June 27, 2021 by David Silverberg
A proposed ordinance to create a “sanctuary county for the Bill of Rights” in Collier County, Florida, is clearly unconstitutional, illegal and—rather than protecting the Bill of Rights—would erode the county’s rule of law and equal administration of justice.
Such an ordinance will be considered by the Collier County Commission at its next meeting on Tuesday, July 13.
On a practical level, the ordinance would encourage lawbreaking with impunity, invite immediate and costly litigation for the county and make Collier County and Southwest Florida a laughingstock in the nation. It would harm tourism and the local hospitality industry as people take their vacation dollars away from a region embroiled in an emotional and unnecessary controversy.
So what is this ordinance? What is its state of play? How did it come to be proposed?
If passed, what are the implications for the county, state and country?
Lastly, is there a better alternative?
This article will address all these questions, draw conclusions and recommend a better course.
(A copy of the full ordinance for download is available at the end of this article.)
The five-page proposed ordinance was put on the County Commission agenda at a meeting on Tuesday, June 22.
In broad summary the proposal creates a “sanctuary county” that exempts Collier County and its residents from federal laws and regulations that they may feel violate the Bill of Rights.
Collier County residents are given standing to sue officials attempting to enforce those federal laws and regulations.
In its establishing clauses (the “whereas” paragraphs), the ordinance argues that since the county commissioners are concerned that the federal government is encroaching on citizen rights, “Any federal act, law, order, rule, or regulation” that seems to violate the Bill of Rights “is invalid in Collier County and shall not be recognized by Collier County, and shall be considered null, void and of no effect in Collier County, Florida.”
County officials attempting to enforce federal laws will be subject to lawsuits by citizens. Further, county resources are not allowed to be used to enforce “unlawful” acts.
The ordinance was publicly proposed by Commissioner and Vice-Chairman Bill McDaniel, who represents County District 5, which includes Golden Gate, Immokalee and Everglades City.
The bill was effectively snuck onto the County Commission agenda with little to no advance general publicity but considerable lobbying that saw Rep. Byron Donalds (R-19-Fla.), a surrogate from state Rep. Bob Rommel (R-106-North Naples to Marco Island), and Collier County Sheriff Kevin Rambosk all endorsing the proposal. At the meeting 25 supporters spoke in favor of it, without any dissenting voices.
According to a June 23 Naples Daily News account of the meeting, McDaniel told the Commission: “This isn’t a political issue, this isn’t a party issue, this is an American issue. It’s something I think we can do just as an additional step to offer assurances to our community. We are going to support their God-given rights.”
Saunders and Solis raised some questions: How would the county determine that a federal law violated the Bill of Rights? Who would make the determination?
The county attorney, Jeffrey Klatzow, raised similar concerns: “We’re shoehorning a political message here into an ordinance, is what we’re doing. It’s probably more appropriately a resolution, but if the board of County Commissioners wishes to enact it, that’s your prerogative.”
With commissioners expressing doubts about the ordinance, a vote was taken whether to proceed with advertising it prior to voting on the measure itself at the next meeting. Commissioners Rick LoCastro (District 1), Burt Saunders (District 3) and McDaniel voted to proceed while Andy Solis (District 2) and Chair Penny Taylor (District 4) were opposed.
It will now be advertised and considered at the next Commission meeting on July 13.
Analysis: The implications
The proposed ordinance proceeds from a flawed premise: That the federal government is an encroaching, alien interloper on people’s “God-given” rights.
That is simply wrong. The federal government is an expression and a product of the people of the United States. It is, as Abraham Lincoln said, “government of the people, by the people, for the people.”
The Constitution, the Bill of Rights and all the amendments are the law of the land, administered by the federal government. While a vote or an election or a decision may not go the way some people would prefer, the rule of the United States Constitution is still supreme. It can’t simply be negated by a town, county or state.
America has had this battle before. In the very beginning of the republic western Pennsylvania farmers rebelled against a lawfully enacted federal whiskey tax. President George Washington personally led an army to put it down, becoming the last president to command a force in the field. In 1830 Sen. Daniel Webster of Massachusetts responded to a southern effort to “nullify” federal laws in a famous speech directed to Sen. Robert Hayne of South Carolina in which he crushed the notion of “nullification” (the same term used in the Collier County ordinance).
And, of course, in 1860 southern states refused to recognize the lawful, properly conducted election of Abraham Lincoln and attempted to secede from the union. That argument was resolved by a civil war.
In every Supreme Court decision since, the superseding authority of the federal government has been upheld.
As small and obscure as Collier County may be, its proposed ordinance is very much in the spirit of past efforts at nullification, secession, rebellion and insurrection. It is an attempt to carve out an extrajudicial, rule-free zone exempt from federal law and the Constitution. If passed in Collier County it could spread like a virus to other towns and jurisdictions in Florida and elsewhere.
The questions of commissioners Saunders and Solis are very pertinent: Under this ordinance who would determine that the Bill of Rights is being violated? How would the determination be made? What constitutes a violation? The ordinance doesn’t say—and it probably never could.
In fact, this ordinance is essentially a license for lawlessness. It would make Collier County an area of anarchy where anyone could simply declare that the Bill of Rights is being violated and federal law should be ignored any time they wanted. It would bypass the courts whose entire purpose is to interpret and enforce the nation’s laws and uphold the Bill of Rights.
What would be the result? To use a purely hypothetical example, say that a Collier County grocer and market owner decided he didn’t want to comply with federal public health mandates, or worker safety rules, or immigration enforcement regulations, or minimum wage requirements, or child labor prohibitions, or civil rights laws, or anti-discrimination measures, or pay employees’ Social Security taxes, or pay his own taxes, or comply with any other legally enacted federal act, law, order, rule or regulation. He would simply declare that his rights under the Bill of Rights were being violated so the measures wouldn’t apply and the county couldn’t enforce them. What is more—and perhaps even more insidious—is that he would have the standing to sue any duly authorized official or officer who tried to properly enforce the law. (That would include the county sheriff and his deputies.)
In fact, from a legal and principled standpoint this proposed ordinance is absurd, ridiculous and nonsensical. It seems like the fevered delusion of someone with poor impulse control, covered with a veneer of legalese.
Passage of this ordinance would have immediate and devastating practical consequences for Collier County.
- It would be immediately challenged in court, saddling the County with the costs of having to defend it. One of the plaintiffs might be the federal government itself.
- It would put Collier County outside the jurisdiction of the United States and disrupt the orderly administration of the law.
- It would cripple federal law enforcement in Collier County, disrupting any investigations by the Federal Bureau of Investigation or prosecutions of federal crimes.
- Over time it would impede law enforcement at all levels as increasing numbers of residents and business owners would likely try to put themselves beyond the law.
- It would weaken the authority of all laws, rules and regulations whether county, state or national
- It would put Collier County in a negative national spotlight, damaging its reputation as an open and welcoming place for businesses and new residents.
- It would depress real estate values and disrupt the real estate market because federal rules governing the orderly functioning of the market would be nullified and there would be nothing to take their place.
- It would hurt Collier County’s tourism and hospitality business as American and foreign visitors shunned a place that has declared itself outside the jurisdiction of federal law.
- It would create division and dissension, controversy and conflict at a time when the county leadership and residents need to pull together to overcome the lingering effects of the COVID pandemic.
Lastly, an observer has to wonder what conceivable benefit this ordinance brings to the constituents of Golden Gate, Immokalee and Everglades City in Commissioner Bill McDaniel’s 5th District.
This proposed ordinance should be defeated.
A better way forward
It is undeniable that all Americans right now are worried about the future of the country, the preservation of democracy and the stability of government. Fears for the preservation of the rights in the Bill of Rights are credible in light of an insurrection that attempted the overthrow of the government, the attempted decertification of a properly conducted election and increasing restrictions on voting.
It is commendable that residents of Collier County and county commissioners want to uphold the Bill of Rights and the Constitution.
In contrast to the poorly conceived proposed ordinance there is a perfectly legal and proper way to express their patriotism. That is to simply pass a resolution reaffirming Collier County’s loyalty and allegiance to the Constitution, the Bill of Rights and the United States of America.
Such a resolution could take the following form:
WHEREAS the Constitution of the United States of America is the law of the land and;
WHEREAS Collier County Florida is part of the United States of America and;
WHEREAS Collier County Florida is committed to equal justice under law and;
WHEREAS Collier County Florida supports, upholds and adheres to the Constitution of the United States of America, the Bill of Rights and the laws of the United States;
NOW THEREFORE BE IT RESOLVED that the County Commission of Collier County, Florida reaffirms its loyalty, its patriotism and its allegiance to the United States Constitution, its Bill of Rights, its Amendments and the duly constituted laws, acts, orders, rules, and regulations of the United States of America and that these have force in Collier County as they do in the rest of the United States, now and in perpetuity.
It is hard to see how Collier County citizens could object to such a resolution. It restates bedrock principles, it maintains good order and discipline among the citizenry, it reassures those who fear for their rights and it is well within the legal authority of the County Commission to approve.
Out of this controversy, if it is willing, by passing this resolution, Collier County can make a positive contribution to its citizens, the state of Florida and the country as a whole.
The County Commission’s next meeting is scheduled for Tuesday, July 13 at 9:00 am. Public petition speakers are limited to ten minutes and general address speakers to 3 minutes. The Commission Chambers and Commissioners’ offices are located on the third floor of the Administration Building at 3299 Tamiami Trail East, Suite 303, Naples, Fla.
To reach commissioners:
William L. McDaniel, Jr.
The full text of the proposed ordinance:
To come: An examination of sanctuary movements past and present
Liberty lives in light
© 2021 by David Silverberg