Arizona Leads the Way in Nullifying the NSA

| February 11 2014

By Tate Fegley

This past Monday, the Arizona 4th Amendment Protection Act (Senate Bill 1156) was passed by an Arizona state senate committee. This makes it the first legislative body in the country to pass a bill that would fight back against illegal spying on American citizens by the National Security Agency.

The 4th Amendment Protection Act is based on model legislation written by the OffNow Coalition, an alliance organized by the Tenth Amendment Center and Bill of Rights Defense Committee, and which includes groups of differing political ideologies, from campus organizations like the Boise State Students for Liberty to groups such as Occupy Eugene. The purpose of the legislation is to make it the policy of state and local governments to be non-compliant in helping the NSA or any other federal agency that collects data on Americans without a warrant. They would do this in a few ways:

  • Any evidence obtained through illegal spying would not be admissible in Arizona state courts.
  • Arizona would not be allowed to provide any material support or resources to the operation of any federal facilities participating in illegal spying. Though the NSA doesn’t currently have any facilities in Arizona, this would prevent it from constructing any. If similar legislation were passed in a state like Utah, which houses a large NSA data center, municipal water services would be prohibited from providing the millions of gallons of water needed each day to cool the NSA’s computers, rendering the facility useless.
  • Any corporation that attempts to fill in the gaps by providing products or services necessary to the operation of NSA facilities would face penalties.

The legal basis for state and local governments being able to stick it to the NSA is the “anti-commandeering doctrine.” This is the principle that the federal government does not have the authority to force states or local governments to carry out federal laws or regulatory programs. The doctrine goes all the way back to at least 1842, with Supreme Court affirming this doctrine multiple times in recent years:

  • Printz v. United States (1997) – The Brady Handgun Violence Prevention Act required firearms dealers who transferred ownership of a handgun to submit paper work to the local “chief law enforcement officer,” typically the county sheriff, who must then “make a reasonable effort to ascertain within 5 business days whether receipt or possession would be in violation of the law, including research in whatever State and local recordkeeping systems are available and in a national system designated by the Attorney General.”  Two county sheriffs challenged this, successfully arguing that the federal government could not commandeer local law enforcement to enforce federal gun laws.
  • New York v. United States (1992) – The Low-Level Radioactive Waste Policy Amendments Act required states to “take title” to radioactive waste generated within their borders if they failed to comply with the rest of the law. Justice O’Connor decided that this compelled state governments to participate in a federal regulatory program, thus violating the 10th Amendment.
  • Prigg v. Pennsylvania (1842) – The state of Pennsylvania, in 1826, made it a felony to enforce the Federal Fugitive Slave Act within its borders.  In 1839, it convicted slavecatcher Edward Prigg under this law for abducting Margaret Morgan, a former slave who hadn’t been formally emancipated, and her children. The Supreme Court of the United States overturned Prigg’s conviction, arguing that the Pennsylvania law was a denial of the right of slaveholders and that the Fugitive Slave Law of 1793 trumped state law due to the Supremacy Clause. (This should give pause to anyone claiming that “nullification” is a  codeword for “slavery” or “neo-confederacy” or any other such nonsense. Here we see quite clearly that state governments have used nullification to fight federal laws supporting slavery. This should also be a lesson to state and local officials who claim they have to enforce federal laws because of the Supremacy Clause; in doing so, they are making the same argument that SCOTUS did in upholding the Fugitive Slave Act.) However, the Supreme Court also decided that state law could prohibit state officials from offering any assistance to those wishing to capture escaped slaves, thus leaving only federal agents to enforce the Fugitive Slave Act.

These examples serve as precedent to the idea that Arizona, or any other state, is not required to aid the federal government in violating the Constitution. While there is disagreement on whether state officials can actively impede federal agents from enforcing federal law (such as whether state police may arrest a Homeland Security officer for kidnapping a citizen under the indefinite detention provisions of the National Defense Authorization Act of 2012), it has been established without much controversy that states can resist federal law by not complying.

And it’s not just with unconstitutional spying that Arizona is exercising its legal powers under the 10th Amendment. On January 30th, Senator Kelli Ward introduced the Second Amendment Preservation Act SB1294, which would prohibit the state from enforcing “any federal act, law, order, rule or regulation that relates to a personal firearm, firearm accessory or ammunition within the limits of this state.” Without the manpower of state and local law enforcement to enforce federal gun laws, the federal government is impotent. It simply does not have the resources.

Arizona has also made efforts to nullify Obamacare. On January 16th, Representative Carl Seel introduced HCR2007, HCR2008, and HCR2009. Taken together, these proposals would ban the state from operating a health exchange for the federal government and from paying the costs of Medicaid expansion.

This builds upon Arizona’s already impressive track record of enforcing the US Constitution when the federal government won’t. Last year, the “Constitutional Tender Act” passed both Arizona legislative houses. This act would fulfill the constitutional requirement of Article I, Section 10: “No State Shall…make any Thing but gold and silver Coin a Tender in Payment of Debts.” And back in 2008, Arizona refused to go along with the REAL ID Act, which attempted to create a national ID card system containing biometric data.

Thomas Jefferson believed that the 10th Amendment serves as the cornerstone of the Constitution, and that every effort should be made to ensure that the federal government stays within the confines of the powers delegated to it in Article I, Section 8. Arizona is one of the states leading the way in this regard, and Arizonans should be proud.

 

Tate Fegley blogs at The New Polis

8 comments
anarchobuddy
anarchobuddy

Apparently, the Chamber of Commerce in PHX (a very rich and powerful group) and Cox communications, along with AT&T - have been aggressively lobbying for a NO vote on SB1156.

If you would like to support the effort to nullify the NSA, there are action steps on this page: http://offnow.org/arizona/

guest
guest

Arizona does indeed have an impressive track record! Well done. I'm glad to see Utah has followed suit in action against the NSA. Is Arizona's definition of illegal spying broadly or narrowly defined?

anarchobuddy
anarchobuddy

@WesternFreePress I believe it's the last section in the bill, which states that the treasurer shall not transfer any money to "ANY PERSON OR CORPORATION THAT PROVIDES SERVICES TO OR ON BEHALF OF

THIS STATE AND THAT VIOLATES THIS SECTION IS FOREVER INELIGIBLE TO ACT ON BEHALF OF, OR PROVIDE SERVICES TO, THIS STATE OR ANY POLITICAL SUBDIVISION OF THIS STATE."

These communications companies don't want to lose their contracts with the NSA (if indeed they have any) or lose their contracts with the state.

WesternFreePress
WesternFreePress moderator

@anarchobuddy @WesternFreePress

I like that answer. 

I agree that public choice is a serious problem. I am not prepared to concede defeat on it, however, as if it is an inevitable cost of doing business in a country such as ours. Rather, I believe that legal rules against redistribution would avail us greatly in this matter. In such a scenario, the rent-seeker, the crony, the would-be beneficiary of government largesse goes to a politician and asks for goodies, and the politician's hands are tied. He cannot help because he cannot spend money that is not for the GENERAL welfare. No money for farmers or unions or this corporation but not that corporation. In such a scenario, there cannot be concentrated benefits.


I know we have discussed this before, and it seems like my anti-redistribution amendment would be fraught with challenges, gray areas, and people trying to make exceptions. I am not sure how to get around that, but I still think that prohibiting redistribution as a matter of law would be the single-biggest magic bullet.


Congress shall make no appropriation for any purpose other than those purposes that benefit the general populace. The property of individuals and entities shall not be taken for the exclusive use of other individuals and entities.

Someone else can do better than that, legalese-wise, but that's the gist. That would kill public choice and cronyism dead dead dead.And it would be significantly more moral.


That being said, I am right there with you on the licensure  and local approach to these issues as well!


anarchobuddy
anarchobuddy

@WesternFreePress That is a really tough question to answer. 

One of the biggest hurdles, I believe, is the insight of the public choice school of economics that recognizes that cronyism often results from diffused costs and concentrated benefits. If we take the example of sugar quotas, we know that domestic producers of sugar have the strong incentive to lobby in their favor, while consumers of sugar don't have as much at stake individually. Even though the total costs to consumers outweigh the total benefits to domestic sugar producers, the latter present a unified special interest group, while most members of the former don't even know what's going on.

But I think that there are forms of cronyism that can be challenged successfully at more local levels. One measure that I think would have a high visible benefit if abolished is occupational licensure. Many of these licensure laws are state and local. Though you will face opposition if you try to have these repealed, it will mostly be by those who are established in the industry, being an obvious demonstration to the public that these laws are for protecting incumbents, not consumers. If you could build a coalition of, perhaps, consumer advocates and those training or interested in entering a field that requires licensure, and maybe even those already in the industry who are sympathetic to your position, you could possibly gather enough political clout to repeal occupational licensure laws. Other examples include zoning restrictions on commercial activities, byzantine health code requirements, fire code restrictions, etc. There might be some state or local legislators who would be sympathetic to your arguments if you could present them in a certain way, such as Roderick Long does here: http://www.cato-unbound.org/2008/11/25/roderick-t-long/free-market-firms-smaller-flatter-more-crowded

"In the absence of licensure, zoning, and other regulations, how many people would start a restaurant today if all they needed was their living room and their kitchen? How many people would start a beauty salon today if all they needed was a chair and some scissors, combs, gels, and so on? How many people would start a taxi service today if all they needed was a car and a cell phone? How many people would start a day care service today if a bunch of working parents could simply get together and pool their resources to pay a few of their number to take care of the children of the rest? These are not the sorts of small businesses that receive SBIR awards; they are the sorts of small businesses that get hammered down by the full strength of the state whenever they dare to make an appearance without threading the lengthy and costly maze of the state’s permission process."

The right ought to support such free market reform. The left ought to support measures that take away power from large corporations. Politicians ought to support things that decrease unemployment and increase tax revenues (though there is the counter-balancing consideration that crony lobbyists might have more influence). At any rate, I think there is more hope at reducing cronyism at the more local levels, as individuals who would like to start their own businesses have a large vested interest in reducing cronyism and regulations that make it much more difficult to start businesses.

So I would say try that and see what happens.