Arizona Leads the Way in Nullifying the NSA
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