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Tuesday, March 3, 2015

Can States Keep Secrets from the Federal Government?

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.”