 Hello again committee for the record bring here from Legislative Council If I understand why I'm here is to follow up on the testimony you heard last week from some people including the ACLU on a few different cases and what their implications are for our current fair and impartial policing statute Am I right about that generally? I mean there were two questions, and I'm not sure who's clearly Put to you or not The one question was just kind of basically understands 1373 and how Southern district of New York Presumably has said the second circuit Opinion is no longer valid given the Supreme Court case in other words. Why is 1373? Unconstitutional at least as followed by some courts. Okay, the second pride question is To answer so what you know if that doesn't matter for us as far as whether we Based on the southern district of New York case can say well, that's no longer the law We don't have to follow 1373 if that makes sense. Yeah, what's the argument that essentially probably going to repeat tomorrow? Why that's not enough for us to just ignore what 1373? If that's the case I think so So Yes, there was a and as Leah testified there was a Southern district of New York case That came down very recently at the end of November That found that because of the United States Supreme Court decision in Murphy versus in CWA The prior precedent of the second circuit could not survive after Murphy was handed down So I can't remember how much she spoke about the murky case this was a Decision that turned on the anti commanding commandeering doctrine and the 10th amendment of the Constitution a little bit of history is that New Jersey repealed its anti sports gambling statute in 2014 and That law was or that That law was challenged by the professional sports leagues and in CWA New Jersey lost that case in the district court and in the third circuit But the Supreme Court granted certiorari and addressed the question of whether a federal statute that prohibits modification or repeal of State law prohibitions on private conduct impermissibly commandeers the regulatory power of states This has to do with the federal regulation that prohibits sports betting so the question was in the murky case Whether a federal statute prohibits modification or repeal of a state law prohibition on private conduct impermissibly commandeers the regulatory power of the state So does that with that infringe upon the anti commandeering doctrine and the 10th amendment so in that case the court ruled in favor of New Jersey and found that The federal prohibition on sports betting was an unconstitutional violation of the anti commandeering doctrine and specifically it says that because because murphy turned on Murphy really distinguished between an invalid federal measure that that seek to impress state government into the administration of a federal program as Distinguished from a valid federal measure that prohibits states from compelling passive resistance to particular federal programs so Essentially what this the recent Southern District of New York case said is that the former second circuit case can't survive murphy Because murphy said it doesn't matter whether Congress is seeking to command states To do some affirmative action or impose some prohibition The basic principle is that Congress can't issue direct orders to state legislators Regardless of whether or not they're issuing a direct command or whether they're prohibiting state legislators from undertaking something Okay, and I can talk to you about a little bit about the anti commandeering clause the reasons for it the rationale for it That's murphy talks a lot about this They say that It's based on sovereign authority the way that our federal government is established It impinges upon citizens liberty to be governed by their preferred state and local policies Underbinds political accountability So it's difficult for citizens to distinguish between federal and state immigration policy There's no credit or blame Proper credit or blame on state or local officials when state or local officials actions are orchestrated by the federal government And it also shifts a portion of the cost of immigration enforcement to the states and by forcing states to allow employees to participate in the federal regulatory scheme, so The anti commandeering doctrine provides that the the Congress can't Shift a portion of the cost of their policies to the states because then they are not required to do the cost-benefit analysis of their own legislation and also Take the consequences of their own legislation if it turns out to be Unpopular or not to work very well So that's sort of the purpose of the anti commandeering doctrine and with the southern district of New York said was after murphy That's second circuit precedent is no longer good law. They have to follow the outcome of the US Supreme Court And so to get to your the second part of the question about so what does that matter? I would say that You know that case the southern district of New York case they are within our circuit so There it's not a higher court than the Vermont district court But it is the same jurisdiction so it certainly does not impose any mandatory Authority to the Vermont district court But I think it is persuasive authority. I think it's relevant authority District courts tend to look at the decisions of other district courts within their circuit to find out what the other district courts are doing But again, it does not It is not binding authority on our court So I think it's a relevant decision to look at But I don't think it necessarily means that for our purposes That federal statute is unconstitutional because it's not a court with jurisdiction over them So Does this mean I mean three have to have either the second circuit Or the Vermont district court explicitly saying that 1373 Is unconstitutional under whatever doctrine presumably following the southern district of New York and the anti-commandeering doctor Do we do we need them to go that far for us to say? Well, let me put it a little bit differently, I'm sorry Do we have to follow the law of the Vermont district courts interpretation then the circuit second circuit? Interpretation of federal law as the law that binds us. I think generally yes But I don't I'm not saying that you can't do what you like with With our fair and impartial policing statute But I think typically you can look to You know when as as lawyers were taught to look to your Look to the jurisprudence that is within your jurisdiction First you look to What is from a higher court? Within your jurisdiction because that's considered Binding authority, but if there is nothing that's from a higher court, you can look into the you can look at The same jurisdiction, but not necessarily a higher court as being relevant or persuasive authority I think that's a question About whether it is or not because of its age and the relevant supreme court decisions that have been handed down since it was decided It's related to Martin's question, but so we don't I mean what I'm partly hearing is we don't have Clear direction from a higher court Directly is handed down to us But can you talk more about what meet what persuasive and relevant authority means? I mean does that mean that if we were to? Either produce legislation or an after policy some other means at the state level that That we would that we just have legal grounds then to Argument that 1373 is Yeah, I mean I think I was speaking mostly in terms of what the court will use like it It's a Vermont district court were to consider this issue. I think that they would look to the southern district case as relevant Persuasive authority because it's another court that is in their jurisdiction within the second circuit But I also think that I can't think of an example off the top of my head right now But I think that this the legislature Creates policy based on Non-binding court cases all the time Based on its judgment about whether or not That policy would be considered unconstitutional And I can I can think about some examples and get back to you following up on that so other examples were In a finding section that we have Said that we this is the way we see the law as it stands now because of the Supreme Court opinion and such are we To explain why we're taking this step if in fact we go beyond our past interpretation of 1373 No I cannot look at one, but it sounds like something we have done before and I would be glad to look into This is why we are yes, I think that you couldn't I mean I think it is common practice to put something in legislative intent about About a court decision and that being the policy rationale behind the legislation I know that specifically we're doing because of a case from our I can think of the third-party rule when the when that electronic privacy bill passed it was sort of directly Taking action based on a decision that came down That ruled on the third-party rule. So that's one example. I can think of I don't think it's directly on point here because that was a Decision that had a pretty clear ruling But I can all look into it I had a question. So just more so about procedure if If a court case were to arise would the state itself be the plaintiff bringing in action against the federal government or how would that? Yes, I believe so So that's it could presumably be we're not giving us grant money because they're saying we're violating 1373 Yeah, it's related to Martin's question That could happen at the level of the state, but if the municipality lost funding then that would have to be kind of like the city of Mobile yarns. Yes, right. Yeah Yeah, because that would be the one you would have standing So if there were this Sort of scenario where the municipality or the state of Vermont were bringing it would it be for in financial terms? I'm just trying to think of what would be the remedy sought Right. So if funding was denied It would likely be a reinstatement of funding That would otherwise be Oh to the state under federal law or the state would otherwise be entitled to Right, and then you get to the whole situation of how much does it cost to bring a suit and what is the potential remedy in that balance? I suppose the attorney general now that's yes taking to account. Yes As they always do Is there a Any for fair and impartial policing? I know we can't say if there's something you can't name anybody But I have begun a committee bill. Okay. I thought that that would be the avenue that you would want to take So it would seem to me, I don't know if the committee agrees that whether we should Okay, great. Thank you Yeah, I was gonna say if you can get hold of them Chief and maybe even come up a little early Like maybe like quarter after