Reviewed by Torin Monahan, Department of Human and Organizational Development, and Department of Medicine, Vanderbilt University. Email: torin.monahan [at] vanderbilt.edu.
Antiterrorism efforts in the United States present a number of interesting challenges for state and local governments. There are perennial struggles over who should pay for investigations that depend upon local law enforcement or for new technologies for critical infrastructure protection. There are also concerns that the Department of Homeland Security (DHS) may be prioritizing approaches to protection that are inappropriate for localities, such as mandating the purchase of expensive equipment to remove improvised explosive devices that have not yet proven to be serious domestic threats. But the key question taken up in this book is “To what extent can state and local governments legally resist, selectively implement, or translate federal-level security and antiterrorism mandates?” For the authors in this edited volume, this question hinges upon – and promises to redefine – federalism in the post-9/11 era.
The book’s contributors review a handful of noteworthy examples of resistance by local governments to investigations initiated at the federal level. For instance, when in November 2001 Attorney General John Ashcroft asked local police departments to draw upon an FBI list to “interview” Middle Eastern men living in their cities, police chiefs from Detroit to Chicago to Tucson to Portland, Oregon, initially refused to cooperate on the grounds that they might be violating respective state and local laws against racial profiling and targeting individuals without probable cause. Eventually, in response to fear of political reprisal, police departments capitulated entirely or worked out acceptable arrangements with the FBI, such as carefully scripting questions in accordance with state law in order to conduct the interviews requested.
In another remarkable case, federal authorities placed hundreds of “special interest detainees” in New Jersey prisons immediately following September 11, 2001. According to New Jersey’s longstanding “Jailkeeper’s Statute” of 1898, the names of any inmates housed in county jails must be made public. The American Civil Liberties Union (ACLU) requested the names of these detainees and was told that the Immigration and Naturalization Service (INS) had jurisdiction, thus local sheriffs would not comply with the ACLU request. A New Jersey Superior Court judge found that the existing statutes were unambiguous and that the names should be released. In response, the INS Commissioner issued an emergency interim regulation [*26] claiming that INS had authority to supercede state law. A subsequent INS statement explained that the emergency interim regulation would “relieve state or local government entities of responsibility for the public release of information” (p.108). The New Jersey Supreme Court agreed, and the ACLU opted not to take the case to the US Supreme Court. According to Ronald K. Chen, who authored a chapter on this case in the book, this outcome represents a threat to federalism itself. He writes: “For the federal government to enact a regulation that forbids state officials from complying with the dictates of state law raises at least the suggestion of federal assumption of the powers of the state sovereign over its own state officials” (p.117).
For most of the contributors to this book, what makes these examples troubling is that they clash harshly with legal precedent, especially that set by the Supreme Court in PRINTZ v. UNITED STATES. In this case, “the Court found unconstitutional a provision of the federal Brady Act that would have required local law enforcement officials to assist in conducting background checks before issuance of a gun permit” (p.7). This finding, in essence, amounts to an anti-commandeering principle that should hold true in all cases where federal requests are made of local authorities. Federal agents may choose to ignore state laws, but state agents must honor the laws and policies of their jurisdictions; additionally, state agents cannot be “commandeered” to serve federal dictates unless they do so voluntarily and are compensated for that work. One might imagine that exceptions could be made in times of national crisis, but Justice Scalia’s majority opinion in PRINTZ was unequivocal in stating that there could be no exceptions to the anti-commandeering principle, even if the burden upon local law enforcement was minimal. Nonetheless, when it comes to requests for state and local agents to assist with federal antiterrorism campaigns, the tendency is for most parties to ignore the legal precedent established by PRINTZ.
The superb chapter by Erwin Chemerinsky, “Empowering States when it Matters,” effectively demystifies such apparent discrepancies between precedent and practice by analyzing the politics behind supposedly neutral court cases. He argues:
the [Supreme] Court’s recent decisions finding preemption expose the political content of its federalist rulings. The Court has eagerly found preemption of state laws regulating business, such as tobacco companies, the auto industry, and insurance companies. On the other hand, most of the Supreme Court’s federalism decisions invalidating federal laws have struck down civil rights law – such as the Violence against Women Act, the Religious Freedom Restoration Act, the Age Discrimination in Employment Act, and the Americans with Disabilities Act. . . what animates the Rehnquist Court is not a concern for states’ rights and federalism. Rather the Court is hiding its value choices to limit civil rights laws and to protect business from regulation in decisions that seem to be about very specific doctrines of constitutional law, such as the scope of the commerce power and the circumstances of preemption. (p.131)
From this standpoint, when cities such as Portland elect to provide greater civil rights protections to individuals than do [*27] federal agencies, should it ever be heard by the Supreme Court, preemption of those protections would be the expected outcome. And in the ruling prohibiting the release of the names of INS detainees housed in New Jersey jails, federal preemption of state statutes was the outcome in spite of there being no existing federal statutes that could be mobilized to argue for such preemption. As a corrective, Chemerinsky concludes that any preemption of state laws should be explicitly indicated by laws passed by Congress; otherwise, states should be allowed to act on behalf of their citizens and accord them greater protections and rights if they deem fit.
The general thesis of this book is compelling but seemingly not substantiated by the many cases analyzed. In the introduction, Susan Herman remarks that “our structures of federalism have the potential to serve as an alternative check on federal overreaching if, as some believe likely, the courts prove to be unduly reluctant to find that various federal antiterrorism actions violate rights or other provisions of the Constitution” (p.3). I find myself agreeing that there is potential for federalism to check federal overreaches, but for a number of reasons there does not appear to be a likelihood of that happening. First, most states and cities voluntarily comply with federal requests for assistance or cooperation because officials at those levels are politically vulnerable and fear being removed if they do not appear to be acting in the interests of national security. Second, federal funding is increasingly tied to compliance on the local level, as can be witnessed with the Clear Law Enforcement for Criminal Alien Removal Act of 2003, which requires state and local law enforcement offices to disclose to DHS and the Department of Justice information about apprehended illegal aliens in order to receive federal funding (p.129). Third, federal entities are effectively circumventing the anti-commandeering principle by deputizing local police and campus security as federal agents (p.15), as occurred with Portland city police participating in the Portland Joint Terrorism Task Force (p.83). Fourth, and not touched upon in this book, federal entities are more and more relying on private contractors for intelligence-gathering and policing operations, both internationally and domestically, thereby bypassing any checks that federalism might provide in these situations. Notwithstanding these reservations about the persuasiveness of the book’s thesis, TERRORISM, GOVERNMENT, AND LAW is a provocative book that identifies legal dilemmas that should be discussed and debated widely.
PRINTZ v. UNITED STATES, 521 U.S. 898 (1997).
© Copyright 2009 by the author, Torin Monahan.