Commandeering Information (and Informing the Commandeered)

Abstract

In Can the States Keep Secrets from the Federal Government? Robert Mikos offers an important contribution to the scholarly discussion of state departures from federal policies by presenting two novel insights. First, Professor Mikos recognizes that information exchanged between federal and state governments is an expanding ground for conflict between federal and state policy spheres. Second, he observes that federal demands for state-gathered information are formally and functionally indistinguishable from other forms of prohibited commandeering. Both of these points will reverberate in future conversations about federalism, and I could not attempt to exhaust their implications here.

Instead, my Response will amplify and extend Professor Mikos’s first point, which identifies the commandeering problem, and will suggest some limits to his second point, which proposes a judicially managed solution. Commandeering information should be recognized, like other forms of federal coercion of state officials, as imposing significant costs on states. Yet the costs to state autonomy from commandeering information, and the prospects that federal judges might mitigate them, are (as they are for commandeering generally) relatively limited. Further, the costs to political accountability from commandeering information are difficult to assess, but these may be more effectively mitigated through political means. Even if Professor Mikos’s conception of commandeering information is not enforced by the Judiciary, it at least helps the states (and their citizens) recognize that they have been commandeered.

Keywords: Federalism, Tenth Amendment, commandeering, anti-commandeering, information, Printz v. United States, New York v. United States