Vermont Legislature SmartTranscripts:

[Sen. Nader Hashim (Chair)]: Hey, morning. We're back in the Senate Judiciary. It's April 1. We're taking backup page eight forty nine and we have David Gould here advise. So David, if you just wanna introduce yourself, then the floor is all yours.

[David Gould (Executive Director, Democratism Action)]: Great, thank you very much. I am Executive Director of Democratism Action. My name is David Gould. We're a nonpartisan organization that is working to equip state and local governments with tools to resist federal lawlessness and to restore constitutional governance. Two of our Vermont volunteers, Molly and Tom Roland, testified at the last hearing on this, h eight forty nine, last week. So thank you very much for the opportunity to testify. I asked to testify in order to propose an amendment to h eight forty nine and to explain why it's needed. So that's what I'm hoping to do here this morning. The United States is in the midst of an authoritarian takeover. State legislators are looking for ways to respond in order to protect their residents and to protect American democracy, which it is every state official's sworn duty under the constitution to do. This is an admirable and appropriate urge to respond and it's produced a resurgence of interest in an old and previously rather obscure variety of civil rights legislation known as the Converse Section nineteen eighty three of which H eight forty nine is an example. Unfortunately, a traditional Converse Section nineteen eighty three written like H-eight 49 can do nothing to address the present crisis that has animated all this new interest in it. Whether or not it might succeed in creating usable cause of action for a narrow category of what we might call normal times constitutional violations by federal officers, it won't have any effect on the consolidation of power by the authoritarian executive. So Democratism Action is proposing an amendment. It's attached to the written version of this testimony which I circulated that without deleting anything from H849 would strengthen the right of action it creates and thereby turn it into a truly powerful tool for defending Vermont and constitutional democracy. The problem with the current version is that it's written to fit into the tiny box where state action appears potentially acceptable to our compromised federal judiciary. So for fear that a federal court will otherwise strike it, H eight forty nine ties its own hands in two crucial respects. First of all, it expressly imports all the defenses that federal courts have invented to limit federal section nineteen eighty three liability among those is qualified immunity. And then it also implicitly limits the range of wrongful conduct that the bill reaches to the narrow class of constitutional violations that the federal courts have accepted in federal section nineteen eighty three actions. So a few examples of the kinds of attacks on the constitution that Vermont ought to make actionable, but that h eight forty nine as written doesn't. Suppose that federal agencies illegally cancel research grants to a Vermont university to coerce changes to curriculum or to admissions policies. The school or the individual grantees or the people who lost their jobs as a result might like to sue the federal officials who made and carried out those decisions. Similarly, a thousand immigration officers arrive in a Vermont community based on a fabricated claim of a national security emergency. The real purpose might be to terrorize and subdue local residents. Innocent people are afraid to leave their home. They lose wages. Their children miss school. They would like to sue the people who lied to justify this operation and the people who planned it and the people who carried it out, including the agents, whether or not anyone was actually physically brutalized by it. And one more example, the Department of Justice might open a bogus investigation of Vermont public officials who offended the administration or of businesses that have worked with opponents of the administration. The people who are targeted, the Vermont officials and the business owners, they might like to sue the government lawyers and agents who knew that what they were doing was illegal political retaliation. These are all examples of unconstitutional misuse of federal power causing harm in Vermont, which is the kind of wrong that h eight forty nine is aimed at, but there is no realistic action for them under h eight forty nine as written because of the tiny box that the bill puts itself into. And there isn't any other avenue to accountability otherwise. So this is an opportunity here. If age 49 could reach these harms, then all of these potentially liable federal officials would have to think twice when their superiors told them to violate the law to aid the administration in its consolidation of power. So in other words, to defend Vermont and to defend constitutional democracy, you have to get out of this tiny box. And that's what our proposed amendment would do. It gets the bill out of that box by adding a new subsection e to h eight forty nine. The existing cause of action would stay entirely intact for ordinary constitutional violations, the kind that it is written for in in its current form. What the amendment would add is a second layer and only for the duration of this current crisis. The new subsection e begins with findings that identify what's happening. A sustained assault on the constitutional order across multiple fronts simultaneously. And those findings do important legal work in two different ways. First, they define the category of conduct that the subsection would reach. Any act that violates the constitution or federal law and furthers that unlawful consolidation of power as defined by the findings would be a per se constitutional violation actionable under the existing right of action already in h eight forty nine. And second, the findings are the legal basis for the way out of this little box. As they set out, federal supremacy principles don't protect illegal federal directives that are part of a sustained attack on the constitutional order. And when the other federal branches have proven unable or unwilling to defend the constitution, state officials are obligated to use all their power to do so. So on that basis, section e provides for claims that fall within

[Sen. Robert Norris (Vice Chair)]: that category that the qualified immunity defense and the instruction to follow federal court doctrine don't apply. Defendants will not be allowed to escape liability by claiming that they were following orders. If a reasonable person in their position would have known that the directive was illegal,

[David Gould (Executive Director, Democratism Action)]: cases will stay in Vermont court and cannot be removed. Rulings by courts that decline to give effect to the statute will be nonbinding within Vermont. And if the federal government interferes with claims brought under the law, the statute of limitations would be told for the period of the interference. So they can't get away with avoiding liability just by obstruction. Because the basis for these new provisions is the extraordinary circumstances that are described in the findings, the new subsection also provides that they all sunset upon a finding by the Vermont legislature that the crisis has ended. And after that, the law would become an ordinary converse section nineteen eighty three as appropriate for normal times. I want to address a couple of issues that can arise about this. Some people will ask whether this amendment is a kind of nullification that Vermont would be claiming the right to override federal law or to decide for itself which federal laws are constitutional and which not and to follow only the ones that it thinks are constitutional. That's not what this is. This is not nullification. The claims made in the proposed amendment, the the the the basis for the proposed amendment is simply that when the entire constitutional system is under sustained attack by the federal executive through repeated abuses that no honest and informed person can claim are legal and the other federal branches are not fulfilling their constitutional duty to restrain the executive, then state officials who themselves swear an oath to support the constitution may and must act to defend the state and the republic. And other people may ask whether this amendment will lead to a confrontation between the state and the authoritarian federal power. And to this one, the answer is that yes, it's designed to do that. It stands up to the administration. It refuses to allow federal courts to play interference for the administration. Authoritarians will be angry about it, but accommodation is not the way to stop an authoritarian takeover. So that's my prepared testimony. I'm really grateful for the committee's time and would welcome any questions.

[Sen. Nader Hashim (Chair)]: Any questions? So I do have a few questions going

[Sen. Robert Norris (Vice Chair)]: I

[Sen. Nader Hashim (Chair)]: guess starting with subsection two and three on the page to the proposed amendment. I guess my first question has to do with removal and I'm not quite seeing how we can prohibit removal under all circumstances to federal court? If it's for example, if it's just a federal question or a diversity jurisdiction, how how can the state say that under no circumstances, it's not going to federal court?

[David Gould (Executive Director, Democratism Action)]: Well, what it says is that if federal court won't apply the rule of the statute, then it can't go to federal court. And the rule of ordinary Article III jurisdiction as it's been interpreted is that federal courts are required to apply state law. And the point here is that if they will not apply state law that it can't go to federal court.

[Sen. Nader Hashim (Chair)]: So so I I think that kind of further confuses me because I believe you mentioned that federal doctrine won't apply and so so if there's no Erie doctrine applying how it just creates a feedback loop of saying that the Erie doctrine won't apply or it will, would that not apply to the Erie doctrine for, for state substantive law in federal court?

[David Gould (Executive Director, Democratism Action)]: So state substantive law should apply for a state claim in federal court. And if a federal court is ready to apply the state law, then it doesn't say that it can't go to federal court. So my summary of it is that it will stay in state court because I think it's realistic to assume that this federal court will these federal courts will refuse to apply the statute. You know, the the the the point of it is that the federal courts are preventing the kinds of actions that are necessary in order to stop the authoritarian takeover the attack on the constitution of The United States. And in order to fulfill the role of protecting the constitution, it's necessary to, keep them out of courts that refuse to apply the law. So it's true that under normal circumstances, they would be able to remove to federal court. But under the existing circumstances, if they're unwilling to apply the law, then it can't be removed.

[Sen. Nader Hashim (Chair)]: Okay, that does make a little bit more sense. Right. We're going to stay before this. Okay. So, subdivision C that states any ruling or judgment or order issued by any court that the clients to give effect subsection E should be non binding without legal effect within the state of Vermont. Can you expand a bit more on what that means?

[David Gould (Executive Director, Democratism Action)]: Right. So the purpose of this is that an authoritarian takeover can be prevented if people stand up to it and powerful institutions stand up to it in ways that make it difficult to carry out by creating costs for people who participate in it and further it. So one of the ways that the current administration is succeeding in consolidating power is that they keep their people out of harm's way. So they've made the claim, for example, that in immigration enforcement, there's not only qualified immunity, there's absolute immunity. Right? The federal government has a lot of ways that it can make it difficult to enforce a law like this. And the point of that provision is that even if they do succeed in in preventing the law from being followed. Liability doesn't just end. The decisions are I'm looking at the entire I'm actually not sure any longer which letter you specifically referred to. But the combination of sub c. Right?

[Sen. Nader Hashim (Chair)]: Yeah.

[David Gould (Executive Director, Democratism Action)]: Three c. Right?

[Sen. Nader Hashim (Chair)]: Yes.

[David Gould (Executive Director, Democratism Action)]: Right. Okay. Yes. So in other words, this is one of these provisions that is intended to make it difficult for the federal government to simply end liability. So the various ways that they might end liability are one, it goes to federal court and it is dismissed under any of the reasons why these cases are likely to be dismissed in federal court. If that happens, then under this provision, the case is not over At a time when it's possible to bring the decision in a state court, it can still be brought in state court. So someone who doesn't manage to escape liability for what they did simply by going to a court that is amenable to hearing it, but not amenable to following the statute and dismiss getting it dismissed.

[Sen. Nader Hashim (Chair)]: So I guess my question, I'll narrow it a bit is what authority do we as a state government have to say that a federal court decision is nonbinding and without legal events in our district. So,

[David Gould (Executive Director, Democratism Action)]: you know, the the authority comes from Article six of the constitution. Article six defines supremacy. That is the basis for the supremacy of federal directives and the basis of the authority of federal law in general, but it doesn't say that whatever federal authorities say goes, it says that laws and the constitution and laws that are made in pursuant to the constitution are the law. And it doesn't say that when there is a concerted and sustained attack on the whole constitutional system by the federal government that it is necessary or appropriate to defer to that. And then further in article six is the oaths clause that all state officials take an oath to support the constitution. They're listed right there among all the other actors who take an oath. Only the president has his own special provision elsewhere, which includes all the things that he is not doing incidentally. Right? He's not execute faithfully executing the laws, but the state officials like members of congress and members and and other federal officers, state officials take an oath to support the constitution. So the implication of this is that when the other officials are not following their oath and not supporting the constitution, the entire constitutional system is under attack that it falls to state officials to exercise all of their actual powers to defend the constitution. And that's what you'd be capable of doing with this provision. So if the federal courts are not enforcing the law, right, the federal courts have in fact, the federal courts have created this presidency. They made a decision that said based on nothing in anywhere in the constitution that a president is not liable for the crimes that he commits while he's president, not only not while he's president, but not after he's president or between his terms as president. If if court decisions like that that plainly violate the constitution are not in accordance with the duties under article three are allowed to prevent states from from defending the constitutional order, then you would not be capable of fulfilling your duty under the article six oaths clause?

[Sen. Nader Hashim (Chair)]: Any other questions?

[Sen. Tanya Vyhovsky (Member)]: I mean, essentially, the majority of this is adding a binding section, which we don't usually do at the senate, but I know we've done it with some of the things to sort of explain our reasoning this year. I guess I I hear

[Hilary, Office of Legislative Counsel (Vermont)]: the reasoning for a sunset, but

[Sen. Tanya Vyhovsky (Member)]: I guess I don't really understand why we would ever want to say people have no recourse if

[Hilary, Office of Legislative Counsel (Vermont)]: the federal or state government violates the constitution.

[Sen. Robert Norris (Vice Chair)]: Like, I don't see the value in some setting that recourse. Well, it's framed as an emergency. Right? And when the emergency happens, in some sense. Do I have that right? Yeah. So You do.

[Sen. Christopher Mattos (Clerk)]: Am I reading the sunset as it can't be overturned by a court?

[David Gould (Executive Director, Democratism Action)]: I'm sorry. Was that a question for me? It was hard for me to hear.

[Sen. Nader Hashim (Chair)]: Really anyone didn't. No other event, including

[Sen. Christopher Mattos (Clerk)]: a judicial ruling or executive declaration shall terminate this subsection. So nothing, we pass this as a legislature, absolutely nothing can overturn

[Sen. Robert Norris (Vice Chair)]: it. Is

[Sen. Christopher Mattos (Clerk)]: that how I'm reading?

[Sen. Robert Norris (Vice Chair)]: I'm looking at page three, that final C there toward the bottom. Any ruling judgment or order issued by any court that declines to give effect to a piece of the bill shall be non binding.

[Hilary, Office of Legislative Counsel (Vermont)]: Don't think we can do that.

[Sen. Robert Norris (Vice Chair)]: Sounds like we're the supreme court in that. Right?

[David Gould (Executive Director, Democratism Action)]: The the the purpose of this is to prevent, hostile courts from refusing to apply the law.

[Sen. Philip Baruth (Member)]: Right. But, if I might, mister Gould, it it seems to leave us as the arbiters whether or not, a higher court, let's say the supreme court has given proper weight to subsection E which is the bill and if we don't believe they have then it has no force. Isn't that tantamount to secession in a way? We're we're just saying we are now the sole arbiters of the legal authority?

[David Gould (Executive Director, Democratism Action)]: You know, it's not tantamount to secession. I would, I think it would be more apt to say that the federal government has been captured by people who are not following the constitution. It's a demand that at least in Vermont, the federal constitution is the law. It puts the interpretation of it in the hands of your own state courts.

[Sen. Philip Baruth (Member)]: Right. But how does I feel like at that point you are at war with the federal government in the way that the Confederacy once declared its own view of constitutional order to be operative and went to war.

[David Gould (Executive Director, Democratism Action)]: I'm sorry, I didn't mean to interrupt.

[Sen. Philip Baruth (Member)]: I guess what I'm saying is it's as though we are determining that the supremacy clause can no longer be adhered to because you have a rogue federal government and at that point it it seems to me that that we are declaring ourselves independent or maybe part of a confederacy of states who don't believe that the federal government is following constitutional order And so we're we're, you know, just one label change away from a revolution at that point.

[David Gould (Executive Director, Democratism Action)]: I would put it exactly the opposite way, senator. I think the right way to think about what's happening is that the confederacy, and it's probably doesn't go too far to say the actual confederacy has taken control of the federal government. And the question is whether the people and the strong institutions that support the constitution will assert the authority of the constitution in the face of that illegal takeover and abandonment of constitutional governance.

[Sen. Philip Baruth (Member)]: But but if I might

[David Gould (Executive Director, Democratism Action)]: The generacy side is, is quite the opposite. Now let me say one thing about subsection c since that seems to be the the the piece of it that you are particularly focused on. The the United States Supreme Court has has has, as I say, and I, you know, I I think this is what we've all witnessed, actually created this situation and refused to put any check on the situation. So if it's if it would give you comfort, I think it might be fine to modify three c to put to to make clear that it doesn't mean that the supreme court of the state of Vermont doesn't have any power to review the statute.

[Hilary, Office of Legislative Counsel (Vermont)]: But

[Sen. Philip Baruth (Member)]: yeah, if if I could Mr. Gold, just one more observation. Admittedly I've only read through this in a cursory way, but it seems to me not out of the realm of imagination that under the Biden presidency a legislature in a red state, let's say Mississippi, could have put forward this exact same language and said Joe Biden and a complicit supreme court have abrogated our rights as states under the constitution, and we're taking these exact same steps. Would you have supported that in that case?

[David Gould (Executive Director, Democratism Action)]: Right, so you know I think this is one of the traps that we have fallen into as supporters of democracy is that whenever the authoritarians make a false argument that has no basis in reality, that can be seen to have some analogy to a potential argument that supporters of democracy might make that are grounded in reality, we retreat.

[Sen. Philip Baruth (Member)]: But you're you're

[David Gould (Executive Director, Democratism Action)]: Let me give you a I'm sorry to interrupt.

[Sen. Robert Norris (Vice Chair)]: Yeah. I

[Sen. Philip Baruth (Member)]: I was gonna say you're you're acting as though reality is exclusively available to people of my political persuasion or yours. And I'm just suggesting that as a supporter of a constitutional order I find this objectionable regardless of who's wielding it. I can't imagine a situation where there is an actual civil war breaking out where states might need to optimally leaving the federal order. I hope to God we never get there. But this acts as though we've already reached that point and basically we're declaring ourselves sole authority of what you called reality. And I think that's in itself a dangerous proposition.

[David Gould (Executive Director, Democratism Action)]: Let me pose a thought experiment here for you. Suppose the president were to announce that he had arrested the governors of 15 states and replaced them with his own choices for governor. Then the attorneys generals of those states got together and sued in federal court and it made it to the Supreme Court. And they said well it's non justiciable or something.

[Sen. Robert Norris (Vice Chair)]: Would

[David Gould (Executive Director, Democratism Action)]: you still at that point say No,

[Sen. Robert Norris (Vice Chair)]: of course no.

[David Gould (Executive Director, Democratism Action)]: Let me pose one further point here about it. The way that an authoritarian takeover works is you don't need to go that far. What you do is you do it little by little, and you manage to neutralize the powers that might stand up to you little by little. And by the time you get to the point where you might think about arresting all the all of the governors, it's too late for anybody to do anything about it. And that is what we are experiencing here today. And the question about whether we will prevent now, of course, anything might happen, something really good might happen, and it doesn't go any further for some other reason. But the question of whether it will be stopped because people stood up to it is going to be decided based on whether people say simply this isn't allowed. This isn't what the constitution says. Just because somebody says it who has authority, if it's absurd and everyone can see that it's absurd, that's not the constitution. So that's the basis of resisting an authoritarian takeover. And it would be unfortunate if it turns out that the states that are led by people who support democracy realize that too

[Sen. Robert Norris (Vice Chair)]: late. And

[Sen. Philip Baruth (Member)]: and I I'll I'll just say this, and I'll I'll let others speak but II understand what you're saying but essentially what you're saying is that we we need to act now as though we are truly at war with the federal government that well, that's that's the way I read your language. It's it's it's nullifying the power of anyone over the state to operate in the constitutional order on the claim that they have already broken the constitutional order and we the the saviors of it are coming forward with this language but it seems to me it's this language as I read it is itself a takeover of power. And you're saying we're doing it in the service of good but red states could just as easily propagate this language amongst themselves in the event that a Democrat took over in the next election and their rhetoric is no less explosive than the left and in fact, I think in many cases, it's it's traditionally been worse. So I could imagine something like this catching hold in a number of states because it through the power of just self generated language it authorizes us beyond the federal government. And I understand that there are risks to being upholders of the constitutional order if you believe the authoritarian impulse is with the other side, but I don't see how immediately abrogating the constitutional order unilaterally makes us any better than those folks.

[David Gould (Executive Director, Democratism Action)]: This does not say that you don't have to follow the constitution or that federal courts have no jurisdiction in Vermont. It says when people are violating the rights of people in Vermont in the service of taking over the of consolidating federal power illegally that Vermont gets to decide. It's limited to that degree. It doesn't say that policy matters get to be decided on in Vermont. It doesn't say and on on on the point of what red states might do and this it shouldn't really be a matter of Democrats and Republicans truly. It should be a matter of people who support democracy and people who want to defend the constitution and people who don't. But the president has already been declaring emergency powers in numerous circumstances in ways that are entirely preposterous. So in a way it's I find it, you know, it doesn't make any sense to say, well, if we did this, what might they do? Well, they are already doing something comparable except without any basis. They're blowing people up off the coast of Venezuela in boats. There's no basis for it. They're doing, inventing emergencies in American cities to justify terrorizing people. There's no basis for it at all, but they are declaring emergencies the right to do things that don't exist as a right. And if the people who support democracy say, well, you know, if we do something that is strong, they might also do something, you know, we're not going to defend democracy.

[Sen. Nader Hashim (Chair)]: So I I'd like to circle back around to the actual language here. Let's take subdivision b. I'm still not understanding how some of this isn't on its face, in contradiction with the with the constitution. Mean we're saying or the language is saying the courts of this state shall have original jurisdiction over any action arising under subsection two. And it explicitly says in Article three as I can recall that Congress establishes original jurisdiction for federal courts. So how can you explain how all federal question jurisdiction cases which shall have original jurisdiction in state courts?

[David Gould (Executive Director, Democratism Action)]: Well this creates a state law, not a federal law. So, it it it it isn't that it would be a federal law, but it would otherwise, it's true, be removable. Whether or not, I think, whether or not Congress even legislated it, there is ordinary removal power. But the removal power is premised on the application by the federal courts of state law in state law questions. And so this provision simply says that if they will not apply state law, they don't have jurisdiction because they are not following the principles that that jurisdiction requires. Now it is an extraordinary provision. It's not normal. But what's going on is also not normal. But just because it's not normal doesn't mean it's inconsistent with the constitution. The constitution says that the constitution itself and the laws made pursuant to it are the law of the land. And it says that state officials have a duty to support the constitution. So it's true. There's some tension here in that the officials who have been, as is so often the case, there is tension among, values and among constitutional principles. But when the entire constitutional order is under attack by the people running the federal executive and they're trying to end the normal constitutional order, it's no response to say, well, people also said that about Biden. I mean, if you're going to say, well, people also said that about Biden, then what you're saying is that we can't make a we can't defend the constitution because other people say that the constitution means something that, you know, I don't think it means, but it could mean if if, if everything were topsy-turvy. The obligation to defend the constitution requires that the people whose obligation it is to defend the constitution make a judgment about what the constitution requires. It would be nice if it didn't.

[Sen. Nader Hashim (Chair)]: Any other questions? Okay. Thank you.

[David Gould (Executive Director, Democratism Action)]: Thank you very much for your time.

[Sen. Nader Hashim (Chair)]: Thank you. Take care. Morning. Morning. Morning. So I know lots to unpack there, and I think we have the bill scheduled for markup and a possible vote voting on it today. But I know it's short notice, do you have are you able to provide any initial responses to what was being proposed?

[Hilary, Office of Legislative Counsel (Vermont)]: The record, the Hillary Clinton aims for the office of legislative council. Given the timing, I've not yet fully vet the proposed amendment. Based on my reading, I think the observations that committee members have made about the effect of this language is accurate. So there would be a number of challenges with conflict with federal law. Google statutes are a good example. And the way this language would operate sets us outside of how the current federal structure works. So think that's my initial response. If the committee is interested in a more fulsome analysis of the proposed language, I'm happy to provide that or answer any questions that you may have at this time.

[Sen. Robert Norris (Vice Chair)]: So I am curious about, did the house hear this? They did not. They did not. So, but they had testimony from the superintendent. They did not. They did not. There's two of our specified at March 26.

[Sen. Nader Hashim (Chair)]: Yeah.

[Sen. Robert Norris (Vice Chair)]: Ah, okay. Yeah. I I have to say, I I just find the whole thing very odd, and I'm wondering why we're considering this.

[Sen. Nader Hashim (Chair)]: Anyway Well, we got the request from them to testify, and no reason not to have some more different ideas here. I guess guess I'd like to ask some hypotheticals if you're able to answer You're welcome to ask,

[Hilary, Office of Legislative Counsel (Vermont)]: and if I can answer,

[Sen. Nader Hashim (Chair)]: I will. Totally understandable. So, for example, you've had the Carson version making decision in Maine regarding tuition to religious schools. And there was the question raised as to whether states I don't know how butcher what the holding was, but the question surrounded tuitioning to religious schools and believe the holding was along the lines of if you tuition to some private institutions you can't exclude religious schools. It was using the First Amendment as grounds for this case. And so I'm wondering if in that type of litigation, if that would draw in members of the Agency of Education without any immunity and now being sued in their personal capacity for enforcing the laws that we've made regarding money not going to religious institutions. Would they then be liable without any protections in state court if this were to be enacted?

[Hilary, Office of Legislative Counsel (Vermont)]: Under the proposed amendment, I think it would have to be considered something furthering the unlawful consolidation of executive power under the terms of the proposed amendment, and I'm not sure your hypothetical necessarily implicates that. But to the extent that you're flagging that this would have a very broad advantage, I think that's that is the correct possibility.

[Sen. Nader Hashim (Chair)]: And we also heard about bogus investigations. I don't disagree with that, that the federal government is doing that in different circumstances or in different situations, but our attorney general's office down on the spot, they're active participants in a number of lawsuits against the federal government. Would the AG's deputies who are involved in these types of, in this type of litigation, could they be called into court without any protection, without any qualified immunity under this, if they're being accused of bogus investigations? That might not be the best I can tell you. The concern that I have.

[Hilary, Office of Legislative Counsel (Vermont)]: Answering hypotheticals is always hard. Lots of facts. And if they did not draft the proposed amendment, I am not best as keen to speak to how it's intended to apply. Yeah. But I I think both hypotheticals raised that this could apply more broadly than just federal officials and that there could be situations where immunities would not be available where this committee thinks that they should be.

[Sen. Nader Hashim (Chair)]: Thank you.

[Sen. Robert Norris (Vice Chair)]: Committee, yeah, Senator Summers. Am I right that there's no other state that has enacted the assumption of climate? Correct.

[Sen. Nader Hashim (Chair)]: And that's both for the bill that's passed by the House as well as

[Sen. Robert Norris (Vice Chair)]: No, I'm just starting up with the Democrat and CPK. Yeah, and that's what I was thinking. Okay. So that's

[Sen. Nader Hashim (Chair)]: Yeah. I don't know if it's a

[Sen. Christopher Mattos (Clerk)]: question or more, just a common confusion in my

[Sen. Nader Hashim (Chair)]: head, but, seems to be

[Sen. Christopher Mattos (Clerk)]: a lot of weight in the findings section, and it talks about a lot of basically, government executive branch overreach is kinda what I'm I'm sensing out of the findings. And then later on, I feel like the framework and applicability and even sunset portion is then a legislative overreach quite far. Is that kinda it's like my sense of what this amendment. It's talking about executive overreach and then later on the legislature overreaching. That's like my basic sense of what I'm getting out of this. Is that

[Hilary, Office of Legislative Counsel (Vermont)]: So I will let the comment stand

[Sen. Robert Norris (Vice Chair)]: with

[Hilary, Office of Legislative Counsel (Vermont)]: my one response. It's just that the second portion does raise some separation of powers concerns, which be deemed legislative overreach. So some of the things that the legis some of the powers the legislature is arrogating to itself as the second second section are ones that we generally recognize as reserved for courts. So determining what the law is, I think, senator Baruth had a statement about, you know, there there seems to be a lot going on about who is deciding what is a constitutional violation here. Generally, in our current order, we recognize that courts

[Sen. Nader Hashim (Chair)]: Correct.

[Hilary, Office of Legislative Counsel (Vermont)]: Are the ones to determine what a constitutional violation is. And if it's a matter of the federal constitution, the US Supreme Court is funding on everything. And so having legislation that purports to say that a state legislature is the final arbiter of what the federal constitution means is not generally consistent with how

[Sen. Tanya Vyhovsky (Member)]: the current constitutional system operates.

[Sen. Robert Norris (Vice Chair)]: Yeah, said this to Mr. Gold, and I would stand by it. I think if we pass this language, it is very close to the declaration of leaving the constitutional worker in The United States and saying we're in an emergency situation, we are the arbiters of that emergency. We determine what the constitution means and we determine when that emergency ends. That's what happened during the Civil War. United States said, we no longer recognize the federal government. We are independent actors, but we're gonna confederate with these like minded states and not have a constitutional order. We'll have the articles of the confederacy. And, you know, I feel as though this is very heavy handed in its findings, but then, as Senator Mattos point out, that it flips the page and it is itself pointing in a noncomplication order seemingly in response to that being stripped from us already. And I just, I don't think we're in that world. Think we're still in a world where courts are providing some effective pushback to federal overreach. And, you know, I I just find this myth something totally bizarre, I say.

[Sen. Christopher Mattos (Clerk)]: Building off of Senator Baruth's question earlier about this method, Eight eight forty nine has passed by the house as that in any other states? Doesn't something like that pass?

[Hilary, Office of Legislative Counsel (Vermont)]: So something I mentioned during the walk through is that there are some states that have been booked for a while, a version of eight forty nine. Generally, those states have laws that permit causes of action against anyone or any official for violations of the constitution affected through intimidation or coercion. So it's a narrower set of constitutional violations. For a law that looks exactly like eight forty nine, that is the if any constitutional violation state or any federal constitutional violation, any state or federal officer structured the way this is, Other states are considering bills, but there is not one currently passed that looks just like this. Illinois is the most recent to pass something somewhat similar, but theirs is limited to civil immigration enforcement. So it's only constitutional violations that occur during civil immigration enforcement. And the Illinois law also includes violation of the state constitution. So in both of those respects, it raises some, legal issues that are not raised by the chief of nonstructural media.

[Sen. Robert Norris (Vice Chair)]: Thank you. Alright.

[Sen. Nader Hashim (Chair)]: I mean, I'll say that it's in my opinion, in my opinion, creating our own policy that some of which I think would be unconstitutional on its face and likely immediately enjoined. I don't see how that is the correct response to other unconstitutional actions. You know, we don't It doesn't make sense to me to knowingly create something, to knowingly create a set of unconstitutional laws to combat other unconstitutional actions when the correct process is to resolve those unconstitutional actions in our courts. So that's that's my take on it. I am not keen on this amendment, but I'm still supportive of H-eight 49. That's something we're gonna continue working on, but I don't see a way forward for this amendment. But definitely well in conversation.

[Sen. Robert Norris (Vice Chair)]: That was a good one.

[Sen. Nader Hashim (Chair)]: Any other comments or questions?

[Hilary, Office of Legislative Counsel (Vermont)]: To the extent that this is scheduled as markup for age eight forty nine, I think there were some questions, but I think one of the questions Smrito Polsky was interested in, so it might be worth answering it. So there was a question last time. Julio had suggested during his testimony, committee chief's office, that something that the committee could consider is something like a non severability clause. So if a federal circuit court determined that the law could not be applied to federal officials, then the law as applied to state and local officials would not be given effect. Generally, have a statutory default of severability. So if a circuit court found that way, the remaining valid portion of the law against state and local officials would remain and would stay in effect. And I think the suggestion was that, to the extent there's concern about the bill's application to federal officials being struck down and having just this state and local peace remaining, that one way to ensure that that doesn't create unintended consequences is to include a non severability provision. So the question just about what that was and whether we generally do that. So both research and a poll of Legion Council, there is not a non severability clause in the BSA. There are contingent appeals that could be structured to kind of give the same effect. So policy decision for the committee to consider whether they want to include something like this. I'll just note a couple things. I think the purpose that this would serve is that if there were a concern that the law as applied to state and local officials would expand liability under section nineteen eighty three, then maybe a non severability clause would help avoid that. But I think the committee heard testimony last week that adding subsections, given that C and D assured at least the Department of Public Safety that this was intended to be interpreted consistent with section nineteen eighty three and that it would not expand liability already existing under that federal law. Mean, another just point to mention is that regardless of this bill, there remain liability under section nineteen eighty three for state and local officials, and section nineteen eighty three does include attorney's fees. H eight forty nine does not. So the incentives exist for plaintiffs seeking damages from state and local officials to use the federal law where they can obtain attorney's fees, and that same incentive would not move them towards the state version of the case. So all to say, something like that could be drafted. I'd recommend that it be drafted as a contender repeal and not as a non severability clause. But I think there are a couple of considerations that suggest that it might not be necessary to avoid unintended results, but just wanted to make sure the committee had real information on if that option was actually

[Sen. Robert Norris (Vice Chair)]: It

[Hilary, Office of Legislative Counsel (Vermont)]: was an excuse to do a deep dive into non separability clauses, so thanks for that.

[Sen. Robert Norris (Vice Chair)]: I was looking for

[Hilary, Office of Legislative Counsel (Vermont)]: bugs. Think

[Sen. Nader Hashim (Chair)]: this was a point you had raised, so don't know if me.

[Sen. Robert Norris (Vice Chair)]: I think that

[Hilary, Office of Legislative Counsel (Vermont)]: was a point that

[Sen. Nader Hashim (Chair)]: Or Julio had

[Hilary, Office of Legislative Counsel (Vermont)]: raised, and I wanted to make sure that I could provide more information. Yeah.

[Sen. Philip Baruth (Member)]: I'm happy to look at the language. Yeah.

[Sen. Robert Norris (Vice Chair)]: Yeah. You know, it's not the non severability, but Okay.

[Sen. Nader Hashim (Chair)]: Yeah. Let's take a look at that and revisit what it means again when we see the language. Just to distill my understanding of it, it was raised by the AGs in order to and maybe summarize it for me in in a sentence again, he was trying to Confusion right

[Sen. Tanya Vyhovsky (Member)]: now is I'm confused why.

[Hilary, Office of Legislative Counsel (Vermont)]: I think to the extent that anyone is concerned that in passing I think if someone thinks that the it is likely that a federal court will strike down the cause of action as applied to federal officials, then there's a concern that 49 just creates a parallel cause of action against state and local officials. And if that is your view and concern, then this kind of contingent repeal essentially avoids the consequence you expect and don't want, that you will just be left with a state law parallel in 1983 against state and local officials.

[Sen. Nader Hashim (Chair)]: But wouldn't, but, so, but I mean, this only really expands the ability to sue federal agents in state court. I don't, it doesn't change really any for state officials being sued in state court.

[Hilary, Office of Legislative Counsel (Vermont)]: The key difference, as you say, is being able to sue federal officials. Under 1983, those cases are generally brought in federal court, even against state and local officials, because section nineteen eighty three is federal statute. They can be brought in state court if natives can choose to, and a defendant can choose not to remove it to federal court. But I think you're correct in saying that other than and even under age eight forty nine, the likelihood that the suit will get removed to federal court is also high, even against a state or local official. So that's my long way of saying, Oh, you're essentially correct. A big change. Just don't know what problem we're trying to solve, like non severability contingent repeal. I

[Sen. Nader Hashim (Chair)]: am getting it. So I do think it would be useful to not create, if it's repeal being able to federal agents, it doesn't make sense to have a redundant provision elsewhere regarding state and local officials when we already have the ability to sue state and local officials in the same manner. Am I correct?

[Hilary, Office of Legislative Counsel (Vermont)]: I think the argument would be that if the if Congress were to change the availability of Section nineteen eighty three, that this would mean that there were still options for plaintiffs pursuing claims, alleged violations of the constitution against state or federal officials. So there whenever there's a contingent repeal, it means that you can put that in now. Or if a court were to bind that this isn't applicable to federal officials, a future legislature could also come back and repeal the chapter at that point. So there are a number of different options in thinking about that possibility. But since this particular one was mentioned, I just wanted to get maybe more information.

[Sen. Nader Hashim (Chair)]: Yeah. No, it's that's all very helpful. I don't wanna impact what we can already do on the state and local level. Long as I get where we're coming from with the judicial and I think it's probably worth it

[Sen. Robert Norris (Vice Chair)]: to other language and

[Sen. Christopher Mattos (Clerk)]: as a bad conversation.

[Sen. Nader Hashim (Chair)]: Thank you.

[Hilary, Office of Legislative Counsel (Vermont)]: Very well. You.

[Sen. Nader Hashim (Chair)]: And is there anything else for the pledge of the sympathy? No, ma'am. So we'll revisit that, and and we'll see what other witnesses need to hear from 08:49 and keep working on it. That was great.