What is Article V?

Article V of the U.S. Constitution gives states the power to call a convention to propose and discuss amendments that “impose fiscal restraints on the federal government, limit the power and jurisdiction of the federal government, and limit the terms of office for its officials and for members of Congress.” Article V provides two methods to propose amendments to the nation’s constitution:

• Congress, by a two-thirds vote of both chambers, may propose amendments to the states for ratification; or
• On the application of the legislatures of two-thirds of the states (currently 34 of 50 states), Article V directs that Congress “shall call a Convention for proposing Amendments. . .”.

Ratification of Proposed Amendments

According to the Congressional Research Service, an amendment ratified by the states under either method is indistinguishable and carries equal force. Both methods share these constitutional requirements:

• Amendments proposed either by Congress or at an Article V Convention must be ratified by the legislatures or conventions in three-fourths of the states—currently 38 of 50 states; and
• Congress has the authority to choose the method of ratification in the states, including ad hoc conventions or ratification by the legislatures of the states. Three-fourths of the states must vote to ratify the amendment—currently 38 of 50 states.

The Role of Congress in the Convention Process

Once 34 state legislatures have applied for an Article V Convention, Congress is responsible for calling the convention for the proposing of amendments.

The Role of the President in the Convention Process

The President and the role they hold during an Article V Convention is not specified in the language of Article V.

The Role of the District of Columbia and U.S. Territories in the Convention Process
Article V does not state the membership status of the District of Columbia or the U.S. Territories in regards to an Article V Convention.

Article V Petition Topics

Every state except for Hawaii has submitted an Article V petition to Congress that has passed both chambers, or in the case of Nebraska, the single legislative chamber. These petitions generally specify a particular topic to be considered at an Article V Convention. Over the past five years, topics of petitions submitted to Congress have included:

• Requirement of a balanced budget;
• Federal government authority;
• Gun control; and
• Term limits for members of Congress, Supreme Court justices, and other governmental officials.

Kansas Constitutional Convention Petition History

Pursuant to Article 2, Section 13 of the Kansas Constitution, in order for a concurrent resolution petitioning Congress to call an Article V Convention to pass, the measure must receive a two-thirds majority vote in both chambers. Under the current apportionment, this would require an affirmative vote of 84 members in the House and 27 members in the Senate.

Since 1975, the Kansas Legislature has considered approximately 32 concurrent resolutions calling for a convention of states. Of these resolutions, 2 concurrent resolutions were passed in both the House of Representatives and the Senate and presented to Congress:

• 1978 SCR 1661 (balanced budget); and
• 1995 HCR 5008 (limits on Congressional authority).

Article V Convention—Kansas Delegate Process

During the 2024 Legislative Session, three bills were considered that would have established a delegate selection process to represent Kansas, should an Article V Convention be called by Congress.

HB 2807 was passed by the House Committee on Federal and State Affairs, but died below the line in the House. Both SB 92 and SB 385 died in committee.

During the 2023-2024 biennium, the Legislature passed, and the Governor subsequently signed into law, several bills relating to veterans of the U.S. armed forces and the Kansas Army and Air National Guard. Many of the newly enacted laws updated language to ensure consistency amongst statutes. Others provided additional state benefits to veterans who received a specified characterization of service upon their discharge or separation from the U.S. armed forces. Note: For purposes of this article, the terms “discharge” and “separation” have the same meaning.

As such, this article explains the common characterizations of service a veteran may be assigned upon discharge from the military. It also examines when the U.S. Department of Veterans Affairs (VA) is authorized to review a veteran’s less-than-honorable characterization of service to determine whether the veteran is eligible for certain VA benefits.

Characterization of Service Upon Discharge

Upon receiving a discharge from the U.S. armed forces (meaning a veteran is released from future service obligations), a service member is assigned a characterization of service. A service member’s characterization of service is akin to a student’s final GPA: both provide a quick answer as to how well the individual did in a respective field. Unlike a GPA scale that ranges from 0.0 to 4.0, a veteran’s characterization of service upon discharge will fall into one of two categories of separations: administrative or punitive.

Administrative Separations

Administrative separations occur for various reasons, including misconduct on the part of service members. However, most service members receive an administrative separation upon the expiration of their commitment to serve. There are three types of administrative separations that a service member may receive: honorable discharge, general (under honorable conditions) discharge, and other than honorable conditions discharge.

Honorable Discharge

An honorable discharge is the highest service characterization that a member of the U.S. armed forces may receive. To receive an honorable characterization of service upon discharge, a service member must meet or exceed the standards of acceptable performance of duty and acceptable conduct. The VA generally presumes that a veteran who received an honorable service characterization upon discharge is entitled to VA benefits.

General Discharge

A general (under honorable conditions) discharge is awarded when a service member fails to meet all expectations of conduct and performance, even though the member was honest and faithful in satisfactorily performing their duties. As with honorable discharges, the VA generally presumes that a veteran who received a general service characterization upon discharge is entitled to VA benefits. Note: This type of separation is commonly referred to as a “general discharge under honorable conditions” or an “under honorable conditions discharge” or another amalgamation of those words.

Other than Honorable Conditions Discharge

An other than honorable conditions discharge is the most severe form of administrative separation that a service member can receive without a court-martial. This type of separation occurs following a pattern of behavior or conduct that is a significant departure from what is expected of service members. Examples of acts that could lead to this type of discharge include use of force or violence, use of illegal drugs, disregard of customary superior-subordinate relationships, and abuse of a special position of trust. The VA generally presumes that a veteran who received an other than honorable characterization of service upon discharge is not eligible for most VA benefits. Note: This type of discharge is also referred to as a “discharge under conditions other than honorable.”

Punitive Separations

Punitive separations can only occur after a court-martial proceeding. The VA presumes that a veteran who received a punitive separation is not eligible for VA benefits. There are two types of punitive separations that a service member may receive: bad conduct discharge and dishonorable discharge.

Bad Conduct Discharge

A bad conduct discharge is the second-most severe characterization of service an enlisted member can receive. It is reserved for those who have been convicted repeatedly of minor offenses or bad conduct, so long as a general court-martial or a special court-martial adjudges that the service member is not deserving of an administrative separation. Examples of acts that could lead to a bad conduct discharge include being drunk on duty and disorderly conduct.

Dishonorable Discharge

A dishonorable discharge is the most severe characterization of service an enlisted member can receive. It is reserved for those who have been convicted of (a) offenses that would be considered felonies in civil jurisdictions, or (b) offenses of a military nature that require severe punishment, or both, so long as a general court-martial determines that the member is deserving of being separated under dishonorable conditions. Examples of acts that could lead to a dishonorable discharge include desertion, espionage, fraud, murder, and treason.

Characterization of Service Upgrade

Per the U.S. Department of Defense, a veteran who receives less than a fully honorable characterization of service upon discharge retains the right to attempt to upgrade such characterization. In order for an upgrade to occur, a veteran must appeal the service characterization to the appropriate branch’s Discharge Review Board or the Board for Correction of Military or Naval Records. The review boards then consider all evidence, including post-service conduct, before determining whether an upgrade is warranted.

VA Character of Discharge Determination

In determining whether a veteran is eligible for VA benefits, the VA will review such veteran’s period of military service, including the characterization of service upon discharge. The VA cannot upgrade a characterization of service, but it can determine that a veteran is eligible for full or partial benefits. If the VA determines a veteran’s service was honorable, even if the veteran’s respective branch disagreed at the time of separation, the veteran will likely be eligible for all applicable benefits. If the VA determines that a veteran’s service was other than honorable, the veteran will likely remain ineligible for benefits unless the veteran has a service-connected disability, in which case health care benefits may apply.

Kansas’ Support of Texas and the Southwest Border

During the 2024 Legislative Session, two resolutions (HR 6035 and SR 1737) were adopted concerning illegal immigration, federal immigration policies, and the southern border of Texas. In addition, SB 28 appropriated $15.7 million from the State General Fund to the Adjutant General’s Department for the Southwest Border Mission in fiscal year (FY) 2024.

Resolutions

HR 6035 encourages the Governor of Kansas to provide the Governor of Texas support, including the resources of the Kansas National Guard and Kansas law enforcement agents, as well as equipment and supplies. The resolution also states the House of Representatives seeks further conversations with the Governor of Texas and Texas Legislature to formalize an agreement of support.

SR 1737 states the Kansas Legislature joins in solidarity with 25 states to support the Governor of Texas defending the state’s southern border and its citizens and that the President of the United States violated the oath of office by failing to faithfully execute federal immigration laws.

SB 28—Southwest Border Mission

The funds appropriated in SB 28 for the Southwest Border Mission must be expended in response to either (1) the request for assistance from the State of Texas pursuant to the Emergency Management Assistance Compact (KSA 48-9a01) or (2) a memorandum of understanding between the Governor of Kansas and the Governor of Texas. The bill requires collaboration between the Adjutant General, the Governor, and the Response and Recovery Bureau Director to activate, mobilize, and deploy state resources and implement appropriate mutual aid plans and procedures.

The bill also specifies that the assistance being provided is for the prevention of drug trafficking, human trafficking, transactional criminal organizations, and other related crimes contributing to the emergency.

Per SB 28, any unencumbered funds for the Southwest Border Mission totaling more than $100 as of June 30, 2024, will be reappropriated for FY 2025.

The Governor vetoed these provisions of SB 28, but the veto was overridden by the Legislature. In the House of Representatives, there were 84 votes in favor of and 41 votes opposed to funding the Southwest Border Mission. In the Senate, there was a vote of 28 in favor of and 12 opposed to funding the Southwest Border Mission.

Kansas National Guard Deployment

The Governor declined to send any Kansas National Guard personnel or resources to the southwest border of Texas in FY 2024. However, some Kansas National Guard troops were deployed to the southwest border of Texas as part of federal efforts to stabilize the southern border. Those deployments are funded by the U.S. Department of Defense with federal moneys.

Other States’ Support of Texas and the Southwest Border

As of July 2024, 16 states have sent personnel, including members of the National Guard, state police officers, and highway patrol officers to the southwest border of Texas.

Medical marijuana use is legal in 38 states and the District of Columbia. Recreational use of marijuana is legal in 24 states and the District of Columbia.

In recent years, several bills were introduced to legalize medical or recreational marijuana use in Kansas. Legislation that would have legalized medical marijuana in Kansas received a floor vote for the first time in 2021, as H. Sub. for SB 158 passed out of the Kansas House.

Marijuana Legalization in Other States

Medical Use. Laws in the 38 states, and the District of Columbia, that provide for comprehensive medical marijuana and cannabis programs meet the following criteria: protection from criminal penalties for using marijuana for a medical purpose; access to marijuana through home cultivation, dispensaries, or some other system that is likely to be implemented; allowance for a variety of strains or products; and allowance for either smoking or vaporization of marijuana products, plant material, or extract.

Another nine states allow the use of low-THC, high-cannabidiol (CBD) products for specific medical conditions, or provide a legal defense for their possession.

In the November 2024 election, Nebraska citizens approved two ballot measures regarding the establishment and regulation of a medical marijuana program. The validity of the petitions for the ballot measures is currently being challenged in court.

Recreational Use. As of November 2024, the following 24 states have legalized the recreational use of marijuana: Alaska, Arizona, California, Colorado, Connecticut, Delaware, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nevada, New Jersey, New Mexico, New York, Ohio, Oregon, Rhode Island, Vermont, Virginia, and Washington, and the District of Columbia. In November 2024, voters in Florida, North Dakota, and South Dakota did not approve ballot measures that would have legalized the purchase, possession, and use of marijuana for adults age 21 and older.

Federal Rescheduling

On May 21, 2024, the U.S. Department of Justice Drug Enforcement Administration (DEA) published a notice of proposed rulemaking to transfer marijuana from Schedule I to Schedule III under the Controlled Substances Act. Schedule I drugs, substances, or chemicals, such as heroin and lysergic acid diethylamide (LSD), are defined as drugs with no currently accepted medical use and a high potential for abuse. Schedule III drugs, substances, or chemicals, such as Tylenol with codeine or ketamine, are defined as drugs with a moderate-to-low potential for physical and psychological dependence and a currently accepted medical use. The public comment period on the proposed rule closed on July 22, 2024, and a public hearing on the rule is scheduled to begin on December 2, 2024.

Classifying marijuana as Schedule III would allow pharmacies to dispense the prescription drug, pending Food and Drug Administration approval. The DEA and Kansas rules and regulations already permit pharmacists to dispense Schedule III, IV, and V substances. There would be no impact on the legal status of recreational marijuana.

Recent Kansas Legislation

During the 2023 Legislative Session, four bills were introduced that would create a medical marijuana regulatory system in Kansas. SB 135 received hearings in the Senate Committee on Federal and State Affairs in March 2023. On April 26, 2024, a motion was made to withdraw SB 135 from committee and refer the bill to General Orders in the Senate. The motion failed on a vote of 12–25, and the bill died in committee.

In 2024, two bills related to medical marijuana were introduced: SB 555 and SB 558. SB 555 received a hearing in the Senate Committee on Federal and State Affairs in March 2024 but died in committee.

2024 Special Committee on Medical Marijuana

During the 2024 Interim, the Special Committee on Medical Marijuana met for two days to receive testimony from state agencies, law enforcement, medical professionals, local government, and the business community. The Committee was also directed to study the impact of the federal government potentially rescheduling marijuana, access to and outcomes of medical marijuana for veterans and end-of-life patients, and current law and enforcement regarding CBD.

At the conclusion of its meetings, the Committee voted to direct staff to compile a summary of the meeting and information presented as a report for the Committee to review and request an additional meeting day in January for the purpose of making recommendations to the 2025 Legislature.

U.S. Supreme Court

During its 2024 term, the U.S. Supreme Court (SCOTUS) considered four cases related to abortion. Two cases were reversed and remanded, and two were dismissed, which, in effect, allowed abortion access to stand.

In the consolidated cases of Food and Drug Administration v. Alliance for Hippocratic Medicine (2024) and Danco Laboratories, LLC v. Alliance for Hippocratic Medicine (2024), abortion opponents challenged the U.S. Food and Drug Administration’s expansion of access to mifepristone, an abortion medication. SCOTUS unanimously reversed and remanded the case to the Fifth Circuit Court of Appeals due to the plaintiffs’ lack of standing or credible injury in the matter. They did not rule on the merits of the case.

SCOTUS dismissed the consolidated cases of Moyle v. United States (2024) and Idaho v. United States (2024), and by doing so, has allowed emergency abortions to proceed in Idaho. The cases were dismissed as “improvidently,” or mistakenly, granted because the Ninth Circuit Court of Appeals (Ninth Circuit) had not yet issued its rulings. The cases have been returned to the lower court. The cases concern the 1986 Emergency Medical Treatment and Labor Act (EMTALA), which requires emergency rooms to provide “necessary stabilizing treatment” to patients who arrive with an “emergency medical condition.” The issue in these cases is whether Idaho’s extensive abortion ban, where the only exception is to prevent the death of the mother, conflicts with this responsibility. The U.S. Department of Justice sued the State of Idaho in 2022, and a preliminary injunction was issued, which the Ninth Circuit has preserved as it processes its final decision. While the injunction remains in effect, EMTALA obligations will supersede the state’s emergency abortion ban.

Kansas Supreme Court

On July 5, 2024, the Kansas Supreme Court released a pair of decisions that upheld the right to abortion under the Kansas Constitution.

Hodes & Nauser, MDs, P.A. v. Kobach (2024) held that the Kansas statute banning dilation and evacuation (D&E) abortions violates the state constitutional right to terminate a pregnancy. In 2015, SB 95 banned second-trimester D&E abortions except when necessary for the life and health of the mother, but the statute was enjoined. The State appealed, and in the 2019 case, Hodes & Nauser, MDs, P.A. v. Schmidt, referred to as Hodes I, the Kansas Supreme Court affirmed the injunction and directed the lower court to assess whether the statute could withstand strict scrutiny. Strict scrutiny is the most rigorous standard of judicial review, and it requires the State to demonstrate that its actions are furthering a “compelling government interest” in a way that is “narrowly tailored” to that interest. The district court found SB 95 was not narrowly tailored enough to pass strict scrutiny. The Kansas Supreme Court affirmed the lower court’s decision and struck down the statute as an unconstitutional violation of Section 1 of the Kansas Constitution Bill of Rights.

Hodes & Nauser, MDs, P.A. v. Stanek (2024) held that statutes from 2011 that created additional licensure requirements and regulations for abortion provider facilities do not survive strict scrutiny and are unconstitutional. The Kansas Supreme Court reinforced its Hodes I conclusion that the Kansas Constitution protects an inalienable natural right of personal autonomy, which includes the right to abortion.

Pending Cases

A legal challenge to HB 2749, which became law July 1, 2024, and requires abortion providers to survey patients as to why they seek an abortion, has been added to the pending challenge against the Woman’s-Right-to-Know Act (KSA 65-6709), which includes a mandatory 24-hour waiting period and certain patient notification requirements. Sections of the Woman’s-Right-to-Know Act were temporarily enjoined in 2023, and the injunction is currently being reviewed by the appellate court. In July 2024, the parties in the case announced an agreement to not enforce the law until the district court publishes a decision.