An Arizona state senator on Monday introduced a piece of legislation, inspired by a template from the Tenth Amendment Center, that would make it nearly impossible for the National Security Agency to operate in the state.
Republican Sen. Kelli Ward says she backs the Fourth Amendment Protection Act to demonstrate support for those privacy advocates in neighboring Utah who are working to drive the NSA out of its borders, as well as to ensure the NSA doesn’t end up setting-up-shop in her state.
“While media attention is focused on a possible effort to shut off water to the NSA data center in Utah, I’m introducing the Arizona Fourth Amendment Protection Act to back our neighbors up,” Ward said. “Just in case the NSA gets any ideas about moving south, I want them to know the NSA isn’t welcome in Arizona unless it follows the Constitution.”
In a joint press release with the Tenth Amendment Center, Ward said she hopes her colleagues join her in supporting to protect constituents in the state from the NSA’s “unconstitutional spying” by supporting the legislation that would block the NSA from successfully operating in the state in at least four different areas.
One of the ways the NSA’s activity would be inhibited is that Ward’s bill would prohibit state and local agencies from providing the NSA with any material, which means that all government-owned utilities would be prohibited from providing NSA offices with water and electricity.
Additionally the bill would make any information gathered by the NSA without a warrant inadmissible in state court, would block public universities from serving as NSA research facilities or recruiting grounds, and any corporations that try to provide resources denied by the state to the agency will become ineligible for state and local government contracts or work.
Currently two Arizona state universities — Arizona State University and the University of Arizona, Tucson, work with the NSA as part of its National Centers of Academic Excellence Program. As part of the program, the NSA has partnerships with about 166 different schools across the nation that allow the agency to have more access to campuses in order to recruit “spies” or data collectors.
The partnerships with the schools also allow the schools to conduct research for the NSA, Department of Defense and other government agencies, so the agencies can “better spy on you,” said Michael Maharrey, communications director for the Tenth Amendment Center.
Though the state would be able to disincentivize this partnership between the NSA and state schools through the schools budgets, this would not affect private schools from working with the agency.
Ward said she supports the bill because unconstitutional snooping is a national security issue, and added she believes “the number one priority for national security is defending and protecting the Constitution. Without that, the rest becomes irrelevant.
“There is no question that the NSA program, as it is now being run, violates the Fourth Amendment,” Ward said. “This is a way to stop it.”
While neither Ward nor any other state lawmakers know the extent that the NSA conducted surveillance in Arizona, she said several constituents have voiced concerns to her.
“People are appalled with the thought that the federal government feels they have the jurisdiction to spy on us,” she said. “We should not be giving up our liberty, our freedom, our privacy in the name of security.”
According to local news reports, it’s too early to determine whether Ward’s bill will receive support from her peers, including her conservative colleagues.
More than just symbolic legislation
Although several lawmakers have expressed their disgust and outrage at the far-reaching scope of the NSA’s surveillance practices in recent months, Ward is the first to propose this specific piece of legislation that would purportedly protect her constituents from the “prying eyes of Big Brother.”
In an email to Mint Press, Maharrey said that although no state can physically keep the NSA from operating in its borders, a state can refuse to support the agency’s operations in any way. And since the NSA depends on state support to do its work, Maharrey says the Fourth Amendment Protection Act strips away that assistance, making it difficult for the agency to function in the state.
“By doing this, the state will create obstructions and impediments to unconstitutional NSA spying,” Maharrey said. “Right now, all the talk is all about denying water to the NSA facility in Utah. That’s important, but we hope every state will stand up and say, ‘No!’ to the NSA.”
He added that “James Madison gave us the blueprint in “Federalist 46,” writing that when the federal government commits an ‘unwarrantable act,’ the states can check overreaching power in several ways, including ‘refusal to cooperate with officers of the union.’ [Madison] wrote that where a number of states act together, it ‘would present obstructions which the federal government would hardly be willing to encounter.’”
While at least two other states — Texas and Montana — currently have legislation that limits the government’s ability to use electronic devices to spy on residents and access electronic information from cellphones, laptops and tablets, the law doesn’t apply to some federal laws such as the Patriot Act. Because of this technicality, MintPress asked Maharrey if the bill was more symbolic than a way to legally protect civilians, to which he responded “absolutely not.”
“If passed, it will end Arizona cooperation with unconstitutional spying,” Maharrey said. “At the Tenth Amendment Center, we believe the Constitution should be followed every issue, every time, no exceptions, no excuses.
“There is no question that the NSA spy program, as currently operated, violates the Fourth Amendment. We can’t count on Washington D.C. to limit its own power. Congress has made it pretty clear it has no intention of reining in the NSA. So we are going to do it through grassroots activism at the state and local level,” Maharrey added.
States vs. Feds
Arizona may be the first state to publicly announce it is considering the Fourth Amendment Protection Act, but Maharrey says he expects at least four other states to propose the bill in the 2014 session as well. Though no Utah lawmakers have sponsored the bill yet, Maharrey says he has been assured from a legislator in the state — as well as one in Washington state — that they plan to introduce the bill.
Although the NSA doesn’t operate intensively in all 50 states, Maharrey says the “NSA is aggressively expanding its physical locations, not just in Utah, but in Texas, Hawaii and other states too,” which is why he and others in the OffNow coalition, which includes the Bill of Rights Defense Committee and state-level advocacy groups, are encouraging states to pass anti-NSA laws.
“Since the NSA isn’t transparent about its plans,” Maharrey said, “it’s essential to not only address where it is today, but work to get the rest of the country to say, ‘You’re not welcome here either!’”
While some similar pieces of legislation have been blocked from being fully implemented, because under the U.S. Constitution’s Supremacy Clause in any conflict between state and federal laws, the federal law will trump state law. But according to Maharrey states won’t have to worry about that with this law since legally “the federal government cannot force states to help implement or enforce” any federal act or program.
“It is known as the anti-commandeering doctrine,” Maharrey explained, which is largely based on four different Supreme Court decisions: Prigg v. Pennsylvania (1842), New York v. U.S. (1992), Printz v. U.S. (1997) and National Federation of Businesses v. Sebelius, with the Printz case being the cornerstone.
According to the court’s decision in the Printz case, “Congress cannot compel the States to enact or enforce a federal regulatory program,” and “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.”