SACRAMENTO, Cal. (May 24, 2013) – Today, the California Assembly Appropriations Committee gave a “Do-Pass” approval to a bill that could render toothless the federal “indefinite detention” powers under the National Defense Authorization Act (NDAA). The bill, by ASM Tim Donnelly was previously passed unanimously by the Public Safety Committee and is expected to get a vote in the full state assembly in the coming week.
California residents are strongly encourage to contact their state representative immediately to request a YES vote on AB351. (contact info here)
If passed into law, AB351 would require that the state refuse to enforce or assist in the enforcement of indefinite detention as may have been authorized by either the 2012 NDAA or the 2001 Authorization to Use Military Force (AUMF). It reads, in part:
“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 NDAA,
(B) the federal law known as the Authorization for Use of Military Force (Public Law 107-40), enacted in 2001”
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.
Weighing in on the bill, Tenth Amendment Center communications director Mike Maharrey noted the impact it would have if passed into law. “Passage of AB351 would mark the beginning of the end of indefinite detention in California. In those limited situations where federal enforcement still does occur in the face of massive refusal by the state, Rosa Parks proved it: “No” can change the world.”
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.
While some believe that the 2013 NDAA eliminated indefinite detention, it did not. Dianne Feinstein introduced a very weak amendment to 2013 – and it failed anyway. 2012 indefinite detention provisions remain intact – and the Obama administration is aggressively defending them in court today.
Last year, Federal Judge Katherine Forrest struck down these indefinite detention powers as unconstitutional. She issued a temporary court order blocking the use of these powers. That order was revoked by the appeals court and indefinite detention powers remain while the case is currently on appeal but not decided.
Additionally, when asked by Judge Forrest if the federal government was using indefinite detention in violation of her temporary order blocking it, Barack Obama’s attorneys refused to confirm, leaving the door open that the Feds were potentially using this power in secret, even in outright defiance of an order from the federal courts.
Because of all this, and more, California stands on strong ground to reject a federal power which has already been struck down in federal court and is still pending appeal. The California Assembly should pass AB351 with full confidence.
Tim Donnelly, a Republican, has authored and sponsored the bill and his staff has worked hard to build a strong non-partisan group of supporters to get it passed. Such attacks on due process rise above the usual party politics, and all across the country people from across the political spectrum are demanding an end to “indefinite detention.” In California, groups such as 99% coalition, Oath Keepers, Tea Party, Tenth Amendment Center and ACLU all set aside differences to work together in support of this bill.
ACTION ITEMS for California
1. Call your Assembly member. Strongly, but respectfully, urge a YES vote on AB351. Let them know that you want to see a vote on principle, not party, and that some issues transcend partisan politics. AB351 is one of those issues – where people from across the political spectrum can set aside differences to do what’s right. Call over the weekend or in the evening, if needed. Leave a message on their voicemail so when your state rep is back to work, they’ll know there’s strong support for AB351
Find your legislator here:
2. Share this information widely. Please pass this along to your friends and family. Also share it with any and all grassroots groups you’re in contact with around the state. Please encourage them to email this information to their members and supporters.
3. Join the NDAA activist group on Facebook. Connect with others, plan strategy, build a coalition, and help get AB351 passed!
LEGISLATION AND TRACKING
If you live anywhere outside of California, please contact your own legislators regarding anti-NDAA legislation. If none has been introduced in your state or local community, you can email them The Liberty Preservation Act model legislation.
You can track the status of NDAA nullification in states around the country HERE.
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