The “anti-commandeering doctrine,” a 170-year-old legal principle, says the federal government cannot commandeer state agencies or resources to “administer or enforce a federal regulatory program.”
LOS ANGELES — Deep in the heart of Mormon country, the Utah Data Center is a vital cog in the National Security Agency’s surveillance network, intercepting and analyzing telecommunications from around the world. Despite all the technical sophistication, the heavily-fortified $2 billion facility depends on something very basic to keep operating — up to 1.7 million gallons of water a day to cool the 200 people who work there and their computers.
The water is provided by the city of Bluffdale, Utah. But if a coalition of civil rights groups has its way, the Utah Data Center, and other NSA spying facilities, won’t be getting water or electric power from state or local government-owned utilities for much longer.
Legislation that has recently been introduced in California, Washington, Indiana, Oklahoma and Tennessee would, among other things, prohibit the states from “materially supporting” a federal agency “in collecting electronic data or metadata” of any person without a warrant. That material support includes providing water or power.
“We’re telling local officials not to cooperate with federal agencies who are searching and seizing electronic and other metadata without a warrant,” said Democratic state Sen. Ted Lieu, who co-authored California’s Fourth Amendment Protection Act.
The Tenth Amendment Center joined other civil rights organizations in November to launch a campaign for state action. Communications director Michael Maharrey expects a bill will be introduced in Utah in the “next several weeks.”
Such bills have surfaced in the wake of Edward Snowden’s disclosure of the NSA’s metadata collection program and amid frustration over efforts in Congress to restrict the agency’s surveillance activities. They are based on a 170-year-old legal principle known as the “anti-commandeering doctrine” that says the federal government cannot commandeer state agencies or resources to “administer or enforce a federal regulatory program.”
“What we’re essentially saying is [a state] is not going to be compelled to participate in the violation of citizens’ rights,” Maharrey told MintPress in an interview.
A 5-4 majority of the U.S. Supreme Court most recently affirmed the principle in a case in which local law enforcement officials in Montana and Arizona challenged provisions of the Brady Handgun Violence Prevention Act.
But some legal experts believe that case — Printz v. U.S. — was wrongly decided and that the state efforts to rein in the NSA, if enacted into law, will be defeated in the courts.
“It is no different from a state saying it would not help the federal government carry out an order to desegregate state schools,” said Erwin Chemerinsky, dean of the law school at the University of California, Irvine. “States cannot interfere with or impede the achievement of a federal objective.”
“No water = no data center”
Like just about anything to do with the NSA, the one million square-foot Utah Data Center has been shrouded in secrecy. According to Wired magazine, it is the “final piece in a complex puzzle assembled over the past decade,” designed “to intercept, decipher, analyze and store vast swaths of the world’s communications as they zap down from satellites and zip through the underground and undersea cables of international, foreign, and domestic networks.”
The facility, Wired reported, will consist of four 25,000 square-foot halls filled with computer servers and “the potential amount of information that could be housed in Bluffdale is truly staggering.” But the NSA hasn’t even confirmed when it became operational.
Snowden, a former NSA contractor, partially pierced the veil of secrecy, cooperating with journalists on exposés based on internal documents that were published beginning in June. Following the disclosures, an amendment that would have stripped funding from the NSA went down to a narrow defeat in Congress in July. Other NSA reform proposals are now before Congress, including the Surveillance State Repeal Act and the bipartisan USA Freedom Act. But civil rights groups have become frustrated at the lack of federal action.
The federal government doesn’t “give up any power it may have accumulated,” Maharrey said. “Once it has it, it likes to hang on to it.”
He also noted that Sen. Dianne Feinstein, an ardent supporter of the NSA’s surveillance activities, chairs the Senate Intelligence Committee.
“Everything has to go through her,” he said.
Civil rights groups, Maharrey said, have been asking, “What can we do to address the [NSA’s] overreach of power? What can we do at the state level?”
On Nov. 12, the Tenth Amendment Center and other activist groups officially launched the OffNow campaign “to undermine the NSA’s ability to unconstitutionally monitor phone calls, emails and other private data.” The first phase of the campaign is to pass state legislation that addresses NSA spying in four ways — withholding material support, making information illegally obtained by the NSA inadmissible in court, defunding universities that partner with the agency for recruitment and research, and making corporations that do business with the NSA ineligible for state or local government contracts.
OffNow noted on its website that the location of the Utah Data Center was chosen because of its access to cheap utilities, primarily water. “No water = no data center,” it said, and the “situation is the same at many other [NSA] locations.”
According to the Wall Street Journal, the center has already been plagued by power surges that have ruined “hundreds of thousands of dollars worth of machinery” and “delayed the center’s opening for a year.” It will use 65 megawatts of electricity, a single megawatt being enough to power 500 to 750 homes. San Antonio has been chosen as another location for an NSA facility because of the independent power grid in Texas.
California’s Fourth Amendment Protection Act, known officially as Senate Bill 828, follows OffNow’s legislative template closely. Lieu co-authored the bill with Republican Sen. Joel Anderson to “help protect Californians from unconstitutional invasions of their privacy by the federal government.”
“It cannot be reasonable that every American is reasonably suspicious simply because we make and receive phone calls,” Lieu said. “So by any definition, [the NSA’s metadata collection] program is unconstitutional, and we’re trying to do what we can to make that program not effective.”
Vast federal bureaucracies
Maharrey believes the California bill is particularly important because it has bipartisan sponsorship.
“I really do think this bill has an excellent chance of passing,” he told MintPress.
He also expects the number of states to have introduced legislation to reach 10 within the next three to four weeks.
Once states “get on board with this,” Maharrey predicted, “a major push will be there to get real reform done” in Washington. “This is not symbolic at all,” he added.
But a key question is whether any state measures would be able to withstand a court challenge that the federal government might bring.
The anti-commandeering doctrine on which the legislation is based was first affirmed by the U.S. Supreme Court in 1842, when it held that states were not required to enforce federal slavery laws. The court subsequently applied the doctrine to a case involving waste disposal regulations and then, in 1997, to the challenge to the Brady Act.
Under this doctrine, Professor Ann Althouse of the University of Wisconsin Law School has suggested, “state and local government officials, if they have the nerve, will be able to decline to carry out the anti-terrorism tasks Congress or the president attempts to assign to them.”
But Chemerinsky disagrees.
“There is nothing in the text of the Constitution that mentions or even hints at an anti-commandeering principle,” he wrote in a 2001 law review article. The federal government, he argued, has the power under the Supremacy Clause of the Constitution to “ensure compliance with federal law” and its “lawful objectives … all warrant ensuring state compliance and enforcement.”
“The anti-commandeering principle interferes with these objectives and should have been overruled” in the Printz case, Chemerinsky concluded.
The Printz case was a close one, with Justice John Paul Stevens warning in a dissent that the majority’s “unwritten” rule “seems more likely to damage than to preserve the safeguards against tyranny provided by the existence of vital state governments. By limiting the ability of the federal government to enlist state officials in the implementation of its programs, the Court creates incentives for the national government to aggrandize itself.”
The majority, he said, “would have the federal government create vast national bureaucracies to implement its policies.”
But Maharrey insists the doctrine is “absolutely sound” and would survive another court battle.
“It’s inherent in the structure of the federal system that the founders gave us,” he said, a system under which states retain sovereignty except for certain powers delegated to the national government.
Supporters of the state laws restricting the NSA have enlisted no less a figure than James Madison behind their efforts.
“Should an unwarrantable measure of the federal government be unpopular in particular states … the means of opposition to it are powerful and at hand,” presenting “obstructions which the federal government would hardly be willing to encounter,” he wrote in Federalist No. 46.
“James Madison expected the states to serve as a check on federal power,” Maharrey said.