When presented with the OffNow strategy involving state refusal to provide material support to federal agencies engaged in warrantless spying and turning off resources to the NSA facilities like the data center in Bluffdale, Utah, many people react with alarm.
Even while the idea of taking practical steps to stop illegal surveillance appeals to Americans across the political spectrum, they often doubt states can legally withdraw support from federal efforts.
In fact, under a long-standing legal doctrine well-established in constitutional jurisprudence, they can.
Know as the anti-commandeering doctrine, the legal principle rests primarily on four Supreme Court opinions dating back to 1842.
In Prigg v. Pennsylvania (1842), Justice Joseph Story held that the federal government could not force states to implement or carry out the Fugitive Slave Act of 1793. He said that it was a federal law, and the federal government ultimately had to enforce it.
The fundamental principle applicable to all cases of this sort, would seem to be, that where the end is required, the means are given; and where the duty is enjoined, the ability to perform it is contemplated to exist on the part of the functionaries to whom it is entrusted. The clause is found in the national Constitution, and not in that of any state. It does not point out any state functionaries, or any state action to carry its provisions into effect. The states cannot, therefore, be compelled to enforce them; and it might well be deemed an unconstitutional exercise of the power of interpretation, to insist that the states are bound to provide means to carry into effect the duties of the national government, nowhere delegated or instrusted to them by the Constitution.
In the early 90s, the state of New York sued the federal government asserting provisions in the Low-Level Radioactive Waste Policy Amendments Act of 1985 were coercive and violated its sovereignty under the Tenth Amendment. The Court majority in New York v. United States (1992) agreed, holding that “because the Act’s take title provision offers the States a ‘choice’ between the two unconstitutionally coercive alternatives–either accepting ownership of waste or regulating according to Congress’ instructions–the provision lies outside Congress’ enumerated powers and is inconsistent with the Tenth Amendment.”
Sandra Day O’Connor wrote for the majority in the 6-3 decision.
As an initial matter, Congress may not simply “commandee[r] the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.”
She later expounded on this point.
While Congress has substantial powers to govern the Nation directly, including in areas of intimate concern to the States, the Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress’ instructions.
O’Connor argues that standing alone, both options offered to the State of New York for dealing with radioactive waste in the act represented an unconstitutional overreach. Therefore, forcing the state to choose between the two is also unconstitutional.
A choice between two unconstitutionally coercive regulatory techniques is no choice at all. Either way, “the Act commandeers the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.”
Printz v. United States (1997) serves as the lynchpin for the anti-commandeering doctrine. At issue was a provision in the Brady Gun Bill that required county law enforcement officers to administer part of the background check program. Sheriffs Jay Printz and Richard Mack sued, arguing these provisions unconstitutionally forced them to administer a federal program. Justice Antonin Scalia agreed, writing in the majority opinion “it is apparent that the Brady Act purports to direct state law enforcement officers to participate, albeit only temporarily, in the administration of a federally enacted regulatory scheme.”
Citing the New York case, the court majority declared this provision of the Brady Gun Bill unconstitutional, expanding the reach of the anti-commandeering doctrine.
We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policymaking is involved, and no case-bycase weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.
Finally, the Court ruled that the federal government cannot force the states to act against their will by withholding funds in a coercive manner. In Independent Business v. Sebelius (2012), the Court held that the federal government can not compel states to expand Medicaid by threatening to withhold funding for Medicaid programs already in place. Justice Robert Kennedy argued that allowing Congress to essentially punish states that refused to go along violates constitutional separation of powers.
The legitimacy of Congress’s exercise of the spending power “thus rests on whether the State voluntarily and knowingly accepts the terms of the ‘contract.’ ” Pennhurst, supra, at 17. Respecting this limitation is critical to ensuring that Spending Clause legislation does not undermine the status of the States as independent sovereigns in our federal system. That system “rests on what might at first seem a counterintuitive insight, that ‘freedom is enhanced by the creation of two governments, not one.’ ” Bond, 564 U. S., at ___ (slip op., at 8) (quoting Alden v. Maine, 527 U. S. 706, 758 (1999) ). For this reason, “the Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress’ instructions.” New York, supra, at 162. Otherwise the two-government system established by the Framers would give way to a system that vests power in one central government, and individual liberty would suffer
Taken together, these four cases firmly establish a legal doctrine holding that the federal government has no authority to force states to cooperate in implementing or enforcing its acts, or providing resources to its programs.
Simply put, state and local government do not have to assist the federal government in violating your rights.
Taking their cue from the Story opinion in Prigg, northern states aggressively resisted fugitive slave rendition during the 1850s. The Fugitive Slave Act of 1850 denied any due process to a person accused of escaping slavery. It allowed slave owners to reclaim their “property” based on their own word. An accused fugitive was not even allowed to testify in his own defense. By 1860, nearly every northern state had passed personal liberty laws to protect their black populations. Many of the provisions were based on the Story’s assertion that the federal government couldn’t compel states to enforce federal fugitive slave laws. For instance, Michigan refused to allow the use of its jails to hold recapture fugitives, and a Massachusetts law called for the removal of any state official who aided in the return of runaway slaves and disbarment of attorneys assisting in fugitive slave rendition. Another section in the Massachusetts law authorized impeachment of state judges who accepted federal commissioner positions authorizing them to prosecuted fugitive slaves.
These anti-commandeering provisions proved effective in thwarting fugitive slave rendition and protected the freedom of many northern blacks.
The OffNow strategy traces its roots back to this noble defense of freedom and justice. Today, we utilize the same legal principle, now even more solidly established in American jurisprudence, to protect the basic right to privacy.
The OffNow strategy is legal and it will prove effective!