Nullification Works, Colorado & Other States Show How

This article was featured in our weekly newsletter, the Liberator Online. To receive it in your inbox, sign up here.

Colorado, the state of legal recreational marijuana, may soon be able to kick the federal government’s erratic surveillance policies to the curb, proving that state nullification is worth the effort.

A bill signed into law earlier this year that has been active since May 11, 2016 applies state law rules to federal agencies, effectively barring agencies such as the Bureau of Land Management (BLM) and the U.S. Forest Service (USFS) from taking actions locally that infringe on certain rules. The result is important, since the refusal to enforce federal rules on Colorado soil means that federal acts that go against the Constitution could be thwarted.

The piece of legislation (HB1109) was a bipartisan effort that, according to Tenth Amendment Center’s Mike Maharrey, could help to put an end to federal efforts that infringe on Americans’ constitutional rights such as the National Security Agency’s mass surveillance programs. Since massive databases used by the NSA require a great deal of water to keep computer systems cool, refusing to provide resources to federal agents may help to prevent the expansion of the surveillance state.

This type of approach to federal laws has been upheld in court in the past.

In 2007, when the federal government sued the state of Nevada for refusing to give the Department of Energy (DOE) access to its water supply to build a nuclear waste disposal site on Yucca Mountain, US District Judge Roger L. Hunt ruled that the state of Nevada had a right to say no the federal government, basing his decision on the fact that state rights are protected and shouldn’t be violated by a federal agency.

Maharrey explains that the legal basis for this refusal to cooperate is known as the anti-commandeering doctrine, which came to be due to four Supreme Court cases, including the Printz v. US from 1842 that serves as the doctrine’s cornerstone.

The anti-commandeering doctrine reassures the states that they are free to refuse to cooperate, while also making it clear to the federal government that its agents are prohibited from forcing state officials to comply. If Colorado is able to use its water rights to thwart the growth of programs that effectively infringe on our constitutional rights, that means that other states may join the effort.

Recently, Louisiana took an important step toward hindering the surveillance state by passing a law that requires a court order for the use of stingray technology, which is often used by law enforcement to track the location of phones and give officers access to their contents. The law is now into effect.

Illinois has also passed a very similar bill, which will go into effect on January 1, 2017. According to the bill’s wording, stingray technology use will also be restricted by court orders. But the bill goes further by prohibiting the use of the technology to gather the contents of phones targeted by law enforcement. Instead, officials with a warrant will only be able to use the stingray system to track the location of a device or identify it as a communications device, effectively protecting the individual’s conversations.