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