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Anti-Commandeering: The Key to Effective NSA Resistance

One of the most common concerns people express in response to our plan to fight back against the NSA is that they think the feds are simply too powerful. They think they will come in and run roughshod over our rights even if we succeed in getting states to push back. This is an understandable position. The feds have made a mockery of the notion of ‘States Rights’ and have desecrated the Constitution at every turn.

However, the OffNow strategy rests on solid legal footing. Under the anti-commandeering doctrine states can refuse cooperation and material support to the feds for whatever reason they choose.

The doctrine is non-controversial in a legal sense.  Even nullification deniers and federal supremacists have a hard time propagandizing people against anti-commandeering because it has been affirmed and re-affirmed by the Supreme Court. The often maligned Supreme Court has consistently rebuked the overbearing federal government when it has tried to commandeer state governments to do their bidding. Let’s examine those four significant rulings.

Prigg v. Pennsylvania: This case concerned a slave fleeing the state of Maryland to Pennsylvania after her master died. While in Maryland, she lived a life of relative freedom, although she was never formally freed. The widow of the deceased ‘owner’ later decided to go claim her ‘property’ and hired an agent to capture the slave. In doing so, the man violated Pennsylvania state law and was convicted. The man appealed and his conviction was overturned because the Supreme Court declared that the Fugitive Slave Acts were ‘supreme’ over Pennsylvania state law.

While this ruling was obviously abysmal, it was not without a silver lining. Justice Joseph Story wrote in his opinion for the court that states, while unable block the Fugitive Slave Act, did not have to assist the feds in fugitive slave rendition.

New York v. United States: This case concerned radioactive waste. The feds passed an act to coerce states to dealing with their waste in a manner that the federal government approved of. If states did not comply with the federal government, they were forced to take ownership of the waste produced inside state lines. This part of the Act was ruled unconstitutional because, as Justice Sandra Day O’Connor put it, the federal government was trying to commandeer the state governments which was unconstitutional and in direct contradiction to the “core of state sovereignty,” the Tenth Amendment.

Printz v. United States: This case pertained to firearm regulations. As apart of a Clinton-era gun control effort (the Brady Bill), lawmen such as sheriffs were deemed ‘chief law enforcement officers’ and required to enforce federally-mandated background checks. Arizona Sheriffs Jay Printz and Richard Mack sued the federal government and got that provision overturned based on anti-commandeering grounds.

National Federation of Independent Business v. Sebelius: This is the infamous Obamacare ruling.  Although Justice John Roberts ruled the Obamacare mandate lawful under the reasoning that it is a tax, the opinion did clear the way for states to opt out of the Medicaid expansion provision. The Court held that the threat to cut off existing Medicaid funds to states that refused to expand Medicaid was an unreasonable coercion and not allowed.

Even the Supreme Court recognizes that there are state sovereignty line the feds can’t cross. They simply cannot coerce, force or demand that states cooperate with implementation or enforcement of federal acts or programs.

James Madison acknowledged these boundaries of sovereignty between the states and the federal government, and advised states to use the power they retain to serve as a check on federal overreach. He wrote about it in Federalist #46 before the Constitution was even ratified.

If an act of a particular State, though unfriendly to the national government, be generally popular in that State and should not too grossly violate the oaths of the State officers, it is executed immediately and, of course, by means on the spot and depending on the State alone. The opposition of the federal government, or the interposition of federal officers, would but inflame the zeal of all parties on the side of the State, and the evil could not be prevented or repaired, if at all, without the employment of means which must always be resorted to with reluctance and difficulty. On the other hand, should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps, refusal to co-operate with the officers of the Union; the frowns of the executive magistracy of the State; the embarrassments created by legislative devices, which would often be added on such occasions, would oppose, in any State, difficulties not to be despised; would form, in a large State, very serious impediments; and where the sentiments of several adjoining States happened to be in unison, would present obstructions which the federal government would hardly be willing to encounter.

Madison wanted the people of the states to become excited, vocal and uncooperative when their liberties are being violated. He wanted us to use the state legislatures to take action against illegal and unpopular measures from the feds.

State and local refusal to cooperate with the federal government is both an legal and effective way to stop unconstitutional violations of our rights. Madison gave us confidently the blueprint and the Supreme Court has repeatedly upheld the legality of the tactics.

Now, it’s time for you to take action. Urge your state senator and representative to introduce the Fourth Amendment Protection Act.

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