03/29/2013 01:30 PM Senate JUDICIARY

             HB  83-FEDERAL LAWS & EXECUTIVE ORDERS                                                                         
                                                                                                                                
1:50:19 PM                                                                                                                    
CHAIR  COGHILL  announced  the  consideration  of  HB  83.  [CSHB
(JUD) was before the committee.]                                                                                              
                                                                                                                                
1:50:39 PM                                                                                                                    
JIM POUND,  Staff, Representative Wes  Keller, sponsor of  HB 83,                                                               
introduced the  bill on behalf  of the  sponsor. He spoke  to the                                                               
following sponsor statement: [Original punctuation provided.]                                                                   
                                                                                                                                
     CS  for  HB  83  clarifies in  Alaska  Statute  that  a                                                                    
     federal  statute,  regulation,  presidential  executive                                                                    
     orders, or  secretarial orders or actions  that are not                                                                    
     properly  adopted   or  are  unconstitutional   do  not                                                                    
     preempt state  law. The Attorney General  will continue                                                                    
     to  review  and  report  federal  statute,  regulation,                                                                    
     presidential  executive orders,  or secretarial  orders                                                                    
     or  actions  that  appear to  have  not  been  properly                                                                    
     adopted. Under CSHB 83 those  reports will be forwarded                                                                    
     to the legislature for consideration.                                                                                      
                                                                                                                                
     CSHB  83 presumes  Alaska  Legislative  interest in  an                                                                    
     important  legal  process  known as  nullification.  It                                                                    
     opens  the  opportunity  for   the  state  to  consider                                                                    
     proclaiming  a  federal law  or  rule  to be  void  and                                                                    
     inoperative, or  'non-effective' within  the boundaries                                                                    
     of  that state.  In CSHB  83 a  negative review  by the                                                                    
     Attorney  General  would  generate   an  alert  to  our                                                                    
     Judiciary Committees  so nullification  legislation can                                                                    
     be considered.                                                                                                             
                                                                                                                                
     There  has  been disagreement  regarding  nullification                                                                    
     going  back   to  the  late  eighteenth   century.  Not                                                                    
     surprisingly, federal  courts have often  leaned toward                                                                    
     favoring federal power over  state sovereignty in spite                                                                    
     of the fact that  our founding fathers clearly intended                                                                    
     otherwise.  Federalism is  our historically  unique and                                                                    
     profound  arrangement  where   sovereign  and  separate                                                                    
     states got  together and  carefully designed  a central                                                                    
     government  with limited  powers.  It  is an  illogical                                                                    
     perversion  of  one  of  our  most  important  founding                                                                    
     principles   to  presume   states   must  comply   with                                                                    
     unconstitutional federal  language. CSHB 83  presumes a                                                                    
     proper State  responsibility to uphold and  protect our                                                                    
     constitution.                                                                                                              
                                                                                                                                
     CSHB 83  is intended  to provide  important information                                                                    
     to  the   Alaska  State  Legislature  by   tapping  the                                                                    
     expertise  and  evaluation  of  our  Attorney  General.                                                                    
     Certainly  the  legislature  has  a  responsibility  to                                                                    
     consider  its response  whenever there  is question  of                                                                    
     constitutionality of a federal  statute, or the process                                                                    
     involved in  regulation, presidential  executive order,                                                                    
     or secretarial order or actions.                                                                                           
                                                                                                                                
SENATOR WIELECHOWSKI  summarized that  the attorney  general will                                                               
review  federal  statutes,   regulations,  executive  orders  and                                                               
actions  and secretarial  orders  to make  sure  that they  don't                                                               
conflict with state law.                                                                                                        
                                                                                                                                
MR. POUND clarified  that there is already a  review process, but                                                               
bringing  the findings  up  under state  law will  be  up to  the                                                               
determination of the judiciary committees.                                                                                      
                                                                                                                                
SENATOR WIELECHOWSKI asked  if there would be  a timeline imposed                                                               
on the attorney general to  review all of these documents because                                                               
it could be tens if not hundreds of thousands of pages.                                                                         
                                                                                                                                
MR.  POUND said  he couldn't  speak to  how the  attorney general                                                               
does it  now, but he  did know  that DOL provides  information to                                                               
the governor's office.  The bill ensures that  the legislature is                                                               
included in the loop.                                                                                                           
                                                                                                                                
SENATOR WIELECHOWSKI  highlighted that  the bill doesn't  ask the                                                               
attorney  general to  do anything  new,  just notify  legislative                                                               
bodies if there are conflicts.                                                                                                  
                                                                                                                                
MR. POUND agreed.                                                                                                               
                                                                                                                                
SENATOR  WIELECHOWSKI  asked  if  there  are  specific  [federal]                                                               
statutes, regulations,  or executive orders that  he believes are                                                               
currently being violated.                                                                                                       
                                                                                                                                
1:54:39 PM                                                                                                                    
MR. POUND  said he  finds a recent  interpretation from  the U.S.                                                               
Department of  Veterans Affairs  interesting. He  characterized a                                                               
letter sent  to veterans about competency  as excessive oversight                                                               
based  on  a  regulation  promulgated  by the  VA.  He  read  the                                                               
following excerpt:                                                                                                              
                                                                                                                                
     A determination of incompetency  will prohibit you from                                                                    
     purchasing,  possessing, receiving,  or transporting  a                                                                    
     firearm or ammunition. If you  knowingly violate any of                                                                    
     these provisions you may be  fined, imprisoned, or both                                                                    
     under the Brady Handgun Violence Prevention Act.                                                                           
                                                                                                                                
SENATOR WIELECHOWSKI asked  if the attorney general  was filing a                                                               
lawsuit to overturn that for being unconstitutional.                                                                            
                                                                                                                                
MR. POUND said he was not aware of that.                                                                                        
                                                                                                                                
1:55:53 PM                                                                                                                    
SENATOR  WIELECHOWSKI  said  he  would  hope  that  the  attorney                                                               
general would take legal action  if an unconstitutional law is on                                                               
the books prohibiting veterans from getting firearms.                                                                           
                                                                                                                                
MR. POUND surmised that would happen at some point.                                                                             
                                                                                                                                
SENATOR WIELECHOWSKI asked if the  sponsor asked for an increment                                                               
in the budget to fund this litigation.                                                                                          
                                                                                                                                
MR. POUND responded  that the Department of Law  submitted a zero                                                               
fiscal note, and it probably would  be some time before the issue                                                               
of litigation costs come up.                                                                                                    
                                                                                                                                
CHAIR COGHILL asked  if the sponsor anticipated  that the reports                                                               
called  for in  the bill  would  flow with  other annual  reports                                                               
coming out of the Department of Law (DOL).                                                                                      
                                                                                                                                
MR. POUND said  yes, and any issue that's  identified and results                                                               
in legislation  would still  have to  go through  the legislative                                                               
process.                                                                                                                        
                                                                                                                                
1:57:31 PM                                                                                                                    
CHAIR COGHILL said  he'd like to hear from the  DOL to understand                                                               
what  is  already  taking  place   and  how  this  bill  will  be                                                               
accommodated.                                                                                                                   
                                                                                                                                
SENATOR WIELECHOWSKI  said he likes  the idea of DOL  keeping the                                                               
legislature informed, but  he'd also like an  annual report about                                                               
litigation and the costs.                                                                                                       
                                                                                                                                
CHAIR  COGHILL asked  Mr.  Pound to  make  arrangements with  the                                                               
Department  of  Law  to  come  before  the  committee  to  answer                                                               
questions.                                                                                                                      
                                                                                                                                
MR. POUND acknowledged the request.                                                                                             
                                                                                                                                
2:00:33 PM                                                                                                                    
SENATOR   DYSON  commended   the   effort  and   motive  of   the                                                               
legislation, and  expressed hope  that somebody was  watching for                                                               
federal  actions  that  affect   how  the  legislature  does  its                                                               
business and fulfills its mission.                                                                                              
                                                                                                                                
CHAIR   COGHILL  commented   on  the   balance  between   working                                                               
cooperatively  with   the  federal  government   and  challenging                                                               
federal action.                                                                                                                 
                                                                                                                                
He stated that he would hold HB 83 in committee.