SACRAMENTO, Calif. (Oct. 18, 2017) – On Sunday, California Gov. Jerry Brown signed a bill into law that prohibits the state from cooperating with any federal efforts to create a database compiling personal information relating to a person’s religious beliefs, practices, or affiliations.The new law takes a step toward nullifying any attempts to create such a database.
Sen. Ricardo Lara (D-Bell Gardens), along with a bipartisan coalition of 14 senators and assembly members, sponsored Senate Bill 31 (SB31). Titled the California Religious Freedom Act, the new law prohibits any state or local agency in California, or any public employee acting under color of law, from releasing personal information to the federal government regarding the religious beliefs, practices, or affiliation of any individual for the purpose of compiling a list, registry, or database of individuals based on religious affiliation, national origin, or ethnicity. The law also bars the use of agency money, facilities, property, equipment, or personnel to assist in the creation of such a database. SB31 includes provisions prohibiting law enforcement agencies from collecting information on religious affiliation, and from participating in enforcement of any federal law requiring people to register with the government based on religious belief, practice, or affiliation, national origin, or ethnicity.
The new law was passed in response to comments Pres. Donald Trump made on the campaign trail calling for a “Muslim registry.” With the California Religious Freedom Act in place, the federal government would have a difficult time including Californians on such a list. It would almost certainly require state and local cooperation to create such a database.
According to the Los Angeles Times, when announcing the bill, Lara cited an NBC News interview featuring then-candidate Trump saying there “should be a lot of systems,” beyond a database, that track Muslims in the country.
Islamic Cultural Center of Fresno executive director Reza Nekumanesh told the LA Times fear of a registry was a reality for Muslim communities. It was only a year ago that, he said, that Trump surrogates referenced Japanese internment camps from World War II as “precedent” for a Muslim registry.
“Every time we have thought about registering people based on ethnicity, based on religion, no good has come of it,” Nekumanesh said.
While the law was specifically in response to talk of a “Muslim registry,” it would apply to the creation of any federal database based on religious belief or ethnicity.
While the law would not stop the federal government from creating a registry based on religious practices, or ethnicity, it would make it extremely difficult for the feds to collect such information in California. The federal government depends on state cooperation for all kinds of information-gathering. For instance, most of the data in a DEA license plate tracking database reported on by the Wall Street Journal comes from state and local law enforcement. Local police operate tracking systems, paid for by federal grant money. The DEA then taps into the local database.
The new California law creates two substantial barriers to the creation of a federal registry based on religion or ethnicity.
First, the prohibition on collecting information means state and local agencies wouldn’t have anything to share even if the feds demand it. A similar principle is at work in a recently passed Maine law that prohibits the creating of a state gun registry. The ATF, or another federal agency, could easily create a federal gun registry using information gathered by state and local governments. By prohibiting any such databases in the state, Maine ensures this can’t happen. Simply put, no data means no federal database.
Second, the provisions banning any state cooperation with the creation of a registry or database would leave the federal government to do it themselves in California. This would prove extremely difficult because the feds lack sufficient personnel and resources.
Based on James Madison’s advice for states and individuals in Federalist #46, a “refusal to cooperate with officers of the Union” offers an extremely effective method to bring down federal gun control measures because most enforcement actions rely on help, support and leadership from the states. Fox News senior judicial analyst Judge Andrew Napolitano agreed. In a televised discussion on the issue, he noted that a single state taking this step would make federal gun laws “nearly impossible” to enforce.
Provisions withdrawing state and local cooperation with implementing a federal database rest 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.
Four major Supreme Court cases dating back to 1842 support the anti-commandeering doctrine. Printz v. US (1997) serves as the cornerstone. Writing for the majority, Justice Scalia said:
“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.”
Additionally, in the 1842 Prigg v. Pennsylvania case, the Court held that while the federal Fugitive Slave Act could not be physically impeded by states, they simply weren’t required to help the federal government capture runaway slaves and return them to bondage in the South.
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