INDIANAPOLIS, Ind. (Jan. 18, 2017) – A bill introduced in the Indiana House would begin a process for opting out of or nullifying federal legislation, and would also specifically take a step toward blocking federal indefinite detention without due process in the Hoosier State.

Rep. Milo Smith (R) introduced House Bill 1254 (HB1254) on Jan. 10. The legislation calls for the creation of a study committee to consider the following:

  1. The extent to which and manner in which Indiana may opt out of or nullify federal legislation under the Tenth Amendment to the United State Constitution or otherwise.
  2. Which federal statutes and regulations Indiana should opt out of or nullify.
  3. Whether Indiana should adopt a constitutional amendment relating to opting out of or nullifying federal legislation.

HB1254 would also take a step toward prohibiting state cooperation with indefinite detention under the National Defense Authorization Act of 2012 (NDAA) or any other federal federal act. Under the proposed law, a “state actor may not investigate, prosecute, or detain any person lawfully in Indiana under a state or federal law that the state actor knows or reasonably should know deprives a person of life, liberty, or property without a fair proceeding in violation of the Due Process Clause of the United States Constitution or the Due Course of Law Clause of the Constitution of the State of Indiana.”

Violators of the law would be subject to Class A misdemeanor charges.

Although it doesn’t specifically define specific actions that violate the Constitution, passage of HB1254 would force state actors to carefully consider their actions and would likely lead to policies to prohibit certain acts. This would make it much less likely that Indiana would cooperate with federal indefinite detention. This lack of state cooperation would make it much more difficult for the federal government to arrest and detain a person without charges in the Hoosier State. It would also set the stage for further legislative action to define exactly what acts are prohibited.

The federal government asserts the power to arrest and indefinitely detain people on U.S.soil through provisions of the NDAA. The prominent sections include 1021 and 1022, still in effect today. The federal government cites these sections, along with other war powers, such as the Authorization to Use Military Force (AUMF) as authority to detain alleged “terrorists” indefinitely. People detained under these powers have no trial, no access to an attorney, and virtually no recourse. (Learn more here.)


HB1254 follows the blueprint the “Father of the Constitution,” created for resisting federal power. In Federalist 46 James Madison outlined several steps that states can take to effectively stop “an unwarrantable measure” of the federal government, or “even a warrantable measure” that happens to be unpopular. Madison called for “refusal to cooperate with officers of the Union” as a way to successfully thwart federal acts.

The federal government relies heavily on state cooperation to implement and enforce almost all of its laws, regulations and acts. By simply withdrawing the necessary cooperation, states can nullify in effect many federal actions.


HB1254 rests 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 The anti-commandeering doctrine stands primarily on four Supreme Court cases dating back to 1842. Printz v. US serves as the cornerstone.

“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.”


HB1254 was referred to the House Committee on Government and Regulatory Reform where it will need to pass by a majority vote before moving forward in the legislative process.

Mike Maharrey

The 10th Amendment

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”



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