Federalism and the Battle over Counterterrorist Law: State Sovereignty, Criminal Law Enforcement, and National Security

Abstract

In the late twentieth century, the United States' federal government responded to the threat of terrorism by passing a wide range of counterterrorist laws. The vigor that accompanied these initiatives echoed at a state level where, virtually unnoticed, states passed similar legislation. This article examines state measures in three areas: the funding of foreign terrorist organizations, the use or threatened use of weapons of mass destruction, and definitions of terrorist activity. While these statutes, as a legal matter, may not violate any specific federal provisions or constitutional prohibitions, they raise important questions about federal supremacy in foreign affairs and the constitutional protections afforded citizens. More significantly, as a policy concern, these provisions threaten America's ability to speak in one voice, introducing divisions into the domestic realm and diminishing the ability of the federal government to negotiate with foreign states and organizations. They also mask an appropriate role for the states in fighting terrorism. Both the policy implications and legal considerations suggest that such measures may ultimately undermine America's ability to counter the terrorist threat.