The landmark case of M’Culloch v. Maryland arose when Maryland attempted to impose a tax on the Bank of the United States branch in Baltimore. Ultimately, in the process of holding that Congress had the necessary-and-proper authority to charter the Bank, Chief Justice Marshall explained that it was thus unconstitutional for a state to tax a federal instrumentality. This rule stands to this day (though there was some litigation over whether federal judges could be required to pay state income tax–they can).
Utah seems to be cooking up a modern-day M’Culloch! A lawmaker in the Beehive State wants to shut off the water flowing to the NSA’s massive data center.
Lawmakers are considering a bill that would shut off the water spigot to the massive data center operated by the National Security Agency in Bluffdale, Utah.
The legislation, proposed by Utah lawmaker Marc Roberts, is due to go to the floor of the Utah House of Representatives early next year, but it was debated in a Public Utilities and Technology Interim Committee meeting on Wednesday. The bill, H.B. 161, directs municipalities like Bluffdale to “refuse support to any federal agency which collects electronic data within this state.”
The NSA brought its Bluffdale data center online about a year ago, taking advantage Utah’s cheap power and a cut-rate deal for millions of gallons of local water, used to cool the 1-million-square-foot building’s servers. Roberts’ bill, however, would prohibit the NSA from negotiating new water deals when its current Bluffdale agreement runs out in 2021.
This bill, to punish a federal agency, would seem to be pre-empted under the logic of M’Culloch, unless I’m missing something else?