Now that the dust has settled a bit after Jerry Brown signed AB351 into law, it’s important to ask, what’s next?
If you thought the work was done and California would be “indefinite-detention” free, you thought wrong. The passage of the California Liberty Preservation Act was an important first step towards the nullification of federal indefinite detention practices in the state, but not the last one.
This advice from Samuel Adams probably sums it up best:
“Instead of sitting down satisfied with the efforts we have already made, which is the wish of our enemies, the necessity of the times, more than ever, calls for our utmost circumspection, deliberation, fortitude, and perseverance.”
The enemies of liberty will not rest, and neither can we.
CALIFORNIA LIBERTY PRESERVATION ACT
AB351 now makes 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 can 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.
There’s a bit of a “but” to the act. No, it’s not a loophole, it’s just that the new law is a FIRST step that needs follow up. AB351 has created a new policy for the state as noted above, but does not have an express directive to all state agencies and political subdivisions (local governments) within the state to follow that policy.
If your head is spinning a little at this point, that’s ok. This is the kind of things that governments do all the time. They create policy, but without follow up, that policy does not get implemented.
To give the new state policy some teeth, action needs to happen at a local level. Around the state, all local governments need to be pressed to pass legally-binding ordinances putting that new state policy into effect.
The local legislation does the following: (get it here, pdf)
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 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 had failed, passage of the bill with its very specific policy intent will make accomplishing these local goals much less difficult.
STEP BY STEP
Northern states were particularly effective in taking a step-by-step approach to resisting federal slavery laws in the 1850’s. That resistance had the effect, as South Carolina officially declared, of nullifying the federal acts or “rendering useless any attempts to enforce them.”
As Mike Maharrey notes, Ohio serves as a good example of this incremental approach. The momentum built first at the local level, with a large number of local resolutions condemning the federal act and calling for passage of personal liberty laws on the state level. The legislature’s first move was to pass a series nonbinding resolutions, starting in 1851. This was the first step and set the stage for future action. The first resolution declared that the people should not voluntarily cooperate with enforcement of Fugitive Slave Act.
Historian Hyun Hur observed, “It was path-breaking that the state legislature agreed on adoption of collective legislative opinion supporting personal liberty measures whose deliberate object was to interfere with the execution of the federal fugitive slave law.”
The state went on to pass its first personal liberty law in 1857. It simply forbid the use of state or local jails for holding fugitive slaves, and included penalties for state officers violating the law.
STEP THREE, AND FOUR?
Yes, there’s a step three for California, and even four. But you don’t get from point A to point D by skipping a few in the middle. And, in a chess match, only an idiot would announce their strategy moves in advance.
For now, the pressure needs to continue. As Sam Adams said, the urgency of this issue calls for our “utmost perseverance.”
Stay tuned and stay active:
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