Since the Edward Snowden leaks to The Guardian began last year, the National Security Agency (NSA) has been a political hot potato. Yet, whatever you think of the NSA, it is clearly a federal agency authorized by federal statute. Some lawmakers in the state of Maryland—home to the NSA’s headquarters in Ft. Meade—have recently proposed an unconstitutional fix: They want to cut off electricity and water to the building.
This scheme forgets the basics of our constitutional system. Changes to the NSA must come at the federal level: Congress can direct legislative changes; the President can manage the agency consistent with statute and his Article II authority; federal courts can ensure that the NSA’s actions comply with statute and the Constitution. States, however, have no business discriminating against federal agencies.
Article VI, clause 2 of the Constitution—the Supremacy Clause—reads:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Ever since 1819, in a case called McCulloch v. Maryland, the Supreme Court of the United States has held that “the 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.” Nearly 200 years later it seems Maryland has still not learned that lesson.
If the law authorizing the NSA is constitutionally valid, then such direct, obvious attempts to interfere with the NSA by state legislators are clearly unconstitutional. These attempts are so plainly out of bounds that the taxpayers of the state of Maryland might even be on the hook for Department of Justice (DOJ) attorneys’ fees when the DOJ inevitably sues in federal court to keep the power on and the water running.
Does this mean the NSA is above the law? Of course not. Members of the United States Congress can still pass laws; the President can still exercise his discretion to change NSA policy; and federal courts can still entertain lawsuits against the NSA. Perhaps federal officials will not do any of this. However, federal officials playing it safe does not authorize state governments to effectively nullify federal law.
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