What does the NSA need if it wants to spy on you? Even before legal permission, there’s the basics: electricity to run its computers and water to feed the servers that stores the reams of data they acquire. Enterprising state legislators in five states have seized upon this almost-too-obvious insight, and used it to draft legislation that would quite literally turn off the NSA’s lights in their states.
This might seem like a good idea to NSA critics unhappy with President Obama’s reform proposals, but the constitutional theory it depends on is profoundly dangerous. It poses a serious threat to that liberal touchstone, a federal regulatory and welfare state equal to the problems of growing corporate power and poverty.
Ultimately, this proposal to depower the NSA reveals that there’s only so much that can be accomplished by right-left coalitions. Unless each side can agree to abandon tactics that threaten the other’s sacred cows, the members of these coalitions must constantly be on guard against the man standing behind them waiting to stick a knife in their back.
Turning Off The Lights
Each of the five states (Kansas, Indiana, Washington, Oklahoma, and California) base their proposals on model legislation developed by the OffNow coalition, a group organized by the radically libertarian Tenth Amendment Center. So too will legislators in the next three states (Michigan, Arizona, and Utah) that plan to propose lights-off legislation. So OffNow, and by extension the Tenth Amendment center, is more-or-less running the show here.
How does the legislation work? Basically, it prohibits any state entity and many corporations from:
Provid[ing] services, or participat[ing] or assist[ing] in any way with the providing of services to a federal agency, federal agent, or corporation providing services to the federal government which is involved in the collection of electronic data or metadata of any person(s) pursuant to any action not based on a warrant that particularly describes the person(s), place(s) and thing(s) to be searched or seized.
Elsewhere, the legislation provides that any corporation “that provides services to or on behalf of this state” which violates this prohibition “shall be forever ineligible to act on behalf of, or provide services to, this state or any political subdivision of this state.” So if a state’s utilities — electricity, water, sewage and so forth — are owned by the state, they are forbidden from providing any service to the NSA. And if a state’s utilities are privately owned, they must choose between cutting off service to the NSA or permanently losing their ability to do business with the state.
In most states, this would be largely symbolic: the NSA doesn’t have installations everywhere. But both Washington and Utah house significant NSA facilities, and it would actually be quite painful for the agency to move them.
Wielding state power over industry to shut down federal surveillance is a weirdly cross-ideological idea. It combines conservative/libertarian disdain for the federal government with liberal enthusiasm for regulation to address both sides’ concerns about NSA metadata collection. That’s why in the two blue states with this legislation, Washington and California, the bills are cosponsored by a Democrat and a Republican.
But progressives excited by the bill should cool it. Much of this bill is unconstitutional, and many of the parts that remain should be.
The Power To Destroy
The bill is rooted in a theory that, in James Madison’s words, would “speedily put an end to the Union itself.” More immediately, it could empower conservative state lawmakers to cut off Medicare, Medicaid or Social Security, to frustrate civil rights enforcement or even to prevent federal law enforcement from investigating criminals.
The Tenth Amendment Center is one of the leading proponents of “nullification,” an unconstitutional theory which claims that states can unilaterally invalidate federal laws simply by passing their own law claiming that the federal provision is invalid. Yet their proposal to cut of water and power to the NSA rests on a slightly different constitutional theory than pure nullification. Under something known as the “anti-commandeering doctrine,” the Supreme Court generally does not permit the federal government to command a state to take a particular action. Thus, for example, if the federal government wants to criminalize marijuana, then it can order federal agents to arrest marijuana users, or it can encourage states to prosecute marijuana users by offering them federal funds if they do so, but it cannot simply order a state to prosecute someone the state does not wish to prosecute. Washington and Colorado get to have their own drug laws and their police force is under no obligation to enforce federal law.
Apply this rule to the NSA, and it follows that the federal government cannot force a state to have its own domestic spying program, or to loan its own agents to the NSA. If the federal government wants to engage in surveillance, it must use its own money and its own officers to do so unless a state voluntarily agrees to provide assistance.
But what if a state orders its state-owned power company to deny electricity to the NSA? Or if the state refuses to contract with any company that also provides basic services to the federal government? On the surface, these decisions seem to be covered by the anti-commandeering doctrine as well. Why should the federal government be allowed to direct the state’s business relations any more than it directs its police force?
Chief Justice John Marshall provided a really good answer to this question nearly two centuries ago. In the landmark case of McCulloch v. Maryland, the state of Maryland attempted to tax a federally chartered bank. Marshall wrote for a unanimous Court to explain why state taxation of federal entities was not allowed. “[T]he power to tax involves the power to destroy,” he explained, and “the power to destroy may defeat and render useless the power to create” the bank that the U.S. Constitution entrusted to the federal government. More recent Supreme Court decisions have explained that states may not enact laws that “stand . . . as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”
If the power to tax includes the power to destroy, so too does the power to cut off water, power and other essential services to a federal agency such as the NSA. Federal offices could not possibly manage the kind of record keeping and communications necessary to operate in a modern society without access to electricity. Indeed, the OffNow coalition’s website is quite explicit about the fact that they believe that the power to cut off utilities is the power to destroy the NSA’s ability to operate — the NSA’s “massive supercomputers monitoring your personal information are water-cooled. They can’t function without the resources to keep them at operating temperature. That water is scheduled to be provided by the Jordan Valley River Conservancy District, ‘a political subdivision of the state of Utah.’”
Don’t doubt for a minute that, if the Tenth Amendment Center succeeds in establishing a precedent for nullification-via-power-outages, they will immediately deploy this and similar tactics to implement other parts of their sweeping libertarian agency. Some of their other initiatives include bills purporting to nullify federal gun laws and the Affordable Care Act, as well as a truly surreal proposal to undermine the Federal Reserve by requiring citizens to pay their state taxes in gold or silver.
Nor are these the least of the Tenth Amendment Center’s ambitions. A resolution introduced in the New Hampshire legislature and pushed by the Center lays out an expansive list of potential federal laws that it objects to on constitutional grounds — one of them is “prohibitions of type or quantity of arms or ammunition” — and then claims that the Constitution shall become null and void if the federal government enacts any of the laws the resolution deems objectionable, and “all powers previously delegated to the United States of America by the Constitution for the United States shall revert to the several States individually.”
The Tenth Amendment Center, in other words, is not simply distrustful of centralized power. They fear the federal government with such pathological intensity that they’ve actually suggested dissolving the Union in its entirety if Congress, the President or the federal judiciary takes any action that violates their idiosyncratic view of the Constitution. Their position on states’ rights makes John C. Calhoun look like a moderate.
So however attractive reining in the NSA this way might seem, it’s a Trojan Horse: a legal strategy that has the potential to big down the major federal accomplishments liberals most deeply cherish. Good thing the depower bills are unlikely to pass in any state. Regardless, however, this incident tells us something important about the various proposals for a left-libertarian alliance to rein the security state you see bandied about.
Realistically, that’s the alliance you’d need you take serious, nationwide action on spying outside of the executive branch; see the vote count on Rep. Justin Amash (R-MI)’s just-barely defeated bill to end NSA metadata collection. It’s the same coalition that could help accomplish worthy goals like reforming federal drug laws or racist prison sentencing guidelines.
On issues like those — where the policy fix is legally simple, and the goals are fully shared — the left-libertarian alliance has the potential to do a lot of good. But the state-level drive to turn off the NSA’s lights demonstrates the limits of this marriage. Lawmaking necessarily sets precedents. In some cases, those precedents come from the judiciary — giving official sanction to tactics once acknowledged to be unconstitutional. But the mere act of enacting a law and getting away with it can normalize radical tactics as well. Hidden provisions of a law or the legal theory behind it can change the country as surely as the legislation’s intended end.
That means the more legally complicated a policy becomes, the less likely there’ll be any workable left-libertarian compromise to be had over it. Libertarians who endorse a constitutional theory that radically limits federal power will be happy to craft legislation consistent with that theory; liberals will find the implications of such a law repulsive. Conversely, even libertarians who might like the idea of providing everyone with health care in principle can’t get on board with the Affordable Care Act — the theory of federal power it relies on justifies too much for their tastes.
Any liberal-libertarian alliance, then, will necessarily be tactical and limited, or else one side will invariably lose out. With such fundamental disagreements, the center cannot hold, even on issues like NSA spying where the sides are broadly in agreement. Ideology, in very practical terms, matters.
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