Can the states keep secrets from the federal government?

• Jurisdiction: United States
• Date: 01 December 2012
• Author: Mikos, Robert A.

States amass troves of information detailing the regulated activities of their citizens, including activities that violate federal law. Not surprisingly, the federal government is keenly interested in this information. It has ordered reluctant state officials to turn over their confidential files concerning medical marijuana, juvenile criminal history, immigration status, tax payments, and employment discrimination, among many other matters, to help enforce federal laws against private citizens. Many states have objected to these demands, citing opposition to federal policies and concerns about the costs of breaching confidences, but lower courts have uniformly upheld the federal government's power to commandeer information from the states. This Article provides the first in-depth analysis of the commandeering of states' secrets. It identifies the distinct ways in which the federal government demands information from the states, illuminates the harms such demands cause, and challenges the prevailing wisdom that states may not keep secrets from the federal government. Perhaps most importantly, the Article argues that courts should consider federal demands for information to be prohibited commandeering. It suggests that the commandeering of state information-gathering services is indistinguishable in all relevant respects from the commandeering of other state executive services. The Article discusses the implications such a ruling would have in our federal system, including its potential to bolster the states' roles as sources of autonomous political power and vehicles of passive resistance to federal authority.

INTRODUCTION I. MONITORING REGULATED ACTIVITY A. State Monitoring of Regulated Activity B. Using State Monitoring to Enforce Federal Law C. The Commandeering of States' Secrets 1. Statutory Reporting Requirements 2. Administrative Subpoenas 3. Grand Jury Subpoenas II. COMMANDEERING'S HARMS A. The Economic Costs B. The Political Costs III. REBUFFING STATE AUTONOMY: THE PREVAILING VIEW REGARDING DEMANDS FOR STATES' SECRETS A. Constitutional Federalism 1. The Tenth Amendment Claim 2. The Anti-Commandeering Rule B. Statutory Privileges C. Statutory Reasonableness D. The Privilege Against Self-Incrimination IV. RESTORING STATE AUTONOMY: A NEW APPROACH TO SAFEGUARDING STATES' SECRETS A. What it Means to Enforce or Administer Law B. The Structural Harms of Commandeering States' Secrets C. The Contours of the Proposed Anti-Commandeering Rule 1. Existing Exceptions to the Anti-Commandeering Rule a. Conditional Spending/Preemption b. Generally Applicable Reporting Requirements c. The Reconstruction Amendments d. State Judges 2. New Exceptions to the Anti-Commandeering Rule a. Grand Juries b. Necessity D. The Lack of Realistic Political Alternatives CONCLUSION INTRODUCTION

In the debates over WikiLeaks and similar campaigns to expose government secrets, the federal government has consistently championed the need for government secrecy. (1) For example, it has claimed that the leak of its confidential files has disrupted the wars in Iraq and Afghanistan, put the lives of American soldiers at risk, and strained key diplomatic relations. (2) But in another largely overlooked context, the federal government has actually championed the need for exposing government secrets, at least when the secrets in question are being kept by another sovereign. Across a growing set of policy domains, the federal government has been quietly ordering state governments to hand over their own confidential records to help enforce federal laws against private citizens. For example, federal agencies have demanded access to state medical marijuana registries to aid in the prosecution of suspected marijuana traffickers, city police files to facilitate the deportation of nonresident aliens, state tax rolls to investigate cases of federal tax fraud, and transcripts of state administrative hearings to pursue employment discrimination claims against private employers. (3)

This Article provides the first in-depth analysis of federal demands for confidential state records, demands that I call the commandeering of states' secrets. It traces the genesis of these demands to the federal government's information deficit vis-a-vis the states. Using a combination of government agents, the latest surveillance technology, and reports submitted by private citizens, state governments now gather massive quantities of information detailing the activities they regulate. (4) To name just a few, state repositories of information now include: medical marijuana registries, crime reports, professional disciplinary records, prescription records, business licenses, criminal history records, property title records, and vehicle registrations. (5) The states gather this information to enforce their own laws, but such data may also be used to enforce federal law. Indeed, state agencies sometimes have far better information about compliance with federal regulations than do their federal counterparts. For example, many states have compiled extensive patient registries to help them enforce their medical marijuana laws. These registries contain a unique trove of information that federal agents have recently used to track down and prosecute the people who grow and distribute marijuana pursuant to state law. (6)

It should come as no surprise that the states do not always want to share their data with the federal government. For one thing, doing so increases the cost to the states of gathering the information in the first instance. (7) Citizens already have an incentive to evade state regulations and avoid detection by state regulators. This makes the task of gathering information about regulated activity enormously expensive. Commandeering states' secrets adds to that expense by giving citizens an additional incentive to conceal their activity from state regulators: doing so may dramatically reduce the chances that federal regulators will catch them. All governments rely extensively on their citizens for information. To replace or restore this vital source of information, the states would need to hire more agents, employ more technology, or make deeper concessions to encourage private reporting.

The commandeering of states' secrets also has political costs. (8) In many cases, it forces state officials to help advance federal policies they or their constituents deem objectionable. In addition, when the federal government orders a state official to provide information about violations of an unpopular federal law, there is also a real danger that citizens will denounce the state official for being...