BOISE, Idaho (Feb. 28, 2018) – Yesterday, the Idaho House overwhelmingly passed a bill that would set the foundation to nullify indefinite detention under the National Defense Authorization Act of 2012 (NDAA) or any other federal act.

The House of Delegates State Affairs Committee Committee introduced House Bill 473 (H473) on Jan. 31. Titled the Restoring Constitutional Governance Act of Idaho, the legislation would ban state, local and federal authorities from acting against any person in Idaho under the laws of war. This would include:

(a) Arresting or capturing any person in Idaho or any citizen of Idaho under  the law of war;

(b) Actually subjecting a person in Idaho to disposition under the law of war; or

(c) Using deadly force under the laws of war against any person in Idaho, or intentionally subjecting any citizen of Idaho for targeted killing or murder.

Any person violating the law would “be prosecuted under the Idaho criminal code relating to the substantive law for which the violation pertains including, but not limited to, assault, battery, kidnapping or murder.”

Yesterday, the Idaho House passed the bill by a 63-4 vote.

BACKGROUND INFORMATION

Sections 1021 and 1022 of the 2012 NDAA purport to empower the federal government to essentially kidnap people within the borders of the United States and hold them indefinitely without trial, or even formal charges. Passage of H473 would apply to indefinite detention under the NDAA, or any other federal law. Since the feds always depend on states and their resources to assist with their actions, H473 would almost certainly hinder any attempts at indefinite detention in Idaho.

Sen. Bob Hasegawa (D-Seattle) introduced a similar bill in the Washington state Senate. The specter of indefinite detention is quite personal to him. The U.S. government detained his family in a detention camp during World War II for the “crime” of being Japanese.

“While they were constructing the camp, my family lived in horse stalls in the stables at the Puyallup Fairgrounds,” he said. “They were all U.S. citizens.”

The experience of Hasegawa’s family illustrates the very real threat of indefinite detention. It not only can happen here – it has.

People Against the NDAA (PANDA) has been working hard behind the scenes to get H473 introduced. National director Jason Casella said indefinite detention violates multiple sections of the Constitution and Bill of Rights.

“The indefinite detention of U.S. citizens without due process is fundamentally un-Constitutional, un-American, and un-Idahoan. Without the right to a trial, we have no rights at all. Our founders believed so firmly in the right to trial by jury that they enshrined it in the body of the Constitution, and again in the Sixth Amendment. It is great to see such great nonpartisan support for the Restoring Constitutional Governance Act which will help ensure that the rights of the people of Idaho are protected.”

PRACTICAL EFFECTS

As we’ve explained in the past, practically speaking, it would be extremely difficult for the state to prosecute federal agents for enforcing federal law. Under federal statutes, any case involving a federal agent acting within the scope of his or her official duties gets removed to federal court. In other words, the current structure of the legal system makes it virtually impossible to prosecute a federal agent in state court. Lawyers for the charged federal agent would immediately make a motion to remove the case to federal district court under 28 U.S.C. § 1442(a)(1). Unless the state judge refused to comply, the case would then be out of state hands.

After the Kentucky Resolutions of 1798 laying out the case for nullification of the Alien and Sedition Acts passed the Kentucky legislature, Thomas Jefferson sent a letter to James Madison with a copy of the resolutions. Jefferson said it was crucial to “distinctly affirm all the important principles they contain, so as to hold to that ground in the future, and leave the matter in such a train as that we may not be committed absolutely to push the matter to extremities, & yet may be free to push as far as events will render prudent.”

TAC executive director Michael Boldin said grassroots activists on the ground in Idaho have done a good job of not just holding ground, but pushing forward.

“From a strategy perspective, I almost always recommend against writing legislation with provisions requiring states to prosecute federal agents since almost every bill using this approach in modern times has been voted down. But that doesn’t mean we don’t support the principles behind the bill. PANDA and other grassroots activists deserve congratulations for pushing the bill forward even with the odds stacked tremendously against them. Great job!”

Even without a threat of successfully prosecuting federal agents, H473 would still make it difficult for the federal government to indefinitely detain people in Idaho. The federal government depends on state and local cooperation to implement virtually every federal program and enforce virtually every federal law.

Investigations in North Carolina have revealed how state and local resources supported rendition and torture during the G.W. Bush administration. The state has every right to prohibit cooperation with the federal government and to prosecute state agents. Without the cooperation of state agents and access to the facilities they operate, federal authorities would have a much more difficult time acting against people in Idaho under the laws of war. The threat of arrest – even absent any real likelihood of prosecution, could also serve as a deterrent.

Based on James Madison’s advice for states and individuals in Federalist #46, a “refusal to cooperate with officers of the Union” provides a strategy to block indefinite detention within a state because most enforcement actions rely on help, support and leadership from the states.

LEGAL BASIS

Refusal to cooperate with federal enforcement 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 is based primarily on four Supreme Court cases dating back to 1842. Printz v. U.S. 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 sovereign

WHAT’S NEXT

H473 now moves to the Senate for further consideration. It was referred to the Senate State Affairs Committee where it must pass by a majority vote before moving forward in the legislative process.

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