryland v. EPA, 530 F.2d 215 (4th Cir. 1975) 6 Meinhold v. United States Dep't of Defense, 34 F.3d 1469 (9th Cir. 1994) 31 Michael Regan Co. v. Lindell, 527 F.2d 653 (9th Cir. 1975) 19 Moore Ice Cream Co. v. Rose, 289 U.S. 373 (1933) 24-25 National League of Cities v. Usery, 426 U.S. 833 (1976) 5 Nat'l Advertising Council v. City of Orange, 861 F.2d 250 (9th Cir. 1988) 2 Neu v. Grant, 548 F.2d 281 (9th Cir. 1977) 3, 19 New York v. United States, 112 S.Ct. 2408 (1992) 3, 5, 7-8, 10-11, 13, 15-17, 31-32 Pacific Gas & Elec. v. State Energy Comm'n, 461 U.S. 190 (1983) 28 Pennell v. City of San Jose, 485 U.S. 1 (1988) 28 Poe v. Ullman, 367 U.S. 497 (1961) 28 Pollock v. Williams, 322 U.S. 4 (1944) 29 Portman v. County of Santa Clara, 995 F.2d 898 (9th Cir. 1993) 27 Puerto Rico v. Branstad, 483 U.S. 219 (1987) 14 Railway Mail Ass'n v. Corsi, 326 U.S. 88 (1945). 27 Securities and Exchange Comm'n v. Chenery, 318 U.S. 80 (1943) 29 South Carolina v. Baker, 485 U.S. (1988) 8, 17 South Dakota v. Dole, 483 U.S. 203 (1987) 5 Springfield Armory, Inc. v. City of Columbus, 29 F.3d 250 (6th Cir. 1994) 29 State of New York v. United States, 942 F.2d 114 (2d Cir. 1991), rev'd 112 S.Ct. 2408 (1992). 7 Steffel v. Thompson, 415 U.S. 452 (1974) 28 Stewart Machine Co. v. Davis, 301 U.S. 548 (1937) 5 Stockton v. Lucas, 428 F.2d 979 (TECA 1973) 29 Testa v. Katt, 330 U.S. 386 (1947) 13 The Selective Draft Law Cases, 245 U.S. 366 (1918) 29 The Slaughterhouse Cases, 83 U.S. (16 Wall.) 36 (1872) 29 Toibb v. Radloff, U.S. , 115 L.Ed. 145 (1991) 30 United States v. Cohen Grocery Co., 255 U.S. 81 (1921) 19 United States v. Jackson, 390 U.S. 570 (1968) 32 United States v. Kozminski, 487 U.S. 931 (1988) 29 United States v. Lovett, 328 US 303 (1946) 30 United States v. Schwartz, 785 F.2d 673 (9th Cir. 1986) 22 Yick Wo v. Hopkins, 118 U.S. 356 (1886) 15, 31 Younger v. Harris, 401 U.S. 37 (1971) 27-28 Zepeda v. United States INS, 753 F.2d 719 (9th Cir. 1983) 31 Statutes: 16 U.S.C. Sec. 620 8 18 U.S.C. Sec. 921(a)(20) 9 18 U.S.C. Sec. 921(a)(20) 9 18 U.S.C. Sec. 922(g) 3, 9 18 U.S.C. Sec. 922(g) 3, 9 18 U.S.C. Sec. 922(s) 1-3, 9-11, 13, 18-19, 21, 23, 25, 29, 32, 35 18 U.S.C. Sec. 924 3, 22 18 U.S.C. Sec. 925A 10 18 U.S.C. Sec. 926 25 28 U.S.C. Sec. 2412 35 5 U.S.C. Sec. 552(a)(1)(D) 26 Pub. L. 103-159, 107 Stat. 1541 25 Pub. L. 90-618, Sec. 103 25 Regulations: 28 C.F.R. Sec. 0.25(a), (c) 26 28 C.F.R. Sec. 0.55(a) 26 59 Fed. Register 9498 (Feb. 28, 1994) 27 TD ATF-354, 59 Fed. Register 7110, 7111 (Feb. 14, 1994) 25 Legislative Materials: 137 Cong. Record H2831 (Daily ed. April 1, 1991) 33 137 Cong. Record H2676 (Daily ed. April 1, 1991) 33 139 Cong Record S16,414, 16,425 (Daily ed., Nov. 19, 1993) 23 139 Cong. Record H9095 (Daily ed., Nov. 10, 1993) 34 139 Cong. Record H9107-08 (Daily ed., Nov. 10, 1993) 34 139 Cong. Record H9116 (Daily ed., Nov. 10, 1993) 34 139 Cong. Record H9143-44 (Daily ed. Nov. 10, 1993) 23 139 Cong. Record S16,416 (Daily ed., Nov. 19, 1993) 35 H. R. Rep. No. 103-344, reprinted 1993 U.S. Code, Cong. & Admin News 1970 9, 22-23 H.R. 1025 (103d Cong.) 33 H.R. Rep. No. 102-47 (102d Cong., 2d Sess.) 33 H.R.7 (102d Cong.) 33 Miscellaneous: Brief for the Federal Appellees, Board of Natural Resources v. Brown, Docket No. 92-35004 (9th Cir., brief filed May 28, 1992) 24 Brief of the United States, New York v. United States, U.S. Supreme Ct. Docket No. 91-543, brief filed Mar. 4, 1992 12 Deborah Merritt, The Guarantee Clause and State Autonomy, 88 Col. L. Rev. 1 (1988) 14 Ninth Circuit Rule 28-2.3 35 S. Prakash, Field Office Federalism, 79 Va. L. Rev. 1957 (1993) 17 STATEMENT OF JURISDICTION Appellee-cross appellant agrees with Appellant's statement of jurisdiction. STATEMENT OF FACTS Appellee, Sheriff of Graham County, Arizona, commands a force of twelve sworn officers who must provide around-the-clock security for a 4,500 square mile county and its 28,000 residents. Excerpts of Record [Excerpts] at 47. Even prior to imposition of the statutory duties at issue, he had been able to average but 1.5 deputies on patrol at any given time, Id., and had assumed student drug education duties personally, in order to avoid draining patrol strength. Id. at 47-48. Pub. L. 103-159, 107 Stat. 1537, sometimes known as the "Brady Act," created 18 U.S.C. Sec. 922(s). Under that subsection, Appellee found himself classed as the "Chief Law Enforcement Officer" (CLEO) for the county. Id. at 47. Its 35 licensed firearms dealers were required to notify him of each handgun sale, and he was required to make "reasonable effort" to ensure each sale was legal. During the months prior to hearing, he had involuntarily performed 80-90 background checks, Id. at 105, more than one per working day, at an expenditure of 1-2 man-hours each. Id. at 101, 107. Three months of work yielded but one "hit," that of a resident who asserted his civil rights had been restored. Id. at 101. He has been blamed for wasting county resources on the checks. Id. 102-03. Appellee had been advised by the County Attorney that his oath and duties of office required him to comply with the Brady Act unless it was found unconstitutional. Excepts at 44; Supplemental Excepts at 3. Appellant introduced a statement of a Justice Department official, who opined that defaulting CLEOs could not be prosecuted. Excerpts at 33. Appellee established that Treasury Department's Brady Act Coordinator had stated at compliance seminars that they could be. Supplemental Excerpts at 1-2. In attempting to make a "reasonable effort" to determine whether a firearm sale violates law, Appellee is confronted with a universe of possible inquiries into criminal, mental, military and other records, accessible at varying expenditures of labor. Excerpts at 44-46. Treasury Department's guidance to Appellee informs him that, beyond a required minimum check of criminal records, each "CLEO will have to set its own standards" defining a "reasonable effort. Excerpts at 27. ISSUES PRESENTED 1. Whether 18 U.S.C. Sec. 922(s) violates the Tenth Amendment to the extent it commands State officials, not the general public, to carry out a Federal program, offering no alternative save passage of legislation by the State. 2. Whether Congress exceeds its Article I commerce powers when it commands a State official neither engaged in nor restricting commerce to regulate it. 3. Whether facial vagueness is nonjusticiable for lack of imminence of prosecution where a plaintiff is a law enforcement official, bound by oath, duty and the Supremacy Clause to conform to constitutional Federal law, and the statute and the enforcing agency indicate that it is criminally enforceable. 4. Whether the Thirteenth Amendment is violated by a statute requiring a non-federal employee to provide personal services upon pain either of criminal sanctions or of forced resignation from his State office. 5. Whether the invalid portions of 18 U.S.C. Sec. 922(s) may be severed from the unchallenged portions. STANDARD OF REVIEW Findings of unconstitutionality and severability are reviewed de novo. Nat'l Advertising Council v. City of Orange, 861 F.2d 250, 254 n.4 (9th Cir. 1988). Ancillary findings of fact, e.g., significance of burdens and ripeness, are reviewed for clear error. Rule 52, F.R. Civ. P.; Neu v. Grant, 548 F.2d 281 (9th Cir. 1977). SUMMARY OF ARGUMENT Federal law has long prohibited firearm purchase by persons who, inter alia, have been convicted of certain offenses, have been committed for mental disability or dishonorably discharged from the military, are undocumented aliens or users of controlled substances, or have renounced U.S. citizenship. 18 U.S.C. Sec. 922(g). Pub. Law 103-159 attempted to establish a system to determine which of the approximately 4,000,000 annual handgun purchasers are legally barred from receiving a handgun. The permanent system, based on automated lists of prohibited purchasers, will be administered by a Federal agency. In the interim--five years--Congress placed the entire burden upon State and local officials, the "Chief Law Enforcement Officers," or CLEOs. Lacking automated lists, CLEOs must review each prospective purchaser against the background of existing records. 18 U.S.C. Sec. 922(s) commands a CLEO, upon receiving notice of a handgun sale, to make a "reasonable effort" to determine its legality. 18 U.S.C. Sec. 924(a)(5) provides that any person violating Sec. 922(s) is subject to a year's imprisonment. Supreme Court holdings, climaxing in New York v. United States, 112 S.Ct. 2408 (1992), make it clear that the Tenth Amendment restrains Congress from enacting statutes which conscript State officials as executors of Federal programs. The distinction Appellant seeks to draw--that the Tenth Amendment precludes only forced State policymaking, not commandeering of State administrative resources--directly contradicts Appellant's position in New York. There the United States contended that it was only commandeering of State personnel to apply Federal law--precisely the issue here--that was prohibited. The statute additionally exceeds Congressional powers over commerce. Appellee is neither engaged in commerce nor obstructing it in a manner subject to pre-emption; Congress has no Article I power to force him to affect commerce. That the statute is, further, void for vagueness was uncontested in the lower court and uncontested here. Appellant's claim that the issue is nonjusticiable in absence of prosecution ignores Appellee's standing as an official bound by duty, oath, and the Supremacy Clause to conform to law; its claim that he faces no risk of prosecution ignores the position of the enforcing agency. ARGUMENT I THE DISTRICT COURT CORRECTLY FOUND THAT CONGRESS, IN REQUIRING STATE OFFICIALS TO ADMINISTER 18 U.S.C. Sec. 922(s) UNDER PAIN OF LAW, VIOLATED THE TENTH AMENDMENT AND EXCEEDED ITS COMMERCE CLAUSE POWERS Appellee contended below that (1) an unconditional Federal directive that State officials implement a Federal program violated the Tenth Amendment, and (2) a Federal command that he regulate commerce, when he himself was not engaged in or interfering with it, exceeded the powers granted by the Commerce Clause. R. 26 at 10-13; Suppl. Excerpts at 6. The District Court concluded that the statute violates the Tenth Amendment, Excerpts at 74-79, and that it exceeds the scope of the Commerce Clause. Id. at 79, 83. Each holding will be examined here. A. BY REQUIRING STATE OFFICIALS TO ADMINISTER A FEDERAL PROGRAM UNDER PAIN OF LAW, THE BRADY ACT VIOLATES THE PARAMETERS OF THE TENTH AMENDMENT AS RECOGNIZED BY BOTH SUPREME COURT AND NINTH CIRCUIT CASELAW. Appellee will demonstrate that Congress may not single out States for the imposition of burdens of regulation, that Appellant's attempts at distinction are artificial, and that the burdens are not minimal. 1.The Tenth Amendment Bars Legislation which Singles out State Officials and Imposes upon them the Duty of Administering Federal Programs. A review of Tenth Amendment caselaw, centering upon New York v. United States, 112 S.Ct. 2408 (1992), is essential to determining the Amendment's scope. a. Evolution of Caselaw Prior to New York v. United States. Pre-New York Tenth Amendment caselaw evolved in three contexts. The first involved use of tax and spending powers to influence, not command, State action. These were upheld as conditioning of permissible Federal action. Stewart Machine Co. v. Davis, 301 U.S. 548 (1937); South Dakota v. Dole, 483 U.S. 203 (1987). The second context involved subjection of States to generally applicable Federal legislation, such as that regulating employment. Here the original landmark was National League of Cities v. Usery, 426 U.S. 833 (1976), which held minimum wage provisions inapplicable to certain State employees, since their employment reflected a traditional function of government. Usery did not withstand the test of time. In Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985), the Court concluded that the "traditional governmental function" test was unworkable. Instead, the Court opined that the political process itself could protect States in the context presented: where the legislation was equally applicable to the voting citizenry, the electoral process would ensure that it was not unduly invasive. The States "faced nothing more than the same minimum-wage and overtime obligations that hundreds of thousands of other employers, public as well as private, have to meet." 469 U.S. at 554. Garcia did not, however, rule out substantive limitations on Federal power in other contexts: "These cases do not require us to identify or define what affirmative limits the constitutional structure might impose on Federal action affecting the States under the Commerce Clause." 469 U.S. at 556. The third (and dispositive) aspect of Tenth Amendment caselaw evolved out of increasing Federal attempts to directly employ State officials as agents in the pursuit of Federal goals. The "affirmative limits" on such diversion were first explored by this Circuit. Relying upon a broad reading of its Clean Air Act powers, EPA sought to force State agencies to assist in its administration. This Court invalidated the requirement, construing the statute so as to avoid the constitutional issues. Brown v. EPA, 521 F.2d 827, 829 (9th Cir. 1975): "A Commerce Clause so expanded would reduce the states to puppets...." Accord, Arizona v. EPA, 521 F.2d 825 (9th Cir. 1975); District of Columbia v. Train, 521 F.2d 971 (D.C. Cir. 1975); Maryland v. EPA, 530 F.2d 215 (4th Cir. 1975). The United States appealed, but then declined to defend the extant regulations; the Supreme Court accordingly remanded for consideration of mootness. EPA v. Brown, 431 U.S. 99 (1977). Despite the remand, the Court continued to cite the ruling as an admonition that there were outer, substantive, limits imposed by the Tenth Amendment. See Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 288 (1982); FERC v. Mississippi, 456 U.S. 742, 761-62 (1982) These warnings did not prevent further attempts at pushing the constitutional envelope. For a time, however, a holding on the Tenth Amendment was avoided. Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264 (1982), posed a challenge to the Surface Mining Act, which imposed Federal regulations on coal mining but excepted States whose regulatory system met certain standards. After examining the alternatives allowed the States, the Court found no Tenth Amendment violation: the Federal program was justified as pre-emption under the Commerce Clause and "the States are not compelled to enforce the steep-slope standards, to expend any State funds, or to participate in the Federal regulatory program in any manner whatsoever;" if they decline, "the full regulatory burden will be borne by the Federal government." 452 U.S. at 288. Hodel was quickly followed by Federal Energy Regulatory Commission v. Mississippi, 456 U.S. 742 (1982), which dealt with legislation requiring the States to consider criteria if they chose to regulate commerce in the form of energy production. Again the alternative saved the statute: Congress could have completely pre-empted the field, but instead "adopted a less intrusive scheme and allowed the States to continue regulating" on the condition that they consider the suggested Federal standards. 456 U.S. at 764. Pre-New York caselaw thus established that (1) where legislation imposes identical burdens on States and on the general citizenry, the political process will safeguard State interests; (2) where legislation singles out the States, it is allowable if it involves commerce and Congress provides State officials with an alternative to accepting the burdens, e.g., either allowing Congress to regulate the field itself, or allowing the States to withdraw from administration entirely. b.New York v. United States and its progeny. Congress continued pressing the constitutional limits, and at length the Tenth Amendment issue was presented. The issue arose over the "take title" proviso of the Low-Level Radioactive Waste Policy Act, which essentially provided that, unless a State made suitable provision for disposal of its wastes, it would take title to them. The Second Circuit applied the "process" test of Garcia and upheld the statute. State of New York v. United States, 942 F.2d 114, 119 (2d Cir. 1991). The Supreme Court reversed 6-3. New York v. United States, 112 S.Ct. 2408 (1992). Garcia was held inapplicable, "as this is not a case in which Congress has subjected a State to the same legislation applicable to private parties." 112 S.Ct. at 2420.{1} Rather, the issue was one of "affirmative" or substantive limits on Commerce Clause powers foreshadowed by Brown v. EPA. The Court concluded: States are not mere political subdivisions of the United States. State governments are neither regional offices nor administrative agencies of the United States. The positions occupied by state officials appear nowhere on the Federal Government's most detailed organizational chart. The Constitution instead leaves to the several States a residuary and inviolable sovereignty'.... 112 S.Ct. at 2434-35. Whatever the outer limits of that sovereignty may be, one thing is clear: The Federal Government may not compel the States to enact or administer a federal regulatory program. The holding in New York did not turn Congress from the easy path of commandeering State resources; it had already enacted the Forest Resources Conservation Act, 16 U.S.C. Sec. 620, which restricted export of timber harvested on State lands and required that each State "shall administer such prohibitions consistent with the intent" of the Federal plan. In Board of Natural Resources v. Brown, 992 F.2d 937, 947 (9th Cir. 1993), this Court struck down the legislation: These provisions of the Act and the Secretary's orders violate the Tenth Amendment as interpreted by New York. They are direct commands to the states to regulate according to Congress's instructions, and thus violate the principle that the Federal government may not compel the States to enact or administer a Federal regulatory program.' New York .... New York does not represent a narrow or aberrational holding, but the culmination of caselaw which began twenty years ago in this circuit with Brown. Congress may not single out State officials and conscript them as its agents. 2. 18 U.S.C. Sec. 922(s) Imposes Substantial Duties Upon State Officials, in Violation of the Tenth Amendment. 18 U.S.C. Sec. 922(s) imposes enumerated Federal duties on "Chief Law Enforcement Officials," which are specifically defined to include those elected to State office. The omission of duties for Federal officials was not unintentional: Congress rejected a proposal to have the labor undertaken by Federal employees.{2} The reason is obvious. Merely insuring that a person is not barred from gun ownership under Federal law--18 U.S.C. Sec. 922(g)--requires determining that he: (1) has not been convicted of a crime punishable by more than a year's imprisonment;{3} (2) is not a fugitive from justice; (3) is not an unlawful user of controlled substances; (4) has never been adjudicated a mental defective or committed; (5) is not an illegal alien; (6) has not been given a dishonorable military discharge; and (7) has never renounced his citizenship. The Chief Law Enforcement Officer must make "reasonable" attempts at all these determinations each time a handgun is sold. The statute defines the minimum inquiry: a "reasonable effort" is defined as one "including research in whatever State or local recordkeeping systems are available and in a national system designated by the Attorney General." 18 U.S.C. Sec. 922(s)(2). Appellant's "advice" to CLEOs confirms that "criminal records" checks go beyond a scan for convictions: [A] reasonable effort should be made to determine whether the buyer has a criminal record that would make the sale unlawful. Criminal record systems can reveal that the buyer is a fugitive, is under indictment, or has been convicted of a felony. The criminal record systems may also indicate that the buyer is possibly an unlawful user of controlled substances or has had mental health problems. In some States, centralized mental health records may also be available. Excerpts at 26. Appellee documented the difficulties of compliance. National computer records reflect only outstanding warrants, Excerpts at 44, while State records do not reflect the civil rights restorations given, often automatically, under State law. Id. A denial where rights have been restored would subject the county to civil liability for attorney's fees. 18 U.S.C. Sec. 925A. The burden is increased by the Federal form, on which information vital to a reliable records check--e.g., social security number, place of birth--is "optional." Excerpts at 44. The CLEO's duties do not end here. If the results are negative, the CLEO must destroy the request and also "any record containing information derived from the statement...." 18 U.S.C. Sec. 922(s)(6)(B). If the results are positive, the CLEO must block the sale and, if requested, serve a written explanation of his action. 18 U.S.C. Sec. 922(s)(6)(C). A rejected buyer has a Federal cause of action against the CLEO's employer, with recovery of attorney's fees. 18 U.S.C. Sec. 925A. The result is a clear violation of the principles of New York. Appellee testified without contradiction that each background check requires 1-2 hours, Excerpts at 101, 107, and that he had performed 80-90 over the past three months, or more than one per business day. Id. at 101, 105. If assumed personally, the workload would amount to an eighth to a quarter of each working day. If delegated, it must fall upon his overburdened office. He has but twelve sworn officers to provide 24 hour protection to a 4,500 square mile county; as it is, they average but 1.5 officers at patrol at a given time. Excerpts at 47. Appellant terms the added burdens "only minimal requirements." The characterization vividly underscores one rationale of federalism: Washington can be hopelessly out of touch with local conditions.{4} Nor are logistic burdens the only Tenth Amendment impact. New York also noted that such Federal "commandeering" undermines the very core of federalism: "[I]t may be State officials who bear the brunt of public disapproval, while the federal officials who devised the regulatory program may remain insulated from the electoral ramifications of their decision." Id. at 2424. The record establishes that the Appellee has taken the brunt of criticism--indeed, of hate mail--from constituents who hold him blameable for performing the duties which Congress, insulating its own employees, demanded of him. Excerpts at 102-03, 106.{5} 18 U.S.C. Sec. 922(s) commandeers State resources in the pursuit of a Federal program, leaving local officials to accept responsibility for diversion of scarce resources. It is violative of New York and Board of Natural Resources v. Brown. 3. Appellant's Attempts to Distinguish New York v. United States Fail. Appellant's attempts at distinction gloss over the issues involved here and the evolution of caselaw. First, Appellant claims that 18 U.S.C. Sec. 922(s) lacks the defect of the statute at issue in New York, which Appellant asserts was that the statute commanded "state regulation," which Appellant proclaims means policymaking, as opposed to conscripting State effort and labor. (Brief at 20). Appellant pieces together scraps of dicta to support its redefinition. The position Appellant takes in this Court explaining New York grossly contradicts the position it took in New York. There, Appellant told the Supreme Court that the statute at issue did not require States to legislate--"the State is not required to enact or enforce a federal regulatory program. Rather, the options outlined above allow the State to comply with the Act without enacting a federally prescribed program." Brief of the United States, New York v. United States, (U.S. Supreme Ct. Docket No. 91-543), at 36. [Copy appended as Attachment A]. The State could, it argued, comply via ministerial action: "The first option--execution of a contract--can be effected without any significant regulatory activity whatsoever." Id. at 37. Appellant then argued in the alternative that forced policymaking was not so serious an invasion of the Tenth Amendment as forced administration of Federal policies--the very measure it defends in this Court--would be: The second option--construction of a state-owned facility--although it would require a significant commitment of state resources--is qualitatively different from the implementation of federal policies regulating private activity, which would transform state administrative bodies into field offices of the national bureaucracy.' FERC v. Mississippi, 456 U.S. at 777. Thus, the actions required to exercise this option are not at the core of the concerns identified in Hodel and FERC. Id. at 37. Appellant's avowal that required State "implementation of federal policies regulating private activity" is at the core of the Court's concerns was accurate, as was its suggestion that such forced implementation would be an aggravation, not a mitigation, of the situation presented in New York. Appellee's glib attempt to reverse its Tenth Amendment understanding here fails. New York emphasized that the constitutional infirmity extended to forced administration. "Whatever the outer limits of [State] sovereignty may be, one thing is clear: the Federal government may not compel the States to enact or administer a federal regulatory program." 112 S.Ct. at 2435 (emphasis supplied). The explanation is squarely within the holding that neither legislation nor ownership could be compelled, so that a choice between the two is an impermissible dilemna. Appellee's claimed distinction moreover founders upon Board of Natural Resources. The statute there invalidated by this Court required no legislation; the forced policymaking only affected the State's own property, posing no risk that the State would be blamed by constituents it regulated. To demand that States resolve a problem is bad enough; to dictate the resolution and order their servants to execute it is worse. Federalism is undermined when Congress "compels state agencies ... to function as bureaucratic puppets of the Federal government." Bowen v. American Hospital Ass'n, 476 U.S. 610, 642 n.29 (1986). At the very core of New York is the recognition that Congress cannot "present a simple command to state governments to implement legislation enacted by Congress," 112 S.Ct. at 2428. To the extent forced administration of law differs from forced making of law, it is a more egregious breach of federalism--as Appellant itself has informed the Supreme Court. Appellant elsewhere (Brief 11-12) slightly rephrases the claimed distinction, characterizing 18 U.S.C. Sec. 922(s) as a "ministerial" burden to be sustained under the rationale of Testa v. Katt, 330 U.S. 386 (1947). Testa invalidated a State bar to filing certain Federal claims in a State court of general jurisdiction. The rationale for Testa is simple: (1) courts of general jurisdiction by definition decide all legal issues before them and (2) a constitutional Federal statute is the "Supreme law of the land." The filing of Federal claims in State courts was the rule in the early republic; the State duty to hear them was recognized as early as Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 340-41 (1816). "No such historical tradition supports federal compulsion of a state's executive or legislative branches." Merritt, The Guarantee Clause and State Autonomy, 88 Col. L. Rev. 1, 66 n.369 (1988). Appellant's attempt to broadly invoke Testa and its progeny--including Puerto Rico v. Branstad, 483 U.S. 219 (1987)--was rejected by the Court in New York: "These cases involve no more than an application of the Supremacy Clause's provision that federal law shall be the supreme Law of the Land,' enforceable in every State." 112 S.Ct. 2430. Appellant advances, as some manner of distinction, claims that the statute was based upon a judgment that local officials were better suited to perform its duties than the United States' own employees. (Brief at 22-23) How this can be squared with its contention that compliance involves no more than an NCIC check is not clear. The same judgment presumably underlay the statutes at issue in New York and Board of Natural Resources v. Brown. Appellant suggests that by conscripting State police to do its bidding Congress avoided edging toward a national police force. (Brief at 23). The Tenth Amendment does not, however, exist for the purpose of constraining the Federal payroll. Conscription of State servants into a de facto national police force hardly advances federalism. Appellant next contends that the burdens placed upon States are "minimal." (Brief at 23). New York recognizes no de minimis exception. The Constitution is, in Article VI, declared the "Supreme law of the land;" courts have accordingly been loath to find that a violation is a "trifle," with which "the law is not concerned." See, e.g., Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966) ($1.50 poll tax); Yick Wo v. Hopkins, 118 U.S. 356 (1886) ($10 fine). The core principles of federalism are no trifle. In any event, as demonstrated above, the burdens upon Appellee and his office are substantial, ranging up to a quarter of his working day. Appellant's claims that if the work was done by Federal employees it would "necessitat[e] a large expansion in the number of such personnel," (Brief at 23) suggests that it feels the task is "minimal" only when someone else performs it. Appellant then claims to find a distinction in that Congress has appropriated funds to improve State record systems. (Brief at 27-28). The funds are, however, not given to CLEOs who perform the work, but to recordkeepers whom they must consult. Funding availability in New York, 112 S.Ct. at 2416, and economic offsets in Board of Natural Resources, 992 F.2d at 943, did not save the statutes at issue. B. THE TRIAL COURT CORRECTLY RULED THAT APPELLEE IS NOT ENGAGED IN OR AFFECTING INTERSTATE COMMERCE, SO THAT REQUIRING HIM TO REGULATE SUCH COMMERCE IS BEYOND THE POWERS GIVEN BY ARTICLE I, Sec. 8. Article I, Sec. 8, confers upon Congress the power "To regulate Commerce with foreign Nations, and among the several States...." The District Court found, as the converse of its Tenth Amendment holding, that the statute at issue exceeds Congressional powers under the Commerce Clause. (Excerpts at 79, 83). In the District Court, Appellee contended that he was not engaged in commerce when he (1) individually declined to perform background checks, or (2) officially undertook his functions as sheriff of Graham County without performing such checks. R. 25 at 10-13; Supplemental Excerpts at 6-7. Appellant laid no record at all of opposition below, and makes none in its opening brief. Appellant's silence is understandable. The decisions of this Court and of the Supreme Court squarely support Appellee's position. In Brown v. EPA, the government contended that creation of air pollutants involved commerce and thus it had power to force State officials to enforce and administer Federal restrictions on such. 521 F.2d at 837. This Court rejected the position: Moreover, we are certain that neither Maryland v. Wirtz nor Fry v. United States passed upon the precise issues raised by petitioners. ... Neither of these cases holds or even suggests that the state's exercise of its police power with regard to an economic activity which affects interstate commerce is itself an economic activity or species of commercial intercourse' subject to regulation by Congress. ... The power of states over commerce has no more been recognized as commerce than has the power of Congress which is derived from the Commerce Clause. 521 F.2d at 838-39 (emphasis the Court's). The Court noted that to invoke the pre-emption in this context--where the State was declining to regulate or burden commerce--would require that the doctrine "be distorted almost beyond recognition." Id. at 839. On review, the United States declined even to defend the regulations at issue. EPA v. Brown, 431 U.S. 99 (1977). In New York v. United States, 112 S. Ct. at 2423, the Court likewise observed that the Commerce clause "authorizes Congress to regulate interstate commerce directly; it does not authorize Congress to regulate State governments' regulation of interstate commerce"--let alone, one might add, the power to regulate an individual's refusal to regulate commerce. The Court elaborated: While the Framers no doubt endowed Congress with the power to regulate interstate commerce in order to avoid further instances of the interstate trade disputes that were common under the Articles of Confederation, the Framers did not intend that Congress should exercise that power through the mechanism of mandating state regulation. The Constitution established Congress as a superintending authority over the reciprocal trade' among the States. The Federalist No. 42, ... by empowering Congress to regulate that trade directly, not by authorizing Congress to issue trade-related orders to state governments. 112 S.Ct. at 2430-31. (emphasis the Court's).{6} Here, Appellee is neither engaging in commerce nor restricting it if he declines to perform background checks. That a firearms dealer may be engaging in such commerce is beside the point: Appellee is not a firearms dealer. He is not affecting or burdening interstate commerce, and by the statute at issue Congress seeks to force him to affect it. Such compulsion is beyond Congressional powers. The District Court did not err when it found that the statute at issue exceeds Congressional powers under the Commerce Clause. (Excerpts at 79, 83). C. APPELLANT'S HISTORICAL REFERENCES SUPPORT ITS POSITION NEITHER AS TO THE TENTH AMENDMENT NOR AS TO THE COMMERCE CLAUSE. Appellant attempts to support its position with historical references. (Brief at 14-16). New York laid this argument to rest. The Court there gave detailed consideration to the framing, noting that the Constitutional Convention considered, and rejected, plans to have the United States govern through the medium of State agents. By accepting the Virginia plan over the New Jersey Plan, the Convention placed national and state governments as counterpart sovereigns, both acting directly upon the citizen. 112 S.Ct. at 2423. Appellant's and Amici's contrary claims are near-plagiarism of an article attacking the Supreme Court's New York holding. See S. Prakash, Field Office Federalism, 79 Va. L. Rev. 1957, 1960 (1993) ("Justice O'Connor is mistaken in asserting that Congress may not use states as the regional offices' or administrative agencies' of the federal government"). Appellant's arguments failed in New York and they fail here. The examples it cites all involve expressly-granted powers other than that over commerce, i.e., collection of taxes (originally in proportion to each State's census) and naturalization. Enactment does not prove constitutionality. A Court closer to the framers's day than we are to its--in an opinion written by John Marshall's successor-- noted that in the early Republic the States often assisted in Federal administration as a matter of comity, not coercion. Kentucky v. Dennison, 65 U.S. (24 How.) 66, 107-09 (1861). In sum, the rulings of the Supreme Court in New York and this Court in Board of Natural Resources are consistent with the evolution of Tenth Amendment caselaw; Appellant's attempted distinctions fail. The statute exceeds Congressional powers under Article I Sec. 8 and infringes the Tenth Amendment. II THE MANDATE OF 18 U.S.C. Sec. 922(S) THAT CHIEF LAW ENFORCEMENT OFFICERS MAKE A "REASONABLE EFFORT" TO INVESTIGATE WHETHER EACH FIREARM SALE VIOLATES ANY FEDERAL, STATE, OR LOCAL LAW IS VOID FOR VAGUENESS. The court below found the 18 U.S.C. Sec. 922(s) impermissibly vague on its face. Appellant did not contest the merits of the determination below--nor does it here--but relied solely upon claims that the issue was unripe for adjudication. Appellee will demonstrate that the finding was correct and the issue was ripe. A.The District Court Correctly Found that 18 U.S.C. Sec. 922(s) was Void for Vagueness in Violation of the Fifth Amendment's Due Process Clause. In the District Court, Appellee contended that 18 U.S.C. Sec. 922(s) was void for vagueness, in violation of his Fifth Amendment right to due process of law. The statute mandated that he make a "reasonable effort" to determine whether each handgun purchase in his county would violate Federal, State, or local law. Appellee demonstrated that a determination could require considerable labor researching criminal files, drug investigations, and mental health proceedings, as well as inquiry into dishonorable military discharges, relinquishments of citizenship, and alien status. Excerpts at 44-46. At the other end of the spectrum, Appellant claimed that under the right circumstances "a reasonable effort' may be no effort at all." R.14 at 25. The enforcing agency had suggested that inquiry into Federal criminal records was a minimal requirement, and that beyond that point "reasonable effort" was an ad hoc judgment based upon, inter alia, the amount of spare time available and law enforcement priorities of the moment: Each law enforcement agency serving as the CLEO will have to set its own standards [for what is a "reasonable effort"] based on its own circumstances, i.e., the availability of resources, access to records, and taking into account the law enforcement priorities of the jurisdiction. Excerpts at 27. The "reasonable effort" required by law thus varies not only from person to person, but also from day to day as each person's "resources" and "priorities" change. Under these circumstances, 18 U.S.C. Sec. 922(s) does not "give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly." Grayned v. Rockford, 408 U.S. 104, 109 (1972). See Connally v. General Construction, 269 U.S. 385, 392-95 (1926) (requirement to pay "current rate of wages" in "locality" void where current wages varied and locality undefined); United States v. Cohen Grocery Co., 255 U.S. 81, 89 (1921) (willfully making an "unreasonable rate or charge."); Kolender v. Lawson, 461 U.S. 352, 353 (1983) (requirement of "credible and reliable" identification). Appellant declined to defend 18 U.S.C. Sec. 922(s) on the merits against 5th Amendment infirmity below: it informed the District Court that it was not "necessary to address the merits of that claim." R. 14 at 15. The issue is now foreclosed. Neu v. Grant, 548 F.2d 281, 287 (9th Cir. 1977); Michael Regan Co. v. Lindell, 527 F.2d 653, 657 (9th Cir. 1975). The only question is whether the facts were sufficiently "ripe" for the court to have reached its undisputed conclusion. B. The District Court Correctly Held that the Issue was Ripe and Justiciable. 1.Appellee, a Public Official Bound to Comply with Statute as Part of his Employment, Has Standing to Seek a Determination of Constitutionality Even Absent Imminent Threat of Prosecution. Appellant contends that a "case or controversy" only exists where the challenging party is faced with demonstrable risk of criminal prosecution. Appellee will show below that he faces that risk, but will first establish that the issue is justiciable even if he does not. Appellant's authorities universally deal with claims by private citizens, affected by statute through exposure to sanctions. Appellee is a public official, bound by oath of office and the Supremacy Clause; he has been advised by his country attorney that he is bound to follow the statute unless and until it is held unconstitutional. Excerpts at 44; Supplemental Excerpts at 3. The advice was correct in light of this Court's rulings. Board of Natural Resources v. Brown, 992 F.2d at 947 (argument that State officials are not obligated to follow Federal law absent criminal sanctions disregards caselaw, "not to mention the Supremacy Clause"). Where a public official challenges a law imposing duties upon him, the Court has not hesitated to rule, see Epperson v. Arkansas, 393 U.S. 97 (1968), despite lack of imminent criminal enforcement.{7} See Beacon Journal Pub. Co. v. Unger, 532 F. Supp. 55, 57 n.3 (N.D. Ohio 1982) (Official has standing to challenge required oath, even if "it is not clear what crime, if any" its violation would entail). Moreover, exposure to civil proceedings is sufficient for justiciability. In Brown v. EPA this Court held a challenge ripe where the defendant agency "disclaims any authority to seek criminal penalties" but acknowledged that the regulation could be enforced by civil injunction. 521 F.2d at 831. See also Gentile v. State Bar, 501 U.S. 1030 (1991) (Regulation enforced by civil sanctions held void for vagueness); Babbitt v. Farm Workers Nat'l Union, 442 U.S. 289, 302 n.13 (1979). Appellant avowed to the District Court its ability to seek civil remedies and use the contempt power. (Supplemental Excerpts at 4-5). Plaintiff is a public official, indeed one whose duties of office center upon enforcing the law. His county attorney has advised him that he is duty-bound to comply with the statute at issue if it is constitutional. Supplemental Excerpts at 3. He has performed substantial labor, involuntarily, in compliance. The facts are far stronger than those which faced the Supreme Court in Epperson or this Court in Brown v. EPA and Board of Natural Resources. "Case or controversy" exists even absent imminent exposure to a criminal sentence. 2.Appellee is Exposed to the Threat of Criminal Prosecution. Appellee will demonstrate, first, that the face of the statute and its legislative history show that CLEOs are subject to its criminal sanctions and, second, that this exposure is not rendered speculative by Appellant's "position." a.18 U.S.C. Sec. 922 and Sec. 924 Subject Chief Law Enforcement Officers to Criminal Penalties Should They Fail to Comply. In the District Court, Appellant unsuccessfully contended that the duties of 18 U.S.C. Sec. 922(s) were not meant to be criminally enforceable against CLEOs. In this Court, Appellant abandons any attempt to defend its reading of the statute. The concession is understandable in light of the legislative history. Sec. 922(s) imposes the duties at issue; Sec. 924(a)(5) adds that whoever knowingly violates Sec. 922(s) shall be fined not more than $1,000 or imprisoned for not more than a year. Appellant's attempt to reconstrue the face of the statute based on supposed legislative silence runs afoul of United States v. Schwartz, 785 F.2d 673, 679 (9th Cir. 1986): "If the language is unambiguous, and if Congress has not clearly expressed a contrary intent, we will regard that language as conclusive." {8} In fact, there was no legislative silence. Prior bills had simply provided that the CLEO "may" perform a background check, but the draft reported out of committee made it mandatory. In subcommittee and committee, amendments were advanced to make background checks optional; all failed. The dissenting views of Rep. Schiff noted that he unsuccessfully offered three amendments: My final amendment proposed to make performance of the background check an option, rather than a requirement, for state and local law enforcement agencies, while keeping the waiting period. Currently in the bill, a state or local law enforcement agency shall make a reasonable effort' to check.... My amendment would strike the above and insert may,' thus making it an option.... This amendment failed as well. H.R. Rep. No. 103-344 at 38-39, reprinted 1993 U.S. Code, Cong. & Admin. News at 2008-09. Rep. Schiff raised the same objection, and proposed amendment, on the House floor. 139 Cong. Record H9093 (Daily ed., Nov. 10, 1993). The bill's floor manager, Rep. Hughes, rejoined "The mandatory requirement is the right requirement. It improves the bill." Id. at H9094, 9095. On the floor, members of both houses referred to the background check and related CLEO duties as mandatory or required.{9} Congress ignored warnings that the bill's mandates for local officials would violate Tenth Amendment caselaw. H.R. Report No. 103-344 at 35, reprinted 1993 U.S. Code, Cong & Admin. News 2005; 139 Cong. Record 16,307 (Daily ed. Nov. 19, 1993) (Sen. Craig). Following passage, members made a motion to recommit to committee with instructions to "either remov[e] the requirement now in the bill that chiefs of police and sheriffs take action," or provide for Federal aid. Rep. Schiff referred to background checks as "what we are ordering the local polices and sheriffs to do." For the fifth time the House declined. Id. at H9143-44 (Daily ed. Nov. 10, 1993). Congress clearly intended that 18 U.S.C. Sec. 922(s) mean what it says: CLEOs must, not may, do the work it commands. Proposals to the contrary were rejected in subcommittee, committee, and floor, in the debate over rules, and in a motion to recommit. Congress clearly intended the result indicated by the face of the statute.{10} The rules of construction invoked by Appellant--the "plain statement" rule of Gregory v. Ashcroft, 501 U.S. 452 (1991), the rule of lenity, and the preference given a constitutional construction (Brief at 30-31)--have no application on these facts. There is no legislative ambiguity here; in its absence, a Court cannot rewrite the statute into constitutional form. Aptheker v. Secretary, 378 U.S. 500, 515 (1964). "The intention of Congress is revealed too distinctly to permit us to ignore it because of misgivings as to power. The problem must be faced and answered." Moore Ice Cream Co. v. Rose, 289 U.S. 373, 379 (1933). In this Court Appellant abandons any attempt to justify its reading of the statute, and relies on the argument that the position taken in a memorandum of the Assistant Attorney General--whether defensible or indefensible--renders the case nonjusticiable by removing risk of prosecution. This position fails as well. b.The Memorandum is a Self-Serving Litigation Tool which Contradicts the Position of the Agency with Arrest Powers and Does Not Bind the Agency with Prosecutive Powers. Appellant's claim that its position renders enforcement speculative is a variation of the defense advanced, unsuccessfully, the last time this Court considered a Tenth Amendment issue.{11} The crux of this claim is the assertion that the Department of Justice has, by memorandum, see Excerpts at 33, indicated its belief that criminal penalties do not apply to CLEOs. The District Court rejected this argument, noting that it gave no security against prosecution and that in any event "At various times and through various agencies, the government has posited that criminal sanctions do not apply to CLEOs or that criminal sanctions may apply...." Excerpts at 80. The resolution of conflicting evidence may not be set aside unless clearly erroneous. Michael Regan Co. v. Lindell, 527 F.2d 653, 661 (9th Cir. 1975). The finding is amply supported by the evidence. The agency with arrest powers has repeatedly taken the position that it can prosecute CLEOs for inaction; Justice's memorandum is non-binding, contrary to the statute's face and history, and contrary to its own official position. The Department of the Treasury is generally charged with administration of the Gun Control Act, chapter 44 of Title 18, U.S.C., 18 U.S.C. Sec. 926, and holds independent arrest powers under the Act. Pub. L. 90-618, Sec. 103 ("[A]dministration and enforcement of the amendment made by this title shall be vested in the Secretary of the Treasury."). Appellee established that Treasury's Brady Act Coordinator had publicly stated that "Criminal penalties certainly could be applied to CLEOs; it's in the law...." Supplemental Excerpts at 2. Treasury's official interpretation states that the statutory provisions "require" CLEOs to carry out the commands. TD ATF-354, 59 Fed. Register 7110, 7111 (Feb. 14, 1994). Appellant introduced a memorandum from a Department of Justice official which reached a contrary conclusion to that taken by Treasury. While Justice is responsible for administering the permanent system, Pub. L. 103-159 Sec. 103, 107 Stat. 1541, it holds no such responsibilities for the interim system established by 18 U.S.C. Sec. 922(s)(1). The memorandum's author is a signatory to Appellant's brief. The District Court correctly declined to defer to Appellant's counsel. The memorandum is in any event no long-standing interpretation, but an internal memorandum driven by litigation; it was issued after this action commenced, and barely a week before the brief which cited it. Appellant has admitted the obvious: it was drafted specifically as a litigation ploy.{12} A close examination of the memorandum demonstrates its lack of value even as proof of Appellant's "position" on the law. First, it is a memorandum to the Attorney General, not one of the Attorney General. In it, one of her subordinates informs her of his "analysis of the application of the criminal penalties...." The subordinate has no line authority over criminal actions; his relevant power is that of giving "informal advice" to other Justice divisions.{13} He has no authority at all over the Treasury Department, which asserts the arrest power. Second, it is not a formal agency position; it has never been published in the Federal Register, as is required of all "interpretations of general applicability formulated and adopted by the agency." 5 U.S.C. Sec. 552(a)(1)(D). It in fact contradicts the one binding position that Justice has taken, that the CLEO "must" make a reasonable inquiry and that one component of that inquiry includes a two mandatory NCIC checks: "The prescribed use of the NCIC under the Act will require two inquiries." 59 Fed. Register 9498 (Feb. 28, 1994). (Emphasis added). The contradictory memorandum is simply one subordinate's internal dissent. Finally, when the District Court suggested that the memorandum was open to later withdrawal, leaving Appellee with criminal exposure for inaction, even inaction during the period before withdrawal, Appellant agreed that this was the case. (TR. 33-34) The District Court correctly concluded that Appellee had no assurance that he could discontinue compliance without criminal liability. Appellee is thus left in a position where the agency with arrest powers maintains that it can charge him, the one with prosecutorial powers has stated in the Federal Register that the duties are mandatory, and, at best, one official with no line authority over prosecutions has informally opined that they are not--but he may change his mind, and retroactively. The District Court's finding that risk of prosecution was not rendered "speculative" is supported by the evidence. 3. The Issues Presented are Ripe and Justiciable. Ripeness doctrines have both jurisdictional and prudential components. Portman v. County of Santa Clara, 995 F.2d 898, 902-03 (9th Cir. 1993).{14} The jurisdictional component is met when the dispute presents "a real, substantial controversy between parties having adverse legal interests," as opposed to a "hypothetical or abstract" conflict. Railway Mail Ass'n v. Corsi, 326 U.S. 88, 93 (1945). If controversy exists, it "is not necessary that petitioner first expose himself to actual arrest of prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights." Steffel v. Thompson, 415 U.S. 452, 459 (1974); Doe v. Boulton, 410 U.S. 179, 188 (1973). It is sufficient that he is subject to the statute and his conduct is adversely affected. Pennell v. City of San Jose, 485 U.S. 1, 7-8 (1988). Appellee's testimony that he labors, involuntarily, in compliance with the statute, was undisputed. The possibility of enforcement was hardly "chimerical," Poe v. Ullman, 367 U.S. 497, 508 (1961) or "imaginative or speculative," Younger v. Harris, 401 U.S. 37, 42 (1971): it flowed from the face of the statute, the explanations of Congress, and the position of the enforcing agency. The prudential aspects of ripeness involve balancing the interest of Appellant, and those similarly placed, in settling the issue against the possibility of further refinement of the issues. Pacific Gas & Elec. v. State Energy Comm'n, 461 U.S. 190, 201 (1983); Hotel and Restaurant Workers' Union v. Smith, 846 F.2d 1499, 1505 (D.C. Cir. 1988). Appellant attests there are "potentially thousands of law enforcement agencies functioning as CLEOs..." Excerpts at 27. Appellee and quite literally thousands of others have a compelling need for a resolution of the constitutional issue posed here. Conversely, delay is unlikely to add useful clarity to that issue. The challenge is to the face of the statute, not to its application to particular facts: the issue is predominantly legal and thus ripe. Pacific Gas & Electr. Co. v. State Energy Comm'n, 461 U.S. 190, 201 (1983); Abbott Laboratories v. Gardner, 387 U.S. 136, 152-53 (1967). Appellee's burdens, options, and attempts to apply the statute were before the District Court. The acquisition of additional knowledge lends no aid in determining whether the statute is vague on its face. Springfield Armory, Inc. v. City of Columbus, 29 F.3d 250 (6th Cir. 1994).{15} III BY REQUIRING A NON-FEDERAL EMPLOYEE TO DEVOTE SUBSTANTIAL LABOR TO A FEDERAL PROJECT UNDER PENALTY OF LAW, 18 U.S.C. Sec. 922(S) VIOLATES THE THIRTEENTH AMENDMENT Appellee advanced the Thirteenth Amendment as a constitutional objection to a statute which compels him (either as an individual or as an official) to work under penalty of law. Excerpts at 60-61. After briefing, CR.31, 33, the trial court rejected this contention. Excerpts at 80-81. Its ruling may nonetheless be sustained on grounds other than those it invoked. Securities and Exchange Comm'n v. Chenery, 318 U.S. 80, 88 (1943); Stockton v. Lucas, 428 F.2d 979, 985 (TECA 1973). The 13th Amendment provides that "Neither slavery nor involuntary servitude, except as a punishment for crime ... shall exist within the United States, or any place subject to their jurisdiction." "Involuntary servitude" has "a larger meaning than slavery," The Slaughterhouse Cases, 83 U.S. (16 Wall.) 36, 69 (1872); its intent was "not merely to end slavery, but to maintain a system of completely free and voluntary labor..." Pollock v. Williams, 322 U.S. 4, 17 (1944). Exceptions have been recognized for such traditional, and general, citizen duties as military service, The Selective Draft Law Cases, 245 U.S. 366 (1918), the common law duty to work on roads or pay a tax, Butler v. Perry, 240 U.S. 328 (1916), and juror or witness duty. Hurtado v. United States, 410 U.S. 578 (1973). These are "'exceptional' cases well established in the common law at the time of the Thirteenth Amendment." United States v. Kozminski, 487 U.S. 931, 944 (1988). 18 U.S.C. Sec. 922(s) requires persons such as Appellee, who are not Federal employees, to perform labor for the United States or face legal sanctions, either civil or criminal. Civil injunctive enforcement, like criminal, can give rise to involuntary servitude. Even where a party voluntarily contracts to provide labor, specific performance may not be civilly enforced: "The contract exposes the debtor to liability for the loss due to the breach, but not to enforced labor." Bailey v. Alabama, 219 U.S. 219, 242 (1911). Cf. Toibb v. Radloff, 115 L.Ed. 145, 154 (1991). Appellant asserts it can use injunctive and contempt powers to force the labor. Supplemental Excerpts at 4-5. Appellee is entitled to a declaration that it cannot. Appellant argued, and the District Court accepted, that the amendment was not implicated because Appellee had the alternative of resigning from office and not seeking it in the future. Excerpts at 81. The argument fails for three reasons. First, the deprivation of office by operation of law is itself a legal sanction. See United States v. Lovett, 328 U.S. 303 (1946) (Legislation forbidding employment of named persons constitutes bill of attainder); cf. Greene v. McElroy, 360 US 474 (1959). The Court has never limited the Amendment to cases involving a dilemna between labor and imprisonment. United States v. Kozminski, 487 U.S. 931, 943-44 (1988) speaks of "no available choice but to work or be subject to legal sanctions" and of "legal coercion." Deprivation of office and of the civil right to seek office is as much a "legal sanction" and "legal coercion" as the $30 fine at issue in Bailey. Second, there is no "option" exception where the issue involves criminal sanctions. In the "peonage cases" the individual had the option of paying the debt; yet, without a showing of inability to pay, the Court held the statutes facially invalid. See Bailey, 219 U.S. at 243-44 ("The peon can release himself therefrom, it is true, by payment of the debt, but otherwise the service is enforced.... The State ... may not compel one man to labor for another in payment of a debt, by punishing him as a criminal if he does not perform the service or pay the debt."). Third, as Appellee contended, Excepts at 61, the supposed option places him in a dilemna, requiring sacrifice either of his 13th Amendment right to avoid involuntary servitude, or of his 1st and 5th Amendment rights to participate in the electoral process. Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886) (right of franchise is fundamental); cf. Gregory v. Ashcroft, 111 S.Ct. 2395, 2402 (1991). Appellant cannot force such choice. New York v. United States, 112 S.Ct. at 2428. IV THE DISTRICT COURT DID NOT ERR IN THE EXERCISE OF ITS EQUITABLE POWERS Appellant finally contends that the District Court erred in enjoining the statute's enforcement throughout the District of Arizona. Appellant cites Zepeda v. United States INS, 753 F.2d 719 (9th Cir. 1983); but as Bresgal v. Brock, 843 F.2d 1163, 1169 (9th Cir. 1987), noted, Zepeda pertains only to preliminary injunctions. Meinhold v. U.S. Dep't of Defense, 34 F.3d 1469 (9th Cir. 1994) concerned, not facial invalidity, but application of a regulation to a specific individual. Although Appellee made it clear he sought broad injunctive relief, Excerpts at 15, 61, Appellant raised no objection prior to judgment, only later raising the issue by way of discretionary Rule 59 and Rule 60 motions. The District Court did not err when it declined to exercise its discretion to amend or set aside. V THE UNCONSTITUTIONAL PORTIONS OF 18 U.S.C. Sec. 922(S) CANNOT BE SEVERED FROM ITS VALID PORTIONS A.UNCONSTITUTIONAL PROVISIONS OF STATUTE MAY BE SEVERED ONLY WHERE THE REMAINDER IS FULLY OPERATIVE AND IN THE MANNER WHICH THE LEGISLATURE INTENDED. The law of severability is well established, and hinges upon a two-part test. Alaska Airlines v. Brock, 480 U.S. 678, 684-5 (1987). The threshold determination is itself twofold. First, the stricken provisions must be "functionally independent" of the surviving ones. United States v. Jackson, 390 U.S. 570, 586 (1968). If the surviving portions "depend for their effectiveness" upon the stricken portion, the entire section fails. Ford Motor Co. v. Nat'l Highway Safety Admin., 473 F.2d 1241, 1244 (6th Cir. 1973). It is not enough that the surviving portions can operate after a fashion. They must be "fully operative" on their own. New York v. United States, 112 S.Ct. at 2434. If the legislation passes muster, the court proceeds to the second part of threshold test--the determination of whether the rewritten statute would at least function "in a manner consistent with the intent of Congress." Alaska Airlines, 480 U.S. at 685 (Emphasis the Court's). Elimination of the invalid portions from the statute must "leave[] completely unchanged its basic operation." United States v. Jackson, 390 U.S. at 586. If the regulatory scheme would be "altered significantly" by deletion of the invalid elements, the entire provision must fail. Board of Natural Resources v. Brown, 992 F.2d at 949. Only if the severed legislation both is fully operative, and is so in a manner consistent with legislative intent, need the court determine whether Congress might have refused to pass it as rewritten. Alaska Airlines, 480 U.S. at 685. B.THE UNCHALLENGED PORTIONS OF 18 U.S.C. Sec. 922(S) ARE NOT FULLY OPERATIVE ABSENT THE INVALID PORTIONS. Stripped of compulsory background checks, 18 U.S.C. Sec. 922(s) becomes a mandatory waiting period, coupled with the possibility that the CLEO may, if he desires, perform them. Every licensed dealer in Graham County will be obligated to transmit notices to Cross-appellant--who will promptly scrap them and go back to enforcing the law--and every purchaser will wait five days for an determination that will never come. The "program" would still exist, and perhaps be no more nonsensical than many another, but it will bear little relation to Congressional intent. Congress thought it had created a system with mandatory background checks and a optional waiting period that lasted only until through the check. In the previous Congress the House had considered a bill, H.R.7, which provided for a fixed waiting period with optional checks. Under it, "No duty is created for the chief of police. ...subsection (q)(1) requires no action be taken by the chief that is not already required." H.R. Report No. 102-47, at 12. The arrangement incurred substantial opposition. "The only mandate is that the transaction be reported to a central police authority. That is it. That central authority might check, they might not check. There is no requirement. There is no national data base created. To me, that is why that particular approach is fundamentally flawed." 137 Cong. Record H2676 (Daily ed. April 1, 1991) (Rep. Fields). "If the intent is to take guns out of criminals' hands, then why does HR.7 provide for an optional, but not mandatory, background check...?" Id. at H2668 (Rep. Vucanovich). "The Brady bill does not accomplish what it is supposed to do. It does not require any kind of a background check. It simply requires there be a minimum 7-day waiting period...." Id. (Rep. Barton). Other legislators complained that the option permitted discrimination: "If in fact you live in a neighborhood that is an Afro-American neighborhood, chances are the police are going to check your records. If you come from an affluent white neighborhood, they probably are not going to find the time..." Id. at H2668 (Rep. Staggers), H2831 (Rep. Ballenger). HR.7 failed of passage. The bill's sponsors learned from experience, and took a different approach in the 103d Congress. H.R. 1025 differed enormously from its predecessor. Under H.R.7 the waiting period had been mandatory and the background check optional; under H.R.1025, the background check was mandatory and the waiting period optional, ending the moment the check was performed. Sponsors stressed the significance of the change from H.R.7: "The mandatory requirement is the right requirement." 139 Cong. Record H9095 (Rep. Hughes) (Daily ed., Nov. 10, 1993); Id. at H9116. Rep. Zimmer explained the practical effect: Two years ago I voted against an earlier version of the Brady bill, which required a 7-day waiting period for handgun purchases with only an optional background check. I instead voted for affirmative legislation that provided for an instant, mandatory background check.... The legislation we are voting on today addresses my principal objections to the 1991 Brady bill. The background check is no longer optional and the waiting period will be eliminated as soon as a national instant check system can be implemented. Id. at 9107-08. The attraction of a mandatory check (at no Federal expense) is undeniable. As documented above, the House five times rejected, in subcommittee, committee, and on the floor, amendments proposed by Rep. Schiff to make the check optional. An optional check with mandatory waiting period is not the system, nor a subset of the system, which Congress thought it was enacting. Severance of the mandatory check does not leave the statute's "basic operation" unchanged. The section will be "altered significantly" in the very functions stressed by its enactors, and it fails under Board of Natural Resources v. Brown, 992 F.2d at 949. The situation here is the converse of that in Alaska Airlines. There, the Court found that legislators "gave scant attention"--one comment in debate--to the invalid portion, a one-house veto, and stressed "overwhelmingly" the benefits of the valid portions. 480 U.S. at 696-97. Here, Congress stressed overwhelmingly the mandatory background check and gave the remainder but scant attention (and that largely negative: "I am not here supporting waiting periods without background checks." 139 Cong. Record S16416 (Daily ed., Nov. 19, 1993) (Sen. Jeffords)). Mandatory background checks, the core of Sec. 922(s), are constitutionally void. Stripped of them, the section does not function as enacted, but rather functions as if H.R.7, or the Schiff amendments, had been passed in its stead. Severance creates, not a subset of the legislation, but a complete substitute--and one which was several times rejected by Congress. 18 U.S.C. Sec. 922(s) fails as a whole. CONCLUSION In imposing mandatory background check duties on law enforcement officers, Congress exceeded its powers under Article I and violated the Fifth, Tenth, and Thirteenth Amendments. The imposition cannot be severed from the remainder of 18 U.S.C. Sec. 922(s) without rewriting the statute into a form which Congress had rejected. The judgment of the District Court should accordingly be affirmed to the extent it strikes down the imposition of duties, and reversed to the extent it finds them severable from the remainder of the subsection. Pursuant to Circuit Rule 28-2.3, Appellee notes that he may seek recovery of costs and reasonable attorneys' fees under the Equal Access to Justice Act, 28 U.S.C. Sec. 2412. Respectfully submitted this 7th day of February, 1995 Stephen P. Halbrook David T. Hardy 10560 Main Street 8987 E. Tanque Verde Suite 404 Suite 265 Fairfax, VA 22030 Tucson, AZ (703) 352-7276 (602) 749-0241 Attorney for Appellee Attorney for Appellee Statement of Related Cases Printz v. United States, No. 94-36193 (9th Cir.) involves the issued raised under argument headings I, II, and V of the present appeal. Certificate of Service I hereby certify that, on February 7, 1995, I caused two copies of the foregoing brief and one copy of the Supplemental Excerpts of Record to be sent by overnight mail to Sean A. Lev and Mark Stern, Appellate Litigation Counsel, Civil Division, Appellate Staff, U.S. Department of Justice, Main Building, 9th and Constitution N.W., Rm. 7124, Washington D.C. 20530. David T. Hardy FOOTNOTES******************************** {1} New York's treatment of Garcia was thus no departure from that ruling, but rather a recognition of the limitations of its rationale. The political process cannot protect a State from burdens not shared by the national electorate. To apply Garcia to the statute at issue in New York would have been inconsistent with the Court's examination of substantive Tenth Amendment issues previously in Hodel and FERC, and its failure to overrule those decisions in Garcia. In the one intervening decision that did involve a statute of general applicability-- restrictions on bonds issued by States and private issuers-- South Carolina v. Baker, 485 U.S. (1988), the Court did apply Garcia. {2} Rep. Schiff described unsuccessful attempts at amendment: "My first amendment proposed to change the burden of performing the background check from state and local law enforcement to the Federal Bureau of Investigation, which maintains the most comprehensive criminal records in the country." H. R. Rep. No. 103-344 at 38-39, reprinted 1993 U.S. Code, Cong. & Admin News at 2008. {3} A term of art defined to (1) exclude convictions not classed as such under State law (i.e. "open ended" offenses) (2) exclude crimes punishable by up to two years' imprisonment so long as they are designated misdemeanors, (3) exclude persons who have received a restoration of civil rights (unless the restoration excludes firearm ownership) and (4) exclude persons with a Federal "relief from disabilities" reflected by publication in the Federal Register. 18 U.S.C. Sec. 921(a)(20). {4} Appellant has nearly as many attorneys signing its brief--ten--as Appellee has sworn officers available to patrol 4,500 square miles. Appellee would suggest that if counsel for Appellee were responsible for responding on a 24-hour basis to every homicide, theft, DUI, and disturbance in an area nearly that of Connecticut, they might change their definition of a "de minimus" diversion of resources. {5} Appellant and Amicus Simon miss the point when they argue that purchasers who read the form will see it is a Federal requirement. Appellee is not only (mistakenly) held accountable for the review process, but also (correctly) for enforcing the law. To the extent he must divert scarce resources away from enforcement priorities, his constituents inevitably hold him accountable for the result. If a response to a call is delayed, or the already thin patrol density reduced, he, and not Congress, is called to account. Amicus Simon suggests that the New York statute was flawed in that it required States to take title to polluted land, leaving them to be blamed for the use made of it. The distinction rebounds upon its inventor: Appellee here faces the same shifted accountability for disposition of his resources that the State would face for disposal of land. {6} The New York understanding of the Commerce Clause is consistent with intervening caselaw. The Federal statutes upheld during this period involved (1) an offer of direct Federal regulation of commerce in default of State regulation (Hodel) or (2) pre-emption of State regulation of commerce (FERC) or (3) regulation of a State's own commerce (Employment and wages in Garcia, sale of bonds in South Carolina v. Baker). Here, as in New York, Appellee is neither engaging in commerce nor restricting it when he declines to take action. {7} The Epperson plaintiff was a schoolteacher who challenged a statute forbidding the teaching of evolutionary theory. The majority noted that there was no record of any prosecution under the statute, and that it might presently be "more of a curiosity than a vital fact of life." 393 U.S. at 97-98. Justice Black's concurrence notes that the statute was being ignored and there had never been an enforcement action since enactment in 1928. 393 U.S. at 109. The fact remained that it was a statute, and plaintiff was a public servant bound to follow it if constitutional; thus Black's concurrence merely indicates some concern regarding justiciability, and the majority merely notes that the case is before the Court. {8} Appellant hints at an argument that 18 U.S.C. Sec. 924(a)(5) punishes "whoever violates" Sec. 922(s), and a CLEO who refuses to perform checks does something other with regard Sec. 922(s) than "violate" it. Against the chance that this will becomes more than a hint in the reply brief, Appellee would note that the distinction between "violates" and "refuses to comply with the law" is nowhere drawn in the legislative history and contravenes the normal use of the English language--unless one takes the view that government officials are above the law and incapable of "violating" it. Nor can a distinction be drawn between the command "shall" and the declaration "it shall be unlawful;" Congress used the two imperatives interchangeably in Pub. L. 103-159. The duty of the dealer to request background checks prior to transfer under the permanent system is likewise phrased as "shall" without "it shall be unlawful" language. 18 U.S.C. Sec. 922(t)(1). {9} "[A] 5-day waiting period and mandatory background computer check are sensible and reasonable..." 139 Cong Record S16,414 (Sen. Mikulksi) (Daily ed., Nov. 19, 1993); "The bill imposes a national 5-day waiting period on the sale of a handgun, and requires local law enforcement officials to conduct background checks on handgun purchasers." S16,415 (Sen. Moseley-Braun) (Nov. 19, 1993); "the Brady bill requires a mandatory 5-day waiting period and background check ...." S16,319 (Sen. Murray) (Nov. 19, 1993): "it requires that a copy of the statement and other records of the transaction be destroyed within 20 days" H9117 (Rep. Vento) (Nov. 10, 1993); "What this bill says is that there will be a 5-day waiting period...during which the local police agency, at their expense and at their possible civil liability, are required to do a background check of the proposed purchaser." H10,718 (Rep. Schiff) (Jan. 22, 1993). [All emphasis supplied]. {10} For Appellant to contend that when legislators referred to requirements as "mandatory" they could held an unspoken vision of enforcement by civil injunction would require Appellant to disavow the position it took the last time it argued ripeness in a Tenth Amendment context before this Court. Then it contended that the United States had no cause of action for injunctive relief except by express Congressional grant. Board of Natural Resources v. Brown, Brief for the Federal Appellees at 44-47. [Copy of relevant portions attached as Appendix B]. {11} In Board of Natural Resources the government contended that neither the face of the statute nor its history indicated that its civil sanctions should apply to State officials, so that the legislation was merely an "admonition" as to them. The Court gave the argument short shrift: it was made "[d]espite the clear face of the statute" and ignored the Supremacy Clause. 922 F.2d at 947. Here the government reverses that position, arguing that a civil cause of action is implied but the expressed criminal remedy is merely an "admonition." In so doing, it defies not only the face of the statute, but also its committee reports and floor debates. If nothing else, Congress's continuing Tenth Amendment intransigence has produced increasingly imaginative defenses. {12} In a Freedom of Information action seeking a copy of the request that the memorandum be issued and documents on its subject matter, Justice has withheld all documents, from the first conception onward, as litigation "work product." Hardy v. Dep't of Justice, No. CV 94-605-TUC-WDB (D. Ariz., filed Aug. 30, 1994). According to the index there produced, the memorandum's preparation--the supposed "request" for the interpretation--begins with a February 26 e-mail entitled "In Defense of the Brady Bill;" its contents are withheld as work product for this litigation. {13} The Assistant Attorney General, Criminal Division, is tasked with "Prosecutions for Federal crimes not otherwise specifically assigned." 28 C.F.R. Sec. 0.55(a). The Office of Legal Counsel's relevant responsibilities are to prepare formal opinions of the Attorney General--which this is not--to render "informal opinions and legal advice," and to give opinions to the Attorney General on Departmental "administration." 28 C.F.R. Sec. 0.25(a), (c). No basis is apparent for believing that an "informal opinion" of the OLC binds exercise of its colleagues' prosecutorial powers, particularly when the agency with arrest power differs. {14} The cases cited by Appellant largely deal with a related but distinct issue--abstention from interference in prospective or ongoing State proceedings under Younger v. Harris, 401 U.S. 37 (1971). Abstention is often appropriate where a State statute is arguably void for vagueness, since a Federal court is unable to give it an authoritative limiting construction. {15} Appellant argues the injunction should have forbidden only criminal enforcement of the statute. Brief at 32. The argument was never presented below, at trial or in two post-trial motions to limit the injunction, and is precluded here. [end]