Michigan Governor Rick Snyder (R) signed into law yesterday SB0094. The bill attempts to nullify Section 1021 of the 2012 National Defense Authorization Act (NDAA). Michigan joins other states who have sought to nullify the NDAA’s controversial indefinite detention clause.
SB0094 sponsor Michigan Senator Rick Jones (R) told us:
“Historically Michigan first asserted 10th Amendment rights in 1855 when we passed a law to block the Fugitive Slave Act. I thought of this great history as I pushed the bill to nullify the NDAA. No US citizen should have to fear being thrown into jail or prison without charges. I got support from both sides of the political spectrum. With the Governor’s signature, Michigan states no local police, state police, sheriff or Michigan National Guard will assist the feds with holding a US citizen without Habeas Corpus.”
Senate Bill No. 94 reads:
- AN ACT to prohibit any agency of this state, any political subdivision of this state, any employee of any agency of this state or any political subdivision of this state, or any member of the Michigan national guard from assisting an agency of the armed forces of the United States in the investigation, prosecution, or detainment of any citizen of the United States under certain circumstances.
- No agency of this state, no political subdivision of this state, no employee of an agency of this state or a political subdivision of this state acting in his or her official capacity, and no member of the Michigan national guard on active state service shall aid an agency of the armed forces of the United States in any investigation, prosecution, or detention of any person pursuant to section 1021 of the national defense authorization act for fiscal year 2012, if such aid would place that state agency, political subdivision, employee, or member of the Michigan national guard in violation of the United States constitution, the state constitution of 1963, or any law of this state… (Read the rest of the bill HERE)
According to Tenth Amendment Center national communications director Mike Maharrey:
“This is a great step forward in protecting the basic due process rights of people in Michigan and gives activists there something to build on. Moving forward, I would love to see the Michigan legislature expand the policy in two ways. First, I would like to see it include protection for all people, not just U.S. citizens. After all, every person has a right to basic due process, no matter who they are or where they are from. Second, I would like to see a bill expanding the ban on cooperation to any future federal law or regulation that purports to allow indefinite detention. No federal act can justify kidnapping. None.”
Maharrey does note that the bill needs some work. He calls it “a fantastic start.”
“By including a caveat – “if such aid would place that state agency, political subdivision, employee, or member of the Michigan national guard in violation of the United States constitution, the state constitution of 1963, or any law of this state” – the bill is not an express prohibition. Rather, since no official determination has been made on such constitutionality as of yet, it leaves the decision of constitutionality to discretion. But, the new law does provide legal backing for those sheriffs, law enforcement officers, and other agencies and employees, who refuse to assist the federal government in such activities based on their own constitutional determination.”
The bill’s bite is rooted is anti-commandeering doctrine. This doctrine, which has been well established by the United States Supreme Court (Printz v. United States), dictates that the federal government cannot force state legislatures to enforce federal laws.
According to Justice Scalia’s majority opinion in Printz v. United States, state legislatures are not subject to federal direction. Although Congress may enforce its own laws, they may not force the states to carry out their duties in such laws. According to the Court, the Constitution establishes a system of dual sovereignty where states and the federal government exercise concurrent authority. Giving Congress the power to force states in to service would greatly enhance federal power, and the Court ruled this could not stand.