02/27/2013 01:00 PM House JUDICIARY

         HB 83 - FEDERAL REGULATIONS & EXECUTIVE ORDERS                                                                     
                                                                                                                                
1:42:09 PM                                                                                                                    
                                                                                                                                
CHAIR KELLER announced  that the next order of  business would be                                                               
HOUSE BILL NO. 83, "An  Act relating to certain federal statutes,                                                               
regulations,  presidential  executive   orders,  and  secretarial                                                               
orders;  relating to  the  duties of  the  attorney general;  and                                                               
providing for an effective date."                                                                                               
                                                                                                                                
1:42:25 PM                                                                                                                    
                                                                                                                                
JIM  POUND,  Staff,  Representative   Wes  Keller,  Alaska  State                                                               
Legislature,  on behalf  of the  sponsor, Representative  Keller,                                                               
indicated that under  HB 83, if the attorney  general feels after                                                               
review that  a federal statute, federal  regulation, presidential                                                               
executive order, or secretarial  order is unconstitutional or was                                                               
not  properly  adopted  in   accordance  with  federal  statutory                                                               
authority, the  attorney general shall  notify the chairs  of the                                                               
House and  Senate Standing Judiciary  Committees, which  may then                                                               
consider whether  legislative action  is warranted.   In response                                                               
to  a   question,  he  explained  that   the  attorney  general's                                                               
notification would come  in the form of a report  [as outlined in                                                               
Section 4's proposed new AS 44.23.020(h)(1)-(4)].                                                                               
                                                                                                                                
CHAIR  KELLER,  as the  sponsor  of  HB  83  and in  response  to                                                               
comments,  clarified that  the bill  itself doesn't  specify what                                                               
legislative  action  the  House  and  Senate  Standing  Judiciary                                                               
Committees  might  then  take.   In  response  to  questions  and                                                               
further comments, he concurred that  the bill basically addresses                                                               
notification, and explained that under  Section 4 of the bill, it                                                               
would be mandatory for the  attorney general - under the existing                                                               
process  -  to  continue   reviewing  federal  statutes,  federal                                                               
regulations,  presidential  executive   orders,  and  secretarial                                                               
orders.   It is not his  intention, he assured the  committee, to                                                               
impose a  burden on  the Department  of Law  (DOL) other  than to                                                               
require it  to furnish  the aforementioned  report.   He surmised                                                               
that that's  why the  DOL has  submitted a  zero fiscal  note for                                                               
HB 83.                                                                                                                          
                                                                                                                                
REPRESENTATIVE  GRUENBERG expressed  interest in  having the  DOL                                                               
address its fiscal  note specifically in light  of that reporting                                                               
requirement.                                                                                                                    
                                                                                                                                
1:51:43 PM                                                                                                                    
                                                                                                                                
MICHAEL  C. COONS  offered his  belief  that there  is a  general                                                               
misconception that any statute passed  by legislators bearing the                                                               
appearance of  law does  indeed constitute the  law of  the land.                                                               
However, for  any statute to be  valid, it must comport  with the                                                               
U.S. Constitution - the supreme law  of the land.  He paraphrased                                                               
language from  select U.S.  Supreme Court  rulings in  support of                                                               
that concept:                                                                                                                   
                                                                                                                                
     Where rights secured by  the Constitution are involved,                                                                    
     there can  be no rulemaking or  legislation which would                                                                    
     abrogate  them.    Miranda v.  Arizona,  384  U.S.  436                                                                    
     (1966)                                                                                                                     
                                                                                                                                
     An unconstitutional  act is  not a  law; it  confers no                                                                    
     rights;   it  imposes   no   duties;   it  affords   no                                                                    
     protection;  it  creates  no office;  it  is  in  legal                                                                    
     contemplation  as inoperative  as though  it had  never                                                                    
     been passed.   Norton  v. Shelby  County, 118  U.S. 425                                                                    
     (1886)                                                                                                                     
                                                                                                                                
     Certainly   all   those   who   have   framed   written                                                                    
     Constitutions   contemplate   them   as   forming   the                                                                    
     fundamental  and  paramount  law  of  the  nation,  and                                                                    
     consequently the  theory of every such  government must                                                                    
     be  that an  act of  the Legislature  repugnant to  the                                                                    
     Constitution is  void.   Marbury v.  Madison, 5  U.S. 1                                                                    
     Cranch 137 137 (1803)                                                                                                      
                                                                                                                                
MR.  COONS,  in  conclusion,   indicated  disfavor  with  certain                                                               
actions taken  at both the  state and federal level  and distrust                                                               
of  those  taking  the federal  actions;  referencing  the  Tenth                                                               
Amendment to the  U.S. Constitution, offered his  belief that the                                                               
bill could potentially  stop such actions in the  future and help                                                               
Alaska recover from  those already taken; and  urged full support                                                               
and passage of HB 83.                                                                                                           
                                                                                                                                
REPRESENTATIVE LYNN  questioned whether  any given  measure could                                                               
be ruled unconstitutional by other than a supreme court.                                                                        
                                                                                                                                
CHAIR KELLER  noted that some  folks believe that others  can and                                                               
should do so.                                                                                                                   
                                                                                                                                
REPRESENTATIVE  LYNN  indicated  that  he  would  be  comfortable                                                               
receiving a  report from the  attorney general as  outlined under                                                               
Section 4 of the bill.                                                                                                          
                                                                                                                                
REPRESENTATIVE GRUENBERG  indicated favor  with Sections 3  and 4                                                               
of  the  bill,   but  disfavor  with  Section  2   of  the  bill,                                                               
characterizing  the  language therein  that  reads,  "may not  be                                                               
considered to preempt a state law" as somewhat vague.                                                                           
                                                                                                                                
CHAIR KELLER ascertained  that no one else wished  to testify and                                                               
closed public testimony on HB 83.                                                                                               
                                                                                                                                
REPRESENTATIVE LYNN said he supports HB 83.                                                                                     
                                                                                                                                
The committee took a brief at-ease.                                                                                             
                                                                                                                                
CHAIR KELLER, in  response to comments, relayed that  HB 83 would                                                               
be held over.