New Legislation Would Ban NSA From Arizona

[Indi Guy]

Source: U.S. News & World Report

Arizona state Sen. Kelli Ward announced legislation Monday that would ban the National Security Agency from operating in her state.

"I believe the number one priority for national security is defending and protecting the Constitution," the Republican who represents the Lake Havasu City area of northwest Arizona said in a statement. "Without that, the rest becomes irrelevant. There is no question that the NSA program, as it is now being run, violates the Fourth Amendment. This is a way to stop it."

Ward described her legislation as a preemptive strike.

"While media attention is focused on a possible effort to shut off water to the NSA data center in Utah, I'm introducing the Arizona Fourth Amendment Protection Act to back our neighbors up," Ward said. "Just in case the NSA gets any ideas about moving south, I want them to know the NSA isn't welcome in Arizona unless it follows the Constitution."...



Read more: http://www.usnews.com/news/articles/2013/12/09/new-legislation-would-ban-nsa-from-arizona

[cstanleytech]

1. Remind me please how exactly can a state ban any federal agency without violating the constitution?

[pipoman]

4. It may put the NSA into a position

Of having to answer questions to fight it. I believe the case can and should be made why the NSA isn't acting inviolation of he 4th..

[Ranchemp.]

6. .They can't "ban" them, but what they can do is

refuse to provide any state resources, things like water, electrical, security, etc.

[geek tragedy]

7. They can't do that either--nullification doesn't work for either side. nt

[Ranchemp.]

9. Yeah they can.

A state can refuse to co-operate with a federal entity by not providing state resources.
It's the same as if the ATF came into a state to investigate and arrest an arms trafficker, the state can legally refuse to provide any state resources, such as manpower, facilities, intelligence, to help the ATF, what they can't do is physically interfere with the feds.

[geek tragedy]

16. Refusing to deploy resources is different from banning the NSA from operating in the state nt

[Ranchemp.]

18. And I said in my earlier post that they can't ban them, but they can make it

difficult to operate by refusing to provide state resources.

[geek tragedy]

19. Withholding water and electricity is nullification, not refusing cooperation. nt

[happyslug]

10. If we are talking about things under the control of the State, yes the State can ban them

The Nullification Criss of the 1830s involved a State (South Carolina) who wanted to nullify a Federal Tax law. The US Supreme Court has ruled such an act was unconstitutional.

The real issue is the concept of dual jurisdiction. As a general rule the Federal Government can NOT force the State to do anything unless it is expressly authorized by Congress OR by the Constitution. Thus if the State is the entity providing water, Sewerage, natural Gas, Electricity, the State may be able to say NO. If such services are being provided by regulated utility, that ability to say no may still exist (Through in such cases restricted to the Common Law Rule that a Public Utility MUST be made available to everyone, a rule that may undermine any attempt by the State to say no to providing such service).

On the other hand, the Federal Government can NOT interfere with How a state runs itself. An example of this was seen in the US Supreme Court decision on Obamacare, the Court ruled the Federal Government could NOT order the States to expand they medical assistance program, on the grounds each State is Sovereign and as such each state had the right to say NO on the use of its own agencies. Another Example was in the Marriage Case involving the US military, the court ruled that marriage was up to the States NOT the Federal Government and as such the Federal Government had no right to say anything about who can marry, or even what is a marriage,

[cstanleytech]

17. The feds however do have control over federal funds and how much the states get

so if the state wants to try this I imagine the federal funds might dry up plus the feds can block access to things like logging on federal land in said states.

[geek tragedy]

21. The feds also have supreme jurisdiction over the electric grid and the water supply.

Not surprisingly, the nullificationist Tenther who dreamed up this bill is a complete moron.

[happyslug]

25. Why do that, all the Federal Government has to do is refused to transmit electricity to Arizona

Remember the Hoover dam is a main source of electricity in Arizona, It is owned by the Federal Government. The Federal Government can say, if you do NOT permit your local utilities to hook a NSA building up, we will just stop selling electrical power to your local utilities.

As I write below, the State may have the power to deny local utilities the right to hook up a NSA building, but the Federal Government controls power produced by the Hoover dam (which is Federally owned) AND the Federal Government is the sole regulatory of the the interstate movement of such power. i.e. the Federal Government can just say we are NOT selling you any power, until you hook up that building.

Thus in real terms this bill is meaningless. If this was in an Eastern or Mid Western State, which is an electrical exporting state, then it may be usable. In such areas the States may be able to tell the Federal Government to take their power elsewhere, for they have other, internal, sources for electrical power. On the other hand, Arizona has no short term way to provide the Electrical power it wants, that plus their sources of electrical power, this is meaningless.

http://www.usbr.gov/lc/hooverdam/faqs/powerfaq.html

http://www.eia.gov/state/?sid=AZ

On top of this other sources of Electrical power in Arizona is a Nuclear Plant and a Coal Plant on the Navajo Reservation. The Reservation is under the sole jurisdiction of the Federal Government, as is the Nuclear plant (Through if the power goes into the State system, then it would be state regulated).

Total Net Electricity Generation:..............11,764 thousand MWh
Petroleum-Fired: ..............................................2 thousand MWh
Natural Gas-Fired:.....................................4,124 thousand MWh
Coal-Fired:.................................................3,917 thousand MWh
Nuclear:.....................................................2,930 thousand MWh
Hydroelectric:................................................545 thousand MWh
Other Renewables:.......................................229 thousand MWh

http://www.eia.gov/state/data.cfm?sid=AZ

[geek tragedy]

29. Read up on McCulloch vs Maryland.

States have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control the operations of the constitutional laws enacted by Congress to carry into execution the powers vested in the General Government.

Cutting off electricity would be one step removed from firing on Fort Sumter.

[happyslug]

30. But can the Federal Government ORDER a state to do something?

That is the opposite of McCullough. In McCullough the court ruled the power to tax is the power to destroy,, thus ruled the State could NOT tax the Federal Government, In this theoretical situation, you are asking the State to DO SOMETHING, provide power. In this legal exercise the issue is NOT the State doing something POSITIVE to the Federal Government, but the State saying it will NOT do something, i.e. Can the State say NO? In the recent case involving Obama care the Court ruled NO, forcing a State to do something is as unconstitutional as the State trying to tax the Federal Government.

Remember we are a federation and as such you must balance between the Federal Government and the State Government. Both are Sovereign,

[geek tragedy]

31. Yes, per the supremacy clause. nt

[happyslug]

33. The Supremacy clause only comes into play when they is a direct conflict

For example, if the Federal Law says it is illegal to do X, the State can NOT say X is legal. On the other hand, the Supremacy clause does not mean ALL Federal Law supersedes state. In the Case involving DOMA, the court ruled the FEDERAL LAW as to who the FEDERAL GOVERNMENT will recognized as Married, violated the Constitution, for what is a marriage is reserved to STATE LAW ONLY. Thus the Federal Government can NOT pass a law in areas reserved to the States and then claim the Supremacy Clause.

Now, the court has taken an expansive view of the Federal power to regulate Interstate commerce, to include anything that affects interstate commerce, even if the act in question all occur in one state (The 1941 case where the Supreme Court upheld a federal ban on someone growing wheat on his land, that he intended to use himself is an example of that).

http://en.wikipedia.org/wiki/Wickard_v._Filburn
Actual Case:
https://supreme.justia.com/cases/federal/us/317/111/case.html

Now, that case is a little more complicated then growing wheat for one's own use (the farmer in question had received money from the Federal Government in regards to other wheat he was growing) but the ruling is the furthest expansion of the Commerce Clause.

Remember the Civil Rights Act of 1875 was ruled to be unconstitutional by the US Supreme Court for it was based on the post Civil Rights amendments, and the court ruled those amendments only protected the rights in the Constitution itself not the Bill of Rights and thus the rights protected in the 1875 Civil Rights Act were viewed as outside the power of Congress granted in the Post Civil War Amendments. The 1875 act would almost be reenacted in the form of the 1964 Civil Rights Act, but the 1964 Civil Rights Act was justified under the Commerce Clause and thus upheld by the Supreme Court.

http://en.wikipedia.org/wiki/Civil_Rights_Act_of_1875
Here is the Civil Rights Case that ruled the above unconstitutional:
https://supreme.justia.com/cases/federal/us/109/3/case.html

Thus unless a court finds that something has to do with interstate Commerce, the Federal Government had a very limited field of authority. In the case involving the Federal Ban on Guns within 100 feet of a School, the US Supreme Court ruled it was unconstitutional for guns in such areas were CLEARLY not affecting interstate commerce. i.e It was unconstitutional for the Federal Government to ban pistols in such locations, but it would be Constitutional for a State to do so.

http://en.wikipedia.org/wiki/United_States_v._Lopez
Actual Case:
https://supreme.justia.com/cases/federal/us/514/549/case.html

And since I am citing cases, lets don't forget Printz vs US:

https://supreme.justia.com/cases/federal/us/521/898/case.html

In Printz, the US Supreme Court ruled is was UNCONSTITUTIONAL for the Federal Government to REQUIRE State Sheriffs (or other county chief law enforcement officers) to perform background checks on the grounds they were EMPLOYEES of the STATE EXECUTIVE and thus could NOT be ordered by Congress to do what the FEDERAL GOVERNMENT wanted them to do UNLESS such power was expressly granted to Congress by the US Constitution.

Also look at New York vs US, another Commerce Clause case:
https://supreme.justia.com/cases/federal/us/505/144/case.html

In that case the US Supreme Court ruled that the Federal Government can NOT compel a state to "take title" to low level radioactive waster produced within its borders (and produced NOT by the state but other, mostly private users of the waste). The Federal Government could take title, it could pay the state to take the waster, but the Federal Government could NOT compell the state to take the waste itself on the grounds both the state and federal Government were sovereign and that law in NOT permitted under the Commerce Clause.


http://en.wikipedia.org/wiki/New_York_v._United_States

http://en.wikipedia.org/wiki/Printz_v._United_States

[geek tragedy]

35. None of that takes away from the fact that a state cannot interfere with

the operations of the federal government in any way. Cutting off electricity is interference.

[happyslug]

36. So was the refusal of the Plaintiff Sheriffs to follow Federal law.

But the Supreme Court upheld the right of the Sheriff NOT to do so. The supremacy clause is NOT that broad as to stuff out the rights of the States to control what goes on within the State.

[geek tragedy]

37. The federal government cannot commandeer state resources to enforce federal statutes.

But, the state is not allowed to interfere either. Cutting off electricity would be interference, not a commandeering of state resources.

[happyslug]

38. What is state resources???

That is the dispute, is utility service a STATE resource for it is a public utility, or is it private? What is the public utility is owed by the State? (which is where we started this debate). Can the Federal Government ORDER a STATE owned Utility to provide service, the State does NOT want to provide? Is that not a take over of a State resource for Federal Purposes?

If we look at privately owned public utilities, given the regulatory nature of in state Electrical providers can they do anything the State forbids them to do? Such providers were given the exclusive right to provide a service in a set area by the State, can the Federal government EXPAND that service area because the Federal Government want service? Even if the State says NO? Is the federal government over ruling state law in this matter, also interfering with a state resource? Remember we are talking about regulated Utility providers, regulated for they had a State given AND protected monopoly.

Now, in areas where they is competition for utility service, then you no longer have a state granted monopoly, except in the area of actual transmission of such power. Transmission of power, as opposed to buying power, has remain regulated in the move to deregulate utility service. Given the monopoly on transmission is a state granted monopoly, it is clear the state can put restrictions as to the area of service (and to whom they can provider service). Can the Federal Government over rule such a restriction? Remember the monopoly is a grant from the STATE, that restricts a "resource" (the ability to obtain electrical power) and thus is a State resource.

Now, this has been a nice intellectual debate, but it appears to be moot. First, while this State law may be constitutional, the real key is will it ever come into play? I bring this up for something like the NSA (which is the only agency affected by this law) would want a secure source of power, which means it will want to hook up directly to a power generator AND then have backup power source, most likely diesel generators.
The NSA data collection and retrieval system has to be a huge power users (most things about the NSA is classified so what power they use is unknown but the data they are gathering requires a lot of electrical power, thus has a huge demand to electrical power. Thus the locations the NSA can put a building is limited, it has to be in an area with good electrical supply and nearby decent housing. Thus it will NOT be in the boon docks, unless it is put right beside a power plant.

Elsewhere power lines can provide the power needed, but it most cases a new power line would have to be installed, just to carry the power needed by the NSA. Thus the whole purpose of the proposed law will have no affect. The law forbids utility service to the NSA in Arizona. Big deal, if the NSA wants to set up a building in Arizona, one of the things it will make sure of is a secure power supply, i.e. install its own line ot an electrical generator plant (or maybe even install its own natural gas electrical generators along with its own Natural Gas pipeline, it may be cheaper). The NSA could set up its plant on an interstate regulated natural gas or electrical line, to have a secure source of electrical power.

In short, this law is meaningless, it is like an Arizona law saying it is illegal for Russians to nuke Arizona. If the Russians wanted to nuke Arizona, that law would not prevent them. The same with this proposed law, it would not prevent the NSA from building a building in Arizona, for the needs of such a building would require power sources other then the one's out lawed by this law.

Nice review of restrictions on the Federal Government, these issues pop up every so often, but the affect of this law will probably never be tested, for the only person with standing to attack the law is the Federal Government, and the Federal Government will only do so of the law interferes with what it wants to do. Given the needs of the NSA would require the Federal Government to bypass local utility providers any way, why would the Federal Government even waste the money on getting this law struck down? Thus this issue will be moot, but it is a good review of the law of Federalism and how the State and the Federal Government interact. The States are NOT subject to everything the Federal Government wants to pass, but so is the Federal Government not restricted to everything passed in a State court. The United States is a FEDERATION not a "State" in the international meaning of that word. The Federal Government is a Government of limited Jurisdiction, since the late 1930s most of the limit has been set by Congress not the courts but it is still a government of limited jurisdiction. On the other hand, the States have unlimited jurisdictions except for things forbidden to them by the Federal Constitution (Which includes the Commerce Clause which the Courts have long expanded to almost anything Congress wants to pass).

On the other hand, if Congress has NOT passed a law, then State law provides the law (except in areas reserved to the Federal Government, but the Courts have justified by passing those restrictions if needed. For example Bankruptcy is an Exclusive Federal Jurisdiction, but till 1898 you had more years since 1787 with NO Federal Bankruptcy law. In such cases the States passed "insolvency laws" which the Federal Courts upheld in those years with no bankruptcy law (They has been a Bankruptcy law since 1898 thus State insolvency law have been ruled invalid since 1898). Why? Something had to be done and Congress was NOT doing it, so the States did. Thus where is the divide between State and Federal Jurisdiction is very blurry. It pops up at weird times and in weird ways.

Thus the proposed law may be constitutional or unconstitutional depending on how it affects what. In my opinion it will NEVER be effective for what it outlaws no one is proposing. Sounds good, but ineffective.

[geek tragedy]

39. public utilities are n.ot resources of the state government

They're heavily regulated providers of necessities, often being monopolies due to infrastructure. They are subject to the jurisdiction of the federal government due to their role in interstate commerce. They have zero right to cut off service to the federal government.

This is not a matter of dispute outside Tenther circles.

[geek tragedy]

20. Sorry, but the idea that states can cut off water and electricity to the enforcement of laws they

don't like is nullificationist bunk.

No state can refuse that stuff to the ATF, or the HHS, or whatever other federal program they don't care for.

The electric grid is a federal, even transnational segment of infrastructure that states have zero ability to manipulate for political point scoring.

[happyslug]

24. My point was restricted to actual ownership of such services

If the state owns such utilities, then you have a dual sovereignty issue. Each State and the Federal Government are equal sovereigns, except in those areas where the the Federal Government has author ty. One area of such authority is interstate commerce, thus you are correct when it comes to regulations of such service belongs to the Federal Government, but once in a state and if such power is sold to a State owner agency, then it is the STATE who decides who gets that power not the Federal Government. This was seen in the California Electricity Crisis of 2000-2001:

http://en.wikipedia.org/wiki/California_electricity_crisis

On the other hand, regulated utilities do not have that dual sovereignty,but come under the regulations of whoever has the right to regulate what they are doing, if within the State, the State, if it means crossing a state line the Federal Government.

Could a utility owned by the State say NO to providing power to someone who requests to be hook up? Yes, if the State complies with its own laws which includes the Common Law Rule that a "Public Utility" (which can be privately owned) MUST provide service to anyone in its service area who is willing to pay for the service. Such a utility can say NO, if its believes the request is coming from outside its area of service, and that is true of both Government and Privately owned Public Utilities. What is the service area? That is defined by state law. If the state excludes certain activities from being in the class of people to be serviced by that Utility, that makes anyone who requests outside the service area and the Utility can NOT hook them up.

You have to understand the concept of public utility to understand the above. A public utility is an agency that is providing a service to a limited group of people, most often restricted by area. A public utility may be regulated by the state, but also may not be. An example of this are Rural Electric Coops. Rural Electric Coops were set up by Federal Law and still operate under those laws, which excludes regulations by the State.

A Public Utility may refused to hook up anyone, if to so would harm that the public utility OR if the person requesting to be hooked up (which can be the Federal or State Government) is outside the service area of the public utility.

That is the area this law MAY work in. Internal use of electrical power is in the exclusive control of the States, and the state can decides what is the group of people to be served by the Utilities within the state.

The Federal Government can work around this by providing its own electrical power (the Federal Government does this on Federal Military reservations all the time). The State can NOT do anything about that. The Federal Government can say it is just using the local utility to transmit power it created elsewhere to whatever building it wants that power to go to. A little harder for the Federal Government to do, but still requires cooperation from the Utility whose power lines the Federal Government wants to use.

The Federal Government can also sue the utility on the grounds the Federal building is within its Service Area and denial of service is a denial of the right to service from a qualified public utility. Then a Federal Court will get to decide if the Federal Building is within the group of people that is to be served by the public utility.

This is the concept of dual sovereignty. The Federal Government is a Government of limited powers, this came up in the DOMA case, where the Supreme Court ruled, yes DOMA only affected Federal Benefits and thus was a Federal issue, but who are "married" under those benefits is set by State law and the Federal Government had NO business getting involved in areas reserved to the States.

Local utility service is an area reserved to the STATES. The power MAY come from out of state, but once in the state it is subject to the sole control of the State Government. There is some overlap here, with the Federal Government also controlling where in the state the power may go, but once ownership of the Electrical power is transferred to a State regulated Utility, then the State has complete control, and state law applies. This includes the service areas of such public utilities.

[geek tragedy]

26. So, in your view, a state could cut off electricity

to all abortion clinics if it owned the utility?

[happyslug]

27. If you could get around the concept that a public utility must serve all people in their area.

Remember a public utility MUST provide service to anyone in their service area. If the Abortion Clinic is away from other similar services (and what I mean by that is away from other doctors, hospitals and other users of the power they normally use), then yes.

The problem is those areas that can provide the utility services needed by an abortion clinic (and they need access to decent water supply and sewerage) is itself restricted. I once looked at a house that had a septic system, but the owner had used it as a hair salon. I ran away from that place as soon as I could, hair salons use a lot of Chemicals that a Septic tank is NOT designed to handle, thus I if I bought the house (it has several acres attached to it), I was looking as a complete new septic system would have to be installed.

Having a decent sewerage system is more important to a Abortion clinic (or ANY medical provider) do to the chemicals they use to clean and disinfect. Thus the state could ban abortion clinics from areas served by Septic system and no one would object.

NSA is a tremendous power hog, if it was to move anywhere. Thus it would be a drain on any power system and thus the state could restrict where it would go. The same with Abortion clinics, the state could restrict them to areas where they have limited drain on utility service.

Remember we are NOT talking about an office in either case, but in the case of the NSA a large building drawing a lot of power. The same with an abortion clinic, it has utility needs, like any modern medical provider needs. Medical provides are NOT found in the boon docks, but in county seats or other areas with decent sewerage systems. If the State bans certain activities from occurring in an area of a utility provider, that utility provider will be forbidden from providing service.

Now, the rule has to be "reasonable", i.e. there has to be a reason for the rule, even if the reason is different from the one proposed when the rule was adopted, but any reasonable justification for the rule would work.

Now, if the NSA opens a hiring office in Arizona, then it will get Utility Service of similar offices get such service, but in the case of NSA and this law the assumption is a NSA building to house part of its data. Thus, like an abortion clinic can de denied service by the State on the grounds it is to much a drain on the utility.

Please note, many states already do this to Abortion Clinics. 87% of all counties have no abortion clinic, often denying such clinic access to utilities:
http://www.huffingtonpost.com/2009/06/02/no-choice-87-of-us-counti_n_210194.html

In three states the number of Abortion clinics is one (and often restricted as to days it is open)

In the areas where Abortion clinics do exist, it is because the area serves business very much like abortion clinics in terms of utility usage and thus under the concept of public utility, must be provided services.

Lets remember, my point was to state what were the power of the State, and that includes regulations of in state utility service. Such regulations can provide restrictions as to who can access that utility service, if the restriction is reasonable for any reason. In the case of power hungary users, making sure the surge in usage does NOT interfere with other people right to such service is "Reasonable" even if it is NOT the stated reason for the rule.

This is the same rule the permits states to ban garbage dumps, to ban junk yards etc. If the Federal Government wants to disobey such rules it can, provided it can do so WITHOUT stepping on the powers of the State.

[geek tragedy]

28. You're greatly exaggerating state authority.

It can't thwart the operation of the federal government , nor unduly burden women exercising constitutional rights, by cutting off electricity via their monopolist status, as is usually the case with public utilities.

The states have ZERO authority to regulate or impede federal activities. None. Zilch.

That has been a non- issue since 1819 in McCulloch vs Maryland. The issue has been resolved.

[happyslug]

34. I am following the Supreme Court

See my post #33 above for the cases on this subject.

[dixiegrrrrl]

2. NSA has managed to piss off both the left and the right.

Glad to see there is something we can be in agreement about.
Let's see if Ward's bill makes it into law.
And, if so, can be upheld.

[EC]

3. So then all their defense would

have to be paid by the state?

[pipoman]

5. The NSA is hardly "all their defense"..

[Shrike47]

8. Won't be upheld. The way to attack NSA is through Congress.

[Coyotl]

11. More idiotic political grandstanding

Groundwork for blaming the Dems for Bush's spying programs ??

[JoeyT]

12. Which wouldn't be possible if so many Dems weren't defending it.

Both the leadership and the foot soldiers.

It stopped being Bush's spying program when Obama kept it going. It's Obama's spying program now.

[Indi Guy]

14. Exactly.

...Just as the LBJ's Vietnam war became Nixon's war when Nixon bought into his predecessor's policies.

[jtuck004]

13. Because, you see, Internet traffic is bounded by the borders of AZ. LOL n/t

[groundloop]

15. That's rich, a GOPer worried about the constitution

The very same people who are working so hard to keep the "wrong" type of voter from the polls. RIGHT.

[geek tragedy]

22. The person is a Tenther. nt

[blkmusclmachine]

23. A good start.

[Blue_Tires]

32. FWIW, Ward is also the genius who proposed

"Senate Bill 1112 and HB 2291, sponsored by Sen. Kelli Ward,
R-Lake Havasu City, and Smith, would ban all federal, state or local government employees
and federally licensed gun dealers from enforcing any federal law or regulation relating
to firearms or ammunition in Arizona...."

So I'm not sure she actually understands how the law works...