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Heritage Says States MUST Cooperate with the NSA. It is Wrong.

To date, most opposition to Fourth Amendment Protection Act provisions that would ultimately shut off electricity and water to NSA facilities supplied by state entities has come from those claiming it will never work, and others who defend the “national security” mission of the spy agency. Few have actually challenged the legality of state action.

But on Wednesday, the Heritage Foundation weighed in, calling the OffNow campaign drafted legislation “an unconstitutional fix.” Andrew Kloster rests his argument on the constitution’s ‘supremacy clause.’

This scheme forgets the basics of our constitutional system. Changes to the NSA must come at the federal level: Congress can direct legislative changes; the President can manage the agency consistent with statute and his Article II authority; federal courts can ensure that the NSA’s actions comply with statute and the Constitution. States, however, have no business discriminating against federal agencies.

Kloster goes on to cite John Marshall in McCullough v. Maryland, asserting the state cannot take action to “retard, impede, burden or in any manner control” the operation of constitutional laws enacted by Congress.

Bill of Rights Defense Committee executive director and OffNow coalition partner Shahid Buttar predicted this supremacy clause challenge would come up and addressed it in a recent interview. The Stanford educated constitutional lawyer said the law actually falls squarely on the side of the states in this instance.

They’ll say that the NSA is a foreign policy instrument, that states don’t have the authority to make their own foreign policy, and that’s certainly true. But whether or not states have the authority to direct their own public utilities is a pretty settled question, and there is no actual legitimate argument that would suggest that the federal government has the right to commandeer those state resources. So it actually pits, like most constitutional law, two very compelling interests against each other: the state’s plenary authority over its resources against federal supremacy with respect to matters left by the Constitution in federal hands. Left out of that equation, and what I think will resolve those issues ultimately, is the forgotten relevance of the Fourth Amendment, which quite simply makes this government enterprise illegal in the first instance. And so, the states taking action to advance constitutional principles will be interpreted very differently by a court than the state taking action to restrict them.

In citing McCullough to support his position, Kloster compares apples to oranges, and ignores 195 years of Supreme Court jurisprudence after Marshall’s landmark decision. At issue in McCullough was a Maryland law imposing a tax on the First National Bank. The state was actually taking positive action to impede the operation of the bank. But the Fourth Amendment Protection Act takes no direct action against the NSA. It simply asserts that the state will not lend its agencies, personnel or resources to the agency’s operation. The NSA remains welcome to continue operating within the state, but it must do so utilizing its own resources.

As Buttar alludes to, the courts have consistently held that while states cannot take direct, positive action to impede constitutional federal actions, they do not have to cooperate with their implementation or enforcement. States maintain full plenary control over their own agents and resources.

The anti-commandeering doctrine rests primarily on four Supreme Court cases dating back to 1842. Joseph Story laid the foundation for the doctrine in the fugitive slave era case Prigg v. Pennsylvania. Story held that the state could not block fugitive slave rendition, but maintained that the state did not have to lift a finger to help. Since it was a federal responsibility, the federal government was obligated to implement 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 [fugitive slave] 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.

As a result of Prigg, many northern states tailored personal liberty laws to deny state assistance. For instance, some states refused to allow the use of state or local jails for holding accused fugitives, and many states forbid state officers from serving on slave commissions. These acts of noncooperation were never struck down, though clearly intended to “retard, impede and burden” fugitive slave rendition. Under the Prigg opinion, states were free hinder the fugitive slave act through noncooperation, as long as they did not actively block its execution. The Fourth Amendment Protection Act rests on this same legal premise.

New York v. US (1992), Printz v. US (1997) and National Federation of Businesses v. Sebelius (2012) built on the Prigg decision, further strengthening the anti-commandeering doctrine. The Printz case serves as the cornerstone.

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 by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.

Simply put, Kloster’s analysis of the Fourth Amendment Protection Act is shallow, incomplete and wrong.

We can see the absurdity of the Heritage position by considering the actual relationship between the NSA and the city of Bluffdale, Utah. The state constitution allows its political subdivisions to run public utilities. Under this provision, Bluffdale serves as a water supplier. When the NSA proposed building a new data center in the city, Bluffdale negotiated a sweetheart deal to sell water to the agency. Notice an important point: the federal government had to negotiate a contract for water.  Now, would Heritage suggest that had the city declined to enter into an agreement to sell water, it was acting unconstitutionally because it was impeding the NSA’s plans? Would Heritage suggested that absent a contract to purchase water, the federal government could simply come in and seize water from Bluffdale? Of course not. The very existence of a contract implies the freedom of both parties to enter into and end the relationship.

The city was always free to supply water or not supply water. And it remains free to supply water or not supply water. As a political subdivision of the state, Bluffdale is subject to state control. So, the state maintains the authority to prohibit its political subdivision from supplying its resources to the NSA. Simply put, the NSA can’t just take the water. So, if the state decides to decline all material support to the NSA moving forward, that would legally begin the process of turning off the water.

That, in a nutshell, illustrates the anti-commandeering doctrine. It is both constitutional and feasible.

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