Can the states keep secrets from the federal government?

University of Pennsylvania Law Review

Volumn 161, Issue 1, 2012, Pages 103-178

  Mikos, Robert A ^a  

^a VANDERBILT UNIVERSITY   (United States)

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EID: 84870617452     PISSN: 00419907     EISSN: 19428537     Source Type: Journal    
DOI: None     Document Type: Article

References (313)

1. For a detailed account of the Wikileaks controversy, see generally DAVID LEIGH & LUKE HARDING WITH ED PILKINGTON ET AL., WIKILEAKS: INSIDE JULIAN ASSANGE'S WAR ON SECRECY (2011)
2. and N. Y. TIMES, OPEN SECRETS: WIKILEAKS, WAR, AND AMERICAN DIPLOMACY (Alexander Star ed., 2011).
3. For a sampling of legal commentary on the organization and its mission, see generally Yochai Benkler, A Free Irresponsible Press: WikiLeaks and the Battle Over the Soul of the Networked Fourth Estate, 46 HARV. C. R.-C. L. L. REV. 311 (2011)
4. and Mark Fenster, Disclosure's Effects: WikiLeaks and Transparency, 97 IOWA L. REV. 753 (2012).
5. See 505 U. S. 144, 149 (1992) ("[W]hile Congress has substantial power under the Constitution to encourage the States to provide for the disposal of the radioactive waste generated within their borders, the Constitution does not confer upon Congress the ability simply to compel the States to do so.").
6. See 521 U. S. 898, 933 (1997)
7. See, e.g., Ernest A. Young, The Rehnquist Court's Two Federalisms, 83 TEX. L. REV. 1, 16 (2004) (suggesting that the anti-commandeering rule requires Congress "to internalize the financial and political costs of its actions by prohibiting it from making state institutions enforce federal law").
8. See Evan H. Caminker, Printz, State Sovereignty, and the Limits of Formalism, 1997 SUP. CT. REV. 199, 234 (arguing that "[i]t is [u]nclear⋯ on what basis reporting requirements can meaningfully be distinguished from 'actual administration of a federal program'"
9. (citing Printz, 505 U. S. at 918)).
10. See, e.g., Robert A. Mikos, On the Limits of Supremacy: Medical Marijuana and the States' Overlooked Power to Legalize Federal Crime, 62 VAND. L. REV. 1421, 1445-50, 1460-62 (2009) [hereinafter Mikos, Limits of Supremacy] (attributing states' increasingly successful opposition to federal laws, in part, to the Court's anti-commandeering rule).
11. Margaret H. Lemos, State Enforcement of Federal Law, 86 N. Y. U. L. REV. 698, 700 (2011).
12. See Mikos, Limits of Supremacy, supra note 17, at 1463-79 (arguing that states' de facto authority exceeds their de jure authority in many policy domains).
13. See, e.g., Kenneth Culp Davis, The Administrative Power of Investigation, 56 YALE L. J. 1111, 1114-17 (1947) ("The power of investigation is part and parcel of the prosecuting power and of the practically more important power of supervision which grows out of the prosecuting power.").
14. See, e.g., Graham Hughes, Administrative Subpoenas and the Grand Jury: Converging Streams of Criminal and Civil Compulsory Process, 47 VAND. L. REV. 573, 584 (1994) (claiming the government would be unable "to enforce its regulatory or fiscal policies⋯ without wide powers to gather information");
15. Robert A. Mikos, State Taxation of Marijuana Distribution and Other Federal Crimes, 2010 U. CHI. LEGAL F. 223, 235
16. [hereinafter Mikos, State Taxation] ("The state's ability to deter tax evasion rests, in large part, on its powers of observation-namely, its ability to detect evasion. ");
17. See Christopher Slobogin, Government Data Mining and the Fourth Amendment, 75 U. CHI. L. REV. 317, 322-24 (2008) (categorizing and evaluating the utility of government data mining). In reality, however, data mining is still a very poor way of identifying the perpetrators of past and future violations. The error rate for such projections can be staggeringly high, in some contexts generating 200 false leads for every violator correctly identified.
18. See AMY BELASCO, CONG. RESEARCH SERV., RL 31786, TOTAL INFORMATION AWARENESS PROGRAMS: FUNDING, COMPOSITION, AND OVERSIGHT ISSUES 16(2003), available at http://usacm.acm.org/images/documents/crista-report.pdf (last visited Oct. 11, 2012).
19. See Mikos, Limits of Supremacy, supra note 17, at 1428-30 (discussing medical marijuana registration systems).
20. CHILD WELFARE INFORMATION GATEWAY, U. S. DEP'T OF HEALTH & HUMAN SERVS., MANDATORY REPORTERS OF CHILD ABUSE AND NEGLECT: SUMMARY OF STATE LAWS 1(2010), available at http://www.childwelfare.gov/systemwide/laws-policies/ statutes/manda.pdf.
21. BUREAU OF JUSTICE STATISTICS, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS ONLINE tbl.1.6.2006, available at http://www.albany.edu/sourcebook/pdf/t162006. pdf.
22. Id. tbl.1.26.2006, available at http://www.albany.edu/sourcebook/pdf/ t1262006.pdf. Most of the functions categorized under "police protection" involve information gathering tasks of some sort, but police protection also includes some other enforcement tasks as well.
23. For a detailed description of the term see id. app. 1 at 4, http://www.albany.edu/sourcebook/pdf/app1.pdf.
24. See, e.g., ALASKA STAT. § 11. 71.090 (a) (2008) (granting an affirmative defense against criminal prosecution to those individuals who register medical use of marijuana with the state).
25. See, e.g., FLA. STAT. § 893. 135 (4) (2011) ("The state attorney may move the sentencing court to reduce or suspend the sentence of any person who is convicted of a violation of this section and who provides substantial assistance in the identification, arrest, or conviction of any⋯ person engaged in trafficking in controlled substances.").
26. See Brad Heath, Silent Abuses, USA TODAY, Dec. 19, 2011, at 2A (identifying categories of professionals in each state required to report instances of child abuse). In reality, however, child abuse reporting requirements are seldom enforced.
27. OR. HEALTH AUTH., OREGON MEDICAL MARIJUANA PROGRAM STATISTICS, http://public.health.oregon. gov/DiseasesConditions/ChronicDisease/ MedicalMarijuanaProgram/Pages/data.aspx (last visited Oct. 11, 2012) (reporting enrollment statistics for state medical marijuana registry).
28. See BRIAN REAVES, BUREAU OF JUSTICE STATISTICS, BULLETIN: FEDERAL LAW ENFORCEMENT OFFICERS, 2008, at 1(2012), http://www.bjs.gov/content/pub/pdf/ fleo08.pdf (compiling data on federal law enforcement officers drawn in part from the 2008 Census of Federal Law Enforcement Officers).
29. See Mikos, State Taxation, supra note 22, at 235-37 (discussing the federal tax reporting requirements of third-party employers vis-à-vis their employees).
30. See e.g., 18 U. S. C. § 923 (g) (1) (A) (2006) (requiring licensed firearms dealers to report, inter alia, all sales of firearms);
31. 21 U. S. C. § 5313 (requiring financial institutions to report transactions involving a threshold amount of currency).
32. see NAT'L RESEARCH COUNCIL, PROCEEDINGS: WORKSHOP ON NEEDLE EXCHANG E AND BLEACH DISTRIBUTION PROGRAMS 113-26 (1994).
33. Mikos, Limits of Supremacy, supra note 17, at 1464-65.
34. 42 U. S. C. § 11133 (b) (2006) (part of the Health Care Quality Improvement Act of 1986).
35. 42 U. S. C. § 5779 (a) (Crime Control Act of 1990).
36. 23 U. S. C. § 402 (a) (Highway Safety Act of 1991)
37. (as amended by Pub. L. 112-141, 126 Stat. 405 (2012)).
38. 15 U. S. C. § 2224 (a) (1) (Hotel and Motel Fire Safety Act of 1990).
39. 20 U. S. C. § 4013 (Asbestos School Hazard Abatement Act of 1984).
40. See 521 U. S. 898, 918 (1997) (declining to address the validity of several federal statutes of "recent vintage" that require the participation of state or local officials in the implementation of federal regulatory schemes).
41. Pub. L. No. 101-391, 104 Stat. 747 (1990)
42. (codified in scattered sections of 5 U. S. C.
43. and 15 U. S. C.).
44. (codified at 15 U. S. C. § 2225 (a)).
45. (codified at 15 U. S. C. § 2225a (a)).
46. (codified at 15 U. S. C. § 2224 (a) (1)).
47. U. S. DEP'T OF JUSTICE, OFFICE OF LEGAL POLICY, REPORT TO CONGRESS ON THE USE OF ADMINISTRATIVE SUBPOENA AUTHORITIES BY EXECUTIVE BRANCH AGENCIES AND ENTITIES 6 (undated), available at http://www.justice.gov/archive/olp/rpt-to- congress.htm [hereinafter DOJ REPORT].
48. 21 U. S. C. § 876 (a).
49. See DOJ REPORT, supra note 58, at 7 ("While an agency's exercise of administrative subpoena authority is not subject to prior judicial approval, a subpoena issuance is subject to judicial review⋯."). Even when prior court approval is needed, there are few grounds for challenging the request.
50. See United States v. Markwood, 48 F.3d 969, 976 (6th Cir. 1995) (emphasizing that a "district court's role in the enforcement of an administrative subpoena is a limited one").
51. Endicott Johnson Corp. v. Perkins, 317 U. S. 501, 509 (1943) (enforcing a subpoena issued by the Secretary of Labor for payroll records of a company paying workers below the minimum wage set by the Secretary).
52. 42 U. S. C. § 2000e-8 (a).
53. See EEOC v. Wash. Suburban Sanitary Comm'n, 631 F.3d 174, 185 (4th Cir. 2011) (upholding, in an Age Discrimination in Employment Act case, the subpoena of employment records of a public utility).
54. See EEOC v. Norfolk Police Dep't, 45 F.3d 80, 85 (4th Cir. 1995) (enforcing, in a race discrimination case, the subpoena of the police department's policy on the reinstatement of an officer suspended for criminal violations).
55. See EEOC v. Ill. State Tollway Auth., 800 F.2d 656, 660 (7th Cir. 1986) (upholding, in a religious discrimination case, the subpoenas of a state agency for documents and interviews with agency employees).
56. See, e.g., EEOC v. Elrod, 674 F.2d 601, 603, 613-14 (7th Cir. 1982) (upholding, in an age discrimination case, administrative subpoenas for the Cook County Department of Corrections' retirement policy as well as the testimony of a knowledgeable officer);
57. Nueces Cnty. Hosp. Dist. v. EEOC, 518 F.2d 895, 897-98 (5th Cir. 1975) (upholding, in a discrimination case, the EEOC's authority to subpoena the personnel director of the Nueces County Hospital District to appear and provide various documents to the Commission);
58. EEOC v. Univ. of N. M., 504 F.2d 1296, 1298-99, 1306 (10th Cir. 1974) (upholding, in a national origin discrimination case, the subpoena of university personnel files for recently terminated and current faculty members).
59. *11 (W. D. Mich. June 9, 2011)
60. (citing 21 U. S. C. § 876 (a) and (c) as the source of the Attorney General's authority to issue and enforce subpoenas).
61. See EEOC v. Ill. Dep't of Emp't Sec., 995 F.2d 106, 107, 109 (7th Cir. 1993) (determining that the EEOC's subpoena of unemployment compensation hearings was valid despite a conflicting state statute making such records confidential);
62. see also Sexton v. Poole Truck Lines, Inc., 888 F. Supp. 127, 131 (M. D. Ala. 1994) (refusing to quash plaintiff's discovery request for confidential licensing records maintained by the Alabama Department of Public Safety, which the plaintiff planned to use in an Americans with Disabilities Act claim against his private employer).
63. *4 (D. Colo. Aug. 13, 2010) (upholding DEA subpoenas of confidential state pharmacy records in a federal investigation of possible drug offenses by three physicians).
64. 338 U. S. 632, 642-43 (1950).
65. 408 U. S. 665, 701 (1972)
66. (quoting United States v. Stone, 429 F.2d 138, 140 (2d Cir. 1970));
67. see also United States v. Calandra, 414 U. S. 338, 343 (1974) (stating that a grand jury "may compel the production of evidence or the testimony of witnesses as it considers appropriate, and its operation generally is unrestrained by the technical procedural and evidentiary rules governing the conduct of criminal trials");
68. United States v. R. Enters., Inc., 498 U. S. 292, 298-99 (1991) (explaining that subjecting grand jury proceedings to various procedural rules would delay and potentially undermine the secrecy of the proceedings).
69. See WAYNE R. LAFAVE ET AL., CRIMINAL PROCEDURE § 8.2 (c) (3d ed. 2000) (discussing the prosecutor's role in conducting and controlling grand jury investigations).
70. See 1 SUSAN W. BRENNER & LORI E. SHAW, FEDERAL GRAND JURY: A GUIDE TO LAW AND PRACTICE § 9.2 (2d ed. 2006) ("Prosecutors do not have to obtain a grand jury's approval before issuing subpoenas; indeed, a grand jury may not even be aware that a prosecutor is issuing subpoenas on its behalf.").
71. See In re Grand Jury Subpoena for N. Y. State Income Tax Records, 468 F. Supp. 575, 576-78 (N. D. N. Y.) (refusing to quash a grand jury subpoena for income tax records on file at the New York State Department of Taxation because the objective of confidentiality provisions in the tax law is "more than counterbalanced by the necessity of thorough grand jury investigations")
72. appeal dismissed, 607 F.2d 566 (2d Cir. 1979);
73. In re N. Y. State Sales Tax Records, 382 F. Supp. 1205, 1206 (W. D. N. Y. 1974) ("The powers of the federal grand jury⋯ must prevail over the nondisclosure provision of⋯ the New York State Tax Law.").
74. See In re Grand Jury Impaneled Jan. 21, 1975, 541 F.2d 373, 382 (3d Cir. 1976) ("[A]ny presumed privilege created by [the Philadelphia Court of Common Pleas] Rule 202 must yield here to the public's interest in law enforcement and in ensuring effective grand jury proceedings.").
75. See United States v. Silverman, 745 F.2d 1386, 1398 (11th Cir. 1984) (upholding the validity of a subpoena because Federal Rule of Criminal Procedure 17 (c) and Federal Rule of Evidence 501 prevail over "state law privileges in criminal cases", including privileges under the Florida Bar rules).
76. See In re Grand Jury Matter, 762 F. Supp. 333, 335 (S. D. Fla. 1991) (recognizing that the Supremacy Clause requires federal grand jury investigatory powers to prevail over conflicting state confidentiality provisions).
77. See United States v. Blasi, 462 F. Supp. 373, 374 (M. D. Ala. 1979) (refusing to quash a subpoena as requested by the Alabama Director of Industrial Relations in spite of state legal prohibitions against such disclosure).
78. See In re Prod. of Records to the Grand Jury, 618 F. Supp. 440, 441, 444 (D. Mass. 1985) (holding that, if a grand jury could show by affidavit the necessity of obtaining patients' communications to social workers, then the federal government's need for the information could override privileges of nondisclosure afforded to the Massachusetts Department of Social Services).
79. See Robert A. Mikos, Enforcing State Law in Congress's Shadow, 90 CORNELL L. REV. 1411, 1422-24 (2005)
80. [hereinafter Mikos, Enforcing State Law] (explaining how imposing federal sanctions on persons convicted of state crimes may cause defendants in state cases to resist charges more aggressively, at substantial cost to state prosecutors);
81. see also Mikos, State Taxation, supra note 22, at 258-59 (suggesting that the threat their tax databases could be commandeered would undermine state efforts to monitor and collect proposed state excise taxes on the distribution of marijuana).
82. See, e.g., John Richardson, New Privacy Rules for Medicinal Pot Face U. S. Scrutiny, PORTLAND PRESS HERALD (Me.) (May 14, 2011), http://www.pressherald. com/news/new-privacyrules-for-medicinal-pot-face-u-s-scrutiny-2011-05-14.html (reporting concerns that many patients have not signed up for Maine's medical marijuana registry because of the fear it could be exploited by the federal government).
83. For an in-depth discussion of recent proposals to legalize and tax marijuana at the state level, and the overlooked obstacles the federal marijuana ban creates for state tax collection efforts, see Mikos, State Taxation, supra note 22, at 248-61.
84. See Orde F. Kittrie, Federalism, Deportation, and Crime Victims Afraid to Call the Police, 91 IOWA L. REV. 1449, 1476-77 (2006) ("Deportation of unauthorized aliens who report crimes to the police is described [by supporters of sanctuary policies] as harming relations between the police and those citizens and legal aliens who may be family members or associates of the deported alien. " (citation omitted));
85. Cristina M. Rodríguez, The Significance of the Local in Immigration Regulation, 106 MICH. L. REV. 567, 604 (2008) (suggesting that one rationale behind local sanctuary laws is to increase cooperation between immigrant populations and the police, presumably to increase the reporting of information relevant for law enforcement purposes).
86. See Mikos, Enforcing State Law, supra note 83, at 1435-41 (discussing the factors in another legal context that help determine the effect of federal supplemental sanctions on a defendant's efforts in resisting a state criminal conviction).
87. For a discussion of Nevada's unique regulatory approach to prostitution, see generally Daria Snadowsky, Note, The Best Little Whorehouse is Not in Texas: How Nevada's Prostitution Laws Serve Public Policy, and How Those Laws May be Improved, 6 NEV. L. J. 217, 226-34 (2005).
88. See, e.g., 18 U. S. C. § 1384 (2006) (banning prostitution "[w]ithin such reasonable distance of any" military base).
89. See, e.g., 21 U. S. C. § 841 (enumerating penalties for the illegal distribution of controlled substances, including marijuana).
90. See Mikos, Enforcing State Law, supra note 83, at 1444-56 (discussing, in a related context, the effect that deportation can have on unauthorized aliens' incentives to contest state criminal charges).
91. See Mikos, Limits of Supremacy, supra note 17, at 1443 ("As a practical matter, most people can smoke marijuana for any purpose without having to worry much about being caught and punished by the federal government.").
92. See 22 ME. REV. STAT. ANN. tit. 22, § 2425 (9-A) (2012) ("Registration⋯ is voluntary for a qualifying patient⋯. Failure to register under this section does not affect authorized conduct for a qualifying patient⋯.").
93. 518 U. S. 1, 12 (1996).
94. See, e.g., 21 U. S. C. § 841 (a) (1) (2006) (declaring it unlawful "to manufacture, distribute, or dispense[] a controlled substance").
95. See, e.g., 18 U. S. C. § 1531 (a) ("Any physician who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion and thereby kills a human fetus shall be fined under this title or imprisoned not more than 2 years, or both.").
96. See, e.g., 18 U. S. C. § 922 (o) (1) ("[I]t shall be unlawful for any person to transfer or possess a machinegun [sic].").
97. For a useful taxonomy of regulatory options ranging between zero-tolerance and absolute legalization, see Robert MacCoun, Peter Reuter & Thomas Schelling, Assessing Alternative Drug Control Regimes, 15 J. POL'Y ANALYSIS & MGMT. 330, 331-38 (1996).
98. See, e.g., Lawrence O. Gostin & Zita Lazzarini, Prevention of HIV/AIDS Among Injection Drug Users: The Theory and Science of Public Health and Criminal Justice Approaches to Disease Prevention, 46 EMORY L. J. 587, 667-72 (1997) (noting that 53% of the SEPs operating in North America listed in a 1996 survey were "legal" inasmuch as "they operated in states with no syringe prescription laws or under exemptions to the state prescription laws allowing the SEP to operate").
99. See Syringe Exchange Programs-United States, 2005, 56 MORBIDITY & MORTALITY WKLY. REP. 1164, 1164-67(2007), available at http://www.cdc.gov/mmwr/ PDF/wk/mm5644.pdf (reporting survey results detailing the operations of SEPs).
100. See Consolidated Appropriations Act, 2012, Pub. L. No. 112-74, § 807, 125 Stat. 786, 941 (2011) ("None of the Federal funds contained in this Act may be used to distribute any needle or syringe for the purpose of preventing the spread of blood borne pathogens in any location that has been determined by the local public health or local law enforcement authorities to be inappropriate for such distribution. "). The ban originated in 1988 and was temporarily lifted from 2009-2011.
101. See Bob Egelko, GOP Restores Ban on Funding Needle Exchange, S. F. CHRON., Dec. 25, 2011, at C1 (detailing the political negotiations that led to the reinstatement of the ban).
102. 21 U. S. C. § 863 (a) (1) (2006) ("It is unlawful for any person⋯ to sell or offer for sale drug paraphernalia⋯."). Importantly, however, Congress has empowered the states to opt-out of the federal ban.
103. See 21 U. S. C. § 863 (f) (1) (providing that the ban shall not apply to "any person authorized by local, State, or Federal law to manufacture, possess, or distribute [drug paraphernalia]").
104. See Kiran Patel, Research Note: Drug Consumption Rooms and Needle and Syringe Exchange Programs, 37 J. DRUG ISSUES 737, 742 (2007) ("The main disadvantage that has been highlighted regarding needle and syringe exchange and DCRs is that they encourage illicit drug use by sanitizing and legitimizing the practice.").
105. See 17 Legal Medical Marijuana States and DC: Laws, Fees, and Possession Limits, PRO-CON. ORG (last updated Aug. 13, 2012, 11:01:38 AM), http://medicalmarijuana.procon.org/view.resource.php?resourceID=000881 (listing U. S. jurisdictions that allow varying degrees of medical marijuana use).
106. See Ryan Gabrielson, Feds Circumvent State on Immigration Fingerprint Checks, CALIFORNIAWATCH, (Aug. 10, 2011), http://californiawatch.org/print/11993 (reporting that three states had withdrawn from partnership with ICE, and that California was considering doing the same).
107. See U. S. IMMIGRATION AND CUSTOMS ENFORCEMENT, FACT SHEET: DELEGATION OF IMMIGRATION AUTHORITY SECTION 287 (G) IMMIGRATION AND NATIONALITY ACT, http://www.ice.gov/news/library/factsheets/287g.htm (last visited Oct. 11, 2012) (identifying sixtyfour state and local law enforcement agencies in twenty-four states that have delegated immigration enforcement authority).
108. See, e.g., Alan Feuer & Al Baker, Officers' Arrests Put Spotlight On Police Use of Informants, N. Y. TIMES, Jan. 27, 2008, Metro Section, at A25 (discussing public backlash against citizens who provide information to assist criminal investigations). 121 The recent uproar over the Michigan State Attorney General's decision to abide by a federal subpoena seeking privileged medical marijuana registration information illustrates the political dangers posed by commandeering.
109. See e.g., John Agar, Back Off, Attorney General Urged - Lawyer Claims State's Top Lawman Has Conflict in Medical Pot Case, GRAND RAPIDS PRESS (Mich.), Jan. 13, 2011, at A5 (reporting that intervening counsel had criticized Michigan Attorney General for providing federal agents with sensitive information from the state's medical marijuana registry);
110. Barrie Barber, Recall Targets AG's Medical Pot Stance, SAGINAW NEWS (Mich.), July 21, 2011, at A4 (reporting that a recall petition was launched to oust the Attorney General based on his lack of support of the state law permitting medicinal use of marijuana).
111. For example, "WARNING: ANYTHING YOU TELL US CAN BE USED AGAINST YOU BY FEDERAL AUTHORITIES"
112. See Mikos, Limits of Supremacy, supra note 17, at 1427 ("[O]utside the context of recently enacted medical use exemptions⋯ marijuana remains a strictly forbidden and usually (though not always) criminal drug at the state level.").
113. See Joel Millman & Nathan Koppel, Pot Measures' Passage Puts States in Quandary, WALL ST. J., Nov. 8, 2012, at A14.
114. See Fed. Energy Regulatory Comm'n v. Mississippi, 456 U. S. 742, 765-66 (1982) (upholding a federal law giving states the choice of either considering suggested federal standards when passing utility regulations or abandoning such regulations altogether). As I explain later, however, valid conditional preemption statutes afford states some procedural protections, such as notice, that Congress sidesteps when it commandeers states' secrets.
115. See Mikos, Limits of Supremacy, supra note 17, at 1428-29 (noting that, as of 2009, ten states had adopted compulsory registration requirements).
116. See, e.g., 5 COLO. CODE REGS. § 1006-2:1. A (2011) (describing the procedures in Colorado for law enforcement to confirm an individual's medical registry status).
117. See Mikos, Limits of Supremacy, supra note 17, at 1429 ("California, Maine, and Washington⋯ impose few formal requirements on prospective users beyond obtaining [a] physician diagnosis and recommendation. ")
118. See Mikos, State Taxation, supra note 22, at 230 (discussing the higher costs associated with criminal versus civil proceedings).
119. See, e.g., Erik Eckholm, Medical Marijuana Industry Is Unnerved by U. S. Crackdown, N. Y. TIMES, Nov. 24, 2011, at A22 ("It is⋯ an open secret that a share of doctor-approved [marijuana] buyers do not have plausible medical needs.")
120. see also ME. DEP'T OF HEALTH & HUMAN SERVS., MAINE MEDICAL USE OF MARIJUANA PROGRAM ANNUAL REPORT 9(2011), available at http://www.maine.gov/dhhs/ dlrs/reports/mmm-program-report-3-2011.pdf (reporting patients' "concerns about confidentiality of their medical information⋯ even though the information is protected by statute").
121. COLO. CONST. art. XVIII, § 14 (3) (a).
122. DOJ REPORT, supra note 58, at 5 ("All federal executive branch administrative subpoenas are enforced by the courts.").
123. 469 U. S. 528 (1985).
124. 426 U. S. 833 (1976).
125. See Garcia, 469 U. S. at 531 (abandoning the "function" standard first established in National League of Cities because it was "unworkable" and "inconsistent with established principles of federalism").
126. 426 U. S. at 852.
127. 469 U. S. at 546-47.
128. See, e.g., United States v. Daniels, 929 F.2d 128, 130 (4th Cir. 1991) ("Even if the juvenile proceedings had been sealed pursuant to state law, that law could not bar consideration of them by a federal court in determining a sentence when federal law provides otherwise.").
129. See, e.g., In re Special Apr. 1977 Grand Jury, 581 F.2d 589, 593 n. 3, 595 (7th Cir. 1978) (asserting that the Supremacy Clause requires a state attorney general to disclose subpoenaed records of his office to a federal grand jury).
130. See, e.g., United States v. N. Y. State Dep't of Taxation & Fin., 807 F. Supp. 237, 240-43 (N. D. N. Y. 1992) (finding that a state law shielding a tax agency's records from disclosure was preempted due to a conflict with a congressional statute authorizing administrative subpoenas);
131. In re Grand Jury Empanelled Jan. 21, 1981, 535 F. Supp. 537, 538-39 (D. N. J. 1982) (rejecting a Tenth Amendment challenge to a grand jury subpoena of confidential state taxpayer records);
132. In re N. Y. State Sales Tax Records, 382 F. Supp. 1205, 1206 (W. D. N. Y. 1974) ("The powers of the federal grand jury, because of⋯ the supremacy clause⋯ must prevail over the nondisclosure provision⋯ of the New York State Tax Law.").
133. See, e.g., In re Grand Jury Matter, 762 F. Supp. 333, 335-36 (S. D. Fla. 1991) (rejecting, in a grand jury investigation of mail fraud by a physician, the invocation of state privilege law by a state medical board to resist turning over records of patient complaints).
134. See, e.g., United States v. Simmons, 964 F.2d 763, 769 (8th Cir. 1992) (ruling that probation records could be used to impeach a witness in a federal trial, despite a "contrary state statute" privileging the report);
135. United States v. Holmes, 594 F.2d 1167, 1171 (8th Cir. 1979) (denying the existence of a "'probation officer' privilege" and asserting the supremacy of "the federal law of privileges").
136. See, e.g., Mem'l Hosp. for McHenry Cnty. v. Shadur, 664 F.2d 1058, 1063-64 (7th Cir. 1981) (holding that in a federal antitrust suit, a state law barring disclosure of medical peer review records did not govern and was "rendered void and of no effect" by the Supremacy Clause).
137. In re Special Apr. 1977 Grand Jury, 581 F.2d 589, 592 (7th Cir. 1978).
138. *13 (W. D. Mich. June 9, 2011) (explaining that the state's claim conflicted with, and was thus subordinate to, federal policy).
139. (quoting Hillsborough Cnty. v. Automated Med. Lab., Inc., 471 U. S. 707, 713 (1985)).
140. See Printz v. United States, 521 U. S. 898, 935 (1997) ("Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States' officers directly.").
141. For thoughtful commentary on the anti-commandering rule, see generally Matthew D. Adler & Seth F. Kreimer, The New Etiquette of Federalism: New York, Printz, and Yeskey, 1998 SUP. CT. REV. 71;
142. Roderick M. Hills, Jr., The Political Economy of Cooperative Federalism: Why State Autonomy Makes Sense and "Dual Sovereignty" Doesn't, 96 MICH. L. REV. 813 (1998);
143. Vicki C. Jackson, Federalism and the Uses and Limits of Law: Printz and Principle?, 111 HARV. L. REV. 2180 (1998).
144. 521 U. S. at 935.
145. 505 U. S. 144, 150-54 (1992).
146. See Mikos, Limits of Supremacy, supra note 17, at 1445-50 (describing how "the anticommandeering doctrine constrains Congress's preemption power").
147. See, e.g., City of New York v. United States, 179 F.3d 29, 34-35 (2d Cir. 1999) (rejecting the city's claim that congressional statutes had commandeered city officials into providing immigration data to the federal law enforcement agencies)
148. aff'g 971 F. Supp. 789 (S. D. N. Y. 1997).
149. Printz, 521 U. S. at 918.
150. See, e.g., City of New York, 179 F.3d at 34-35 (suggesting that Printz distinguished between federal demands for state information and federal directives to participate in a regulatory program).
151. See 142 F. Supp. 2d 679, 694-97 (D. Md. 2001) (describing the relevant federal requirement and the court's reasoning for finding it constitutional)
152. aff'd sub nom. Freilich v. Upper Chesapeake Health, Inc. (Freilich II), 313 F.3d 205 (4th Cir. 2002).
153. For the federal requirement, see 42 U. S. C. § 11133 (a) - (b) (2006).
154. Freilich, 142 F. Supp. 2d at 697 (emphasis added). On appeal, the Fourth Circuit was comparably dismissive.
155. See Freilich II, 313 F.3d 205 at 214 (finding that "more is required⋯ to offend the Tenth Amendment" than the "expenditure of time and effort" to submit reports to the Board of Medical Examiners).
156. *6 (S. D. N. Y. Dec. 12, 2007)
157. (emphasis added), aff'd 328 Fed. Appx. 57 (2d Cir. 2009).
158. (citing Printz, 521 U. S. at 918) (majority opinion)).
159. See, e.g., Michael S. Greve, Compacts, Cartels, and Congressional Consent, 68 MO. L. REV. 285, 374 n. 332 (2003) ("In Printz v. United States, the Court suggested that a constitutional prohibition against the federal 'commandeering' of state officials does not extend to federal mandates requiring state data collection and maintenance.");
160. But see Rebecca E. Zietlow, Federalism's Paradox: The Spending Power and Waiver of Sovereign Immunity, 37 WAKE FOREST L. REV. 141, 166 n. 165 (2002) (noting that the Printz Court did not resolve whether demanding information possessed by a state agency would constitute commandeering).
161. See, e.g., In re Special Apr. 1977 Grand Jury, 581 F.2d 589, 592 (7th Cir. 1978) (suggesting that "the impact of a subpoena on state functions is markedly different from the Usery direct system of regulation that requires a reallocation of state resources").
162. See, e.g., In re Grand Jury Subpoena for N. Y. State Income Tax Records, 468 F. Supp. 575, 577 (N. D. N. Y.) (holding that the state interest in fostering truthful tax reporting by promising confidentiality is "more than counterbalanced by the necessity of thorough grand jury investigations into violations of federal law").
163. Protecting state prerogatives is frequently cited as one of the rationales behind the anticommandeering rule. See, e.g., Deborah Jones Merritt, Three Faces of Federalism: Finding a Formula for the Future, 47 VAND. L. REV. 1563, 1583 (1994) (arguing that the Supreme Court should protect the autonomy of the states, "especially the right of state voters to set their own legislative agendas and choose tasks for their own government administrators").
164. Such prosecution by separate sovereigns does not violate the Double Jeopardy clause of the Constitution. See Heath v. Alabama, 474 U. S. 82, 89 (1985) ("[A]n act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be punished by each"
165. (citing United States v. Lanza, 260 U. S. 377, 382 (1922)).
166. Freilich v. Bd. of Dirs. of Upper Chesapeake Health, Inc., 142 F. Supp. 2d 679, 697 (D. Md. 2001).
167. *5 (S. D. N. Y. Dec. 12, 2007)
168. see also Mary D. Fan, Reforming the Criminal Rap Sheet: Federal Timidity and the Traditional State Functions Doctrine, 33 AM. J. CRIM. L. 31, 69-72 (2005) (suggesting that Congress could commandeer states to provide uniform criminal history information because of the strong need for such information in federal criminal prosecutions).
169. 179 F.3d 29, 35 (2d Cir. 1998) (rejecting the city's challenge to provisions of the 1996 Welfare Reform Act and the 1996 Immigration Reform Act).
170. Pub. L. No. 104-208, § 642 (a), 110 Stat. 3009-546 (1996)
171. (codified as amended in scattered sections of 8 U. S. C.);
172. see also Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, § 434, 110 Stat. 2275
173. (codified as amended in 8 U. S. C. § 1644) (imposing a similar prohibition).
174. City of New York, 179 F.3d at 31-32 (discussing an Executive Order issued by then-Mayor Edward Koch).
175. City of New York, 179 F.3d at 35.
176. In re Special Apr. 1977 Grand Jury, 581 F.2d 589, 592 (7th Cir. 1978) (internal citations omitted);
177. see also Glenn A. Guarino, Authority of Federal Grand Jury to Subpoena Documents of State or Local Agency, 64 A. L. R. FED. 901 (Supp. 2012) (collecting cases that consider the authority of federal grand juries to subpoena state information).
178. FED. R. EVID. 501.
179. See, e.g., United States v. Nixon, 418 U. S. 683, 710 (1974) ("[E]xceptions to the demand for every man's evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth.").
180. The psychotherapist-patient privilege, Jaffee v. Redmond, 518 U. S. 1 (1995)
181. attorney-client privilege, Upjohn Co. v. United States, 449 U. S. 383 (1981)
182. and spousal privilege, Trammel v. United States, 445 U. S. 40(1980), are among the few evidentiary privileges now recognized by federal courts.
183. See Whalen v. Roe, 429 U. S. 589, 602 n. 28 (1977) ("The physician-patient evidentiary privilege is unknown to the common law.").
184. See Univ. of Pa. v. EEOC, 493 U. S. 182, 195 (1990) (dismissing a comparison to privilege governing jury deliberations and holding that "[a] privilege for peer review materials has no similar historical or statutory basis").
185. See United States v. Gillock, 445 U. S. 360, 368 (1980) ("[T]he fact that there is an evidentiary privilege under the Tennessee Constitution⋯ which [a state legislator] could assert in a criminal prosecution in state court does not compel an analogous privilege in a federal prosecution. ").
186. For background on the required reports privilege, its purposes, and its origins, see 3 JACK B. WEINSTEIN & MARGARET A. BERGER, WEINSTEIN'S FEDERAL EVIDENCE § 502 (2d ed. 2011).
187. *14 (W. D. Mich. June 9, 2011).
188. E.g., Sexton v. Poole Truck Lines, Inc., 888 F. Supp. 127, 130 (M. D. Ala. 1994).
189. E.g., United States v. King, 73 F. R. D. 103, 109 (E. D. N. Y. 1976).
190. E.g., In re Grand Jury Impaneled Jan. 21, 1975, 541 F.2d 373, 383 (3d Cir. 1976).
191. See, e.g., King, 73 F. R. D. at 105 ("A strong policy of comity between state and federal sovereignties impels federal courts to recognize state privileges where this can be accomplished at no substantial cost to federal substantive and procedural policy." (emphasis added));
192. see also Mem'l Hosp. v. Shadur, 664 F.2d 1058, 1061 (7th Cir. 1981) (quoting King to assert that federal courts should consider "the law of the state in which the case arises in determining whether a privilege should be recognized as a matter of federal law").
193. As one court has acknowledged, "there is almost always such a cost to the special federal interest in seeking the truth in a federal question case." ACLU of Miss., Inc. v. Finch, 638 F.2d 1336, 1343 (5th Cir. 1981) (citation omitted).
194. See, e.g., In re Grand Jury Subpoena Dated Nov. 14, 1989, 728 F. Supp. 368, 373 (W. D. Pa. 1990) (noting that evidence sought by the federal government was cumulative and could be obtained elsewhere).
195. For example, Congress has privileged the records of patients in drug treatment programs. See Confidentiality of Alcohol and Drug Abuse Patient Records, 42 C. F. R. § 2. 1 (a) (2011).
196. See, e.g., Nat'l Cong. for Puerto Rican Rights ex rel. Perez v. City of New York, 194 F. R. D. 88, 95-96 (S. D. N. Y. 2000) (discussing the factors to be considered in such a balancing test).
197. See, e.g., In re Grand Jury Investigation (Detroit Police Dep't Special Cash Fund), 922 F.2d 1266, 1270-72 (6th Cir. 1991) (outlining the justifications for this type of compelled revelation).
198. But see In re City of New York, 607 F.3d 923, 944-45 (2d Cir. 2010) (upholding a city police department's claim to law enforcement privilege in a civil rights action where the plaintiffs sought disclosure of undercover investigative files in pretrial discovery proceedings).
199. See, e.g., United States v. O'Neill, 619 F.2d 222, 229-30 (3d Cir. 1980) (denying a city's attempt to claim privilege over materials sought by a federal civil rights commission)
200. order vacated, 619 F.2d 222 (3d Cir. 1980);
201. EEOC v. City of Milwaukee, 919 F. Supp. 1247, 1249 (E. D. Wis. 1996) (refusing to quash subpoenas filed by the EEOC that sought confidential city records concerning an internal investigation into employment discrimination claims against a police department).
202. FED. R. CRIM. P. 17 (c) (2).
203. See, e.g., In re Grand Jury Subpoena for THCF Med. Clinic Records, 504 F. Supp. 2d 1085, 1090 (E. D. Wash. 2007) (quashing a federal subpoena as unreasonable for having marginal relevance to a federal investigation).
204. See, e.g., United States v. R. Enters., Inc., 498 U. S. 292, 306 (1990) (Stevens, J., concurring in part and concurring in the judgment) (commenting that, in the grand jury context, "the law enforcement interest will almost always prevail, and the [subpoenaed] documents must be produced").
205. See In re Grand Jury, John Doe No. G. J.2005-2, 478 F.3d 581, 585 (4th Cir. 2007) ("[S]ome courts have recognized that Rule 17 (c) enables district courts to quash a subpoena that intrudes gravely on significant interests outside of the scope of a recognized privilege, if compliance is likely to entail consequences more serious than even severe inconveniences occasioned by irrelevant or overbroad requests for records"
206. (citing In re Grand Jury Matters, 751 F.2d 13, 18 (1st Cir. 1984))).
207. 504 F. Supp. 2d at 1090.
208. See United States v. Oakland Cannabis Buyers' Coop., 532 U. S. 483, 491 (2001) (noting that "for purposes of the Controlled Substances Act, marijuana has 'no currently accepted medical use' at all"
209. (quoting 21 U. S. C. § 812 (2000))).
210. See, e.g., United States v. Bergeson, 425 F.3d 1221, 1222-23 (9th Cir. 2005) (quashing a subpoena of nonprivileged testimony of a federal public defender on reasonableness grounds while emphasizing that the government had other less invasive means to acquire the information);
211. Nw. Mem'l Hosp. v. Ashcroft, 362 F.3d 923, 927 (7th Cir. 2004) (finding a subpoena unreasonable where the federal government sought a hospital's abortion records for use in a suit challenging the constitutionality of federal partial-birth abortion law, and noting that the government's attorney "drew a blank" at oral argument when asked what he hoped to learn from the records)
212. aff'g Nat'l Abortion Fed'n v. Ashcroft, 2004 WL 292079 (N. D. Ill. 2004). Courts generally uphold subpoenas-no matter how sensitive the information sought-as long as the government can demonstrate some need for the evidence.
213. See, e.g., In re Grand Jury Proceedings, 801 F.2d 1164, 1169-70 (9th Cir. 1986) (upholding a subpoena seeking patient charts and records in a federal drug case against a physician);
214. In re Grand Jury Subpoenas, 438 F. Supp. 2d 1111, 1121 (N. D. Cal. 2006) (upholding a subpoena seeking the names of a newspaper's confidential sources for a grand jury's investigation of the Bay Area Laboratory Co-Operative's steroid distribution).
215. *14 (W. D. Mich. June 9, 2011).
216. See U. S. CONST. amend. V (proclaiming that no person shall be "compelled in any criminal case to be a witness against himself").
217. The Supreme Court confronted a case involving just this scenario. See Murphy v. Waterfront Comm'n of N. Y. Harbor, 378 U. S. 52 (1964).
218. See Peter Westen, Self-Incrimination's Covert Federalism, 11 BERKELEY J. CRIM. L., 1 13-14 (2006) (discussing the rationale behind Murphy).
219. See Schmerber v. California, 384 U. S. 757, 763-64 (1966) ("[T]he protection of the privilege reaches an accused's communications, whatever form they might take⋯.").
220. Compulsion exists anytime the government imposes a penalty for exercising the right to remain silent. See Malloy v. Hogan, 378 U. S. 1, 8 (1964) ("[T]he Fifth Amendment guarantees⋯ the right of a person to remain silent⋯ and to suffer no penalty⋯ for such silence.");
221. see also Garner v. United States, 424 U. S. 648, 650 (1976) (noting that the threat of possible future criminal prosecution constitutes compulsion for purposes of asserting privilege);
222. Spevack v. Klein, 385 U. S. 511, 516 (1967) (plurality opinion) (discussing "[t]he threat of disbarment and the loss of professional reputation, and of livelihood are powerful forms of compulsion to make a lawyer relinquish the privilege");
223. Garrity v. New Jersey, 385 U. S. 493, 500 (1967) (holding the threat of loss of government employment unconstitutionally coercive).
224. See, e.g., ALASKA STAT. § 11. 71.090 (a) (1) (2008) (requiring state registration for a defendant to assert the medical marijuana defense).
225. See, e.g., Allen v. Illinois, 478 U. S. 364, 374-75 (1986) (permitting compelled testimony in civil commitment proceeding).
226. See, e.g., Balt. City Dept. of Soc. Servs. v. Bouknight, 493 U. S. 549, 556 (1990) ("The Court has on several occasions recognized that the Fifth Amendment privilege may not be invoked to resist compliance with a regulatory regime constructed to effect the State's public purposes unrelated to the enforcement of its criminal laws.").
227. The test for distinguishing between regulatory and punitive sanctions is laid out in Kennedy v. Mendoza-Martinez, 372 U. S. 144, 168-69 (1963).
228. See, e.g., MacLean v. State Bd. of Ret., 733 N. E.2d 1053, 1063 (Mass. 2000) (holding that revocation of a public employee pension is civil in nature).
229. See, e.g., United States v. Bizzell, 921 F.2d 263, 267 (10th Cir. 1990) (finding debarment to be remedial in nature).
230. See, e.g., Smith v. INS, 585 F.2d 600, 602 (3d Cir. 1978) ("A deportation proceeding is civil in nature, not criminal. Thus, an alien can be required to answer questions about his status and his right to remain in the country, as long as the answers would not subject him to criminal liability. These responses can be used to prove deportability.").
231. See, e.g., Hoxie v. Drug Enforcement Admin., 419 F.3d 477, 483 (6th Cir. 2005) (holding that privilege does not apply in a hearing about revocation of prescription authority).
232. See, e.g., Allen v. Illinois, 478 U. S. 364, 372 (1986) (holding that privilege does not apply to a hearing regarding civil confinement).
233. See Couch v. United States, 409 U. S. 322, 328 (1973) ("The Constitution explicitly prohibits compelling an accused to bear witness 'against himself'; it necessarily does not proscribe incriminating statements elicited from another.").
234. E.g., OR. REV. STAT. § 475. 309 (2) (2007) (requiring applicants to identify, inter alia, their physicians, designated caregivers, and sources of supply).
235. See 18 U. S. C. §§ 6002-6003 (2006) (providing for use immunity). The Supreme Court has held that use immunity satisfies the demands of the Fifth Amendment.
236. See Kastigar v. United States, 406 U. S. 441, 453 (1972).
237. 429 U. S. 589, 603-04 (1977).
238. Printz v. United States, 521 U. S. 898, 918 (1997) (emphasis added).
239. BLACK'S LAW DICTIONARY 608 (9th ed. 2009) (defining "enforce").
240. For instance, 21 U. S. C. § 885 (d) (2006) grants immunity from criminal prosecution to any state or federal official "engaged in the enforcement" of state or federal drug laws. Some courts have interpreted "enforcement" to mean "to compel compliance with the law"
241. E.g., United States v. Rosenthal, 454 F.3d 943, 948 (9th Cir. 2006). Courts have arrived at similar interpretations under provisions of ERISA.
242. See, e.g., Gulf Life Ins. Co. v. Arnold, 809 F.2d 1520, 1523 (11th Cir. 1987) ("[A]n action 'to enforce' means an action to compel someone to do something or not to do something, such as make contributions, that ERISA or the plan requires be done or not done.").
243. See OXFORD ENGLISH DICTIONARY 162 (2d ed. 1989) (defining "administer" as "to carry on, or execute (an office, affairs, etc.) ").
244. See BLACK'S LAW DICTIONARY, supra note 247 (defining "execute" as "to perform or complete (a contract or duty) ").
245. Printz v. United States, 521 U. S. 898, 933 (1997)
246. (quoting 18 U. S. C. § 922 (s) (2) (1994)).
247. *1 (W. D. Mich. June 9, 2011).
248. In Printz, the Court cited the dearth of congressional legislation commandeering state executives and legislatures, particularly during the Founding era, to help justify its anticommandeering rule. 521 U. S. at 905-18. It reasoned that "if⋯ earlier Congresses avoided use of this highly attractive power, we would have reason to believe that the power was thought not to exist"
249. See, e.g., INS v. Chadha, 462 U. S. 919, 944 (1983) (holding legislative veto provisions, which appeared in nearly three-hundred congressional statutes, unconstitutional).
250. 521 U. S. at 918.
251. see also Blair v. United States, 250 U. S. 273, 280 (1919) ("At the foundation of our Federal Government the inquisitorial function of the grand jury and the compulsion of witnesses were recognized as incidents of the judicial power of the United States.").
252. See U. S. CONST. amend. V ("No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury⋯.").
253. BLACK'S LAW DICTIONARY, supra note 247, at 964 (emphasis added). Courts have employed even broader definitions of the term.
254. See, e.g., Milner v. Dep't of the Navy, 131 S. Ct. 1259, 1272 (2011) (Alito, J., concurring) ("The ordinary understanding of law enforcement includes not just the investigation and prosecution of ofenses that have already been committed, but also proactive steps designed to prevent criminal activity and to maintain security.").
255. Printz v. United States, 521 U. S. 898, 930 (1997).
256. New York v. United States, 505 U. S. 144, 169 (1992).
257. The costs associated with bringing a state into compliance with federal laws that properly apply to it do not raise constitutional concerns, at least under existing jurisprudence. See Reno v. Condon, 528 U. S. 141, 150 (2000) ("We agree with South Carolina's assertion that the [Driver's Privacy Protection Act's (DPPA)] provisions will require time and effort on the part of state employees, but reject the State's argument that the DPPA violates the principles laid down in either New York or Printz.").
258. See, e.g., Sewell Chan, The Mayor Has Nothing but Harsh Words for a Gun Bill Before Congress, N. Y. TIMES, Mar. 29, 2006, at B5 (reporting that the Bureau of Alcohol, Tobacco, Firearms and Explosives would not disclose gun trace data that New York City wanted to use in a civil nuisance lawsuit against gun dealers and manufacturers);
259. David Kocieniewski, I. R. S. Sits on Data Pointing to Missing Children, N. Y. TIMES, Nov. 12, 2010, at A1 (reporting that the IRS refused to share federal tax return data that could have helped state law enforcement track down abducted children).
260. 537 U. S. 129, 136-37 (2003).
261. But see Lynn A. Baker, Lochner's Legacy for Modern Federalism: Pierce County v. Guillen as a Case Study, 85 B. U. L. REV. 727, 751 (2005) (criticizing the Court's decision and arguing that federal privileges should not bind state courts).
262. Recall that CLEOs were required to make only a "reasonable effort" to conduct searches of databases. United States v. Printz, 521 U. S. 898, 933 (1997). The reasonableness of any effort would seemingly depend on the resources that a CLEO has at her disposal-the fewer her resources, the more reasonable it would be for her to forego a search altogether.
263. See, e.g., Printz, 521 U. S. at 928 ("It is an essential attribute of the States' retained sovereignty that they remain independent and autonomous within their proper sphere of authority. It is
264. New York v. United States, 505 U. S. 144, 162 (1992) ("[T]he Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress' instructions.").
265. See, e.g., Calvin Massey, Federalism and the Rehnquist Court, 53 HASTINGS L. J. 431, 440 (2002) ("Collective autonomy describes⋯ the freedom of the people of a state⋯ to adopt public policies that suit them even though such policies are at odds with national preferences or the preferences of other states.");
266. see also Mikos, Limits of Supremacy, supra note 17, at 1445-50 (discussing conditions under which state laws that conflict with federal policies are constitutionally immune from preemption).
267. New York, 505 U. S. at 166. For a detailed discussion of how the anti-commandeering rule protects state autonomy
268. see Mikos, Limits of Supremacy, supra note 17, at 1445-62.
269. Printz, 521 U. S. at 935 ("The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.").
270. New York, 505 U. S. at 188.
271. Printz, 521 U. S. at 922 ("The power of the Federal Government would be augmented immeasurably if it were able to impress into its service-and at no cost to itself-the police ofcers of the 50 States.").
272. See, e.g., Gonzales v. Raich, 545 U. S. 1, 49 (2005) (O'Connor, J., dissenting) (suggesting that the Court's holding "threatens to sweep all of productive human activity into federal regulatory reach").
273. See Mikos, Limits of Supremacy, supra note 17, at 1463-79 (arguing that states' de facto authority exceeds their de jure authority in many policy domains).
274. See FED. R. CRIM. P. 17 (g) (authorizing contempt sanctions to enforce court subpoenas);
275. DOJ Report, supra note 58, at 11 ("Most statutes authorizing administrative subpoena enforcement in federal district court authorize the court to impose contempt sanctions upon a recipient who continues to refuse to comply even after a court order of compliance.").
276. United States v. Printz, 521 U. S. 898, 935 (1997).
277. Cf. D. Bruce La Pierre, Political Accountability in the National Political Process-The Alternative to Judicial Review of Federalism Issues, 80 NW. U. L. REV. 577, 661-62 (1985) (suggesting that Congress would legislate more efficiently if it were required to bear the full costs of its legislative programs).
278. See New York v. United States, 505 U. S. 144, 171-73 (1992) (distinguishing conditional spending and preemption from prohibited commandeering).
279. Pub. L. No. 96-482, 294 Stat. 2334 (1980)
280. (codified in scattered sections of 42 U. S. C.)
281. 42 U. S. C. § 6933 (a) (2006).
282. See Conant v. Walters, 309 F.3d 629, 646 (9th Cir. 2002) (Kozinski, J., concurring) ("By precluding doctors, on pain of losing their DEA registration, from making a recommendation that would legalize the patients' conduct under state law, the federal policy makes it impossible for the state to exempt the use of medical marijuana from the operation of its drug laws. In effect, the federal government is forcing the state to keep medical marijuana illegal. But preventing the state from repealing an existing law is no different from forcing it to pass a new one; in either case, the state is being forced to regulate conduct that it prefers to leave unregulated.")
283. aff'g Conant v. McCaffrey, 2000 WL 1281174 (N. D. Cal. 2000).
284. Fed. Energy Regulatory Comm'n v. Mississippi, 456 U. S. 742, 764-66 (1982).
285. South Dakota v. Dole, 483 U. S. 203, 207-08 (1987) (discussing constitutional requirements for conditional spending programs);
286. see also Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2605 (holding that the "threatened loss of over 10 percent of a State's overall budget⋯ is economic dragooning that leaves the States with no real option but to acquiesce in the Medicaid expansion" of the Affordable Care Act).
287. See, e.g., Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U. S. 291, 296 (2006) ("States cannot knowingly accept conditions of which they are 'unaware' or which they are 'unable to ascertain.'");
288. Pennhurst State Sch. & Hosp. v. Halderman, 451 U. S. 1, 17 (1981) (holding that "if Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously").
289. Murphy, 548 U. S. at 296-97.
290. See United States v. Printz, 521 U. S. 898, 932 (1997) ("Assuming all the mentioned factors were true, they might be relevant if we were evaluating whether the incidental application to the States of a federal law of general applicability excessively interfered with the functioning of state governments.");
291. New York v. United States, 505 U. S. 144, 160 (1992) ("Most of our recent cases interpreting the Tenth Amendment have concerned the authority of Congress to subject state governments to generally applicable laws.").
292. See 26 U. S. C. § 6051 (a), (d) (2006).
293. 485 U. S. 505, 527 (1988).
294. 528 U. S. 141, 151 (2000).
295. See Baker, 485 U. S. at 514-15 ("Such 'commandeering' is, however, an inevitable consequence of regulating a state activity.");
296. see also Condon, 528 U. S. at 151 ("But we need not address the question whether general applicability is a constitutional requirement for federal regulation of the States, because the DPPA is generally applicable.").
297. Even demands that do apply to private citizens fail for a different reason: Congress has not (yet) clearly stated its intent to apply them to the states as well. The clear statement requirement stems from a long line of cases in which the Court has refused to apply federal regulations to the states absent Congress's express imprimatur thereon. See, e.g., Gregory v. Ashcroft, 501 U. S. 452, 470 (1991) (dismissing an age discrimination lawsuit brought by state judges on the grounds that Congress had not plainly stated its intent to apply the Age Discrimination in Employment Act protections to the state courts). For example, the Attorney General's power to issue administrative subpoenas in controlled substances investigations, as discussed earlier, could be considered generally applicable-it says, "any records." But Congress did not clearly state its intent to make that power applicable to state government records. Thus, even if the Attorney General demanded information from a state that a private party might also possess (e.g., an employee drug test), the subpoena might still be quashed on the grounds that it failed to satisfy the clear statement requirement.
298. United States v. Printz, 521 U. S. 898, 932 n. 17 (1997) (emphasis added).
299. National Federation of Independent Business v. Sebelius may have further limited the reach of this exception. A slim 5-4 majority of the Court drew a sharp distinction between regulating the activity of private citizens and compelling such activity. 132 S. Ct. 2566, 2589 (2012). The Court found that Congress could not compel citizens to "do things that would be good for them or good for society"-for example, to buy health insurance-even though "[t]hose failures-joined with the similar failures of others-can readily have a substantial effect on interstate commerce"
300. City of Boerne v. Flores, 521 U. S. 507, 517 (1997)
301. (quoting U. S. CONST. amend. XIV, § 5).
302. ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 297 (3d ed. 2006)
303. (quoting City of Boerne, 521 U. S. at 520).
304. See, e.g., In re Cohen, 62 F.2d 249, 251-52 (2d Cir. 1932) (upholding grand jury subpoenas, issued against the president of the New York City Board of Elections, seeking election records for the purpose of investigating civil rights violations).
305. See, e.g., United States v. Morrison, 529 U. S. 598, 620-24 (2000) (holding that Section 5 does not empower Congress to regulate private persons).
306. 179 F.3d 29 (2d Cir. 1999).
307. New York v. United States, 505 U. S. 144, 178 (1992).
308. See Raymond F. Miller, Comment, Creating Evidentiary Privileges: An Argument for the Judicial Approach, 31 CONN. L. REV. 771, 777 (1999) ("Rule 501 provides for continuing recognition of privileges, immunities, and non-disclosure provisions by federal statute⋯. Additionally, Congress can enact privilege-like confidentiality statutes through its general law-making powers and in the Federal Rules of Evidence.").
309. Cf. Branzburg v. Hayes, 408 U. S. 665, 706 (1972) (suggesting that federal prosecutors would refrain from subpoenaing news reporters for their confidential sources if they thought the subpoenas would damage the news-gathering function).
310. See, e.g., RonNell Andersen Jones, Avalanche or Undue Alarm? An Empirical Study of Subpoenas Received by the News Media, 93 MINN. L. REV. 585, 637-38, 666 (2008) (finding that the DOJ regularly subpoenas news reporters, notwithstanding DOJ Media Guidelines ostensibly designed to curb the practice);
311. see also Robert A. Mikos, A Critical Appraisal of the Department of Justice's New Approach to Medical Marijuana, 22 STAN. L. & POL'Y REV. 633, 640-46 (2011) [hereinafter Mikos, New Approach] (suggesting that the federal campaign against medical marijuana has continued largely unabated, despite a recent DOJ memorandum arguably designed to curtail enforcement actions against individuals acting in compliance with state law).
312. See Mikos, New Approach, supra note 346, at 641 ("[E]ven assuming the [DOJ's Non-Enforcement Policy toward medical marijuana] more plainly and forcefully sought to foreclose prosecutions, there's arguably nothing that a federal court (or criminal defendant) could do to enforce it against the DOJ.").
313. See DOJ REPORT, supra note 58, at 7 ("Most administrative subpoena authorities have been redelegated by the entity head to subordinate officials within the entity.").