51 Pages Posted: 4 May 2012
Date Written: May 3, 2012
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 the 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 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 federal demands for information should be considered 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.
Keywords: Federalism, Tenth Amendment, Fifth Amendment, grand jury, administrative subpoena, subpoena duces tecum, commandeering, anti-commandeering, privilege, state secrets, information, privacy, Printz v. United States, New York v. United States
Suggested Citation: Suggested Citation
Mikos, Robert A., Can the States Keep Secrets from the Federal Government? (May 3, 2012). University of Pennsylvania Law Review, Vol. 161, Forthcoming; Vanderbilt Law and Economics Research Paper No. 12-15; Vanderbilt Public Law Research Paper No. 12-17. Available at SSRN: https://ssrn.com/abstract=2050446