Tenth Amendment Center: Idaho Bill Would Set Foundation to Nullify NDAA Indefinite Detention
BOISE, Idaho (Feb. 1, 2018) – A bill introduced in the Idaho House 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.”
Sections 1021 and 1022 of the 2012 NDAA purport to empower the federal government to essentially kidnap people within 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 likely hinder any attempts at indefinite detention in Idaho.
Sen. Bob Hasegawa (D-Seattle) introduced the 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.
It may seem radical to criminalize a federal action. But some northern states did essentially the same thing in an attempt to stop fugitive slave rendition in the 1850s It sounds extreme until you consider what the feds are claiming the authority to do – put a bag over your head and lock you up for as long as they want without trial or even charges. That’s the extreme here. Trying to stop it is a rational response.
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 statute, 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.
But even without the threat of prosecuting federal agents, H473 would still make it difficult 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 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
Mike Maharrey
February 01, 2018 at 11:08AM
