Originally published at “A View from the Tenth” at Washintgon Times Communities
In Federalist #46, James Madison advised state-level actions in response to unconstitutional or unpopular federal acts. He wrote that a successful strategy included a “refusal to cooperate with officers of the Union.”
The activists would like to turn off the water to the NSA’s $1.5 billion Utah Data Center in Bluffdale, Utah, and at other facilities around the country.
Dusting off the concept of “nullification,” which historically referred to state attempts to block federal law, the coalition plans to push state laws to prohibit local authorities from cooperating with the NSA.
Draft state-level legislation called the Fourth Amendment Protection Act would – in theory – forbid local governments from providing services to federal agencies that collect electronic data from Americans without a personalized warrant.
This morning, at the TIME Swampland blog, Nate Rawlings picked up on the story as well, but opined that the “effort is sure to be stymied by federal authorities.”
Such an opinion assumes that the federal government has the Constitutional authority to stop states from opting out of federal acts and programs, or has a history of doing so.
Both assumptions are incorrect.
It’s not just Madison who advised such an effort. The Supreme Court has repeatedly backed it up in cases over the years. The legal principle is known as the “anti-commandeering doctrine.”
The relevant court cases are:
* 1842 Prigg: The court held that states weren’t required to enforce federal slavery laws.
* 1992 New York: The court held that Congress couldn’t require states to enact specified waste disposal regulations.
* 1997 Printz: The court held that “the federal government may not compel the states to enact or administer a federal regulatory program.”
* 2012 Sebelius: The court held that states couldn’t be required to expand Medicaid even under the threat of losing federal funding.
The short version is this: There’s nothing in the Constitution which requires a state to help the federal government do anything. The 4th Amendment Protection Act puts this principle into practice.
The question, then, is this: Do enough states have the will to follow the advice of the “Father of the Constitution?”
Latest posts by Michael Boldin (see all)
- Unconstitutional: The War Powers Resolution of 1973 - April 20, 2018
- James Madison’s Federalism Flip-Flop - April 9, 2018
- Daniel Webster’s Nullification Flip-Flop - March 30, 2018