Senate Judiciary hears proposal to expand H849 so Vermont can sue federal officials during declared crisis

DAVID GOLD PROPOSES TEMPORARY EXPANSION TO H849

David Gold, executive director of the nonprofit Democratism Action, asked the Senate Judiciary Committee on April 1 to add a temporary subsection to H849 that would allow state causes of action against federal officials accused of conduct that ‘‘furthers an unlawful consolidation of power.’’ Gold told the committee, "The United States is in the midst of an authoritarian takeover," and said the amendment is designed to create a powerful legal tool to deter federal officials from participating in what he described as politically motivated abuses.

WHY THE AMENDMENT WOULD CHANGE H849

Gold said the bill as written imports federal defenses such as qualified immunity and limits the kinds of constitutional violations plaintiffs can pursue. His proposed subsection E would begin with legislative findings defining the category of conduct the provision targets, make such conduct a per se violation subject to the state cause of action, and (he said) bar defendants from escaping liability by claiming they were simply ‘‘following orders.’’ He described three core effects he intends: that certain immunity defenses would not apply; that cases could remain in Vermont court rather than be removed if federal courts refuse to give effect to the statute; and that federal rulings declining to apply the law would be ‘‘nonbinding and without legal effect within the state of Vermont.’’

COMMITTEE QUESTIONS CONSTITUTIONALITY, REMOVAL, AND SCOPE

Multiple committee members pressed Gold on constitutional and practical questions. One member asked how the state could prohibit removal of federal-question cases to federal court; Gold replied that the provision relies on state-substantive-law principles and the expectation that some federal courts would refuse to apply the statute. Another member asked what authority Vermont has to declare a federal court decision ‘‘nonbinding’’ within the state; Gold cited Article VI and the oaths clause, arguing that state officials retain duties to defend the Constitution when federal institutions fail to do so.

Several lawmakers warned the language risked amounting to nullification or making Vermont ‘‘the sole arbiter’’ of when the constitutional order exists. "I don't think we can do that," one committee member said during discussion of a clause that would render courts' adverse rulings without effect in Vermont. Other members voiced a related concern that the bill, as drafted, could be used by any state in future political contexts and might undercut the federal constitutional order.

STAFF COUNSEL AND LEGAL LIMITS

Representatives from the Office of Legislative Counsel told the committee they had not fully vetted the amendment text on short notice and that the language raises conflicts with federal law and separation-of-powers questions. Counsel noted narrower state laws exist in other jurisdictions (the most recent example cited was an Illinois law limited to civil immigration enforcement) and recommended drafting options such as contingent repeal or carefully drafted severability language to avoid unintended expansion of liability for state and local officials.

PRACTICAL QUESTIONS: WHO MIGHT BE SUED AND WHEN

Committee members asked whether the amendment could sweep in state officials or the attorney general’s deputies in ordinary policy enforcement and whether immunities would be lost for routine actions. Gold and counsel acknowledged hypotheticals and said the amendment’s findings and sunset would limit application to a declared emergency; Gold proposed that all extraordinary provisions would sunset after the legislature finds the crisis has ended.

WHAT HAPPENS NEXT

The committee did not vote on the amendment. Members requested further drafting and legal analysis; the chair said the bill was scheduled for markup and a possible vote, but the committee agreed to revisit the language after additional review by counsel.

(Reporting note: direct quotes and paraphrases are attributed to sources identified in committee testimony.)