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.
Volume 161 Issue 1 2012 Article