Texas Bills Would Nullify NDAA’s Indefinite Detention, TSA’s Intrusive Screening

Written by  Raven Clabough

State lawmakers in Texas are fighting to reassert their citizens’ Fourth, Sixth, and Eighth Amendment rights. Republican legislators have submitted two bills, one to remove the indefinite detention provisions in the National Defense Authorization Act (NDAA), and the other to stop the intrusive screening procedures of the Transportation Security Administration (TSA).

HB149, the Texas Liberty Preservation Act filed by state Rep. Lyle Larson, targets the most controversial provisions of the 2012 National Defense Authorization Act. The online Huffington Post reports,

HB 149 specifically calls out Section 1021 and 1022 of the NDAA, which were recently subjects of a federal lawsuit filed by plaintiffs concerned that the language within the passages could be used to indefinitely detain U.S. citizens.

In October, a federal appeals court rejected the notion that the indefinite detention provisions found within the NDAA pose a reasonable threat to American citizens and blocked an injunction issued by another judge in May who had determined that the NDAA did not “pass constitutional muster.”

According to the appeals judges, “the public interest” outweighed the concerns raised by the plaintiffs. They determined that “the statute does not affect the existing rights of United States citizens.”

Lawmakers in the Lone Star State disagree. According to HB 149, sections 1021 and 1022 of the NDAA are “inimical to the liberty, security, and well-being of the citizens of the State of Texas” and violate both federal and state constitutions.

HB 149 notes that the Tenth Amendment to the Constitution, which greatly limits the role of the federal government, has been violated as the government has usurped powers that it was not intended to have. It states,

It is the policy of this state to refuse to provide material support for or to participate in any way with the implementation within this state of Sections 1021 and 1022 of the National Defense Authorization Act for fiscal year 2012.

Violators of this statute may receive imprisonment of up to a year, a fine of no more than $10,000, or both, according to the bill.

The Tenth Amendment Center notes that Texas is just one in a string of states that has worked to override the provisions found within the NDAA:

Local communities in Colorado sent out the first warning shots, passing resolutions and ordinances rejecting such power earlier this year.

Then … Virginia Governor Bob McDonnell signed House Bill 1160, making that state the first to pass a law not only rejecting the federal act, but fully banning any state agency from cooperating with the feds on it.

Over 15 local communities have reportedly done the same. And Michigan is considering similar legislation.

Residents of Texas who support the legislation are encouraged to contact their state representative and senator here.

A second bill in Texas targets the controversial screening procedures of the Transportation Security Administration. HB 80, filed by GOP state Rep. David Simpson, is intended to prohibit what is perceived to be federal overreach by the TSA.

The Huffington Post writes:

The measure declares that any “intentional” touching of “the [private parts] of the other person, including touching through clothing,” without probable cause would be considered a violation of the law. It would also prohibit removing a “child younger than 18 years of age from the physical custody or control of a parent or guardian of the child,” and establishes broader restrictions on harassment or inconveniencing those desiring to avoid such searches.

The bill also asserts that it is the role of the state’s attorney general to defend the statute, and lists a variety of justifications he may use to do so:

If the government of the United States, the defendant, or the defendant’s employer challenges the validity of Section 39.03(a)(4), Penal Code, as added by this Act, on grounds of unconstitutionality, preemption, or sovereign immunity, the attorney general of this state … shall take any actions necessary on behalf of the state to defend the validity of the statute. The attorney general may make any legal arguments the attorney general considers appropriate, including that this Act constitutes a valid exercise of:

(1)  the state’s police powers;

(2)  the liberty interests of the people that are secured by the United States Constitution;

(3)  the powers reserved to the states by the Tenth Amendment to the United States Constitution; or

(4)  the rights and protections secured by the Texas Constitution.

If the bill becomes law, it will take effect in September of 2013.

This is not the first time Texas legislators have attempted to pass such a measure. In 2011, Representative David Simpson, who filed HB 80, spearheaded two bills which did not pass, HB 1937 and HB 1938, both of which specifically targeted the TSA. HB 1937 would have banned offensive touching of individuals who sought access to public buildings or transportation and punished those who broke the law. HB 1938 would have outlawed the use of “nude body scanners” at all Texas airports.

Unsurprisingly, HB 80 has garnered the favor of privacy advocates who view the TSA’s screening methods as being far too intrusive.

Tenth Amendment Center communications director Mike Maharrey said in a statement,

If you walk up to somebody and grab their crotch out on the street, it will land you in jail. Blue uniforms and federal badges don’t grant some goon the power to sexually assault you, or at least they shouldn’t.

A person doesn’t forfeit her or his personal dignity or Fourth Amendment protections with the purchase of an airline ticket.

Both HB 149 and HB 80 are examples of nullification, as Texas is using the authority found within the Tenth Amendment to reject federal overreach.

Ken Hoover of The John Birch Society observed last year, “We all are aware of how the so-called ‘war on terror’ has been used to chip away at our liberties.” Pointing to TSA procedures specifically, he continued, “It would appear that the main casualty of the ‘war on terror’ has been the Fourth Amendment. These intrusions need to be stopped.”

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The misunderstood history of nullification

By Mike Maharrey

National Communications Director

The Tenth Amendment Center

Could the recent Supreme Court ruling on the federal health care act bring conservative Republicans back to their state-sovereignty, nullification roots?

It just might.

Last week, two major conservative publications — National Review and The American Spectator — featured stories flirting with nullification. On top of that, millions of conservative Republicans got a nullification lesson on Thursday when Walter Williams guest-hosted “The Rush Limbaugh Show.”

Many Americans associate nullification with racism, because they think Southern states used the principle to protect slavery. In fact, northern abolitionists advanced nullification and appealed to “states’ rights” in their battle against fugitive slave laws. And while modern Republicans generally respond tepidly to the idea of nullification, their party was born out of a nullification fight in Wisconsin, a historical fact that long ago fell down an Orwellian memory hole.

Historically speaking, the Republican Party is the party of nullification.

In March of 1854, Benammi Stone Garland, two federal marshals and several others broke into the home of Joshua Glover. They clubbed him over the head, dragged him bleeding from his shanty and locked him up in the Milwaukee jail. Glover was an escaped slave, and Garland his “owner.” Legally, Garland had every right to take his “property” into custody and drag Glover back to Missouri. The Constitution provided for the return of escaped slaves. The Fugitive Slave Act of 1850 created the mechanism. The act denied due process to anyone accused of escaping slavery. Federal courts authorized the capture of fugitive slaves simply on the word of their “owners.” The accused weren’t even allowed to testify in their own defense. The Fugitive Slave Act was wildly unpopular and actively resisted in every northern state.

Wisconsinites quickly acted. Led by Sherman Booth, an abolitionist newspaper editor, several thousand people gathered on the steps of the Milwaukee courthouse. When a federal judge refused to release Glover on a writ of habeas corpus, the throng broke him out of jail and ushered him onto the famed Underground Railroad. Glover ultimately escaped to freedom in Canada.

The events of that spring day sparked a five-year battle between Wisconsin and the federal government. The feds charged Booth for violating the Fugitive Slave Act, but the Wisconsin Supreme Court freed him on a writ of habeas corpus, declaring the Fugitive Slave Act unconstitutional. Justice Abram Smith wrote, “Every jot and tittle of power delegated to the Federal Government will be acquiesced in, but every jot and tittle of power reserved to the States will be rigidly asserted.”

The aftermath of Glover’s escape led directly to the formation of the Republican Party. Anti-slavery meetings in the spring of 1854 spurred by the fight between Wisconsin and the federal government led to a statewide convention in July. The attendees formed a party and nominated candidates for the November elections. They called their new party “the Republican Party.” It flexed its muscle that fall, winning two of three congressional races and taking control of the Wisconsin legislature.

Republicans lost ground in 1855 when the party added temperance to its platform. But with the battle over slavery turning bloody in Kansas, Wisconsin Republicans turned things around in the 1856 elections. The fledgling party, promoting free soil and state sovereignty, took all three congressional seats, and grabbed firm control of the state assembly and senate. The Republican-controlled state legislature passed a resolution supporting the Wisconsin Supreme Court in nullifying the Fugitive Slave Act and interposing for Booth. It also defied federal law by passing a Personal Liberty Act. Among other things, the law gave county courts the power to issue writs of habeas corpus to fugitive slaves, made it the duty of district attorneys to seek their discharge and established fines of $1,000 for kidnapping free blacks.

The selection of Wisconsin’s next U.S. senator reveals the Republican Party’s deep state-sovereignty roots. The caucus put two resolutions to the candidates. The first endorsed Jeffersonian constitutionalism as expressed in the Kentucky Resolutions of 1798, which nullified the Alien and Sedition Acts. The second asserted that Republicans had a duty to stand by the state Supreme Court to “pronounce final judgment” in all matters regarding the reserved powers of the states and to shield residents from unconstitutional federal acts. Early front-runner Timothy Howe heartily endorsed the first resolution but equivocated on the second. He ultimately lost to James Doolittle, who pledged his full support for both resolutions.

The Republican Party grew from the soil of state sovereignty and nullification. Now is the time for Republicans to rediscover those roots and support state nullification of the federal health care act.

Mike Maharrey serves as the national communications director for the Tenth Amendment Center, a think tank promoting constitutional fidelity and working to restore a proper balance of power between the state and federal governments. You may contact Mike at: michael.maharrey@tenthamendmentcenter.com.

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