SACRAMENTO, Cal. (May 30, 2013) – Today, the California Assembly voted to approve a bill that will help render toothless the federal “indefinite detention” powers under the National Defense Authorization Act (NDAA). The bill, by Assemblymember Tim Donnelly, was previously passed unanimously by both the Public Safety and Appropriations Committees and now moves on to the State Senate for concurrence. The final vote was 71-1 (roll call here)
California residents are strongly encouraged to contact their state senators immediately to request support for AB351. (contact info here)
If passed into law, AB351 would make 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 language of AB351 goes far beyond what has been considered in most other states, which focus solely on indefinite detention powers under the 2012 National Defense Authorization Act (NDAA), and nothing else. Donnelly’s legislation broadens the scope by recognizing that indefinite detention should not be complied with no matter what federal law is used to justify it. Donnelly confirmed this broad scope, “AB351 will prevent California from implementing indefinite detention for any reason.”
This would 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.
in presenting the bill to the Assembly, Donnelly reminded urged his colleagues to take action to prevent California’s sad history on indefinite detention from repeating. During World War II, the state was ground zero for tens of thousands of people of Japanese descent who were indefinitely detained for years based on their race. “How did we ever allow this to happen…to allow people to be interned in camps because they looked different?”
Democratic Assemblymember Mariko Yamada of Davis affirmed the horrors that people experienced during the internment years and mentioned that it affected her own family as well. “We certainly do not wish to see a repeat of this ugly chapter based on wartime hysteria and racism. On behalf of my own family and all of those who did suffer through these indignities, I respectfully request an aye vote on AB351.”
Assemblymember Mike Gatto, the powerful democratic chair of the Appropriations committee rose in support of the bill as well. “This is about obeying the most organic laws that govern us, which are natural law and the Constitution.” Gatto took it a step further and while opposing the use of the word “nullification” – supported it in principle. “I think it’s proper for a state to pass a law stating that we must obey our constitution, that we do not have to put up with following acts that are unconstitutional.”
Donnelly closed with a message that should be repeated in every state, “Not in California! We say never again!”
Some opponents of the legislation claim that the US Constitution’s “supremacy clause” prevents the state from taking this action. But this is a complete misunderstanding, not only of the supremacy clause, but of AB351 as well. 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.
A BIG STEP FORWARD
The bill stops short of an express prohibition on all government agencies and employees within the state, but creates a powerful climate for follow up activity and legislation on a local level to give AB351 the legal force it needs to have a practical impact moving forward. The prohibitory language of the bill reads:
no agency of the State of California, no political subdivision of this state, no employee of an agency, or a political subdivision, of this state acting in his or her official capacity, and no member of the California National Guard on official state duty shall knowingly aid an agency of the Armed Forces of the United States in any investigation, prosecution, or detention of a person within California pursuant to (A) Sections 1021 and 1022 of the National Defense Authorization Act for Fiscal Year 2012 (NDAA), (B) the federal law known as the Authorization for Use of Military Force (Public Law 107-40), enacted in 2001, or (C) any other federal law, if the state agency, political subdivision, employee, or member of the California National Guard would violate the United States Constitution, the California Constitution, or any law of this state by providing that aid.
By including a caveat at the end of this section – if the state agency, political subdivision, employee… – the bill is not an express prohibition on all agencies, political subdivisions, and employees, including the California National Guard. Rather, since no official determination has been made on such constitutionality as of yet, it leaves Constitutionality to discretion. But, the bill does create a legal backing to those sheriffs, law enforcement officers, and other agencies and employees, to refuse to assist the federal government in such activities based on their own constitutional determination. As Sheriff Richard Mack has been teaching around the country for years now, this is what should be done all the time already. (visit the Constitutional Sheriffs and Peace Officers Association for more information)
If passed into law, AB351 would also create a climate for each local community in the state – counties, cities, towns, etc – to step up and get involved. Once passed, activists would be encouraged to press their local governments to pass legally-binding ordinances to give the new state law additional force. The local legislation would do the following:
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 fails, passage of the bill with its very specific policy intent will make accomplishing these local goals much less difficult.
1. Contact your state senator. California residents are strongly encouraged to contact their state senators immediately to request support for AB351. (contact info 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!
LEGISLATION AND TRACKING
If you live anywhere outside of California, please contact your own legislators regarding anti-NDAA legislation. If none has been introduced in your state or local community, you can email them The Liberty Preservation Act model legislation.
You can track the status of NDAA nullification in states around the country HERE.
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