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HB 149 contains some bad provisions

From: Jon R.
Sent on: Tuesday, November 13, 2012 11:52 AM
I agree with the cause represented by your HB 149, but it contains some very bad provisions that can only discredit this entire effort.

Sec. [masked] requiring state actors not to cooperate with federal actors on the offending provisions of the NDAA is okay, except for being confined to FY 2012. If you want to limit its duration to about a year it should be FY 2013 or 2014 or both.

It is also okay to make it a criminal offense for a state official to assist in the enforcement of those offending provisions, Sec. [masked](c) and (d), but it is difficult to imagine a scenario in which that would occur.

What does not work is criminal penalties, Sec. [masked](a) and (b), against federal actors attempting to enforce those provisions of the NDAA (on state territory, which is the only jurisdiction a state statute can have).

If you read the supporting materials on our site you will find what would happen if there was any attempt by a state official to enforce a criminal statute against a federal agent (including a federal contractor):

1. The prosecution would be immediately removed to federal court and dismissed, killing it. That would probably be done within an hour or so.
2. The arresting state officer would be immediately charged and tried for the federal crime of interfering with a federal agent, and would probably be convicted and serve time in prison.
3. Knowing (2) it is unlikely you would ever be able to get a state officer to make the arrest of a federal agent in the first instance. That is what happens now. Do you really think federal agents don't already violate many state laws with impunity on an almost daily basis? There are already plenty of state criminal statutes that could be enforced and are not for this reason. That entire approach has been effectively cut off for more than 150 years.

The only thing that can be done is passive non-cooperation. The U.S. Supreme Court decision in Printz established that the feds cannot compel cooperation. But they can punish obstruction. That leaves passive non-cooperation as the only option.

There are many things the state could do to make things more difficult for usurping federal agents: It could shut off electric power to their offices, requiring them to bring in their own generators. It could shut off water and sewage services to their offices, requiring them to haul water in and sewage out. It could refuse to let the feds house federal prisoners in state detention facilities, so the feds would have to use their own and perhaps build more. State agents could refuse to testify in federal court, which could be compelled but as hostile witnesses their testimony would likely raise doubts in a jury.

But there are many actions for which the feds need no cooperation by anyone in the state other than their own agents. Those things are out of reach of nullification except by juries, and most juries will convict a ham sandwich unless they are informed by an authoritative state body such as the one I propose that the federal action is unconstitutional. Since we probably can't get a federal court to do that, and state courts don't have jurisdiction to do so, we have to set up a new kind of body that can authoritatively adjudicate issues of this kind.

Now one can make the case that passing the bill and attempting to enforce it would bring so much unfavorably publicity that the feds would back off and stop trying to enforce their statutes. That used to work 150 years ago but probably wouldn't today with the control over the mainstream media the feds have. And it would be at a terrible price to the hapless state officials whose lives would be ruined as federal felons, with no provision by the state to even pay their legal costs. (States are barred from representing them in court by the 1923 Supreme Court decision Mellon v. Massachusetts.)

Attached is an alternative bill that would be better, explained on the website. My proposal does as much as can be done, and as soon as it can be done. It provides a process by which an authoritative body can hear and decide whether a federal action is unconstitutional, and the finding that it is triggers noncooperation with the feds on that action by all state agencies, and with funding by the legislature, a fund to pay the legal expenses of any individual Texas citizen who refuses to comply with the federal action. It is a grand jury with no bureaucracy attached that instead of issuing indictments authorizing someone to prosecute, issues mandates that something not be done.

-- Jon

Jon Roland Campaign         
2900 W Anderson Ln C[masked] 
Austin, TX 78757  512/[masked]           [address removed]

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