Presumption of State Jurisdiction Amendments

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Summary

This bill affirms state sovereignty and establishes a presumption of state jurisdiction.

Presumption of State Jurisdiction Amendments

Highlighted Provisions:

This model:

  • establishes that jurisdiction over subject matters not enumerated to the federal government in the United States Constitution remains with the state of ____;
  • provides that any presumption against state jurisdiction is overcome only by a federal demonstration of specific constitutional authorization;
  • places the burden on the federal government in disputes over non-enumerated jurisdiction;
  • establishes a presumption that federal government has a proprietary interest over federal lands in the state; and
  • requires the Federalism Commission to provide time to hear from governmental entities regarding jurisdictional disputes over federal lands.

Be it enacted by the Legislature of the state of Utah:

State sovereignty and rights of set-off.

(1) Pursuant to the Ninth and Tenth Amendments of the Constitution of the United States of America, the state of ___ does solemnly affirm its state sovereignty and fully and unconditionally reserves and asserts all rights and powers, directly and indirectly related to those rights and powers.

(2)(a) The state has inherent jurisdiction and authority under the state’s traditional police powers to enact legislation and regulations in subject areas affecting public welfare, safety, health, and morality, as recognized under the Tenth Amendment to the United States Constitution.

(b) The subject areas within the state’s police powers jurisdiction described in Subsection (1) include:

(i) natural resources;

(ii) water resources and water rights;

(iii) agriculture;

(iv) education; and

(v) energy resources.

(3) Except as otherwise enumerated in the Constitution of the United States, as amended, jurisdiction over all subject matters is presumed to reside with the state of ____.

(4) The presumption of state jurisdiction under Subsection (3) may only be overcome if the federal government demonstrates that jurisdiction over the subject matter in question is specifically enumerated to the federal government under the Constitution of the United States, as amended.

(5) If a conflict arises between the state and federal government over jurisdiction not enumerated under the Constitution of the United States, as amended, the burden is on the federal government to establish constitutional authorization over the subject matter.

(6) This affirmation, reservation, and assertion includes rights and claims of set-off by the state of Utah for any amounts it claims to have been inequitably or unlawfully caused or imposed by the federal government.

(7) The provisions of this section may not be interpreted to limit or restrict the state’s authority to exercise rights under the Ninth, Tenth, or any other Amendment to the Constitution of the United States.

Section 2. Jurisdiction over federal land.

(1) As used in this section:

(a) “Commission” means the Federalism Commission created in the relevant statute.

(b) “Concurrent jurisdiction” means jurisdiction shared jointly between the state and federal government, where both the state and federal government have the right to exercise authority concurrently over the same subject matter and within the same territory.

(c) “Exclusive federal jurisdiction” means sole or complete federal jurisdiction, to the exclusion of state jurisdiction, over land or an enclave ceded to the federal government by the state.

(d) “Federal land” means any land owned or controlled by the United States within the exterior boundaries of the state.

(e) “Governmental entity” means any entity, office, or officer of the state or political subdivision of the state that has responsibility for or jurisdiction over specified interests or concerns relating to federal land within the state.

(f) “Partial jurisdiction” means jurisdiction over a particular subject matter shared concurrently between the state and federal government, while jurisdiction remains otherwise exclusive or concurrent.

(g) “Proprietorial interest” means the federal government retains rights only as a landowner with respect to the land, where the exercise of governmental power over the land by the state is not suspended, displaced, curtailed or otherwise subject to federal oversight.

(2) Federal land within the state is presumed to be under proprietorial interest, allowing exercise of state authority while reserving the federal right to execute delegated constitutional functions, unless the federal government demonstrates that jurisdiction over the federal land is:

(a) exclusive federal jurisdiction;

(b) concurrent jurisdiction; or

(c) partial jurisdiction.

(3) (a) The commission shall provide time during at least one commission meeting in each year to hear from governmental entities regarding disputes over the jurisdictional split of federal land within the state.

(b) The commission shall notify the Legislative Management Committee of any dispute brought before the commission under Subsection (3)(a).

Section 3. Effective date.