Today, the California Public Safety Committee voted unanimously in favor of Assembly Bill 351 (AB351), the California Liberty Preservation Act.
Introduced by Republican Assemblymember Tim Donnelly, AB351 is a strong stand against “indefinite detention” as supposedly authorized by the National Defense Authorization Act (NDAA) of 2012. It declares such federal power to be unconstitutional and also requires the entire state to refuse to enforce or assist its implementation. A broad coalition officially supported the legislation and moved the normally partisan, and strongly democratic committee to support the republican-introduced legislation. AB351 was supported by the ACLU, Tenth Amendment Center, San Francisco 99% coalition, San Francisco Board of Supervisors, the Libertarian Party of California – and many others.
AB351 establishes the proper constitutional role by first citing the 10th Amendment as limiting the power of the federal government as to that which has been delegated to it and nothing more.
The Tenth Amendment to the United States Constitution authorizes the United States federal government to exercise only those powers specifically delegated to it in the United States Constitution.
It then declares the indefinite detention powers under NDAA to be unconstitutional:
Sections 1021 and 1022 of the National Defense Authorization Act for Fiscal Year 2012 (NDAA) codifies indefinite military detention without charge or trial of civilians captured far from any battlefield, violating the United States Constitution and corroding our nation’s commitment to the rule of law
Most importantly, the bill requires the entire state apparatus, including all local governments, to refuse to implement the federal act, or any other federal act (such as AUMF) that might be cited to give the same power to the federal government:
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.
This would make a HUGE dent in any effort to further restrict due process – and would be a big step forward for California. It would also create shockwaves around the rest of the country. As Judge Andrew Napolitano has said recently, such widespread noncompliance can make a federal law “nearly impossible to enforce” (video here). And in those limited situations where enforcement does occur, Rosa Parks has taught us all the power of “NO!” Passage of AB351 would mark the beginning of the end of NDAA indefinite detention in California.
According to committee chair Tom Ammiano, Donnelly spoke “eloquently” in favor of the bill. Donnelly not only reiterated that the Constitution delegates only limited powers to the federal government, but emphasized that violations of the constitution should be met with a firm NO from the state.
“AB351…says the federal government only has the powers enumerated in the Constitution…and does not have the authority here to detain people here without due process.”
“It is important that we in California say NO to human rights abuses that are endangered by the NDAA…instead of quietly complying with unjust and unconstitutional laws”
David Warren, Taxpayers for Improving Public Safety, was a witness in favor and reminded the committee of the indefinite detention of Japanese, Italians, Germans and other people during World War II, “The writ of habeas corpus is the most important right that a citizen has. Unfortunately our history is replete with abuses of that right going back to World War II.”
Art Persyko of the San Francisco 99% Coalition testified in favor as did Nancy Larned, a grassroots member of the Tenth Amendment Center.
“I’m here as a grandmother. I grew up with constitutional rights and due process – my children the same. My grandchildren, not so much. It’s just not right for one person or a small group to decide on those rights.”
Ammiano closed the discussion with kudos and support for the legislation, and the committee proceeded to vote unanimously in favor:
Mr Donnelly, you’ve been very eloquent in your presentation, and have found a zone that we’re all in. I compliment you for that. We got a lot of support for this bill, particularly from local people in my district (San Francisco).
The bill now moves forward to the full California Assembly for debate and vote. (full description of the legislative process here)
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.
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!
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.
Tim Donnelly, a Republican, has authored and sponsored the bill and is working 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 all ends of the political spectrum are demanding an end to “indefinite detention.” Whether it’s 99%’ers, or Tea Partiers – the ACLU or the Tenth Amendment Center – grassroots activists around the state of California know that now is the time to put aside differences and work towards a common goal. Due process for all, that is.
Note: while some believe that the 2013 NDAA eliminated indefinite detention, it does not. Dianne Feinstein introduced a very weak amendment to 2013 – and it failed anyway. 2012 indefinite detention provisions remain in tact – and the Obama administration is aggressively defending them in court.
Also, a case about indefinite detention is still being heard in federal court. 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.