Chief Sponsor: Ken Ivory

Senate Sponsor: Allen M. Christensen


10     General Description:
11          This joint resolution of the Legislature urges the President of the United States and
12     Congress to recognize state authority and take action to restore power to the states.
13     Highlighted Provisions:
14          This resolution:
15          ▸     calls upon the President of the United States to reenact President Ronald Reagan's
16     Executive Order 12612 and to create a national commission on federalism;
17          ▸     urges Congress to pass and adhere to the Enumerated Powers Act;
18          ▸     urges Congress to pass the Regulations from the Executive in Need of Scrutiny Act;
19          ▸     urges Congress to pass the Intergenerational Financial Obligations Reform Act;
20          ▸     urges Congress to direct the Government Accountability Office to conduct an audit
21     of federal programs, rules, regulations, and laws that have federalism implications;
22          ▸     demands that all branches of the federal government refrain from any activity that
23     limits the policymaking discretion of the states; and
24          ▸     encourages other states to join with the state of Utah in documenting issues of
25     federal overreach.
26     Special Clauses:
27          None

29     Be it resolved by the Legislature of the state of Utah:

30          WHEREAS, the genius of the United States of America lies in the liberty of our people
31     to govern ourselves at the most local level, to solve our unique problems, to foster prosperity
32     through our liberty, and to cultivate our unique endowment of human, capital, and natural
33     resources;
34          WHEREAS, America's unique structure of government known as federalism, secures
35     the local voice and liberty of the people through clear divisions of responsibility between state
36     and federal governments, as explained in Federalist 51, "the power surrendered by the people is
37     ... divided between two distinct governments"-state and national;
38          WHEREAS, the Tenth Amendment of the United States Constitution establishes the
39     overarching theory and structure of our constitutional form of government to protect the
40     people's liberty by stating, "The powers not delegated to the United States by the Constitution,
41     nor prohibited by it to the States, are reserved to the States respectively, or to the people";
42          WHEREAS, former Utah Governor Scott Matheson stated "Federalism is neither a
43     partisan issue, nor is it an issue dividing liberals and conservatives. It's a philosophical concept
44     of how the federal governmental system operates, an effort to determine the proper role of state
45     and federal governments";
46          WHEREAS, James Madison, the primary author of the Constitution, described these
47     clear and certain constitutional divisions of responsibility most plainly in Federalist 45, saying
48     the powers delegated to the national government are "few and defined," over primarily
49     "external objects," and clarified that the powers reserved to the states concern "the lives,
50     liberties, and properties of the people, and the internal order, improvement, and prosperity of
51     the State," and are "numerous and indefinite" (Federalist 45);
52          WHEREAS, in Federalist 47, Madison warned the "accumulation of all powers,
53     legislative, executive, and judiciary, in the same hands ... may justly be pronounced the very
54     definition of tyranny," and the power delegated through the executive branch to unelected,
55     unaccountable federal bureaucrats who make, enforce, and adjudicate their own rules, as if they
56     were laws, fits the definition of tyranny that Madison described;
57          WHEREAS, Chief Justice of the Supreme Court John Roberts stated "If no enumerated

58     power authorizes Congress to pass a certain law, that law may not be enacted, even if it would
59     not violate any of the express prohibitions in the Bill of Rights or elsewhere in the
60     Constitution" Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2577 (2012);
61          WHEREAS, absent a clear and certain division of responsibility between state and
62     national governments, the structure of federalism is undermined and the resulting power
63     vacuum is, by nature, filled by the government with the most accumulated power;
64          WHEREAS, throughout the 20th and 21st centuries, regulations, laws, executive
65     orders, and court rulings emanating from the federal government have proliferated, and have
66     been met by agreement, acquiescence, or inaction of the states, which has blurred the divisions
67     of responsibility between the federal government and the states, resulting in a power vacuum
68     that has further distorted the constitutional divisions, separations, and limits on the "few and
69     defined" powers constitutionally delegated to the national government;
70          WHEREAS, James Madison wisely noted, "There are more instances of the
71     abridgement of the freedom of the people by gradual and silent encroachments of those in
72     power than by violent and sudden usurpations";
73          WHEREAS, the assumption of power that was never delegated to the federal
74     government under the Constitution undermines the constitutional architecture of federalism
75     instituted to "secure to citizens the liberties that derive from the diffusion of sovereign power"
76     Bond v. United States, 564 U.S. 211, 221 (2011);
77          WHEREAS, "The structure of our government is central to liberty, and when we
78     destroy it, we place liberty at peril" Nat.l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566,
79     2676-77 (2012) (Scalia, Thomas, Kennedy, and Alito dissenting);
80          WHEREAS, any activity that undermines the core federalism structure of our
81     government also erodes the voice and liberty of the people in determining the destiny,
82     opportunity, creativity, and dynamism of their own lives and their unique communities and
83     states-to the detriment of the nation as a whole;
84          WHEREAS, on October 26, 1987, President Ronald Reagan signed Executive Order
85     12612 on federalism "to restore the division of governmental responsibilities between the

86     national government and the States that was intended by the framers of the Constitution and to
87     ensure that the principles of federalism established by the framers guide the executive
88     departments and agencies in the formulation and implementation of policies";
89          WHEREAS, President Donald J. Trump declared in his 2017 Inaugural Address, "we
90     are not merely transferring power from one administration to another, or from one party to
91     another-but we are transferring power from Washington, D.C., and giving it back to you, the
92     American People";
93          WHEREAS, Rep. Jason Chaffetz, Chairman of the House Committee on Oversight and
94     Government Reform, has reached out to state legislatures around the country to document their
95     experiences with federal overreach and unfunded mandates with a view to restoring power to
96     the states and to the people;
97          WHEREAS, in 2013, the Utah Legislature established the Utah Commission on
98     Federalism (the Commission) to: assess overreaching federal actions; respond to actions
99     through a measured dispute resolution process; coordinate with Utah's congressional delegation
100     and with other states; and report actions and results to the Legislature;
101          WHEREAS, at the request of Utah Senate President Wayne Niederhauser and Utah
102     Speaker of the House of Representatives Greg Hughes, the Commission convened public
103     hearings throughout the 2017 legislative session to receive reports from the various Senate and
104     House standing and appropriation committee chairs, state officials, staff, and members of the
105     public concerning federal actions that constitute examples of federal overreach, erode the
106     structural guarantees of federalism, or restrain the right and liberty of our people to govern
107     ourselves;
108          WHEREAS, the Commission received the following summary of federal overreach:
109          EDUCATION
110          • Recognize that education is not a power delegated to the federal government under the
111     Constitution, it is reserved to the states;
112          • Abolish the United States Department of Education and block grant administration
113     costs and federal appropriations to the state;

114          • Repeal the mandates of the Elementary and Secondary Education Act; and
115          • Relax the overly expansive interpretation of federal regulations, which increase costs
116     and adversely affects education at all levels;
118          • Recognize and abide by the comprehensive federal study and 1962 General Services
119     Administration Inventory Report on Jurisdictional Status of Federal areas within the States that
120     concluded that the national government has no jurisdiction but merely a proprietorial interest
121     over the vast majority of public lands within Utah;
122          • Repay to the state the nearly $1 million appropriated by the Utah Legislature in 2013
123     to reopen the national parks, and forever refrain from closing or withdrawing public lands,
124     without the consent of the Legislature.
125          • Relinquish control over public lands within the state of Utah consistent with the equal
126     sovereignty and equal footing enjoyed by all other states;
127          • Acquire no new land within the state without the express consent of a state legislature
128     (United States Constitution, Article I, Section 8, Cl. 17);
129          • Amend the Antiquities Act, 54 U.S.C. Sec. 320301, to require consent of a state
130     legislature for any national monument designation;
131          • Recognize, restore, and respect state jurisdiction over free-roaming horses and burros,
132     livestock management, wildlife, and wildlife management within the state, and provide state
133     control over the use of federal funds for these purposes;
134          • Perform and finalize the maintenance backlog in the national parks, national
135     monuments, national forests, congressionally designated wilderness areas, and congressionally
136     designated wilderness study areas;
137          • Mitigate catastrophic fire risk on national forests and rangelands.
138          • Reinstate land use plans, policies, and practices that require public land management
139     for multiple use and sustained yield consistent with local resource management plans.
140          • Restrict the Secretary of the Interior's broad discretion over coal, mineral, oil, and gas
141     reservations, deferrals, and moratoriums;

142          • Revoke the United States Fish and Wildlife Service sage-grouse land use plans in
143     favor of Utah's sage-grouse management plan that maintains or increases the animal's
144     population within the state;
145          • Authorize and conduct a full Government Accountability Office audit of all legal fee
146     awards under the Equal Access to Justice Act and revise the act to require full disclosure and
147     transparency, as was sought in the Open Book on Equal Access to Justice Act, which would
148     require an annual report to Congress from the Chairman of the Administrative Conference of
149     the United States, would describe the number, nature, and amount of the awards and the claims
150     involved, and would be made available to the public;
151          • Authorize and conduct a full Government Accountability Office audit of the "sue and
152     settle" court decisions that established new management criteria for public lands, and overrule
153     all decisions lacking express ratification by Congress;
154          • End the federal prosecution of the Revised Statute 2477 road litigation and recognize
155     state and county authority of Revised Statute 2477 roads over public lands as established since
156     1866 and reaffirmed in the Federal Land Policy and Management Act of 1976; and
157          • Repeal Bureau of Land Management Planning 2.0 rule, which shifts most public land
158     use and planning decisions to Washington, D.C., and away from local officials and managers
159     on the ground;
161          • Recognize, restore, and respect the jurisdiction of the state over "the conduct of public
162     utilities, of banks, of insurance, of business, of agriculture, of education, of social welfare,"
163     which "have not been surrendered to the national government by the Constitution, or its
164     amendments" Gov. Franklin D. Roosevelt, On State's Rights and Constitutional Authority,
165     March 2, 1930;
166          • Restore, where possible, through federal health care reform, state regulatory control
167     over the payment and delivery of health care;
168          • Reform Medicaid to (1) a block grant program, (2) eliminate the need for upfront
169     federal approval of state innovations that could lead to better health outcomes and improved

170     system performance, and (3) simplify and accelerate the approval process and expand the
171     ability of states to tailor Medicaid benefits and eligibility;
172          • Revise Medicaid federal participation rate formulas that are biased against states with
173     high performing, low-cost health care systems. Rates should reflect the health care needs of
174     states with diverse populations;
175          • Remove rules, regulations, or laws that deter states from developing and using health
176     claims data for health care cost and quality improvement initiatives;
177          • Eliminate unnecessary barriers to telemedicine and other health care reforms, while
178     retaining adequate privacy safeguards for patients and providers by aligning health care
179     information sharing restrictions under 42 C.F.R. with the Health Insurance Portability and
180     Accountability Act of 1996;
181          • Eliminate rules, regulations, and laws that prohibit states from engaging in credible,
182     institution-based research on the medical use of cannabis and other Schedule I drugs;
183          • Restore state powers so that states can address the opioid addiction crisis within their
184     borders, including the revision of U.S. Department of Health and Human Services regulations
185     that prohibit certified outpatient opioid treatment programs from reporting methadone,
186     suboxone, or buprenorphine use to state-run prescription drug monitoring programs; and
187          • Reform the federal financing of child welfare;
189          • Recognize, restore, and respect state and local authority over transportation matters
190     that are not national in scope and provide state control over the use of federal funds for those
191     purposes;
192          • Consolidate funding categories and block grant federal highway funding to the states;
193          • Expand nationwide waivers to Buy America requirements for certain commercially
194     available off-the-shelf items;
195          • Rescind duplicative and overly burdensome rules and regulations, such as:
196           • guidance issued by the Federal Highway Administration that prohibits issuance of
197     a Record of Decision under the National Environmental Policy Act (NEPA) until the project

198     sponsor has fully identified project funding; and
199           • current rules for performance measures regarding greenhouse gas emissions to
200     establish certain national performance management measures;
201          • Restore regulatory authority to "grandfather" highway and transit projects that
202     previously demonstrated air conformity;
203          • Amend Sec. 319 of the Clean Air Act, 42 U.S.C. Sec. 7619(b), to include "stagnation
204     of air masses or meteorological inversions" as an exceptional event for air quality monitoring
205     purposes; and
206          • Require the Federal Transit Administration, the Federal Highway Administration, and
207     the Federal Aviation Administration to develop the "one NEPA" platform;
209          • Recognize, restore, and respect the jurisdiction of the state over "the conduct of public
210     utilities, of banks, of insurance, of business, of agriculture, of education, of social welfare,"
211     which "have not been surrendered to the national government by the Constitution, or its
212     amendments" Gov. Franklin D. Roosevelt, On State's Rights and Constitutional Authority,
213     March 2, 1930;
214          • Respect state authority to administer programs in the most cost-effective manner (e.g.,
215     eliminate the Davis-Bacon Act, eliminate the Disadvantaged Business Enterprise, and restore
216     state control over storm water and waste water management, etc.);
217          • Recognize and respect local zoning and planning authorities and refrain from
218     interfering with local government flexibility to address the housing needs of individuals within
219     their communities;
220          • Review and restrain federal agencies from interfering in areas of traditional state
221     jurisdiction, such as elections (e.g., the Elections Assistance Commission, originally
222     established to assist states to comply with the Help America Vote Act, should not become a
223     regulatory body in the area of elections); and
224          • Refrain from coercing state policy through the threat of withholding federal funds.
225          LAW ENFORCEMENT

226          • Recognize that the general power of governing, or the "police power," is "possessed
227     by the States but not by the Federal Government" see, e.g., Nat'l Fed'n of Indep. Bus. v.
228     Sebelius, 132 S. Ct. 2566, 2578 (2012); United States v. Morrison, 529 U.S. 598, 619 (2000);
229          • Recognize and abide by state jurisdiction related to road closures, patrols, and search
230     and rescue operations and other enforcement activities not specifically under federal
231     jurisdiction;
232          • Recognize and abide by the sheriff's authority as the chief law enforcement officer in a
233     county;
234          • Recognize and abide by the Utah Division of Wildlife Resources' scope of authority
235     on wildlife and hunting enforcement and protection of various game animals, fowl, or fish;
236          • Clarify the state versus the federal share of assets resulting from a federal asset seizure
237     within the state;
238          • Reduce and consolidate federal law enforcement agencies to become more
239     comparable and compatible with state law enforcement agencies;
240          • Pass and sign the Regulatory Agency Demilitarization Act, which stems the trend of
241     federal regulatory agencies developing SWAT-like teams; and
242          • Prohibit executive activities that pursue "bulk collection" surveillance of American
243     citizens;
245          • Recognize that nonuniform federal tax policy threatens the structure of federalism.
246          • Enact legislation to solve the remote sales tax issue;
247          • Maintain the tax-exempt status of municipal bonds;
248          • Eliminate restrictions that prevent state legislatures from governing the sharing of
249     state income tax return data;
250          • Fully fund federal mandates or release states from compliance with the federal
251     mandates;
252          • Recognize all unreported liabilities in the federal financial statements and formally
253     include all obligations in national debt computations;

254          WHEREAS, the increasing use of federal administrative action and laws consolidated
255     absolute power of the federal government in a manner that the United States Constitution was
256     designed to prevent; and
257          WHEREAS, the Commission engaged Utah Valley University's Center for
258     Constitutional Studies to produce a federalism curriculum presented by a national assembly of
259     constitutional experts, including George Washington School of Law Professor Jonathan Turley
260     who warned of the consequences of federal overreach: "People have become reliant on the
261     federal government. The result is that federalism seems like a quaint concept. What's dangerous
262     about that is it's a protection of individual liberty. The degree to which people become passive
263     about the increasing power of the federal government, they can watch the greatest protection of
264     their individual liberty simply dissipate".
265          NOW, THEREFORE, BE IT RESOLVED that the Legislature of the state of Utah
266     echoes the warning of Justice Anthony Kennedy that the increasing assumption and
267     centralization of power to the national government is destroying the federalism structure of our
268     government and placing the liberty of our people "at peril."
269          BE IT FURTHER RESOLVED that the Legislature of the state of Utah calls on
270     President Donald J. Trump to reenact Executive Order 12612 with additional provisions
271     sufficient to ensure and enforce compliance with the order.
272          BE IT FURTHER RESOLVED that the Legislature of the state of Utah calls upon
273     President Donald J. Trump to create a national commission on federalism, comprised of
274     representatives of the 50 states (chosen by the state legislatures) and representatives of the
275     federal government.
276          BE IT FURTHER RESOLVED that the Legislature of the state of Utah urges Congress
277     to pass and strictly adhere to the Enumerated Powers Act, which would require any bill
278     introduced in Congress to specify the constitutional authority under which the bill would be
279     enacted.
280          BE IT FURTHER RESOLVED that the Legislature of the state of Utah urges Congress
281     to direct the Government Accountability Office to conduct an audit of federal programs, rules,

282     regulations, and laws that have federalism implications as provided in Executive Order 12612.
283          BE IT FURTHER RESOLVED that the Legislature of the state of Utah calls upon
284     Congress to pass, and the President to sign, the Regulations from the Executive in Need of
285     Scrutiny Act, as the first step to restrict administrative agencies from exercising the Article I
286     powers of Congress and the Article III powers of the Judiciary.
287          BE IT FURTHER RESOLVED that the Legislature of the state of Utah recognizes that
288     the increasing federal debt and unfunded obligations directly imperil the states and our citizens
289     and urges Congress to pass the Intergenerational Financial Obligations Reform Act, which
290     would require the federal government to conduct fiscal gap accounting and generational
291     accounting on an annual basis.
292          BE IT FURTHER RESOLVED that the Legislature of the state of Utah demands that
293     all branches of the federal government refrain from any action that limits the policymaking
294     discretion of the states without clear and express constitutional authority for the action, and that
295     any such action by the federal government must be necessitated by the presence of a problem of
296     national scope, as provided in Executive Order 12612.
297          BE IT FURTHER RESOLVED that the Legislature of the state of Utah invites and
298     encourages the legislatures of all other states to join with the Utah Legislature to document the
299     issues of federal overreach, to demand that actions be taken by the federal government to
300     restore the divisions and limits of federal power, and to restore the vibrancy of American
301     federalism for the protection of our people's liberty.
302          BE IT FURTHER RESOLVED that the Legislature of the state of Utah recognizes that
303     the restoration of our federalism structure will require extensive cooperation among the 50
304     states and with our federal counterparts, and calls upon all state and national government
305     leaders to engage toward achieving a new nationwide consensus for decentralizing
306     governmental power in the United States.
307          BE IT FURTHER RESOLVED that the Legislature of the state of Utah views a
308     restoration of American federalism and decentralization of power and authority from the
309     federal government to states, local communities, neighborhoods, families, and individual

310     citizens, beginning with the actions enumerated in this resolution, as essential to the structural
311     protection of the liberties of our people.
312          BE IT FURTHER RESOLVED that a copy of this resolution be sent to the President of
313     the United States, the Majority Leader of the United States Senate, the Speaker of the United
314     States House of Representatives, the governor of each state outside of Utah, the Senate
315     President or President Pro Tempore and the Speaker of the House as of March 1, 2017, of each
316     state legislature outside of Utah, and to the members of Utah's congressional delegation.