DOVER, Del. (June 16, 2015) – A Delaware Senate Committee approved a bill last week to ban the state from using resources to assist with enforcement of some federal immigration programs, effectively nullifying them in practice. The vote was 2-1-1.

Sen. Bryan Townsend (D-Newark), along with seven bipartisan cosponsors, introduced Senate Bill 60 (SB60) on May 21. The Delaware Transparency and Responsibility Using State Tools (TRUST) Initiative would prohibit state and local law agencies from cooperating with federal immigration enforcement through a number of specific provisions. It passed in the Senate Public Safety Committee on June 10 with two votes favorable, one vote ‘on its merits’ and one vote unfavorable.

Individuals could no longer be lawfully detained “solely on the basis of any immigration detainer or administrative immigration warrant” by Delaware state officials if they were to comply with the following conditions stated in the bill:

(1) All criminal charges against the individual have been dropped or dismissed;

(2) The individual has been acquitted of all criminal charges filed against him or her;

(3) The individual has served all the time required for his or her sentence;

(4) The individual has posted a bond, or has been released on his or her own recognizance;

(5) The individual has been referred to pre-trial diversion services;

(6) The individual has been sentenced to an alternative to incarceration, including a rehabilitation facility;

(7) The individual is otherwise eligible for release under state or local law.

In addition, SB60 would ban state-level compliance and material support to agents of the federal government enforcing immigration mandates. It reads, in part:

No law enforcement officer or agency under the jurisdiction of this State, including but not limited to those officers and agencies specifically defined and listed… shall stop, arrest, search, detain or continue to detain a person solely based on an individual’s citizenship or immigration status or on an administrative immigration warrant entered into the Federal Bureau of Investigation’s National Crime Information Center database, or any successor or similar database maintained by the United States.

While the bill would not allow state agencies to directly interfere with federal immigration enforcement, it would leave the feds to handle it alone, with no state or local assistance. This would likely make it almost impossible for the federal government to enforce immigration law in Delaware.

The legality of SB60 rests on the well-established anti-commandeering doctrine. The Supreme Court has consistently held that the federal government cannot compel states to cooperate with enforcement or implementation of its programs or mandates. Justice Joseph Story established the principle in the 1842 fugitive slave case Prigg v. Pennsylvania.

The states cannot, therefore, be compelled to enforce them [the fugitive slave clause]; and it might well be deemed an unconstitutional exercise of the power of interpretation, to insist that the states are bound to provide means to carry into effect the duties of the national government, nowhere delegated or instrusted to them by the Constitution.

Should SB60 pass, Delaware would become the third state implement such a law, along with California and Connecticut. Similar bills are currently moving through state legislatures in Illinois, Massachusetts and Washington State. These measures demonstrate that nullification is not simply a right-wing phenomenon. It is a bipartisan force emerging to challenge overwrought federal power on a diverse set of issues.

“Look, we don’t believe that progressives are often with us on many issues, like health care and gun control,” Tenth Amendment Center founder and executive director Michael Boldin said. “And conservatives often aren’t with us on issues like hemp and marijuana. But the fact is, the federal government doesn’t have the authority to compel states to do virtually anything, and people on both sides are learning to say ‘No.’”

Boldin said he considered this an educational tool for activists.

“The most successful nullification efforts in modern times, marijuana and hemp farming, have come from the left,” he said. “This happens because even when the feds push back, they continue on with what they want to do in their states anyway. The right should learn from this and take the same approach on issues important to them.”

Now that SB60 passed in the Senate Public Safety Committee, it will likely receive a vote in the full state Senate.

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