There have been some top constitutional experts making comments about our legislative proposal to push back against NSA on a state level. Here’s a balance – pro and con – of the most prominent of late.
1. Randy Barnett, Georgetown Law – “State governments are free to refrain from cooperating with federal authorities if they so choose. In general, states cannot attack federal operations, but that’s not the same as refusing to help.”
Professor Barnett affirms the legal-principle that the 4th Amendment Protection Act is based upon, the anti-commandeering doctrine.
2. Dean Chemerinsky of UCI School of Law – was surprisingly making comments about the text of a bill it appears he’d never seen. In commenting about California’s SB828, he made a very interesting statement, which indicates he doesn’t understand what the bill is doing. The reporter claimed that SB828 “would prevent the state — or groups doing business on behalf of the state, such as contractors — from turning over data to the NSA without a warrant.” The 4th Amendment Protection act model legislation – and the CA version of the bill – does nothing of the sort. Claiming so is reversing the process. It bans the state from receiving such information which may be collected without a warrant from the federal government – or using it in criminal proceedings in state courts.
With that errant understanding of what the bill does, Dean Chemerinsky came to a false conclusion as well, rightly noting that the state wouldn’t be able to legally refuse such a demand from the federal government. He said, “But California cannot stop it or interfere with it since it is a federal program. It is no different from a state saying it would not help the federal government carry out an order to desegregate schools. States cannot interfere with or impede the achievement of a federal objective.”
We contacted the Dean for additional comment and he did not respond.
3. Michael Ramsey, UCSD School of Law Center for the Study of Constitutional Originalism – had this to say about the legislation in general, and about Dean Chemerinsky’s comments:
I’m not sure what Dean Chemerinsky is thinking, but his analogy is misconceived. The reason the state can’t refuse to cooperate with desegregation efforts is that desegregation is constitutionally required. Thus the state has a constitutional mandate to cooperate. That’s not true here. This situation seems analogous to Printz v. US, where the local authorities refused to cooperate with federal background checks for gun purchases. They did not interfere with federal agents doing background checks; they just refused to do them themselves (and the Court said this was constitutionally protected).
4. Jeremy Rabkin – George Mason Law – Told national journal he was “extremely skeptical” of the measures being pushed by OffNow, though he added that “the sections dealing with state courts and universities could have some merit.”
We are extremely confident of the legal implications of a refusal to comply. There is zero court precedent – in US history that we are currently aware of – that says otherwise. In fact, in every situation, it has been the other way. The courts have repeatedly held that the states, as Professor Barnett has said, do not have to help.
Either way, the fact that such heavyweights are commenting on our work means it’s getting into the public sphere.