Constitutional Sovereignty Act

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Summary

This model policy would establish a framework for legislative chambers adopting it to prohibit the enforcement of a federal directive within the state by government officers if this state’s legislature determines that the federal directive violates the principles of state sovereignty.

Constitutional Sovereignty Act

General Description:

This model enacts this state’s Constitutional Sovereignty Act.

Highlighted Provisions:

This bill:

  • Defines terms;
  • Establishes a framework for this legislative chamber to prohibit the enforcement of a federal directive within the state by government officers if this state’s legislature determines the federal directive violates the principles of state sovereignty;
  • Describes the ways in which a federal directive violates the principles of state sovereignty;
  • Limits the authority for requesting a concurrent resolution under the bill;
  • Requires the Legislature to consult with the attorney general regarding the potential impact of a concurrent resolution on litigation and to provide notice to representatives of tribal governments;
  • Specifies the required contents of a concurrent resolution;
  • Clarifies the effects of a concurrent resolution upon adoption;
  • Establishes requirements for the termination of a concurrent resolution; and
  • Clarifies the effects of legislative inaction on a federal directive.

Be it enacted by this state’s legislature:

Part 2. Constitutional Sovereignty Act

Definitions.

As used in this part:

(1) “Board of Education” means:

(a) A local school board described in the relevant statute;

(b) The State Board of Education;

(c) The State Charter School Board;

(d) A charter school governing board as described in the relevant statute.

(2) “Federal agency” means a department, agency, authority, commission, council, board, office, bureau, or other administrative unit of the executive branch of the United States government.

(3)(a) “Federal directive” means:

(i) A statue passed by the United States Congress;

(ii) An executive order by the President of the United States;

(iii) A rule or regulations adopted by a federal agency; or

(iv) An order or action by:

(A) A federal agency; or

(B) An employe or official appointed by the President of the United States.

(3)(b) “Federal directive” does not include any order by the federal government calling this state’s National Guard into the service of the United States.

(4)(a) “Government officer” means:

(i) An individual elected to a position in state or local government, when acting in the capacity of the state or local government position;

(ii) An individual elected to a board of education, when acting in the capacity of a member of a board of education;

(iii) An individual appointed to fill a vacancy in a position described in Subsection (4)(a)(i) or (ii), when acting in the capacity of the position; or

(iv) An individual appointed to or employed in a full-time position by state government, local government, or a board of education, when acting in the capacity of the individual’s appointment or employment.

(b) “Government officer” does not include a member or employee of the legislative branch of state government.

(5) “Local government” means:

(a) A country, city, town or metro township;

(b) A special district governed by the relevant statute covering local government entities and/or special districts;

(c) A special service district governed by the relevant statute covering local government entities and/or special districts;

(d) A community reinvestment agency governed by the relevant statute relating to this state’s Community Reinvestment Agency Act;

(e) A conservation district governed by the relevant statute relating to conservation districts;

(f) A redevelopment agency; or

(g) interlocal entity or a joint cooperative undertaking governed by the relevant statute relating to interlocal cooperation.

Section 2.

Resolution of the Legislature invoking state sovereignty – Requirements – Effect upon adoption – Termination – Relation to other law.

(1) 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 in accordance with Subsection (2).

(2) A federal directive violates the principles of state sovereignty if the federal directive restricts or infringes upon:

(a) A power or a right reserved to the state by the Tenth Amendments to the United States Constitution; or

(b) The state’s rights or interests to provide for the health, safety, and welfare and promote the prosperity of the state’s inhabitants.

(3) A request for a concurrent resolution under Subsection (1) may not be filed unless:

(a) The request is approved by the Speaker of the House of Representatives and the President of the Senate; or

(b) While the Legislature is convened and conducting business on the floor, identical motions to approve the request are made in each chamber of the Legislature and both motions are approved by a two-third’s majority of the members present in each chamber.

(4) The Legislature shall consult with and consider any recommendations provided by the attorney general concerning the potential impact that a concurrent resolution may have on current or anticipated litigation.

(5) Upon the filing of a request for a concurrent resolution under Subsection (1), the Legislature shall provide notice of the concurrent resolution, including the short title and proposed objectives, to the representatives of tribal governments list in the relevant statute.

(6) A concurrent resolution under Subsection (1) shall:

(a) Identify the federal directive the Legislature has determined violates the principles of state sovereignty under Subsection (2);

(b) Include the information or findings upon which the Legislature has made the determination in Subsection (5)(a);

(c) Specify the government officers to which the concurrent resolution applies;

(d) Explain the effect that the concurrent resolution will have on the applicability of the federal directive within the state, including a description of any activities or forms of assistance that a government officer specified in Subsection (5)(c) is prohibited from conducting in connection with the enforcement of the federal directive; and

(e) Describe any other requirements for a government officer specified in Subsection (5)(c) to comply with the concurrent resolution.

(7) A concurrent resolution under Subsection (1):

(a) Takes effect upon adoption and has the force of law; and

(b) After taking effect, may only be terminated by concurrent resolution.

(8) The requirements for filing a request for a concurrent resolution in Subsection (3) apply to a concurrent resolution described in Subsection (6)(b).

(9) The inaction of the Legislature in determining that a federal directive violates the principles of state sovereignty by concurrent resolution under this section:

(a) Does not imply or create a presumption that the federal directive is lawful under the United States Constitution; and

(b) Has no effect on the attorney general’s authority to pursue any appropriate legal action to challenge the federal directive on the basis of state sovereignty.

(10) This section supersedes any conflicting provisions of the laws of this state.

Section 3. Effective date.

If approved by two-thirds of all the members elected to each house, this bill takes effect upon approval by the governor, or the day following this state’s constitutional time limit without the governor’s signature, or in the case of a veto, the date of veto override.