SALT LAKE CITY, Utah (Jan. 31, 2024) – Yesterday, the Utah House and Senate gave final approval to the Constitutional Sovereignty Act, a bill that would create a process to end state and local enforcement of some federal actions in the state and set the stage to stop them in practice and effect.
Sen. Scott Sandall filed Senate Bill 57 (SB57). Under the proposed law, the Utah legislature would have the authority to pass a concurrent resolution prohibiting a state or local government officer from enforcing or assisting in the enforcement of a federal directive within the state if the legislature determines the federal directive “violates the principles of state sovereignty.”
SB57 defines “federal directive” as:
- a statute passed by the United States Congress
- an executive order by the President of the United States
- a rule or regulation adopted by a federal agency;
A federal directive would “violate the principles of state sovereignty “if the federal directive restricts or infringes upon a power or a right reserved to the state by the Tenth Amendment to the United States Constitution or the state’s rights or interests to provide for the health, safety, and welfare and promote the prosperity of the state’s inhabitants,” as determined by the state legislature.
The bill went to a conference committee to iron out differences between the House and Senate versions. The Senate approved the final language by a 24-5 vote. The House passed the final version 57-14. The bill now moves to Gov. Spencer Cox’s desk for his consideration.
The Salt Lake Tribune ran a story claiming “the Supreme Court has repeatedly ruled” that states do not have the authority to “ignore federal laws and regulations if they think those mandates are unconstitutional.”
This is incorrect.
In the first place, SB57 doesn’t create a process to “ignore” federal laws and regulations. It creates a process to prohibit the state from using its own personnel and resources to enforce federal laws and regulations.
It would not interfere with federal enforcement at all.
And the truth is the Supreme Court has repeatedly held that state and local governments don’t have to lift a finger to enforce a federal law or implement a federal program. This is true whether the federal actions are unconstitutional or not.
The provisions prohibiting the state from enforcing or implementing certain federal acts rest on a well-established legal principle known as the anti-commandeering doctrine. Simply put, the federal government cannot force states to help implement or enforce any federal act or program – whether constitutional or not. The anti-commandeering doctrine is based primarily on five Supreme Court cases dating back to 1842. Printz v. U.S. serves as the cornerstone.
“We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policy making is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.”
No determination of constitutionality is necessary to invoke the anti-commandeering doctrine. State and local governments can refuse to enforce federal laws or implement federal programs whether they are constitutional or not.
Based on James Madison’s advice for states and individuals in Federalist #46, a “refusal to cooperate with officers of the Union” provides an extremely effective method to render federal laws, effectively unenforceable because most enforcement actions rely on help, support and leadership from the states. This legislation could effectively end enforcement of any federal laws deemed to violate the Constitution.
Fox News senior judicial analyst Judge Andrew Napolitano agreed this type of approach would be extremely effective. In a televised discussion on federal gun laws, he noted that a single state refusing to cooperate with enforcement would make federal gun laws “nearly impossible” to enforce.
The federal government relies heavily on state cooperation to implement and enforce almost all of its laws, regulations and acts. By simply withdrawing this necessary cooperation, states can nullify in effect many federal actions. As noted by the National Governor’s Association during the partial government shutdown of 2013, “States are partners with the federal government on most federal programs.”
Cox will have 20 days from the date the Utah legislature adjourns to sign or veto SB57. If he takes no action, it will become law without his signature.
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