In recent weeks, resistance to federal kidnapping powers in the 2012 NDAA (specifically sections 1021 and 1022 of the Act) has been catching on like wildfire. Virginia this year became the first state in the country to pass a binding law refusing compliance with the act. And yesterday, the Rhode Island House of Representatives passed a resolution rejecting the NDAA – becoming the sixth state to do so.

Harder to tame than a willful statehouse might be a cluster of cities and counties, each one individually nullifying through local law. Local communities are standing up to say NO as well. Towns, cities and counties around the country are being presented with model legislation that they can use to consider a resolution or a binding ordinance and in quick time – a number have already voiced their approval of such action.

On February 5, 2012, the Berkeley City Council passed Resolution No. 61,449-N.S. establishing a policy that “the City will cooperate only with constitutionally valid requests from the federal government, and all actions by the Berkeley Police Department will remain in accord with Amendments 4-8 of the U.S. Constitution, the due process clauses of the California Constitution, and the United Nations Charter, Article 55.” Last night, the Council followed on that resolution with another – this one specifically aimed at the “indefinite detention” provisions of the 2012 NDAA.

After unanimously passing the resolution, Berkeley is now the fifteenth local government around the country to have passed similar legislation.

It states, in part:

the indefinite military detention of any person without trial violates the 5th and 6th amendments of the Constitution of the United States, Article III of the Constitution of the United States, and the Posse Comitatus Act;

But the Council, acting on recommendation from the City’s Peace and Justice Commission, didn’t stop at simply denouncing the unconstitutional federal act. They included language to take their response a step further. It states that they will:

“Instruct all our public agencies to decline requests by federal agencies acting under detention powers granted by the NDAA that could infringe upon residents’ freedom of speech, religion, assembly, privacy, or rights to counsel.”

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 the Berkeley resolution as a piece of a puzzle that could lead to a full nullification of NDAA detention powers. This is 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 Berkeley City council, as well as the town of Fairfax, CA and the State of Virginia. 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 state and local governments being silent or even fully complicit. Information sharing, logistics, and even national guard troops carrying out orders are activities 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 the 2012 legislative session, a bill was introduced in the Tennessee legislature which proposed kidnapping charges for federal agents attempting to “detain” people under the NDAA.

When 25 states refused compliance with the REAL ID Act of 2005, the law remained on the books in Congress, was never challenged in Court, but was rendered virtually null, void and unenforceable in most of the country. Straightforward noncomnpliance worked.


The Tenth Amendment Center recently announced new model legislation to address the NDAA, The Liberty Preservation Act. It would nullify the NDAA and is ready to be introduced in any state or locality. The LPA has all the language needed to turn away the NDAA in your area.

Get five versions of this model legislation here:

Track NDAA nullification efforts across the country here:

Michael Boldin