Representative Ken Ivory proposes the following substitute bill:




Chief Sponsor: Ken Ivory

Senate Sponsor: Kirk A. Cullimore


8     General Description:
9          This bill amends provisions related to the Federalism Commission.
10     Highlighted Provisions:
11          This bill:
12          ▸     amends provisions related to the Federalism Commission's role in reviewing federal
13     laws for compliance with the principles of federalism;
14          ▸     allows the Federalism Commission to contract with a third party to evaluate federal
15     laws for compliance with the principles of federalism;
16          ▸     allows the Federalism Commission to analyze and provide recommendations on
17     federal laws and programs; and
18          ▸     makes technical changes.
19     Money Appropriated in this Bill:
20          None
21     Other Special Clauses:
22          None
23     Utah Code Sections Affected:
24     AMENDS:
25          63C-4a-303, as last amended by Laws of Utah 2019, Chapter 246

26          63C-4a-304, as renumbered and amended by Laws of Utah 2013, Chapter 101

28     Be it enacted by the Legislature of the state of Utah:
29          Section 1. Section 63C-4a-303 is amended to read:
30          63C-4a-303. Federalism Commission to evaluate federal law -- Curriculum on
31     federalism.
32          (1) (a) In accordance with Section 63C-4a-304, the commission may evaluate a federal
33     law:
34          [(a)] (i) as agreed by a majority of the commission; [or]
35          [(b)] (ii) submitted to the commission by a council member[.]; or
36          (iii) reported to the commission in accordance with Subsection (1)(b).
37          (b) (i) To assist the commission in the evaluation of federal law as required in this
38     section and Section 63C-4a-304, the commission may contract with a third party to monitor
39     federal law for possible implications on the principles of federalism.
40          (ii) A third party contracted to monitor federal law as described in Subsection (1)(b)(i)
41     shall:
42          (A) monitor federal law for possible implications on the principles of federalism and
43     state sovereignty; and
44          (B) report to the commission any law or action by the federal government that may
45     implicate the principles of federalism or state sovereignty.
46          (2) The commission may request information regarding a federal law under evaluation
47     from a United States senator or representative elected from the state.
48          (3) If the commission finds that a federal law is not authorized by the United States
49     Constitution or violates the principle of federalism as described in Subsection 63C-4a-304(2), a
50     commission cochair or the commission may:
51          (a) request from a United States senator or representative elected from the state:
52          (i) information about the federal law; or
53          (ii) assistance in communicating with a federal governmental entity regarding the
54     federal law;
55          (b) (i) give written notice of an evaluation made under Subsection (1) to the federal
56     governmental entity responsible for adopting or administering the federal law; and

57          (ii) request a response by a specific date to the evaluation from the federal
58     governmental entity; [and]
59          (c) request a meeting, conducted in person or by electronic means, with the federal
60     governmental entity, a representative from another state, or a United States Senator or
61     Representative elected from the state to discuss the evaluation of federal law and any possible
62     remedy[.]; or
63          (d) give written notice of an evaluation and the conclusions of the commission to any
64     other relevant entity.
65          (4) The commission may recommend to the governor that the governor call a special
66     session of the Legislature to give the Legislature an opportunity to respond to the commission's
67     evaluation of a federal law.
68          (5) A commission cochair may coordinate the evaluation of and response to federal law
69     with another state as provided in Section 63C-4a-305.
70          (6) The commission shall keep a current list on the Legislature's website of:
71          (a) a federal law that the commission evaluates under Subsection (1);
72          (b) an action taken by a cochair of the commission or the commission under
73     Subsection (3);
74          (c) any coordination undertaken with another state under Section 63C-4a-305; and
75          (d) any response received from a federal government entity that was requested under
76     Subsection (3).
77          (7) The commission shall develop curriculum for a seminar on the principles of
78     federalism. The curriculum shall be available to the general public and include:
79          (a) fundamental principles of federalism;
80          (b) the sovereignty, supremacy, and jurisdiction of the individual states, including their
81     police powers;
82          (c) the history and practical implementation of the Tenth Amendment to the United
83     States Constitution;
84          (d) the authority and limits on the authority of the federal government as found in the
85     United States Constitution;
86          (e) the relationship between the state and federal governments;
87          (f) methods of evaluating a federal law in the context of the principles of federalism;

88          (g) how and when challenges should be made to a federal law or regulation on the basis
89     of federalism;
90          (h) the separate and independent powers of the state that serve as a check on the federal
91     government;
92          (i) first amendment rights and freedoms contained therein; and
93          (j) any other issues relating to federalism the commission considers necessary.
94          (8) The commission may apply for and receive grants, and receive private donations to
95     assist in funding the creation, enhancement, and dissemination of the curriculum.
96          (9) The commission shall submit a report on or before November 30 of each year to the
97     Government Operations Interim Committee and the Natural Resources, Agriculture, and
98     Environment Interim Committee that:
99          (a) describes any action taken by the commission under Section 63C-4a-303; and
100          (b) includes any proposed legislation the commission recommends.
101          Section 2. Section 63C-4a-304 is amended to read:
102          63C-4a-304. Standard for evaluation of federal law.
103          (1) The commission shall evaluate whether a federal law evaluated under Section
104     63C-4a-303 is authorized by:
105          (a) United States Constitution, Article I, Section 2, to provide for the decennial census;
106          (b) United States Constitution, Article I, Section 4, to override state laws regulating the
107     times, places, and manner of congressional elections, other than the place of senatorial
108     elections;
109          (c) United States Constitution, Article I, Section 7, to veto bills, orders, and resolutions
110     by Congress;
111          (d) United States Constitution, Article I, Section 8, to:
112          (i) lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for
113     the common defense and general welfare of the United States, but all duties, imposts, and
114     excises shall be uniform throughout the United States;
115          (ii) borrow money on the credit of the United States;
116          (iii) regulate commerce with foreign nations, among the several states, and with the
117     Indian tribes;
118          (iv) establish a uniform rule of naturalization and uniform laws on the subject of

119     bankruptcies throughout the United States;
120          (v) coin money, regulate the value of coin money and of foreign coin, and fix the
121     standard of weights and measures;
122          (vi) provide for the punishment of counterfeiting the securities and current coin of the
123     United States;
124          (vii) establish post offices and post roads;
125          (viii) promote the progress of science and useful arts, by securing for limited times to
126     authors and inventors the exclusive right to their respective writings and discoveries;
127          (ix) constitute tribunals inferior to the supreme court;
128          (x) define and punish piracies and felonies committed on the high seas and offences
129     against the law of nations;
130          (xi) declare war, grant letters of marque and reprisal, and make rules concerning
131     captures on land and water;
132          (xii) raise and support armies, but no appropriation of money to that use shall be for a
133     longer term than two years;
134          (xiii) provide and maintain a navy;
135          (xiv) make rules for the government and regulation of the land and naval forces;
136          (xv) provide for calling forth the militia to execute the laws of the union, suppress
137     insurrections, and repel invasions;
138          (xvi) provide for organizing, arming, and disciplining the militia, and for governing the
139     part of the militia that may be employed in the service of the United States, reserving to the
140     states respectively, the appointment of the officers and the authority of training the militia
141     according to the discipline prescribed by Congress;
142          (xvii) exercise exclusive legislation in all cases whatsoever, over such district, which
143     may not exceed 10 miles square, as may, by cession of particular states and the acceptance of
144     Congress, become the seat of the government of the United States, and to exercise like
145     authority over all places purchased by the consent of the legislature of the state in which the
146     place shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful
147     buildings; or
148          (xviii) make all laws which shall be necessary and proper for carrying into execution
149     the powers listed in this section, and all other powers vested by the United States Constitution

150     in the government of the United States, or in any department or officer of the United States;
151          (e) United States Constitution, Article I, Section 9, to authorize a federal officer to
152     receive benefits from a foreign nation;
153          (f) United States Constitution, Article I, Section 10, to fix the pay of members of
154     Congress and of federal officers;
155          (g) United States Constitution, Article II, Section 1, to:
156          (i) set the time for choosing electors; or
157          (ii) establish who succeeded to the presidency after the vice president;
158          (h) United States Constitution, Article II, Section 2, to:
159          (i) serve as Commander-in-Chief of the armed forces;
160          (ii) require the written opinions of executive officers;
161          (iii) grant reprieves and pardons;
162          (iv) make vacancy appointments;
163          (v) make treaties, subject to the advice and consent of the United States Senate;
164          (vi) appoint foreign affairs officers subject to the advice and consent of the United
165     States Senate;
166          (vii) appoint domestic affairs officers subject either to the advice and consent of the
167     United States Senate or pursuant to law;
168          (viii) appoint judges subject to the advice and consent of the United States Senate; or
169          (ix) authorize the president to fill designated inferior offices without senatorial
170     consent;
171          (i) United States Constitution, Article II, Section 3, to:
172          (i) receive representatives of foreign powers;
173          (ii) execute the laws;
174          (iii) commission United States officers;
175          (iv) give Congress information;
176          (v) make recommendations to Congress;
177          (vi) convene Congress on extraordinary occasions; or
178          (vii) adjourn Congress if it cannot agree on a time;
179          (j) United States Constitution, Article III, Section 1, to:
180          (i) create exceptions to the supreme court's appellate jurisdiction;

181          (ii) fix the jurisdiction of federal courts inferior to the supreme court; or
182          (iii) declare the punishment for treason;
183          (k) United States Constitution, Article IV, Section 1, to establish the rules by which the
184     records and judgments of states are proved in other states;
185          (l) United States Constitution, Article IV, Section 3, to:
186          (i) manage federal property;
187          (ii) dispose of federal property;
188          (iii) govern the federal territories; or
189          (iv) consent to admission of new states or the combination of existing states;
190          (m) United States Constitution, Article IV, Section 4, to defend states from invasion,
191     insurrection, and non-republican forms of government;
192          (n) United States Constitution, Article V, Section 1, to propose constitutional
193     amendments;
194          (o) United States Constitution, Article VI, Section 1, to prescribe the oath for federal
195     officers;
196          (p) United States Constitution, Amendment XIII, to abolish slavery;
197          (q) United States Constitution, Amendment XIV, to guard people from certain state
198     abuses;
199          (r) United States Constitution, Amendment XVI, to impose taxes on income from any
200     source without having to apportion the total dollar amount of tax collected from each state
201     according to each state's population in relation to the total national population;
202          (s) United States Constitution, Amendment XX, to revise the manner of presidential
203     succession;
204          (t) United States Constitution, Amendment XV, XIX, XXIII, or XXIV, to extend and
205     protect the right to vote; or
206          (u) United States Constitution, Amendment XVII, to grant a pay raise to a sitting
207     Congress.
208          (2) The commission shall evaluate whether a federal law evaluated under Section
209     63C-4a-303 violates the principle of federalism by:
210          (a) affecting the distribution of power and responsibility among the state and national
211     government;

212          (b) limiting the policymaking discretion of the state;
213          (c) impacting a power or a right reserved to the state or its citizens by the United States
214     Constitution, Amendment IX or X; or
215          (d) impacting the sovereignty rights and interest of the state or a political subdivision to
216     provide for the health, safety, and welfare and promote the prosperity of the state's or political
217     subdivision's inhabitants.
218          (3) In the evaluation of a federal law, the commission:
219          (a) shall rely on:
220          (i) the text of the United States Constitution, as amended;
221          (ii) the meaning of the text of the United States Constitution, as amended, at the time
222     of its drafting and ratification; and
223          (iii) a primary source document that is:
224          (A) directly relevant to the drafting, adoption, ratification, or initial implementation of
225     the United States Constitution, as amended; or
226          (B) created by a person directly involved in the drafting, adoption, ratification, or
227     initial implementation of the United States Constitution, as amended;
228          (b) may rely on other relevant sources, including federal court decisions; and
229          (c) is not bound by a holding by a federal court.
230          (4) (a) If the commission determines that a federal law is not authorized as described in
231     this section or otherwise violates the principles of federalism, the commission may recommend
232     appropriate action, including:
233          (i) no action;
234          (ii) correspondence with relevant federal agencies or leaders;
235          (iii) initiating or coordinating public education efforts;
236          (iv) initiating or joining multi-state coordination;
237          (v) outreach and coordination with state and local government officers and agencies;
238          (vi) outreach or coordination with the state's congressional delegation and Congress as
239     a whole;
240          (vii) lobbying the state's congressional delegation and Congress as a whole;
241          (viii) legal challenges of the federal action;
242          (ix) enacting state laws to assert, defend, and preserve the constitutional allocation and

243     balance of governing powers between the federal government and the state; or
244          (x) other actions within the constitutional powers of the state.
245          (b) (i) The Legislative Management Committee shall include on the standing agenda
246     for the Legislative Management Committee a report from the commission as described in
247     Subsection (4)(b)(ii).
248          (ii) The commission:
249          (A) shall provide to the Legislative Management Committee a report with respect to
250     federal laws that the commission determines are not authorized as described in this section or
251     otherwise violate the principles of federalism; and
252          (B) with approval of the Legislative Management Committee, may take appropriate
253     action.
254          (iii) If the Legislative Management Committee is not meeting within a reasonable time,
255     the commission may:
256          (A) provide a report to the speaker of the House of Representatives and the president of
257     the Senate with respect to federal laws that the commission determines are not authorized as
258     described in this section or otherwise violate the principles of federalism; and
259          (B) with approval from the speaker of the House of Representatives and the president
260     of the Senate, take appropriate action.