State Rep. Bill Dunn says his bill requiring federal agencies to notify local law enforcement officers before making arrests in Tennessee is a means of “standing up for the people” against an overreaching federal government.
“There comes a point where we’ve got to put a little bit of pressure on the feds and stand up for our citizens,” the Knoxville Republican told members of the House Judiciary Subcommittee last week.
But Dunn’s HB2610 faced almost an hour of critical questioning from members of the panel who wondered if it amounted to unnecessary overreaching by the Legislature as a “nullification” effort that could jeopardize investigations into local corruption and lead to deputy sheriffs arresting federal agents.
Van Irion, an attorney for the Liberty Legal Foundation who finished third in the 10-candidate Republican primary for the 3rd Congressional District nomination in 2010, fielded most of the questions on the legislation that he helped draft. It is a revised version of a bill that was introduced last year which failed to pass.
Irion said that in “90 percent” of cases involving federal agents acting in Tennessee, the officers already check in advance with city police chiefs or county sheriffs before executing warrants.
But he said there are occasional situations where local officers are not notified and should be informed.
Both Irion and Dunn cited as an example the raid last August by the U.S. Department of Justice on Gibson Guitar Corp. operations in Nashville, where the officers said ebony wood illegally imported from India was being used in guitar making.
After being notified of a planned federal raid, the local law enforcement officer could check with the state attorney general to determine whether the federal action violates state law, the bill says.
The state Legislature, meanwhile, could declare some federal laws to be unconstitutional and unenforceable within the state, Irion noted
When Rep. Barrett Rich, R-Somerville, said there is no mechanism for the Legislature to decide on the constitutionality of a federal law, Irion said Tennessee’s Legislature has already done so with two laws enacted in the last legislative session.
One was the Health Care Freedom Act, which declares Tennesseans can ignore the federal health care law. The other is the Tennessee Firearms Freedom Act, which says federal gun laws cannot be enforced if the weapon in question was made within Tennessee and never taken outside the state.
If the agents violated the proposed state law, they could be prosecuted for committing a Class E felony, punishable by one to six years in prison. If someone was illegally arrested, the agents could be prosecuted for more serious crimes, including kidnapping, under the bill.
Irion said he envisions agents rarely, if ever, being prosecuted. The penalty provision is necessary, however, to assure that the state has legal standing to mount a court challenge to inappropriate federal laws.
“Would this be considered nullification?” asked Rep. Jim Coley, R-Bartlett.
“Not necessarily,” replied Irion
“Not necessarily, but possibly,” said Coley, who went on to say the bill would “create an enormous bureaucracy” for federal agents to deal with in carrying out their duties. It also raises “serious constitutional issues,” he said.
Nullification has been a major issue in American history, dating to Andrew Jackson’s presidency when some states sought to nullify federal tariffs. Southern states also asserted the right to nullify federal laws in seceding from the Union prior to the Civil War.
Judiciary Chairman Eric Watson, R-Cleveland, raised the issue of corrupt local law enforcement officers tipping off the target of a federal raid if notified in advance. Irion said there would be an exception to notification in such cases. Watson questioned whether that was practical as an attempt at “nullification” of federal authority,
“This gives grounds to litigate,” said Irion. “This state has the absolute authority to determine what is constitutional and what is not Whether we’re right or not is up to the Supreme Court.”
As they critiqued the bill, some legislators also expressed sympathy with the goal of asserting state rights. That prompted Dunn to postpone further consideration of the measure until Wednesday, when he said some changes may be drafted to ease concerns.
“What I’m hearing you say is you’re really for the philosophy of standing up for the people of the state,” Dunn said. “I think everybody’s heart’s in the right place. We’ve got to get the legalese in the right place.”
The Senate companion bill, sponsored by Sen. Stacey Campfield, R-Knoxville, has not yet been scheduled for Senate committee action.