The Right Fight With the Wrong Weapon

I think that the NSA’s metadata program is legally dubious and worse than dubious as public policy. But trying to stop it through nullification, as several state legislators have proposed, is a cure that would be substantially worse than the disease. Beauchamp and Milhiser:

Wielding state power over industry to shut down federal surveillance is a weirdly cross-ideological idea. It combines conservative/libertarian disdain for the federal government with liberal enthusiasm for regulation to address both sides’ concerns about NSA metadata collection. That’s why in the two blue states with this legislation, Washington and California, the bills are cosponsored by a Democrat and a Republican.

But progressives excited by the bill should cool it. Much of this bill is unconstitutional, and many of the parts that remain should be.

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.

We’ve already seen one front of the conservative war against McCulloch v. Maryland in Shelby County and Sebelius: trying to quietly do away with nearly two centuries of precedent allowing the federal government to pursue legitimate ends through any rational means by inventing a new narrow tailoring requirement that amounts to little more than “unless it results in policies conservative Republicans don’t like.” Allowing states to act to obstruct federal policy in this manner would knock out the other key holding of the case.

This is a terrible idea. Nullification is a deservedly discredited doctrine that should remain forever buried, and anyone who thinks that reviving states’ “rights” will have generally progressive results is insane.