When Utah and the federal government don’t see eye to eye, the typical response has been a lawsuit — like in the ongoing arm wrestling over Bears Ears. One state Republican wants to expand the toolbox and give Utah another elbow to throw.
“Why do we continually sit back and say, ‘OK, we'll just go ahead and plan for this [regulation], but we don't think it's right so we're going to put in a lawsuit to stop this,’” said Sen. Scott Sandall of his reasoning. “Shouldn't we in the beginning say ‘no?’”
To that end, Sandall has introduced the “Utah Constitutional Sovereignty Act,” which would allow the Legislature to ignore executive orders and federal regulations it deems unconstitutional.
The bill’s authority hinges on the 10th Amendment, which states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
How much this proposal could change how Utah interacts with the federal government is still unclear.
“The 10th Amendment is kind of like this sadly underappreciated, underutilized thing given that the United States is oddly governed in that we have two levels of sovereignty,” said Jeremy Pope, political science professor and constitutional scholar at Brigham Young University. “Ever since [the beginning of the country] we've been fighting about what can states do? What can they not do? What are the limits of this sort of thing?”
After all, state Attorneys General — including Utah’s — take the federal government to court over the 10th Amendment and the constitutionality of laws and regulations all the time. What would be changing is that the Legislature would have a direct way to weigh in on these issues.
Other states have attempted similar laws in the past, like the Texas Sovereignty Act of 2017. Each attempt has taken a different approach to the 10th Amendment question.
Sandall’s inspiration came from the Alberta provincial government in Canada. In 2022 they passed the “Alberta Sovereignty Within a United Canada Act'' to safeguard against what it saw as harmful federal policies.
While Sandall thinks the Utah bill’s use case would be narrow, he pointed out regulations about the environment and public lands as potential early targets if it passes.
“I designed it specifically so that only those most agreed upon egregious rules and regulations would be targeted,” Sandall said. “Because it would become unmeaningful if we had 50 of those resolutions out there all at once.”
A resolution would only go forward if it has support from the Senate President and Speaker of the House. If one or both of them decline, support from two-thirds of both chambers would also allow it to go forward. Then, the resolution would go through the normal legislative process.
For Pope, the real impact of the bill could be more in the realm of political discourse than in federal court.
“I can see how this would be part of the argument and be part of some kind of pleading or some kind of public debate, but I'm not really sure that you would make wildly different arguments if this law didn't exist,” he said. “We have been arguing about what the 10th Amendment means, what the limits of state and federal power are for centuries.”
What is happening, said Pope, is the Legislature is likely signaling that they have “a strong view that states are really, really important, and we want to give a kind of presumption of power for states in our system.”
Sandall expects the Utah Constitutional Sovereignty Act to be taken up by the Legislature in the opening weeks of the 2024 General Session which starts on Jan. 16.
