Virginia House Bill 1160 (HB1160), what many are calling the “NDAA nullification bill”, is in trouble – even after a big Senate vote in favor this week – with one final House of Delegates hurdle on Friday, March 2nd. This is a bill to require state noncompliance with the new “kidnapping provisions” of the 2012 National Defense Authorization Act – sections 1021 and 1022. A LOT of people want to see this bill die, not pass by a veto-proof majority.

Here’s the deal. The Tenth Amendment Center STRONGLY supports passage of HB1160, which is needed in the House right now to concur with the Senate’s vote this week. And we urge you to contact your Delegates tonight by phone and/or email to support passage of HB1160. You can find their contact information here:
http://dela.state.va.us/dela/MemBios.nsf/MWebsiteTL?OpenView

Please strongly, but politely, encourage your delegate to support passage of House Bill 1160 immediately. A veto-proof majority will make sure that Governor McDonnell can’t play politics with the bill in pursuit of a VP slot on the 2012 national ballot!

WHAT’S THE CONTROVERSY?

The bill passed in the House 96-4. It then went to the Senate, which passed an amended version, 39-1.

The Senate amended bill says:

1. § 1. Notwithstanding any contrary provision of law, no agency or political subdivision of the Commonwealth, or employee of same acting in his official capacity, shall aid an agency of the United States in the unlawful detention of any United States citizen pursuant to 50 U.S.C. § 1541 as provided by the National Defense Authorization Act for Fiscal Year 2012 (P.L. 112-81, § 1021).

The House passed a version that says:

1. § 1. Notwithstanding any contrary provision of law, no agency of the Commonwealth as defined in § 8.01-385 of the Code of Virginia, political subdivision of the Commonwealth as defined in § 8.01-385 of the Code of Virginia, employee of either acting in his official capacity, or member of the Virginia National Guard or Virginia Defense Force, when such a member is serving in the Virginia National Guard or the Virginia Defense Force on official state duty, shall aid an agency of the armed forces of the United States in the conduct of the investigation, prosecution, or detention of any citizen pursuant to 50 U.S.C. § 1541 as provided by the National Defense Authorization Act for Fiscal Year 2012 (P.L. 112-18, § 1021) if such aid would place any state agency, political subdivision, employee of such state agency or political subdivision, or aforementioned member of the Virginia National Guard or the Virginia Defense Force in violation of the United States Constitution, the Constitution of Virginia, and provision of the Code of Virginia, any act of the General Assembly, or any regulation of the Virginia Administrative Code.

Some are claiming that the bill has no “teeth.” A prominent activist sent out this notice:

The language in it’s new form will prevent any state agency from detaining citizens but does nothing to prohibit the federal government from detaining citizens. NDAA gives the federal government the authority to detain citizens in the first place, not state government.

Physically stopping the feds is not the goal of HB1160. Refusing to take part in the constitutional violations is. And this is an essential part of the full process around the country!

NON-COMPLIANCE IS AN IMPORTANT PART OF NULLIFICATION

Delegate Bob Marshall clarified before the bill went to a Senate vote when he said:

“During World War II, the federal government incarcerated tens of thousands of loyal Japanese Americans in the name of national security. By this bill, Virginia declares that it will not participate in similar modern-day efforts.”

The federal government most certainly needs compliance, if not outright assistance, from the states when it does its dirty deeds. Information-sharing, logistics assistance, access to infrastructure, help from sheriffs blocking roads, and the like. They can rarely pull things off without help from state and local officials. Just ask the DEA when they come to California. They’re never able to pull off a raid without the help of the local sheriff or police departments. Refusing compliance is a big deal – and it will set the stage for others to do the same.

When Rosa Parks refused to move to the back of the bus, she didn’t have any “teeth” in her action. Non-compliance bred the growth of a massive movement which resulted in laws being obliterated. She didn’t need to arrest an offending federal or state agent – she simply refused to comply. This is what House Bill 1160 is proposing to do – it’s the Rosa Parks solution that can grow into a movement of varying degrees.

This bill has national implications. If it passes, it will give others courage to do the same. More states will refuse to comply. And other states, like Missouri and Tennessee who are already considering the next step – criminal charges for federal agents trying to kidnap – they’ll have a little more backbone knowing that the Commonwealth of Virginia blazed the trail and opened the doors for them to go to the next level.

THREE STEPS, MAYBE JUST TWO?

Here at the Tenth Amendment Center, we define nullification as “any act or set of acts which has as its end result a particular law being rendered null, void, or unenforceable in a specific area.” With that definition in mind, we see nullification of the new “kidnapping powers” of the NDAA as a multi-step process.

1. Education – awareness. This is where local and state resolutions come into play. When something is passed, even non-binding, it gets press coverage about the idea that the local and state people have a role to play in this.

2. Non-compliance – as just passed by the Virginia House and Senate, and being considered in various other states and local communities. The message? Your unconstitutional federal act is not welcome here!

Gandhi, Rosa Parks and others didn’t take it beyond there. We recognize that in almost every situation, the federal government relies on states being silent or even fully complicit. Information sharing, logistics…all that could be asked of state and local governments. Could the feds still kidnap at that point if the state refuses compliance? Sure, “legally” nothing has changed. But if 10-15 states and a hundred or so counties and cities are making clear they will not comply and that they consider the act unconstitutional, it’s going to be much tougher for them, if not politically impossible, than if everybody just complied and waited for the courts or another election to “save” them.

3. Resistance and physical interposition – Some, of course, believe that the feds can never be stopped without a physical resistance. But this may not be required if enough states and localities take noncompliance seriously in #2 above. But, we also see the value in running the full spectrum of options from the simplest to the strongest in various parts of the country. In Washington State, the bill there is full non-compliance. Matt Shea and Jason Overstreet, the primary sponsors, feel they can get that moving forward, and hope to follow up with criminal penalties in a future bill. Then, potentially another to require arrest of fed agents for kidnapping could be considered. In Missouri, they’re tracking along the same lines.

In Tennessee, though, the bill being considered right now refers to indefinite detention as a “kidnapping” charge and requires the local sheriffs to stop them.

ACT NOW

This is important enough to reiterate…

This bill has national implications. If it passes, it will give others courage to do the same. More states will refuse to comply. And other states, like Missouri and Tennessee who are already considering the next step – criminal charges for federal agents trying to kidnap – they’ll have a little more backbone knowing that the Commonwealth of Virginia blazed the trail and opened the doors for them to go to the next level.

The opposition – the supporters of endless federal power – they WANT you to spend your time bickering with other constitutionalists as to what the “perfect” bill is. You know why? Virtually every single time that happens, a great opportunity passes. People demand one version or another, or another – and refuse to get behind anything else other than their version. The result? Nothing gets passed, and no resistance happens at all. Don’t let them do that do you – get behind this bill. Perfect in your eyes or imperfect – for lack of a better phrase, this is a BIG middle finger to Washington DC, and in Virginia, you will have the pride in knowing that you were the first.

We strongly urge you to get on the phone and your email right now to ask, urge, and demand that your delegate support HB1160 immediately.
http://dela.state.va.us/dela/MemBios.nsf/MWebsiteTL?OpenView

Michael Boldin

The 10th Amendment

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