Legislature(2011 - 2012)CAPITOL 120
02/16/2011 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB116 | |
| HB8 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 8 | TELECONFERENCED | |
| *+ | HB 116 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 8 - FEDERAL REGULATIONS & EXECUTIVE ORDERS
1:17:09 PM
CHAIR GATTO announced that the final order of business would be
HOUSE BILL NO. 8, "An Act relating to certain federal
regulations and presidential executive orders; relating to the
duties of the attorney general; and providing for an effective
date."
1:17:46 PM
REPRESENTATIVE KELLER, speaking as the sponsor of HB 8,
explained that HB 8 addresses the threat to the sovereignty of
the state. He identified the volume of federal regulations as
one source to the threat of the sovereignty to the state. This
legislation merely instructs the attorney general to keep
abreast of federal regulations and executive orders and report
to the House and Senate Judiciary Standing Committees if a
problem is identified. He relayed that the Department of Law
(DOL) has informed him that the department can't keep abreast of
all the regulations, which he said he believes. In fact, he
recalled being told when the health care legislation was going
through, every page of law generates 100 pages of regulations.
Therefore, he estimated that the 2,000-page health care law
generated about 200,000 pages of regulations. The DOL can't be
expected to go through every word of the law and thus DOL has
proposed an amendment, as follows [original punctuation
provided]:
Delete page 2, line 8 through line 20:
Delete page 2, lines 22 through line 29:
Insert
"(h) If the attorney general finds that a federal
regulation or presidential executive order has the
effect of preempting state law and that the regulation
or order is unconstitutional or was not properly
adopted, the attorney general shall report the
findings to the chairs of the house and senate
committees having jurisdiction over judicial matters.
The report must include"
REPRESENTATIVE KELLER explained that the above amendment
provides for DOL to let the House and Senate Judiciary Standing
Committees know if the department sees a problem with a federal
regulation or presidential executive order. Representative
Keller characterized that portion of the proposed amendment as
acceptable. However, he emphasized that it's important to him
that the portion of the proposed amendment that proposes to
delete the language on page 2, lines 8-20, not be deleted and
rather remain in the legislation.
1:22:51 PM
REPRESENTATIVE LYNN asked whether something is unconstitutional
only after the U.S. Supreme Court says it is or can something be
unconstitutional prior to the U.S. Supreme Court [ruling] it as
such.
REPRESENTATIVE KELLER offered his understanding that the U.S.
Constitution clarifies that states maintain sovereignty over any
federal agency branch, including the federal government. There
have been numerous cases in which states have stood up [for
their sovereignty] with various results. Representative Keller,
stressed that the state's sovereignty is present and it has the
right to challenge whether [something is unconstitutional
regardless of] whether there's a U.S. Supreme Court decision.
1:24:43 PM
REPRESENTATIVE LYNN noted his agreement, but questioned at what
point something actually moves from being allegedly
unconstitutional to unconstitutional. He opined that the answer
to the aforementioned would impact how one views HB 8.
1:25:18 PM
MICHAEL FORD, Assistant Attorney General & Legislative Liaison,
Legislation & Regulations Section, Civil Division (Juneau),
Department of Law (DOL), said that one of the issues raised by
HB 8 is regarding the point at which it's known that there is a
preemption issue. To know there is a preemption issue, there
must be a ruling by a court. He noted, however, that there can
be views on matters. For example, with the health care dilemma
there are courts with differing views. Until the U.S. Supreme
Court rules, it's unknown, with finality, whether there is a
preemption issue or not.
CHAIR GATTO said that's the point. At the point at which the
state views the federal decision as unconstitutional and the
federal government does not, he asked if the state would have to
act on the law that was passed or can the state ignore the law
without consequence. He ventured that the latter is what HB 8
is intending to accomplish. Chair Gatto said:
So many other issues that are going to require us to
enact an exchange program, $1 million from the feds to
do it; it's almost like a bribe. Say, 'Hey, I'll give
you $1 million if you will do something that indicates
that the law is constitutional.' ... If, indeed, the
constitution says what it says, everything is
unconstitutional that we say is unconstitutional until
a law decides that we were wrong. Or, is everything
constitutional as long as the feds say it, until we
decide that a law was wrong? There's no guidance.
MR. FORD said that the principles are easy to describe, but the
application of the principles is very difficult. Although one
can say there is a line beyond which the federal government
can't pass because those rights are reserved for the states,
specifying the line is what the litigation is about.
1:28:14 PM
REPRESENTATIVE KELLER ventured that the issue isn't regarding
what action the U.S. Supreme Court takes against the state. In
fact, HB 8 doesn't address the issue directly, but instead
leaves it such that [both the House and Senate Judiciary
Standing Committees] receive notification from the attorney
general that there is a problem. Representative Keller opined
that the aforementioned problem can't be solved ahead of time
because every circumstance is different.
1:29:26 PM
JOANNE GRACE, Chief Assistant Attorney General, Opinions,
Appeals, & Ethics, Civil Division (Anchorage), Department of
Law, explained that when a [federal] court finds a law to be
unconstitutional, it will have always been unconstitutional.
However, until such a decision is received from a federal court,
the choice of not following the law would be done at one's own
peril. Ms. Grace related her understanding that HB 8 would rely
on an opinion of the attorney general. She opined that the
Attorney General's Office is typically fairly prudent about
giving this type of advice.
CHAIR GATTO, referring to the Commerce Clause and the Affordable
Health Care Act, opined that it's not conceivable to him that
the Commerce Clause could be applied so broadly. Therefore, he
questioned whether the state should spend funds to institute all
the programs required under [the Affordable Health Care Act]
assuming that the state would win [the court case] later and be
able to undo those programs. Or, should the state spend the
funds to institute all the programs required under [the
Affordable Health Care Act] based on the assumption that the Act
will be shown constitutional. Chair Gatto pointed out that the
state has to take an action that costs millions of dollars based
on what [the legislature] believes the U.S. Supreme Court will
rule. He acknowledged that one can't predict the U.S. Supreme
Court's decision.
The committee took an at-ease from 1:32 p.m. to 1:34 p.m.
1:34:38 PM
MS. GRACE, regarding the question of how does the state know how
to proceed on the Affordable Health Care Act if the state
doesn't know how a court is going to rule, answered that it is a
difficult situation. However, in general, when one seeks a
legal opinion, an attorney will relay what he/she thinks a court
will do. In the context of the Affordable Health Care Act for
which two federal courts have ruled in one way and two federal
courts in another way, she doubted that any attorney would
provide a firm legal opinion on this question.
CHAIR GATTO asked whether the order of the court decisions
matter.
MS. GRACE replied no. However, it may be of some significance
that Alaska is a party to the Florida District Court case. Ms.
Grace said that she hesitated to speak at length about this case
because she's not very knowledgeable about it. She reiterated
that the order of the court decisions doesn't matter, but what
is of significance is the level of the court and whether Alaska
is bound by that court.
CHAIR GATTO posed a scenario in which the U.S. Supreme Court
ruled that the Commerce Clause did allow for the Affordable
Health Care Act, but the state hasn't done anything up to the
decision. In such a scenario, he asked whether the state would
be liable for past claims.
1:37:39 PM
MS. GRACE declined to venture an answer and indicated she would
defer to DOL staff members that are very knowledgeable about the
Affordable Health Care Act.
CHAIR GATTO asked if the state would be liable for someone who
is sick and the state didn't institute the Act, which is the law
of the land at the moment.
MS. GRACE said that may depend upon how the law is written.
However, she opined that it's possible that the state not being
up-to-speed and ready to proceed with the law may place some
Alaskans in a difficult situation. Again, she reiterated that
she hesitated to comment on this Act because she's not
knowledgeable on the Act.
CHAIR GATTO asked whether it's possible that the U.S. Supreme
Court wouldn't take up this case.
MS. GRACE responded that although it's possible for the U.S.
Supreme Court to decline to take up a case, it's very unlikely.
Because the courts are already split with regard to this Act,
it's very likely the U.S. Supreme Court would accept a petition
for a writ of certiorari if there were two different circuit
courts with conflicting opinions. Furthermore, this Act is an
issue of national interest.
1:40:13 PM
REPRESENTATIVE LYNN asked whether something is unconstitutional
prior to it being declared unconstitutional by the U.S. Supreme
Court of the Alaska Supreme Court.
CHAIR GATTO reminded the committee that Ms. Grace testified that
once something is declared unconstitutional it has always been
unconstitutional. He opined that the state would be "off the
hook" if the Act is declared unconstitutional. He then reminded
the committee that the last judge considering the Act, declared
the entire Act unconstitutional based on the Severability
Clause. Therefore, Chair Gatto said that he felt comfortable
proceeding as if the Act will be declared unconstitutional.
REPRESENTATIVE PRUITT asked if the four district court rulings
on the Affordable Health Care Act apply only to the
[jurisdiction] of the particular court, the states involved, or
the entire U.S. He clarified that his question is regarding
where the ruling of the district courts apply.
CHAIR GATTO noted that Alaska joined the Florida lawsuit, and
thus he surmised that Alaska would be part of the decision of
that district court.
1:42:10 PM
MS. GRACE answered that generally the decision of [a district
court] would bind the parties and be effective in the district
covered by the ruling court. However, she pointed out that it's
an awkward situation when it's a national law and the U.S. is
one of the parties. In such a situation it would mean that the
U.S. is bound to enforce the law in [the states involved in the
particular district court ruling] but not in the states that
aren't involved. The aforementioned, she emphasized, isn't how
the federal government operates, which is one of the reasons why
the Act will likely proceed to the U.S. Supreme Court; there has
to be uniformity in terms of how the law impacts the country.
CHAIR GATTO offered his belief that in the future HB 1 will come
before the committee and that legislation states that no one can
be compelled to purchase a product they don't want to purchase.
He opined that if HB 1 becomes law it would add to Alaska's
ability to justify refusing to follow the Affordable Health Care
Act.
1:43:32 PM
REPRESENTATIVE PRUITT asked then whether the Affordable Health
Care Act is unconstitutional as it applies to Alaska.
Therefore, by not implementing aspects of that Act, the state
isn't in violation of the federal law.
MS. GRACE said it's not clear that the state needs to be doing
anything, other than possibly getting ready to implement the Act
when it goes into effect. Although she didn't know that the
state would be violating a federal law by doing nothing, there
may be a point at which if a higher court were to deem the Act
constitutional, the state may not be ready to implement the law
when required.
CHAIR GATTO recalled that part of the Act requires the
collection of taxes to support the program. Therefore, he
opined, "We will probably be stuck paying certain taxes to
support the bill."
1:45:33 PM
REPRESENTATIVE KELLER explained that HB 8 was not introduced to
address the Affordable Health Care Act rather it's intended [to
require the attorney general to notify the House and Senate
Judiciary Standing Committees of federal regulations and
presidential executive orders that may be in conflict with and
preempt state law].
1:46:14 PM
MR. FORD, returning to his comments on HB 8, referred the
committee to the proposed new language for Section 4 [text
provided previously], which he believes will narrow the scope of
the legislation and alleviate DOL's concerns.
REPRESENTATIVE KELLER said that he has no problem with the
portion of the amendment inserting new language on page 2, lines
22-29, save the use of the word "If".
1:48:02 PM
STUART THOMPSON, representing his sovereign citizenship,
provided the following testimony [original punctuation
provided]:
I testify in support of House Bill No. 8 and commend
the sponsors for acting in acute compliance to their
oath of office. The most deadly means of overthrowing
our form of multi-level republic-forget foreign
enemies and terrorism-is to permit Federal government
officials to have uncheckable authority to interpret
the US Constitution in defining their powers. Quote:
"If the federal government has the exclusive right to
judge the extent of its own powers", warned the
Kentucky and Virginia resolutions' authors Thomas
Jefferson and James Madison, "it will continue to grow
- regardless of elections, the separation of powers,
and other much-touted limits on government power."
Unquote.
This is especially true since, currently, the
Constitution's 10th Amendment (that strictly limits
the possible extent of Federal government powers), and
the Constitution's strict process of amendment are
openly ignored under the doctrine of "The Living
Constitution". For Alaska not to take action
concerning the constitutionally moral principle of
nullification is to make the US Pledge of Allegiance a
cheap chant for lemmings.
To strengthen this legislation, I recommend several
almost self-evident changes.
Bill Page 2, line 1&2 should be modified to read
"federal law and regulations or presidential executive
orders that are not properly adopted in accordance
with constitutional and statutory authority are not
laws of the US for the purposes of the Supremacy
clause". The rest of the bill's language should be
modified to be consistent with these proposed changes.
An additional legislative finding should approximately
read "Federal law and regulations or presidential
executive orders not complying to or respecting the
Constitution's 10th Amendment depend on forcing the
Constitution to be inconsistent and in conflict with
itself-in order to gain apparent legitimacy in the
confusion. Such efforts are not only unconstitutional
but anti-constitutional, and must earn wide
condemnation."
Lastly, this bill should provide that, in addition to
any state legislation formulated, using a Governor-
signed Alaska nullification resolution & its
documentation, the Attorney General shall obtain the
support of a fast-tracked Alaska Supreme Court
injunction against the offending
law/regulation/presidential executive order in Alaska.
The injunction is intended to provide the time for
Alaska to sue the Federal Government for relief from,
& punishment of, its unconstitutional behavior.
Coordinated use of the three branches of Alaska
government, combined with using established national
legal paths, will avoid the secessionist label that
has castrated States Rights for 150 years.
Gentlemen, good luck in your deliberations.
1:51:17 PM
CHAIR GATTO related his understanding that Mr. Thompson was
suggesting that in HB 8 the language should include "federal
law" as well as "federal regulations". He further understood
Mr. Thompson to suggest including language referring to
"presidential executive orders not complying with the 10th
Amendment that are unconstitutional".
MR. THOMPSON related an incident in which a [U.S.] Supreme Court
justice asked an attorney in court if he/she could provide an
example of the U.S. Constitution limiting the use of the
Commerce Clause in federal government activity. The attorney
couldn't provide such an example, which he opined seems to be a
contradiction that needs to be reviewed.
1:52:24 PM
CHAIR GATTO, upon determining no one else wished to testify,
closed public testimony.
1:52:41 PM
CHAIR GATTO announced that he would accept amendments to HB 8
now, otherwise the committee will vote on the legislation as it
stands.
1:53:33 PM
REPRESENTATIVE KELLER remarked that Mr. Thompson's comments are
consistent with his intent, but before committing to such
changes he wanted to hear from his staff.
1:54:10 PM
JIM POUND, Staff, Representative Wes Keller, Alaska State
Legislature, speaking on behalf of the sponsor, Representative
Keller, acknowledged that [HB 8] is an issue of the Supremacy
Clause versus the Tenth Amendment. The Supremacy Clause
specifies that what is passed by Congress is the law of the
land. The case cited in HB 8 is the United States Supreme
Court, in City of New York v. Federal Communications Commission,
486 U.S. 57 (1988). The aforementioned ruling includes
statutes, but subsequently included regulations that Congress so
intended. He noted that there is standing regarding whether
certain departments within the federal government have the
authority to enforce certain laws that address criminal
activity, which is normally local. The Tenth Amendment, which
essentially specifies that the powers given to the federal
government are limited, was certainly discussed.
1:55:12 PM
MR. POUND then read the Supremacy Clause, Article VI of the U.S.
Constitution, as follows:
This Constitution, and the Laws of the United States
which shall be made in Pursuance thereof; and all
Treaties made, or which shall be made, under the
Authority of the United States, shall be the supreme
Law of the Land; and the Judges in every State shall
be bound thereby, any Thing in the Constitution or
Laws of any State to the contrary notwithstanding.
MR. POUND then read the Tenth Amendment, as follows:
The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are
reserved to the States respectively, or to the people.
MR. POUND clarified that those are the two argument points that
arise in various regulations and laws. Even at the state level,
regulations are established that don't follow the intent of the
state legislature.
CHAIR GATTO said that the first time he heard the notion that
the U.S. Constitution is a living document was surprising. If
it's a living document, then there are no standards and
everything can be reinterpreted, depending upon the year and the
direction of the country. Chair Gatto stated that he is a
constitutionalist and believes that the U.S. Constitution should
be followed exactly.
1:57:17 PM
The committee took a brief at-ease.
1:58:05 PM
REPRESENTATIVE KELLER made a motion to adopt Conceptual
Amendment 1, as follows:
Delete page 2, lines 22 through line 29:
Insert
"(h) If the attorney general finds that a federal
regulation or presidential executive order has the
effect of preempting state law and that the regulation
or order is unconstitutional or was not properly
adopted, the attorney general shall report the
findings to the chairs of the house and senate
committees having jurisdiction over judicial matters.
The report must include"
There being no objection, Conceptual Amendment 1 was adopted.
1:59:05 PM
REPRESENTATIVE THOMPSON moved to report HB 8, as amended, out of
committee with individual recommendations and the accompanying
fiscal notes. There being no objection, CSHB 8(JUD) was
reported from the House Judiciary Standing Committee.