OLYMPIA, Wash. (Jan. 20, 2017) – A bill introduced in the Washington state Senate would prohibit the state from assisting the federal government with indefinite detention without due process under provisions of the National Defense Authorization Act of 2012 (NDAA) or any other federal acts purporting to authorize such powers.
Sen. Bob Hasegawa (D-Seattle), along with two other Democrat senators, introduced Senate Bill 5176 (SB5176) on Jan. 16. The legislation would prohibit any state or local official, or employee, including members of the Washington National Guard, or any corporation doing business on behalf of the state, from knowingly cooperating “with an investigation or detainment of a United States citizen or lawful resident alien located within the United States of America by the armed forces of the United States of America.”
SB5176 would also prohibit members of the U.S. armed forces, or any persons acting directly on their behalf, from conducing an investigation or detainment of a United States citizen or lawful alien located within the borders of the state “except when granted authority compliant with the United States Bill of Rights and the Washington state constitution.”
Violation of either section would be a class C felony.
The federal government asserts the power to arrest and indefinitely detain people on U.S.soil through provisions of the NDAA. The prominent sections include 1021 and 1022, still in effect today. The federal government cites these sections, along with other war powers, such as the Authorization to Use Military Force (AUMF) as authority to detain alleged “terrorists” indefinitely. People detained under these powers have no trial, no access to an attorney, and virtually no recourse. (Learn more here.)
Since the feds always depend on states and their resources to assist with their actions, SB5176 would likely hinder any attempts at indefinite detention in Washington state.
The specter of indefinite detention is quite personal to Hasegawa. The U.S. government detained his family in a detention camp during World War II for the “crime” of being Japanese.
“While they were constructing the camp, my family lived in horse stalls in the stables at the Puyallup Fairgrounds,” he said. “They were all U.S. citizens.”
Hasegawa’s family experience illustrates the very real threat of indefinite detention. It not only can happen here – it has.
SB5176 follows the blueprint the “Father of the Constitution,” created for resisting federal power. In Federalist 46 James Madison outlined several steps that states can take to effectively stop “an unwarrantable measure” of the federal government, or “even a warrantable measure” that happens to be unpopular. Madison called for “refusal to cooperate with officers of the Union” as a way to successfully thwart federal acts.
The federal government relies heavily on state cooperation to implement and enforce almost all of its laws, regulations and acts. By simply withdrawing the necessary cooperation, states can thwart many federal actions.
The provision in SB5176 prohibiting state agents from assisting the federal government with indefinite detention rests on a well-established legal principle known as the anti-commandeering doctrine. Simply put, the federal government cannot force states to help implement or enforce any federal act or program The anti-commandeering doctrine stands primarily on four Supreme Court cases dating back to 1842. Printz v. US serves as the cornerstone.
“We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policy making is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.”
SB5176 was referred to the Senate Committee on Law and Justice where it will need to pass by a majority vote before moving forward in the legislative process.
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