Delegate Bob Marshall sponsored HB 1160 during the recently concluded session of Virginia’s General Assembly. The bill was a straightforward rejection of the federal government’s attempted codification of the power of the military to indefinitely detain United States citizens (in certain sections of the National Defense Authorization Act for Fiscal Year 2012). HB 1160 would have prohibited agencies of the government of Virginia from assisting the federal government in carrying out those indefinite detentions in violation of the Constitution. The bill was not very long so I reproduce it here in full (available here in pdf form):
- 1. Notwithstanding any contrary provision of law, no agency of the Commonwealth as defined in § 8.01-385 of the Code of Virginia, political subdivision of the Commonwealth as defined in § 8.01-385 of the Code of Virginia, employee of either acting in his official capacity, or member of the Virginia National Guard or Virginia Defense Force, when such a member is serving in the Virginia National Guard or the Virginia Defense Force on official state duty, shall aid an agency of the armed forces of the United States in the conduct of the investigation, prosecution, or detention of any citizen pursuant to 50 U.S.C. § 1541 as provided by the National Defense Authorization Act for Fiscal Year 2012 (P.L. 112-18, § 1021) if such aid would place any state agency, political subdivision, employee of such state agency or political subdivision, or aforementioned member of the Virginia National Guard or the Virginia Defense Force in violation of the United States Constitution, the Constitution of Virginia, and provision of the Code of Virginia, any act of the General Assembly, or any regulation of the Virginia Administrative Code.
The bill passed both houses of the General Assembly with overwhelming support: 96-4 in the House of Delegates and 37-1 in the Senate. Governor McDonnell has had the bill on his desk since March 10, but until yesterday he had taken no action.
What action he has now finally taken is disappointing. Governor McDonnell has chosen not to sign the bill, but rather to send the bill back to the House of Delegates (its house of origin) with his recommendation for amending the bill. His proposed recommendation is as follows: “That the amendment in the nature of a substitute (12106374D) be accepted.” As best as I can tell, the Governor wants to resurrect an amendment that was originally proposed in the Senate that would have gutted the bill. The amendment appears to be the Petersen amendment (found here):
- 1. § 1. Notwithstanding any contrary provision of law, no agency or political subdivision of the Commonwealth, or employee of same acting in his official capacity, shall aid an agency of the United States in the unlawful detention of any United States citizen pursuant to 50 U.S.C. § 1541 as provided by the National Defense Authorization Act for Fiscal Year 2012 (P.L. 112-81, § 1021).
The amendment would have replaced the language in the original bill with this shorter version. The changes, as should be obvious, were not insignificant. Although the Senate initially adopted that amendment, the House of Delegates rejected it when bills crossed over at the session’s midpoint. The Senate then receded from that amendment and passed the bill in its original form.
Now Governor McDonnell is asking the House of Delegates to reconsider (apparently) an amendment that it has already rejected once this year. Looming over the proceedings will be the implicit threat of a veto. For bills that were passed during the final seven days of a session of the General Assembly (as was HB 1160), the following procedure from the Virginia Constitution (Article V, section 6) governs:
The Governor may recommend one or more specific and severable amendments to a bill by returning it with his recommendation to the house in which it originated. The same procedures for considering his recommendation are applicable as stated in subsection (b) (iii) for bills returned with his recommendation. The Governor shall either sign or veto a bill returned to him from a reconvened session. If the Governor vetoes the bill, the veto shall stand and the bill shall not become law. If the Governor does not act on the bill within thirty days after the adjournment of the reconvened session, the bill shall become law without his signature.
It’s been clear from the beginning that Governor McDonnell has wanted this bill to fail or pass in a toothless form. Why that is the case is not entirely clear, but what is clear is that from the very beginning he and his staff have been working behind the scenes toward that goal. Now, it seems, they will ultimately succeed. The margin by which the House of Delegates rejected the substitute amendment was a narrow one. It stands to reason that enough legislators, wanting to pass a watered-down version rather than nothing, will acquiesce to the Governor’s will and pass the amendment.
What makes this maneuver more problematic is the manner in which the Governor has done it. If the General Assembly rejects the recommendations and send the bill back to the Governor and he (as is likely) vetoes the bill, according to the Constitution of Virginia “the veto shall stand and the bill shall not become law.” There will be no opportunity for the General Assembly to overturn the veto. The Governor’s office surely knew how this procedure would work and took the opportunity to get their way on this issue, thereby undermining the voice of the people’s representative body.
Perhaps both the General Assembly and Governor McDonnell will do the right thing and make the bill law in its original form. Based on how events have unfolded so far, I’m not getting my hopes up.
It appears that the changes that Governor McDonnell has proposed are not nearly so bad as I initially thought. The website for the General Assembly has now posted the bill as the Governor has proposed to amend it (found here: http://lis.virginia.gov/cgi-bin/legp604.exe?121+ful+HB1160H2). The bill would add the word "knowingly" ("no agency of the Commonwealth . . . shall knowingly aid an agency of the armed forces of the United States in the detention of any citizen . . .) and it would add this second paragraph:
The provisions of this section shall not apply to participation by state or local law enforcement or Virginia National Guard or Virginia Defense Force in joint task forces, partnerships, or other similar cooperative agreements with federal law enforcement as long as they are not for the purpose of participating in such detentions under § 1021 of the National Defense Authorization Act for Fiscal Year 2012.
Those changes were acceptable to Delegate Bob Marshall, the bill's sponsor. I tend to think, however, that even those seemingly innocuous additions might open up loopholes large enough to drive a metaphorical armed personnel carrier through. Why would the federal government ever set up a task force for the expressed purpose of detaining American citizens? If they decided to do that, wouldn't they simply use an existing task force with a related but different expressed purpose? How broadly is the term "knowingly" to be interpreted?
Still, getting the bill in this amended form is a significant step forward. Increasing liberty for every American might only be able to make progress on the state and local level. Virginia, by passing this bill, would be paving the way. Despite Governor McDonnell's tepid support for this bill, other states might be emboldened to go even further.