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Getting the anti-commandeering doctrine wrong

Watchdog.org recently ran a report about the OffNow Coalition and the 4th Amendment Protection Act introduced in state legislatures across the country. Although a generally favorable article covering our ideas and the broader anti-NSA movement, it did get something wrong on the legal basis for our strategy- the anti-commandeering doctrine.

“The principle is disputable under the U.S. Constitution’s Supremacy Clause, however, which defers authority to the federal government in the event a conflict over power takes place between the federal and local governments,” the article says.

Contrary to what was reported in the article, the anti-commandeering doctrine is not exactly disputable. There is long-standing judicial precedent that upholds this doctrine (learn more about it here). As a matter of fact, it has been affirmed by the Supreme Court on at least four separate occasions.

Simply put, the federal government cannot force or coerce a state into implementing or enforcing its acts and regulations. And the High Court has held that anti-commandeering is congruent with the Supremacy Clause.

Justice Sandra Day O’Connor summed it up best in her majority opinion for New York vs. the United States.

“No matter how powerful the federal interest involved, the Constitution simply does not give Congress the authority to require the States to regulate. The Constitution instead gives Congress the authority to regulate matters directly and to preempt contrary state regulation.”

If  the 4th Amendment Protection Act, actually tried to throw the NSA out of states, and made its actions punishable under state law, it would possibly violate the Supremacy Clause, at least according to Supreme Court orthodoxy. (Although in reality, a federal act not made “in pursuance of” the Constitution is no law at all.) Our legislation stops short of doing that. Instead, it denies compliance and material support to the NSA at the state level. This sets up impediments against the NSA’s unconstitutional spying operation that operate within the widely-accepted legal framework of our day.

Although admirable in their defense of civil liberties, Watchdog.org missed the mark when it comes to the anti-commandeering doctrine. This is to be expected though because of the political culture that has developed as government power has centralized. For too long, states have neglected their duty to provide checks and balances to the power of the federal government. Legitimate ideas of resistance such as anti-commandeering have unfortunately remained arcane and obscure. It is our duty to push them back into the public eye where they belong.

People have been conditioned for generations to believe we have no alternative but grovel beneath the feet of our rulers, and that the only way we can make our voice heard is at the ballot box. This mindset has allowed the Constitution to be chipped away over the years. Anti-commandeering can serve as one solution for that, and we have to be there to educate friend and foe alike that this idea is Constitutional, legally valid and virtually indisputable.

 

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