Legislature(2011 - 2012)HOUSE FINANCE 519
03/30/2011 01:30 PM House FINANCE
| Audio | Topic |
|---|---|
| Start | |
| HB8 | |
| HB105 | |
| HB150 | |
| HB141 | |
| HB140 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 8 | TELECONFERENCED | |
| + | HB 10 | TELECONFERENCED | |
| + | HB 64 | TELECONFERENCED | |
| + | HB 105 | TELECONFERENCED | |
| + | HB 140 | TELECONFERENCED | |
| + | HB 141 | TELECONFERENCED | |
| += | HB 164 | TELECONFERENCED | |
| + | HB 103 | TELECONFERENCED | |
| + | HB 104 | TELECONFERENCED | |
| + | HB 120 | TELECONFERENCED | |
| + | HB 121 | TELECONFERENCED | |
| + | HB 125 | TELECONFERENCED | |
| + | HB 150 | TELECONFERENCED | |
| + | TELECONFERENCED |
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."
1:48:49 PM
REPRESENTATIVE WES KELLER, SPONSOR, discussed HB 8. He
opined that the Sedition Act of 1798 was historically one
of the most unconstitutional congressional acts, which had
prompted the passage of numerous "reactionary" resolutions.
He quoted Thomas Jefferson's words from the Kentucky
Resolutions:
Resolved, states composing, the United States of
America, are not united on the principle of unlimited
submission to their federal government, but reserve
each state to itself, the residuary mass of right to
their own self-government; and whensoever the general
or federal government assumes undelegated powers, its
acts are unauthoritative, void, and of no force...each
party or each state has an equal right to judge for
itself, and the mode and measure of redress belongs to
the state [sic].
Representative Keller communicated that the legislation
incorporated the principle from the Kentucky Resolutions.
He read from page 2, lines 14-16: "A federal statute,
regulation, presidential executive order, or secretarial
order that is unconstitutional or was not properly adopted
in accordance with federal statutory authority many not be
considered to preempt a state law." He relayed that the
bill required the attorney general to notify the
appropriate judiciary committee chairs if the attorney
general found that a federal statute, regulation,
presidential executive order, or secretarial order was
unconstitutional or was not properly adopted (page 2, line
26). The "method, mode, or measure of the redress" was left
up to the legislature. He asked the committee to adopt the
committee substitute.
Vice-chair Fairclough MOVED to ADOPT Work Draft CSHB 8(FIN)
(27-LS0052\B, Bullock, 3/14/11) as a working document
before the committee.
Co-Chair Stoltze OBJECTED for discussion.
Representative Keller explained that the CS added the words
"secretarial order" and "federal statute" throughout the
bill. He had initially thought that the attorney general's
office would review all regulations and provide a report on
any items that were potentially unconstitutional; however,
that was not logistically possible for the Department of
Law (DOL). He had received positive feedback on the bill.
He reiterated that DOL would notify the legislature if it
became aware of any federal statute, secretarial order,
regulation, or presidential executive order that was
potentially unconstitutional.
There being NO further OBJECTION the CS was ADOPTED.
1:53:15 PM
Representative Doogan wondered who would decide whether a
federal statute, regulation, presidential executive order,
or secretarial order was unconstitutional.
Representative Keller responded that the decision was
outside the scope of the legislation. He added that the
decision could be made by the U.S. Supreme Court,
individuals, and legislators who had the responsibility of
interpreting and understanding the U.S. Constitution.
Representative Doogan asked for verification that under the
legislation, something would not be considered state law,
if it fit the definition in the bill and was determined to
be unconstitutional.
Representative Keller replied that the attorney general
would make the determination and would notify the
appropriate legislative chairs if an item was determined to
be unconstitutional.
Representative Doogan understood the specific point. He did
not understand the comment that individuals would be able
to decide for themselves whether an item was
unconstitutional.
Representative Keller responded that he did not believe the
ability for a person to decide an item was unconstitutional
was in the scope of the bill.
Representative Doogan thought it was clear that the bill
did allow the specific ability for a person to determine
whether an item was unconstitutional. He was happy to offer
an amendment to remove the appropriate language.
Representative Keller asked about the precise language
Representative Doogan was referring to.
Representative Doogan cited page 2, lines 12-16 as the
specific language.
Representative Keller responded that the language was a
principle and did not specify who was making a
determination that a federal statute, regulation,
presidential executive order, or secretarial order was
unconstitutional. He explained the unconstitutionality of
an item could be determined in a variety of ways, and in
such cases the law was deemed to be invalid.
1:57:10 PM
Representative Guttenberg wondered about the origin of the
language in Section 2, page 2, article 5.
Representative Keller asked for clarification on the
question.
Representative Guttenberg wondered about the specific
source of the language in Section 2.
Representative Keller responded that the wording of the
bill had come from Legislative Legal Services. He had
drafted the bill and had quoted the words of Thomas
Jefferson during earlier testimony; however, he did not
know the specific origin of the language.
Representative Guttenberg thought it appeared that the bill
put federal statute into state law. He wondered whether the
goal was to preempt federal law or to put it into Alaska
statute.
Representative Keller replied that under the bill a federal
law that was unconstitutional could not preempt state law.
The bill did not dictate what would be done after an item
was determined to be unconstitutional. He emphasized that
the bill did not attempt to insert federal law into state
statute.
Representative Guttenberg was concerned that the bill
attempted to decide whether a law was unconstitutional
prior to a U.S. Supreme Court case or decision.
Representative Keller responded that it was the
responsibility and right of the country's citizens to
police the Constitution.
Representative Guttenberg discussed that it was possible to
challenge the constitutionality of a law by taking it to
court or through an act of civil disobedience; however,
ultimately it was the U.S. Supreme Court that determined
whether a law was unconstitutional.
2:01:00 PM
Representative Keller replied that there had been a number
of cases where federal law had been deemed unconstitutional
and invalid. He cited the California "Compassionate Use
Act," which had legalized medical marijuana. He explained
that U.S. Supreme Court had determined that the law was
unconstitutional; however, the federal government had left
the matter in the hands of the state and did not attempt to
police noncompliance in each of the 14 states with similar
laws.
Representative Guttenberg agreed with comment regarding
rights of the states. He expressed uncertainty about other
aspects of the bill.
Representative Wilson asked whether the state had adopted
numerous federal regulations that were represented by a
number and were not written in statute, meaning that the
state did not always see the changes made to the
regulations.
Representative Keller believed that the state had too many
references to federal regulations, but he did not know
whether the references were automatically altered when
changes to the regulations occurred.
Representative Wilson asked whether the bill required the
state to review any changes that were made to federal
regulations that it had previously adopted.
Representative Keller answered in the negative. He
clarified that the bill asked the attorney general to
notify the legislature in the event that an item violated
the state or federal Constitutions.
STUART THOMPSON, SELF, MAT-SU (via teleconference),
described himself as a "sovereign citizen" and discussed
his support of HB 8. He believed the legislation
represented a clear support and defense of the 9th and 10th
Amendments of the United States. He asked that the
committee read the written testimony that he had provided
to the House Judiciary Committee. He stated that the
legislative oath of office read "I do solemnly swear or
affirm that I will support and defend the Constitution of
the United States and the Constitution of the State of
Alaska and that I will faithfully discharge my duties to
the best of my ability." He wondered whether legislators
had specifically supported or defended the U.S.
Constitution against opposition during the current
legislative session. He believed that the passage of state
law to acquire rights for federal money did not defend the
Constitution; it used "infrastructure and tradition to
follow a path of least resistance to gratify constituents."
He believed that fighting for state funds for legislators'
districts did not support or defend the constitution, but
worked to secure legislators' bids for reelection. He
discussed other items that did not support or defend the
constitution. He opined that the bill was "probably the
most ethically substantial bill ever presented to the
Alaska legislature." He urged the passage of the bill.
Representative Guttenberg asked Mr. Thompson for his
definition of "sovereign citizen."
Mr. Thompson responded with a reference to the Declaration
of Independence. He believed that people had the right and
obligation to implement change if they did not believe the
government was working to assist in the right to life,
liberty, and the pursuit of happiness.
2:08:19 PM
Co-Chair Stoltze CLOSED public testimony.
Representative Edgmon asked whether the goal of the bill
was to give Alaska better capability to respond to items
such as the recent federal health care legislation that may
or may not have been constitutional.
Representative Keller replied in the negative. He clarified
that the bill asked the attorney general to notify the
legislature if a problem was found.
Vice-chair Fairclough spoke in favor of the legislation.
She was interested in a discussion about how Alaskans
advocated for their rights. She discussed that when she had
been the executive director of Standing Together Against
Rape (STAR) there were federal laws that were inconsistent
with State of Alaska Constitution. She cited the Adam Walsh
law or other that worked to implement a retroactivity
clause for the state's sex offender list. The agency had
tried to determine how to bring the state into compliance
with the law; however, the law was essentially in violation
of Alaska's constitution. She wondered whether the state
should defend its constitution or align the constitution
with the federal government. She thought that it was
important to address the points of contention as a
legislative body. She discussed her allegiance to the
United States, the U.S. Constitution, and to Alaska's
constitution. She questioned what should be done in the
event that the Constitutions of the United States and
Alaska conflicted with each other. She asked whether the
state should make changes to its constitution when the
federal government changed a law that the state had no
input in. She acknowledged that the state's Congressional
leaders could argue on its behalf, but she thought the
state should also have a voice. She supported the bill
because it helped to address Alaskans' right to challenge
items that were not in the state's best interest and were
in violation with the state's constitution.
2:13:01 PM
Representative Doogan believed that the goal was to get the
attorney general to let legislators know when a federal
action was potentially unconstitutional or would preempt
state law. He thought that amending the bill to include
only Section 4 would achieve the sponsor's goal; it would
also eliminate other concerns about a person's ability to
assert authority that they did not have. He thought the
amendment would do everything in a practical sense that the
legislation sought out to do.
Representative Doogan offered a conceptual Amendment 1 that
maintained only Sections 4 and 5 of the CS.
Co-Chair Stoltze asked for verification that the amendment
would delete the findings and Sections 1 through 3.
Representative Doogan answered in the affirmative.
Vice-chair Fairclough OBJECTED.
Vice-chair Fairclough did not understand the purpose of the
amendment. She asked why the findings and Sections 1
through 3 of the bill were objectionable.
Representative Doogan did not understand the particular
sections. He believed that the sections did not have an
impact on anything that the bill aimed to accomplish. He
thought the language represented a philosophical statement;
the committee was not in the habit of passing philosophical
statements with the exception of resolutions. He did not
know why the legislature would put something into law that
did not have an impact on the law. He communicated that he
did not feel comfortable with the inclusion of the language
if it did impact the law, given that he did not know what
the impact was.
Representative Wes Keller was not in favor of the
conceptual amendment. He would have been "shocked" if the
bill had included language specifying that a federal law
would preempt state law even when it was found to be
unconstitutional. He explained that the language was a
statement of "what is." He thought the federal government
had recently overstepped or potentially overstepped a
number of times. He thought the inclusion of the language
was important for the context of the bill.
Representative Doogan believed that the problematic portion
of the bill made statements that were not attributed to
anybody. He cited language in Section 2 that referred to a
federal statute or other that was unconstitutional. He
wondered how to judge what was unconstitutional. He
surmised that the specific language was referring to a
violation of the federal Constitution. He was not
comfortable asserting that violations of the federal
Constitution were happening or with a law that allowed a
person to determine an item was unconstitutional and
therefore invalid. He did not support the language.
Co-Chair Stoltze opposed the conceptual amendment. He
thought the bill started a committee process when the
attorney general notified the legislature that a problem
existed.
2:21:27 PM
Representative Hawker requested that the conceptual
amendment be clearly restated.
Representative Doogan explained that the conceptual
Amendment 1 began on page 1, line 5 and would delete
Sections 1, 2, and 3. The sections would be renumbered
accordingly and the title would be changed as necessary.
Representative Costello surmised that the bill provided an
avenue for DOL to communicate with the legislature when an
unconstitutional federal item occurred. She had heard about
departmental budget increases that had happened in response
to some of the items. She wondered what the next step would
be after the attorney general brought an unconstitutional
item to the attention of the legislature. She discussed
that if the item was egregious enough that the executive
branch of the State of Alaska would sue the federal
government.
Representative Keller replied that he had thought
significantly about the next step; however, there was no
way to outline it in statute due to the wide scope of
potential responses. The language that allowed the
legislature to consider information it received from DOL
would be deleted in the proposed conceptual amendment. He
believed that rights of the state were one step away from
rights of the individual and there was a responsibility to
protect their sovereignty. He stressed that the legislature
needed to work with the administrative branch, given that a
law suit initiated by the administrative branch would be
funded by the legislature. He thought the bill helped all
branches of state government to be informed and a part of
the process. He opined that the alignment may have helped
the state in the process related to the current federal
health care bill.
Representative Costello asked whether Sections 1 through 3
that would be deleted by the amendment, were necessary to
lead up to and explain the core of the bill in Section 4.
Representative Keller answered that the without Sections 1
through 3 there was no context to understand the
legislative intent of the bill. He did not believe that
there was anything fundamentally wrong with including the
language. He noted that there would not be much left in the
bill if language that read "may be done" was deleted.
Vice-chair Fairclough had looked at all of the statutes
that the bill would impact. Section 2 inserted AS 44.23.020
after the statehood act (Section 1 of the statute) and
asked the legislature to look at the laws. Section 3 of the
bill (AS 24.05.188), was inserted under Article 5 as
legislative space. Section 4 of the bill was inserted under
DOL related to the duties and powers of the attorney
general's office. She explained that the three sections
supported AS 44.23.020 and did not change other law.
2:28:50 PM
Representative Edgmon referenced language in the bill that
read "the attorney general shall report the findings to the
chairs of the house and senate committees having
jurisdiction over judicial matters." He wondered whether
the language compromised the options that the attorney
general may have if he or she wanted to pursue a legal
remedy.
Representative Keller replied that DOL had not brought the
concern forward.
Representative Joule discussed that the bill mandated the
attorney general (who worked for the governor) to take a
specific action. He opined that individuals may have
problems with the current federal administration, but in 10
or 20 years the shoe would be on the other foot. He felt
neutral about the bill, but cautioned that it was important
for a person to be careful about what they asked for
because it may come to fruition.
Representative Keller believed that regardless of a
person's political affiliation, he would welcome their
concern about a bill that was potentially unconstitutional.
Representative Hawker was opposed to the conceptual
amendment. He voiced that historically he had opposed the
inclusion of findings in statute because they were either
irrelevant or did not provide the appropriate contextual
framework. He communicated that he felt differently about
the current legislation and believed that the conceptual
amendment would remove findings that represented an
important factual basis for the context of the statute
change. He opined that removing the findings would have led
to greater ambiguity. He believed that Section 2, which
affirmed the state's sovereignty, was the "heart and soul"
of the bill. He advised that the language in Section 2
related to the unconstitutionality of an item, stated a
fact, and was based on the opinion of the attorney general
or another person. The implementation of the findings
occurred under Sections 3 and 4. He believed that the
legislation went as far as possible in an effective and
responsible manner.
2:34:13 PM
Representative Guttenberg observed that the sections of the
Alaska constitution that had been adopted by the convention
were very succinct. He felt that amendments to the
constitution and statute could get convoluted. He believed
that Section 4 of the bill included many of the same items
from Sections 1, 2, and 3; Section 4 outlined the action
that would take place if the attorney general found an item
to be unconstitutional. He discussed that the attorney
general did not need legislative approval to challenge
federal law, which was evident in current actions by the
governor. He believed that Sections 1 through 3 were
redundant and contained the same points that were depicted
in Section 4; the sections were not as focused and did not
provide a specific action. He supported the idea that
legislative committees would receive reports about items
that were potentially unconstitutional.
Representative Wilson wondered whether the sponsor had
asked the offices of the attorney general or the governor
about their opinion on the importance of Sections 1 through
3 of the bill.
Representative Keller replied that they had heard from the
offices at the House Judiciary Committee hearing on the
legislation. There had been concern that the original bill
required the attorney general's office to catch all of the
unconstitutional regulations, which was a larger job than
the office was prepared to handle. He had spoken with the
attorney general and had received no negative response.
Representative Wilson asked whether in the absence of the
legislation, it would not be a priority for the attorney
general's office to look for the potential unconstitutional
items. She wanted the office to catch any federal items
that were potentially unconstitutional and that conflicted
with the state's constitution; she believed that the
attorney general and the legislature were mandated to do
so. She wondered whether the sponsor believed the bill was
necessary to ensure that the desired outcome was met.
Representative Keller responded in the affirmative. He
explained that the attorney general's office currently may
not realize that the legislature should be officially
notified when it came across a potentially unconstitutional
item.
Representative Doogan wrapped up his conceptual Amendment
1. He believed that the language in Sections 1 through 3
was not necessary if it did not do anything; however, if it
did do something, he believed that the active portion
related to a person's view that an item in violation of
federal statute or the Constitution would not be state law
(page 2, lines 15-16). He felt that the language was
"nullification language" and he was not in favor of
supporting a bill that would allow the legislature to
nullify the U.S. Constitution or federal law. The
legislature could dispute federal law and he had generally
supported the action. He believed HB 8 was something more
than a dispute and allowed anyone who opposed something the
federal government did to decide that it was
unconstitutional or a violation of federal law. He did not
support the aspect of the legislation.
Co-Chair Stoltze clarified that the amendment would delete
all but Sections 4 and 5 of the legislation.
A roll call vote was taken on the motion to adopt the
conceptual Amendment 1.
IN FAVOR: Doogan, Guttenberg
OPPOSED: Costello, Edgmon, Fairclough, Joule, Hawker,
Wilson, Stoltze, Thomas
The MOTION FAILED (8/2).
Co-Chair Stoltze pointed to the zero fiscal note by the
Department of Law.
Vice-chair Fairclough MOVED to report CSHB 8(FIN) out of
committee with individual recommendations and the
accompanying fiscal note.
Representative Wilson OBJECTED for discussion.
Representative Wilson relayed that the fiscal note was
indeterminate.
Co-Chair Stoltze clarified that the fiscal note had changed
from indeterminate to zero.
Representative Wilson WITHDREW her OBJECTION.
Representative Doogan MAINTAINED his OBJECTION.
A roll call vote was taken on the motion to report CS HB
8(FIN) from committee.
IN FAVOR: Wilson, Costello, Edgmon, Fairclough, Joule,
Hawker, Thomas, Stoltze, Gara
OPPOSED: Doogan, Guttenberg
The MOTION PASSED (9/2). There being NO further OBJECTION
it was so ordered.
CSHB 8(FIN) was REPORTED out of committee with a "do pass"
recommendation and with new zero impact fiscal note by the
Department of Law.
2:47:47 PM
AT EASE
2:48:22 PM
RECONVENED