Anti-commandeering laws are one of the many ways in which the American people can resist the federal government through the states. Also known as noncompliance, these laws forbid states from assisting the feds while they are attempting to enforce unconstitutional federal laws.

However, the feds have seemingly found a way around this by requiring states to turn over information related to regulated activity by their citizens, some of which is illegal under federal laws, such as marijuana businesses. While the courts have ruled that the states are not required to actively aid the feds in enforcing their laws, they have ruled that the states must yield certain information when the feds request it.

This has created a troublesome situation, which Professor Robert Mikos at the Vanderbilt University Law School details in his paper “Can the States Keep Secrets from the Federal Government?”

Obviously, it is difficult to adequately summarize a 51-page paper without running the risk of over-simplifying, but Mikos’ answer to the titular question is yes, or they should be allowed to.

He points out the rather peculiar desire of the feds to expose government secrets – as long as those secrets serve their end, of course. Cutting through all the legalese surrounding it, he demonstrates why the question itself is so important.

He writes:

 “Across a growing set of policy domains, the federal government has been quietly ordering state governments to hand over their own confidential records to help enforce federal laws against private citizens. For example, federal agencies have demanded access to state medical marijuana registries to help prosecute suspected marijuana traffickers, city police files to facilitate deportation of non-resident aliens, state tax rolls to investigate cases of federal tax fraud, and transcripts of state administrative hearings to pursue employment discrimination claims against private employers.”

Legal scholars have more or less given no attention to the feds taking information from the states. Although the Supreme Court held in Printz v. United States that the states could not be coerced into enforcing federal laws, lower courts have differentiated between the feds ordering the states to enforce their laws and asking for information through which they can enforce the laws themselves.

Mikos states that this legal distinction is due to an interpretation of a section of Judge Scalia’s opinion on Printz, where he seemed to suggest that “demands for information were, somehow, categorically different than other demands placed upon the state executive.” Justice O’Connor supported this idea in her opinion, writing “appropriately refrain[ing] from deciding whether other purely ministerial reporting requirements imposed by Congress on state and local authorities pursuant to its Commerce Clause powers are similarly invalid.”

The courts have held, however, such requests are unconstitutional when they “do not consume state resources in the way that demands for other services do,” yet at the same time “lower courts have emphasized the fact that the federal government generally demands information a state already has on hand.”

One way in which the feds can sidestep this is by offering the states grants to pay for collecting the information.

According to the courts, “so long as Congress gives the states a constitutionally sufficient alternative to providing information, it does not run afoul of the anti-commandeering rule,” Mikos writes. “On this view, commandeering is not harmful because the state does not need to expend resources to get the information, and hence, will not need to divert resources from local priorities to satisfy federal demands.”

Though there is nowhere in the Constitution that claims the feds can force the states to surrender secrets, which means such authority remains with the states per the Tenth Amendment, the courts have chosen to ignore it.

Because of these court rulings, Mikos said, almost any information gathered by state governments can be seized by federal authorities, which provides invaluable when they are trying to enforce federal laws.

There are examples of where the states have successfully fought the feds in court over what is ruled to be unreasonable demands when issuing subpoenas for information, but they are rare because the Supreme Court has created a high standard. Courts presume the demands are reasonable and the state must prove otherwise. This rarely occurs.

So why are the feds so emphatic about obtaining state information?

Mikos says this is because the states often have better or more complete databases than the feds do when it comes to information pertinent to federal laws. They have more law enforcement officer; again, this is why anti-commandeering legislation is so devastating to federal authority, as federal agencies are incapable of enforcing federal laws on their own. Local law enforcement assistance is absolutely necessary.

One example of this is the Hotel and Motel Fire Safety Act of 1990, which requires the businesses to install fire alarms and sprinkler systems.

Mikos writes:

 “The sanction for failure to comply is debarment from hosting federally funded meetings, conventions, conferences, and similar functions. To help enforce that debarment sanction, the Act compels states to “submit to the [Administrator of FEMA] a list of those places of public accommodation affecting commerce located in the State which meet the requirements [of the Act].” In other words, the Act requires states to identify every firm that complies with federal law.”

Thus, while the state may pass a law forbidding state or local police from helping the feds, the feds can still enforce a ridiculous law such as this simply by seizing information that allows their limited number of agents to discover who exactly is violating it.

While Miko details the various ways in which the feds commandeer state secrets, the real issue at hand is the effect this has on Americans and federalism. He discusses the unintended (or intended, depending on your level of cynicism) consequences of allowing the feds to seize state secrets, one of which is that it makes citizens more likely to withhold or conceal their behavior from the states.

For example, a marijuana seller may choose to remain on the black market rather than go legitimate and report their business activities to the state, in case the feds decide to raid them after obtaining their business license and other regulatory documentation. Compounding this is the utter inconsistency with which the feds engage in seizing state secrets. States can’t anticipate when this may occur or what secrets they may take, and because of this citizens will logically assume anything they report to the states can and will be taken by the feds and used for unknown purposes.

For the states, it means their information becomes inconsistent, inaccurate, and place greater financial burdens in order to obtain the same data. While a liberty-minded person might rejoice at the prospect of the government abandoning or failing in these intrusive endeavors, the more likely outcome is siphoning off more taxpayer dollars.

Seizure of state secrets, Mikos states further, causes them to unwilling support federal laws its citizens detest, blurring the separation between the jurisdictions.

What really matters, Mikos says, is that allowing the feds to take state secrets makes the entire point of anti-commandeering moot. In fact, for the courts to say otherwise undermines arguments they make in support of anti-commandeering in Printz.

He writes:

In all important respects, the commandeering of the states’ information-gathering services is indistinguishable from the commandeering of other law enforcement services. Until the courts act to constrain this troubling practice, the states will not be able to fulfill their roles as autonomous sources of regulatory power and vehicles of passive resistance to federal authority.”

The entire purpose of noncompliance legislation is to provide a check against overreaching federal authority by withholding state support of laws it either does not consider constitutional. It is why the Constitution does not delegate authority to the feds that allows them to coerce the states into carrying out their bidding.

“Demands for state information should be considered prohibited commandeering, regardless of the impact on federal enforcement or the state’s motivation for non-disclosure,” Mikos writes. “Indeed, this view is arguably more consistent with the precise holdings of and instrumental rationale underlying Court anti-commandeering precedent.”

With the courts ruling in favor of the feds, however, Mikos argues that an alternative solution must be found until the jurisprudence changes.

And this is where we are forced to confront the most disturbing aspect of it all.

The only specific idea Mikos can present is the use of the Fifth Amendment. Theoretically, the states could claim that by forcing them to provide the information about their citizens, who are required by state law to provide the information, they are coercing citizens to self-incriminate, because the information they provide essentially is testimonial.

“Hence, in those situations where reporting constitutes compelled testimony,” Mikos writes, “the federal government may not use the information citizens submit to state agencies to criminally prosecute those citizens.”

This legal tactic might prevent the feds from being able to use the information against citizens in court. There is a heavy emphasis on the “might,” as Mikos admits the potential effects on federal actions is limited. The information could still be used in a civil proceeding against a witness.”

Needless to say, having only one solution is a cause for concern. This is not an observation against Mikos; his background as a law professor indicates that this is all that is available at our disposal through the legal system.

Allowing the feds to continue seizing state secrets could have devastating consequences for liberty in the future. Any information a citizen provides to their state, no matter how trivial, could be used against them by the feds.

With thousands and thousands of federal laws on the books, it is virtually impossible for citizens to know them all and comply with them. Odds are that the feds wouldn’t enforce the laws wholesale, but as we’ve seen with the IRS Tax Code, it could use such information against political dissents.

Mikos paper demonstrates why we must be ever vigilant, irrespective of what legislation we pass. No matter how clever our methods may be, would-be tyrants are just as creative in discovering new ways to flout the restraints of the Constitution.

Of course, the states can avoid aiding the feds by ceasing to gather the information in the first place. Anti-commandeering is not the endgame. It is the opening move.

TJ Martinell

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