December 15, 2004

Local government and the war on terrorism.

Massachusetts Governor Mitt Romney speaks to the Homeland Security Advisory Council:
"The eyes and ears which gather intelligence need to be as developed in our country as they were in foreign countries during the cold war. Meter readers, E.M.S. drivers, law enforcement, private sector personnel need to be on the lookout for information which may be as useful."...

[U]nder Mr. Romney's proposal, every state would be urged to marshal local agencies and businesses, with the goal of collecting details and observations that might, when stitched together, point to a potential terrorist attack.

Note the key word "urged."

Under a much-maligned Supreme Court precedent, part of the Court's supposedly reactionary "federalism revolution," state and local government cannot be required to enforce national policies. My article on the subject is "The Vigor of Anti-Commandeering Doctrine in Times of Terror," 69 Brooklyn Law Review 1231 (2004)(from this symposium). If you haven't been inclined to believe that the Court's federalism doctrine really can work as a safeguard for individual liberty, think about the ability of state and local government to resist a command to carry our Romney's proposal and the consequent pressure to reframe the proposal so that it doesn't trigger this resistance.

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