Ten­ther whack-a-mole:

Think Progress
Beware Of Lib­er­tar­i­ans Bear­ing Gifts: Why A Bipar­ti­san Move Against The NSA Could Kill The New Deal

By Zack Beauchamp and Ian Mill­his­er on Jan­u­ary 24, 2014 at 10:49 am

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 both Wash­ing­ton 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 their com­pre­hen­sive 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 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.

...

In defense of The Tenth Amend­ment Cen­ter, it sounds like they’ve been try­ing to rid them­selves of their far-right infes­tion. Or at least the image of being infest­ed with far-right activists. Not that they’ve nec­es­sar­i­ly suc­ceed­ed, but at least they tried:

South­ern Pover­ty Law Cen­ter
‘Nul­li­fi­ca­tion’ Con­fer­ence Attracts Far-Right Extrem­ists
By Hate­watch Staff on Octo­ber 24, 2011 — 4:56 pm,

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?