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A right-wing libertarian political milieu is working to have states cut-off electricity to the NSA, this in response to the Snowden disclosures.
As the authors of the story note: “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.”
Advanced by the Tenth Amendment Center, the legislation; “poses a serious threat to that liberal touchstone, a federal regulatory and welfare state equal to the problems of growing corporate power and poverty.”
Not surprisingly, the Tenth Amendment Center  heavily overlaps elements associated with the League of the South and the neo-Confederate movement. Those elements, in turn, are inextricably linked with the Ludwig von Mises Institute , the “Paulistinian Libertarian Organization”  and The Peach Fuzz Fascist himself [Snowden]. Citizen Greenwald  has defended birds of the same feather .
Furthering their goal of destabilizing the Obama administration, the GOP plans on holding hearings on the NSA  in order to generate political capital.
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 six 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 six states (Kansas, Indiana, Missouri, 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 bothWashington  and Utah  house significant NSA facilities, and it would actually be quite painful for the agency to move them.
. . .
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.’”
This tactic, of using state power to prevent the federal government from operating, should trouble progressives regardless of how they feel about the NSA’s surveillance program. If Utah can cut of water or electricity to the NSA, what’s to prevent Texas from cutting off power to federal agencies that provide health care to poor people , or North Carolina from turning the lights off on federal voting rights attorneys challenging theircomprehensive voter suppression law ?
Burning It Down
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 bring 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. . . .
On the eve of a Nullification Now! conference in Jacksonville, Fla., last week, the Tenth Amendment Center issued a warning: The Southern Poverty Law Center was sending someone to report that “those of us who want political decentralization as the Constitution requires [are] ‘dangerous.’” Then, when the conference began, every speaker repeated the warning. Someone from the SPLC was there, they said.
And you know what? We were.
We were there when Oath Keepers founder Stewart Rhodes warned that the federal government was laying the groundwork to freely kill American citizens. We were there when John Bush, who runs the Foundation for a Free Society in Austin, Texas, stoked the audience’s already inflamed fears that a one-world government was coming in the form of a U.N. plan for sustainable growth. We were there when Doug Tjaden, director of the Sound Money Center, called for the nullification of the Federal Reserve. “Nullification of any federal law will only have long lasting effect if we take away the bankers’ ability to buy back our liberty,” he said with a thump of his fist on the podium.
Roughly 100 people attended the conference organized by the Los Angeles-based Tenth Amendment Center, a group focused on how to weaken the reach of the federal government through nullification. Their central idea—that each state has the constitutional right to invalidate and disregard virtually any federal law—relies on a spurious interpretation of the Tenth Amendment, which reserves to the states and the people any power not explicitly given to the federal government, and flies in the face of more than two centuries of jurisprudence.
Much of the conference seemed to be focused on distancing the movement from those members of the extreme right that tend to be the most attracted to the nullification concept.
That’s hard to do when the League of the South (LOS) has a table at the event, which it did. It was attended by Michael Tubbs, a former Green Beret demolitions expert who, in 1987, robbed two fellow soldiers of their M‑16 rifles during a routine exercise at Fort Bragg, N.C., in the name of the Ku Klux Klan. Tubbs is president of the Florida chapter of the LOS, which envisions a second Southern secession and holds to a distinctly white supremacist ideology.
There were also representatives from groups advocating for the legalization of raw milk—to limit the government’s regulatory power to ensure food safety—and for the Oath Keepers, a group that peddles antigovernment “Patriot” paranoia about federal tyranny.
The force behind much of that paranoia is Rhodes, a former Army paratrooper and Yale-educated lawyer who founded Oath Keepers. Rhodes cautioned that the recent killing of Anwar al-Awlaki, a radical, U.S.-born Muslim cleric who had been designated by the U.S. government as a global terrorist, was merely a preview of what will eventually befall Americans citizens at home. Assassination? Kidnapping? Internment? All will be possible in the tyrannical future the far right fears is unavoidable. “I’m not being paranoid. I’m just connecting the dots,” Rhodes said. “It will be done at home. Mark my words.” . . . .
. . . . The highlight of the day was Thomas E. Woods Jr., the author of Nullification: How to Resist Federal Tyranny in the 21st Century. He argued that nullification was the principle tool of the northern abolitionists who combated slavery—a fact, he said, the progressive left conveniently dismisses.
Woods couldn’t avoid calling out the SPLC “agent provocateur” in the audience. To do so, he somewhat mockingly employed Godwin’s Law to dismiss any criticism of nullification. Godwin’s Law states, essentially, that as any discussion progresses, the odds increase that someone will eventually invoke Hitler. Woods warned that the SPLC and others would seek to marginalize nullification by creating negative associations.
Woods was once a member of the LOS and remains a senior fellow at the Ludwig Von Mises Institute, a conservative think tank in Auburn, Ala., that views social justice as destructive. Who needs Hitler when paranoid antigovernment figures, hair-trigger Aryan militants and an academic extremist are there to glad-hand the audience?
EXCERPT: Benjy Sarlin has a nice read on the other news emerging from the RNC meeting. Supporters of Ron Paul, chiefly Nevada’s Diana Orrock, were able to sell the whole committee on a resolution “renouncing” the NSA’s data collection programs. As of today, the RNC “encourages Republican law makers to call for a special committee to investigate, report, and reveal to the public the extent of this domestic spying” and “calls upon Republican lawmakers to immediately take action to halt current unconstitutional surveillance programs and provide a full public accounting of the NSA’s data collection programs.” It basically endorses Rep. Justin Amash’s legislation in the House.
Andrew Kaczynski commemorates the occasion with a flashback to the August 2006 RNC attack on the “liberal judge” who ruled against another NSA program, and was “praised by Dems.” Not long after that, one of the party’s endangered moderates, Connecticut Rep. Nancy Johnson, attacked her Democratic opponent for daring to oppose the program.
So it’s taken seven-odd years for the GOP to come fully around and realize the groovy politics of civil liberties, but that should have been obvious even before Snowden.