SB 118-CMTE ON NULLIFICATION OF FEDERAL LAWS  2:26:59 PM CHAIR HOLLAND reconvened the meeting and announced the consideration of SENATE BILL NO. 118 "An Act establishing the committee on nullification of federal laws; and providing a directive to the lieutenant governor." [SB 118 was previously heard on 2/2/2022.] 2:27:12 PM CHAIR HOLLAND noted his intention to take public testimony, consider any issues, and hold the bill in committee. 2:27:21 PM CHAIR HOLLAND opened public testimony on SB 118 2:27:41 PM MIKE COONS, representing self, Palmer, Alaska, spoke in support of SB 118 because nullification is the basis to countermand amendments passed by the legislature, as needed. It would give the new Committee on Nullification of Federal Laws the duty and authority to review and nullify statutes, regulations, and executive orders. He opined that this would provide Alaskans with a means to address federal overreach. 2:28:59 PM CHAIR HOLLAND closed public testimony on SB 118. 2:29:22 PM MEGAN WALLACE, Director, Legislative Legal Services, Legislative Affairs Agency, Juneau, Alaska, introduced herself. CHAIR HOLLAND stated that several legal questions arose at the last hearing. He asked for the interplay between federal and state laws. MS. WALLACE explained that the supremacy clause of the US Constitution art. VI states explicitly that the laws of the federal government shall be the supreme laws of the land. The US Constitution states that states will follow federal law. The Tenth Amendment reserves powers not delegated to the United States by the Constitution to the states. The supremacy clause would trump state law if the federal and state governments passed laws that conflict. However, if the federal government has not regulated or passed laws, the Tenth Amendment reserves to states the right to make laws to address the matter. 2:31:37 PM CHAIR HOLLAND asked whether any legal precedent supports a state's right to nullify a federal law within its borders. MS. WALLACE responded that she was unaware of any case law that supports the state legislature's authority to nullify federal law. The general legal mechanism used to challenge federal laws is through litigation. Marbury v. Madison essentially established the federal judicial doctrine that the federal courts and the US Supreme Court ultimately have the role and responsibility to decide whether federal laws are constitutional. 2:32:37 PM SENATOR SHOWER suggested that the bill sponsor might wish to respond. SENATOR LORA REINBOLD, Alaska State Legislature, Juneau, Alaska, sponsor of SB 118, pointed out that Wyoming, Alabama, and Utah have set a precedent. She stated that the laws of Congress are restricted by the US Constitution. She said that in Federalist No. 33, Alexander Hamilton noted that the supremacy clause expressly confines this supremacy to laws made pursuant to the constitution. She interpreted this to mean the federal government must "stay in its own lane." CHAIR HOLLAND asked if the language in SB 118 was modeled after legislation other states have passed. SENATOR REINBOLD responded that she would need to consult with Legislative Legal. 2:34:19 PM CHAIR HOLLAND asked if the Alaska legislature has the authority to tell Alaskans not to abide by federal law or executive order. SENATOR REINBOLD responded that the US Constitution and Alaska Constitution protect individual civil liberties. If a federal law is unconstitutional, the state absolutely must ensure individual rights are protected. She remarked that members take an oath to support and defend the Constitution of the United States and the Constitution of the State of Alaska. She remarked that it is the legislature's responsibility to uphold state sovereignty. 2:35:43 PM SENATOR SHOWER stated that he supports states' rights. He commented that what works in Alaska does not necessarily work in other states, such as Florida, New York, or Hawaii. He surmised the founding fathers never envisioned the tremendous growth of the federal government or the extent of its law-making that governs everything. He stated it is valid to limit the federal government since it has become too big and powerful, usurping the states' powers. He related he introduced a bill that would bifurcate the election system to ensure Alaska can operate its elections in a manner it chooses rather than abide by a plan devised by bureaucrats or elected officials in Washington DC. 2:37:33 PM SENATOR HUGHES stated that art. VI is not in conflict with art. 1, sec. 10, which allows states to retain power over anything that is not granted to the federal government. She suggested that the committee might want to strengthen the language. She referred to page 1, lines 11 - 14, and read, "In making its recommendation, the committee shall consider whether the statute, regulation, or executive order is outside the scope of the powers delegated to the federal government in the Constitution of the United States." She interpreted that means it is not constitutional to nullify something that the constitution granted the federal government to govern. However, if it is an item that was not granted to the federal government, it falls under the Tenth Amendment and the state should have a means to nullify it. She related that Ms. Wallace said the usual method is through litigation, but that doesn't mean it is the only way. Nothing prohibits a state from asserting a state's rights. She offered her view that as long as the state doesn't nullify laws because the legislature doesn't like them or wishes the federal government had not passed a law, the state can nullify something that falls within [the Tenth Amendment]. 2:40:00 PM CHAIR HOLLAND asked if Alaska's legalization of marijuana was an example of nullification. 2:40:21 PM MS. WALLACE answered that she did not think Alaska's legalization of marijuana was nullification. She related her understanding that nullification was a term used in that a state has the right to nullify or invalidate federal laws that it deems unconstitutional. The state marijuana laws did not nullify or invalidate the federal laws regulating marijuana. As most members are aware, tension exists between states and the federal government regarding marijuana. While the federal government has not enforced the federal laws against marijuana in states that have legalized marijuana, that tension still exists. She pointed out that the possibility exists that the federal government would enforce the federal laws in superiority over state laws. 2:42:00 PM CHAIR HOLLAND acknowledged he did not think it was an example. He asked what would happen if Alaska nullified a law, but the federal government decided to enforce the federal law. MS. WALLACE expressed concern with the process established in the bill to nullify federal law. The bill provides for nullification by concurrent resolution. Alaska Supreme Court decisions indicate that if the legislature is going to act and affect people outside the legislative branch, it needs to act by law. Arguably, if the legislature nullified federal laws, the bill risks challenge that it does not nullify by law. Second, suppose the legislature were to attempt to nullify federal law. In that case, a strong likelihood exists that the federal government would not recognize that the state has the power to nullify it. The federal government might continue to execute or enforce it in Alaska. She offered her view that ultimately that tension or conflict would end up in court. 2:43:55 PM SENATOR SHOWER recalled that early on the federal government was enforcing marijuana laws. He surmised it was less common now because so many states legalized marijuana, so the federal government let it go. Although the federal government might want to enforce the marijuana laws, it has limited resources, so the Drug Enforcement Agency relies on states and local authorities, such as troopers to enforce federal law. He said the state could push back if the federal government attempted to take over Alaska's elections by refusing to allow them to use Alaska's election equipment. It would be difficult for the federal government to create its own system. He concluded that this approach would avoid the conflict between constitutional powers. 2:45:58 PM SENATOR KIEHL related one question he posed to the sponsor at the last hearing was the cost to review each federal law as proposed by SB 118. He suggested that Congress passes approximately 2 million words of federal law each year, and 3,000 to 4,000 new regulations each year. SENATOR REINBOLD reminded members she previously chaired the Administrative Regulation Review Committee. She suggested that combining that committee with the Senate Judiciary Committee would be appropriate. She opined that the committee and the Legal Services attorney would bring forth ideas. 2:47:58 PM SENATOR KIEHL said the bill just says upon receipt. He asked if the sponsor intended that Legislative Legal Services would do the winnowing of those laws or if citizens would forward them to the committee. SENATOR REINBOLD stated the intention of SB 118 was to allow the committee to set up the process. She said it would be open to who brings forth the law for review. 2:48:55 PM SENATOR MYERS referred to the federal Real ID Act from 2005. At one point, the state passed legislation that indicated the state would not expend state resources to implement the Real ID Act. He recalled that the law was repealed several years ago. He asked whether that sponsor envisioned the Real ID Act as a candidate for nullification. SENATOR REINBOLD answered yes. She explained that art. 1, sec. 22 of the Alaska Constitution indicates that the privacy of citizens shall not be infringed. She said it is the legislature's responsibility. 2:49:59 PM SENATOR MYERS wondered how nullifying a federal law would affect the public. He related his understanding that many businesses were concerned about accessing military bases. He asked what would happen if the state nullified the Real ID Act and a contractor submitted a non-Real ID driver's license as identification to enter a base, but it was rejected. SENATOR REINBOLD stated that the Department of Defense (DoD) is under a different jurisdiction. She related that previously she was allowed to use her passport to access the base. SENATOR SHOWER responded that the military could restrict access to bases due to national security concerns. He explained the process contractors would use. If a person did not have the Real-ID, the military would obtain their personal identifiers, vet the person, and issue them a temporary pass to get on base for events or contractors. 2:52:44 PM SENATOR MYERS asked whether he could use a non-Real ID at the airport. He asked whether he would need to call the troopers and explain the legislature nullified the Real ID Act. SENATOR REINBOLD answered that when conflicts arise, state statutes would trump corporation policies. She asked whether the legislature should allow corporations to set laws. She pointed out that the supreme law is the US Constitution. 2:54:32 PM CHAIR HOLLAND held SB 118 in committee.