SACRAMENTO, Cal. (Sept. 3, 2013) – Today, the California State Senate voted to approve a bill that will help render toothless the federal “indefinite detention” powers under the National Defense Authorization Act (NDAA). The bill, by Assemblymember Tim Donnelly, was previously passed by the state assembly by a vote of 71-1 (roll call here)
California residents are strongly encouraged to contact Governor Jerry Brown, urging him to sign AB351. (contact info here)
If passed into law, AB351 would make it state policy to reject “indefinite detention” powers from the federal government. It reads, in part:
It is the policy of this state to refuse to provide material support for or to participate in any way with the implementation within this state of any federal law that purports to authorize indefinite detention of a person within California. [emphasis added]
This language of AB351 goes far beyond what has been considered in most other states, which focus solely on indefinite detention powers under the 2012 National Defense Authorization Act (NDAA), and nothing else. Donnelly’s legislation broadens the scope by recognizing that indefinite detention should not be complied with no matter what federal law is used to justify it. Donnelly confirmed this broad scope, “AB351 will prevent California from implementing indefinite detention for any reason.”
This would make a HUGE dent in any federal effort to detain without due process in California. As Judge Andrew Napolitano has said recently, such widespread noncompliance can make a federal law “nearly impossible to enforce” (video here). Quite simply, the federal government is going to have an extremely difficult time – at best – carrying out indefinite detention in California without the assistance of California.
Acting as floor manager for the bill in the Senate, San Francisco liberal Democrat Mark Leno, and his colleagues had a brief laugh he was the one presenting a bill introduced by ultra-conservative Assemblymember Tim Donnelly. Leno noted that this was the result of the serious nature of the matter at hand. He said, “It doesn’t matter where one finds oneself on the political spectrum, these two sections of this national defense act are wrong, unconstitutional and never should have been included.”
This was Leno’s 2nd time asserting that NDAA indefinite detention is, in fact, unconstitutional. Minutes earlier he said, “Indefinite detention, by its very definition, means we are throwing away the basic foundations of our Constitution.”
When he presented the bill to the Assembly floor in May, Donnelly expressed much of the same. He urged his colleagues to take action to prevent California’s sad history on indefinite detention from repeating. During World War II, the state was ground zero for tens of thousands of people of Japanese descent who were indefinitely detained for years based on their race. ”How did we ever allow this to happen…to allow people to be interned in camps because they looked different?” Donnelly closed with a message that should be repeated in every state, “Not in California! We say never again!”
A BIG STEP FORWARD
The bill stops short of an express prohibition on all government agencies and employees within the state, but creates a powerful climate for follow up activity and legislation on a local level to give AB351 the legal force it needs to have a practical impact moving forward.
Senator Leno made note of this while presenting the bill:
“It will prohibit state agencies, employees, and members of the national guard from aiding any federal agency in implementing the indefinite detention provisions that I just described signed into law as part of the National Defense Authorization Act.”
The prohibitory language of the bill reads:
no agency of the State of California, no political subdivision of this state, no employee of an agency, or a political subdivision, of this state acting in his or her official capacity, and no member of the California National Guard on official state duty shall knowingly aid an agency of the Armed Forces of the United States in any investigation, prosecution, or detention of a person within California pursuant to (A) Sections 1021 and 1022 of the National Defense Authorization Act for Fiscal Year 2012 (NDAA), (B) the federal law known as the Authorization for Use of Military Force (Public Law 107-40), enacted in 2001, or (C) any other federal law, if the state agency, political subdivision, employee, or member of the California National Guard would violate the United States Constitution, the California Constitution, or any law of this state by providing that aid.
By including a caveat at the end of this section – if the state agency, political subdivision, employee… - the bill is not an express prohibition on all agencies, political subdivisions, and employees, including the California National Guard. Rather, since no official determination has been made on such constitutionality as of yet, it leaves Constitutionality to discretion. But, the bill does create a legal backing to those sheriffs, law enforcement officers, and other agencies and employees, to refuse to assist the federal government in such activities based on their own constitutional determination. As Sheriff Richard Mack has been teaching around the country for years now, this is what should be done all the time already. (visit the Constitutional Sheriffs and Peace Officers Association for more information)
If passed into law, AB351 would also create a climate for each local community in the state – counties, cities, towns, etc – to step up and get involved. Once passed, activists would be encouraged to press their local governments to pass legally-binding ordinances to give the new state law additional force. The local legislation would do the following:
a) Express full support for the new state policy to “refuse to provide material support for or to participate in any way with the implementation within this state of any federal law that purports to authorize indefinite detention of a person within California.”
b) Create an express prohibition on the use of any local government assets – funds, employees, and the like – to provide material support for or participate in any way with federal indefinite detention.
Once the state is blanketed with localities which have passed such measures, the practical effect would be even stronger than if AB351 had ordered them to do the same. Reaching this point would mean that support for the effort would be well into the mainstream around the state, and that resolve to ensure the resistance continues to victory is likely much stronger.
A number of local communities around the state, including Fairfax, San Francisco, Santa Cruz, and Berkeley, have already moved in this direction by passing resolutions in opposition to NDAA indefinite detention. While activists would still be encouraged to take this path if AB351 fails, passage of the bill with its very specific policy intent will make accomplishing these local goals much less difficult.
JAMES MADISON’S ADVICE
James Madison, known as the “father of the constitution,” advised this exact kind of action from the states when he wrote the following in Federalist #46:
Should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps refusal to cooperate with officers of the Union, the frowns of the executive magistracy of the State; the embarrassment created by legislative devices, which would often be added on such occasions, would oppose, in any State, very serious impediments; and were the sentiments of several adjoining States happen to be in Union, would present obstructions which the federal government would hardly be willing to encounter.
Madison pulled no punches when he said that states should refuse “to cooperate with officers of the Union.” But he didn’t suggest this as a mere protest. He was quite clear in saying that when multiple states did the same, it would have great effect on actions of the federal government. It bears repeating, noncompliance (refusal to cooperate) “would present obstructions which the federal government would hardly be willing to encounter.” (LEARN MORE ABOUT MADISON’S ADVICE IN FEDERALIST #46 HERE)
Earlier this year, Judge Andrew Napolitano offered the same solution when he said that refusing to comply with federal “laws” would make them “nearly impossible to enforce.”
Some opponents of the legislation claim that the US Constitution’s “supremacy clause” prevents the state from taking this action. But this is a complete misunderstanding, not only of the supremacy clause, but of AB351 as well. There is absolutely ZERO serious dispute about the fact that the federal government cannot “commandeer” the states to carry out its laws. None. Even the Supreme Court has affirmed this multiple times.
In the 1992 case, New York v. United States, the Supreme Court ruled that Congress couldn’t require states to enact specified waste disposal regulations.
In the 1997 case, Printz v. United States, the Supreme Court ruled that the federal government could not command state law enforcement authorities to conduct background checks on prospective handgun purchasers.
In the 2012 case, National Federation of Independent Business v. Sebelius, the Supreme Court ruled that a significant expansion of Medicaid was not a valid exercise of Congress’s spending power, as it would coerce states to either accept the expansion or risk losing existing Medicaid funding.
In each of these cases, the Supreme Court made is quite clear that their opinion is that the federal government cannot require the states to act, or even coerce them to act through a threat to lose funding. Their opinion is correct. If the feds pass a law, they can sure try to enforce it if they want. But the states absolutely do not have to help them in any way.