It seems each day offers new insights into the scope of NSA spying.
We know they look at our phone records. We know they look at our emails. We know they poke around in our social media worlds. We know they spy on our “allies.”
And that’s just what we know. What about what we don’t know?
Stopping the mammoth spy agency seems impossible. Congress shows no inclination to reel it in. The president feigns ignorance and outrage, but doesn’t seem any more inclined to act. Federal courts almost always side with federal power when the government screams, “National security!” loud enough.
So, what do we do? Do we limit ourselves to marches and protests? Do we beg and plead, hoping the feds will relent and dismantle the spy agency?
It won’t happen. We must act.
Fortunately, we have a blueprint.
James Madison laid out the plan in Federalist 46. He said when the federal government commits an unwarrantable act, “the means of opposition are powerful and at hand.” He went on to explain that state and local governments can stand in the way of federal exercises of unconstitutional power. How? “Refusal to cooperate with officers of the Union.”
Nothing in the Constitution says the states have to cooperate with the federal government. In fact, at least four Supreme Court opinions affirm the federal government cannot commandeer the states to do its bidding.
The majority opinion in Printz v. United States (1997) brought together cases dating back to 1842 and emphatically held that the federal government cannot force state cooperation.
We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policymaking is involved, and no case-bycase weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.
This fact gives Americans a powerful tool to protect their basic privacy rights. If state and local governments simply refuse to cooperate with the NSA, we can drastically impede its violations of the Fourth Amendment.
This tactic works. Northern states proved it in the years leading up to the Civil War.