A recent mainstream media news report covered the Michigan 4th Amendment Protection Act. Unsurprisingly, while much of the article was factually correct, they included a statement from a former NSA lawyer who either lied about the Supremacy Clause – or just doesn’t know anything about it.
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Virtually every mainstream article that you read about state sovereignty or nullification is going to include a quote by a “legal scholar.” Now, nine times out of 10, this lawyer or law professor is going to cite the supremacy clause.
It’s like federal supremacists think the supremacy clause is some kind of jail free card. They slap it down and instantly any state action is invalidated.
The Washington Examiner recently ran a fantastic article headlined “On 5th anniversary of Snowden leak, one state effectively bans the NSA.”
The article featured a law recently passed in Michigan that bans all state support and cooperation with warrantless federal surveillance.
Low and behold – our legal expert makes an appearance – this time in the form of a Brookings Institute fellow who also happened to be a former NSA lawyer named Susan Hennessey. And yes, she predictably trotted out the supremacy clause, saying it could spell trouble for the Michigan law.
This is bovine scat.
The Supreme Court has consistently held since 1842 that the federal government cannot force a state to use its personnel or resources to enforce a federal law or implement a federal program.
In fact, this anti-commandeering doctrine was a key part of a recent Supreme Court ruling that overturned a federal sports betting law.
So no, the Michigan law does not have any supremacy clause issues. The federal government cannot force Michigan to cooperate with warrantless surveillance.
Hennessey is either a really bad lawyer, or she’s lying.