The Constitution and state-level resistance to NSA spying

TIME's Nate Rawlings reports on state-level efforts to thwart NSA spying, but doesn't understand the Constitutional basis behind the effort. Photo: Flickr, gruntzooki

LOS ANGELES, December 4, 2013 –  In Federalist #46, James Madison advised state-level actions in response to unconstitutional or unpopular federal acts. He wrote that a successful strategy includes a “refusal to cooperate with officers of the Union.”

As reported by US News, and linked at the top of the Drudge Report yesterday, a coalition of organizations is working to put that advice into practice in response to mass NSA surveillance programs.

The activists would like to turn off the water to the NSA’s $1.5 billion Utah Data Center in Bluffdale, Utah, and at other facilities around the country.

 Dusting off the concept of “nullification,” which historically referred to state attempts to block federal law, the coalition plans to push state laws to prohibit local authorities from cooperating with the NSA.

Draft state-level legislation called the Fourth Amendment Protection Act would – in theory – forbid local governments from providing services to federal agencies that collect electronic data from Americans without a personalized warrant.

This morning, at the TIME Swampland blog, Nate Rawlings picked up on the story as well, but opined that the “effort is sure to be stymied by federal authorities.”

Such an opinion assumes that the federal government has the Constitutional authority to stop states from opting out of federal acts and programs, or has a history of doing so.

Both assumptions are incorrect.

The Supreme Court has repeatedly supported the ability of states to opt out of federal acts and programs. The legal principle is known as the “anti-commandeering doctrine,” and says that the federal government cannot force, or “commandeer,” states to enact, administer or enforce federal regulations.

The relevant court cases are:

* 1842 Prigg: The court held that states were not required to enforce federal slavery laws.

* 1992 New York: The court held that Congress could not require states to enact specified waste disposal regulations.

* 1997 Printz: The court held that “the federal government may not compel the states to enact or administer a federal regulatory program.”

* 2012 Sebelius: The court held that states could not be required to expand Medicaid even under the threat of losing federal funding.

There is nothing in the Constitution that requires a state to help the federal government do anything.

The 4th Amendment Protection Act is a state-level bill which seeks to put the anti-commandeering doctrine into practice. The Act would thwart NSA surveillance by banning a state from participating in any program that helps or utilizes NSA surveillance.  This would include providing natural resources, information sharing, and more.

The question, then, is this: Do enough states have the will to follow the advice of the “Father of the Constitution?”

 


This article is the copyrighted property of the writer and Communities @ WashingtonTimes.com. Written permission must be obtained before reprint in online or print media. REPRINTING TWTC CONTENT WITHOUT PERMISSION AND/OR PAYMENT IS THEFT AND PUNISHABLE BY LAW.

More from A View from the Tenth
 
blog comments powered by Disqus
Michael Boldin

Michael Boldin is the founder and executive director of the Tenth Amendment Center, based in Los Angeles, CA.  Founded in 2006, the Center is a leading national resource for education and activism in support of the Constitution and liberty.

 

Contact Michael Boldin

Error

Please enable pop-ups to use this feature, don't worry you can always turn them off later.

Question of the Day
Featured
Photo Galleries
Popular Threads
Powered by Disqus