Federalism, Secession, and Privacy

Federalism remains much in the news. Though states cannot secede from the Union, it is possible (albeit difficult) for a group of localities to secede from an existing state to form a new one.  At NPR.org, Alan Greenblatt writes about an election that will happen soon:

There's a big race right now to become the 51st state.

Forget traditional contenders like Puerto Rico. In several existing states, residents of less populous areas are hoping to create new states of their own.

Citizens in 11 mostly northeastern Colorado counties are among them. They'll vote on Nov. 5 whether to break off and form their own state. Many are unhappy about liberal state legislation they believe reflects the values of the Denver-Boulder corridor, but not their part of the world.

"We're rarely listened to when it comes to legislation," says Butch White, the mayor of Ault. "I'm sure the vote will pass in Weld County quite easily."

The Colorado counties aren't alone. There's been occasional talk of secession at various times in recent decades, but now the idea is showing signs of taking root across the map.

There is talk about and sometimes movement toward secession in several states. These are locally motivated startups, but they share some themes in common.

People in mostly conservative areas feel isolated living in states controlled by Democrats. Rural residents, in particular, believe their values are given no respect in capitols now completely dominated by urban and suburban interests.

Secession may be part of the same impulse that leads states to sue or otherwise try to block or nullify federal laws they don't like. People are losing respect for institutions that don't reflect their preferences and would prefer, to the extent possible, to extricate themselves from them.

The New York Times reports that states are playing their traditional role as laboratories of democracy.  Unlike the federal Constitution, some state constitutions contain explicit protections for privacy.  The issue remains hot:

State legislatures around the country, facing growing public concern about the collection and trade of personal data, have rushed to propose a series of privacy laws, from limiting how schools can collect student data to deciding whether the police need a warrant to track cellphone locations.

Over two dozen privacy laws have passed this year in more than 10 states, in places as different as Oklahoma and California. Many lawmakers say that news reports of widespread surveillance by the National Security Agency have led to more support for the bills among constituents. And in some cases, the state lawmakers say, they have felt compelled to act because of the stalemate in Washington on legislation to strengthen privacy laws.

“Congress is obviously not interested in updating those things or protecting privacy,” said Jonathan Stickland, a Republican state representative in Texas. “If they’re not going to do it, states have to do it.”
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“It can be counterproductive to have multiple states addressing the same issue, especially with online privacy, which can be national or an international issue,” said Michael D. Hintze, chief privacy counsel at Microsoft, who added that at times it can create “burdensome compliance.” For companies, it helps that state measures are limited in their scope by a federal law that prevents states from interfering with interstate commerce
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Nullification

Politico reports on state efforts to nullify federal laws:

"There are a rising number of people who are frustrated with what Washington is doing, which is a perfectly legitimate and, in my opinion, correct view of, ‘How do we push back?’” Matthew Spalding, vice president of American Studies for Heritage, told POLITICO. “Unfortunately, there’s a minority in that group that thinks nullification is the answer, by which they mean good old-fashioned, South Carolina, John C. Calhoun nullification. That’s deeply mistaken and unfortunate.”

Spalding said states’ better options include legal challenges, not funding federal laws, or even refusing to enforce them - but not overruling federal laws with state ones.

"Ironically, the people who say they are trying to defend the constitution are doing something to undermine it,” he added. “This is sort of a Hail Mary pass. These are in most cases state legislators who are very frustrated. They’re figuring out how to stop these things, how to turn the course of the nation, in my opinion for good reason, and they’re being told the Supreme Court just upheld [Obamacare], this guy has been reelected, what can we do? And someone comes around and says, ah, you can nullify law.”

Nullification

Associated Press reports:

An Associated Press analysis found that about four-fifths of the states now have enacted local laws that directly reject or ignore federal laws on marijuana use, gun control, health insurance requirements and identification standards for driver's licenses. The recent trend began in Democratic leaning California with a 1996 medical marijuana law and has proliferated lately in Republican strongholds like Kansas, where Gov. Sam Brownback this spring became the first to sign a measure threatening felony charges against federal agents who enforce certain firearms laws in his state.

Some states, such as Montana and Arizona, have said "no" to the feds again and again - passing states' rights measures on all four subjects examined by the AP - despite questions about whether their "no" carries any legal significance.

"It seems that there has been an uptick in nullification efforts from both the left and the right," said Adam Winkler, a professor at the University of California at Los Angeles who specializes in constitutional law.

Yet "the law is clear - the supremacy clause (of the U.S. Constitution) says specifically that the federal laws are supreme over contrary state laws, even if the state doesn't like those laws," Winkler added.

The fact that U.S. courts have repeatedly upheld federal laws over conflicting state ones hasn't stopped some states from flouting those federal laws - sometimes successfully.

About 20 states now have medical marijuana laws allowing people to use pot to treat chronic pain and other ailments - despite a federal law that still criminalizes marijuana distribution and possession. Ceding ground to the states, President Barack Obama's administration has made it known to federal prosecutors that it wasn't worth their time to target those people.

Federal authorities have repeatedly delayed implementation of the 2005 Real ID Act, an anti-terrorism law that set stringent requirements for photo identification cards to be used to board commercial flights or enter federal buildings. The law has been stymied, in part, because about half the state legislatures have opposed its implementation, according to the National Conference of State Legislatures.

About 20 states have enacted measures challenging Obama's 2010 health care laws, many of which specifically reject the provision mandating that most people have health insurance or face tax penalties beginning in 2014.