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.
“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.”