2014 Bills

HJR7: Requiring Staff Attorneys to Highlight Federalism Implications of Legislation

This bill, as a substitute, passed the House 55-19 but was not considered in the Senate. Visit our Legislative Index to see the final vote rankings for the 2014 general session.

Libertas Institute supports this bill.

When legislative general counsel (staff attorneys for legislators) believe that a proposed bill has constitutional issues, they attach a “note” to the bill that contains their explanation and concern. These notes, however, only articulate arguments in favor of the federal government—creating a severe imbalance in understanding the bill’s true impact.

Last year, for example, Representative Brian Greene sponsored House Bill 114, the Second Amendment Preservation Act. The bill affirmed Utah’s right to govern the manufacture and use of firearms produced and sold within the state of Utah. Staff attorneys attached a “constitutional note” to the bill, claiming that HB114 conflicted with the Supremacy Clause of the U.S. Constitution.

“As drafted,” the note read, “these provisions raise issues relating to the United States Constitution’s Supremacy Clause, contained in Article VI, Section 2, of the United States Constitution, which provides: “This Constitution, and the Laws of the United States . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

Note the ellipses—properly used, this tool allows a person to omit words from a sentence that are not necessary to understanding the full sentence. But the words omitted in the attorney’s citation of the Supremacy Clause are the most relevant words when discussing whether federal statute can trump state code. The words omitted by this attorney note that in addition to the U.S. Constitution, only the “Laws of the United States which shall be made in pursuance thereof” can trump state law.

And that’s the whole point of these types of bills—to reclaim state authority over issues that have been unconstitutionally claimed by the federal government. After highlighting this glaring omission in committee testimony, the staff attorney amended the note to include the omitted text—but the damage had already been done.

It’s important to note, of course, that this was not an isolated event. Most “state sovereignty” bills end up with a similar type of note where the arguments are weighted solely in favor of the federal government, failing to omit arguments that the state would reasonably be able to make in support of its policy decisions.

House Joint Resolution 7, introduced by Representative Ken Ivory, would remedy this imbalance by requiring legislative general counsel to include in its note the “federalism implications” of the bill—in effect, the legal theories, constitutional defenses, and other arguments in support of what is generally called “state sovereignty.”

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