Utah’s new ‘Sovereignty Act’ sets up a process to overrule the federal government. But is it constitutional?
Story by By Eric Levenson, CNN, 2/198/24
A bill recently signed into law in Utah sets up a process for the state to overrule or otherwise ignore federal rules and decisions, the latest move in a Republican-led push against what they see as federal overreach.
The Utah bill, introduced as the “Utah Constitutional Sovereignty Act,” was signed into law by Gov. Spencer Cox on January 31.
“The Legislature may, by concurrent resolution, prohibit a 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,” the law states.
For its supporters, the law is another method of standing up to the federal government.
“Balancing power between state and federal sovereignty is an essential part of our constitutional system,” Gov. Cox said in a statement. “This legislation gives us another way to push back on federal overreach and maintain that balance.”
Yet the push may stand in conflict with the US Constitution’s “Supremacy Clause,” which states federal laws take precedence over state ones. Robert Keiter, a law professor at the University of Utah’s SJ Quinney College of Law, said he was skeptical the Sovereignty Act was constitutional.
“This sends the message, and the Utah legislature is famous for sending messages of this sort, that it’s unhappy with the federal government. (And it’s) expressing that in a way that is constitutionally problematic,” he told CNN.
With the bill, Utah joins a long-standing small-c conservative push to promote states’ rights, particularly when the federal government is controlled by the opposing party. It’s a debate going back to the original founders of the US Constitution, through the “Nullification Crisis” of 1832-33, when South Carolina tried to avoid paying federal tariffs, and into the Southern states’ attempts to avoid racial integration in schools in the 1950s.
Most recently, Texas and the US have been in a legal battle over security at the US-Mexico border, historically under the federal government’s control. Last month, the Supreme Court ruled 5-4 in favor of the federal government, but the tight vote suggested the principles of the Supremacy Clause “might be in a degree of flux,” according to CNN Supreme Court analyst Steve Vladeck.
Utah Sen. Scott Sandall, who sponsored the Sovereignty Act, said he hoped the bill spreads to other states.
“I think any state should be looking at adopting this,” he told CNN in an interview. “Don’t you want a real organized way in your state to vet these things and look and say where the federal government is overreaching? No matter which party or which ideology you espouse, this could be helpful in any state, in my opinion.”
How the Sovereignty Act came to be
Sandall said he modeled Utah’s Sovereignty Act on a 2022 bill out of Alberta, Canada, similarly pushing back on what they saw as federal overreach.
In Utah, with a Republican supermajority, the bill was introduced at the start of 2024 and passed in the House by a 57-14 vote and in the Senate by a 24-5 vote.
Sandall described the Sovereignty Act as a “process bill” rather than a “policy bill,” arguing it merely creates a formalized process – a concurrent resolution passed by the legislature – for the state to challenge or overrule certain federal laws.
“Our attorneys have indicated to me that the process that’s in place is constitutional,” he said. “It doesn’t have a constitutional (issue) simply because it’s a process. Any kind of resolution may or may not be deemed constitutional.”
Yet he had certain policies in mind. In particular, he mentioned a dispute with the Environmental Protection Agency’s “good neighbor” rule, a regulation to cut down on smog and air pollution crossing state lines.
Utah has also been in a fight with the federal government over control of public lands regarding three national monuments, namely Bears Ears, Grand Staircase-Escalante, and Northeast Canyons and Seamounts Marine. And as a heavily Republican state, the legislature has taken up national partisan positions, such as opposition to Diversity, Equity and Inclusion programs.
Rep. Brian King, a Democrat running for governor, voted against the bill. In an interview with CNN, he said he believed Utah’s disagreements with federal rules should be resolved in federal court rather than in this new legislative process.
“I was and still am worried that the bill is going to be used as a political or partisan cudgel as opposed to a dispassionate and analytical tool,” he said.
Keiter, the law professor, said the bill is just “symbolic” for now. If the legislature actually passes a concurrent resolution and overrules a federal regulation, then it will likely be overturned due to the Supremacy Clause, he predicted.
Still, there could be other costs to the state. For one, litigating the bill’s legality in the courts is expensive. Second, the legislation says state employees could be directed to follow state law rather than federal law, putting individual workers in a bind.
“(State employees would be) between a rock and a hard place in terms of pursuing what’s clearly the federal law in this sort of a situation or complying with a state law, and if they don’t comply with state law, it potentially puts their employment at risk,” he said.
Despite the criticisms, Sandall said he believed the act was part of the long debate over American federalism.
“This debate has been going on for the whole time of our country. Does it ebb and flow? Absolutely. Is it something that I think states still need to be cautious of? You bet,” he said.