SB 57: Utah Constitutional Sovereignty Act
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In 1793, Congress passed the Fugitive Slave Act, which, in addition to the Fugitive Slave
Clause of the Constitution, allowed for the search and seizure of fugitive slaves in free states.
Northern abolitionist states, rightfully, found ways to flout the law, as well as pass laws that
would make it harder to comply. Pennsylvania was challenged in 1842 by a bounty hunter when they impeded his attempts to apprehend an alleged fugitive slave. Eventually, the case made it to the Supreme Court where the court stated that federal laws supersede state laws and state Supreme Court decisions. However, they also set a precedent for what is called the Anti-Commandeering Doctrine.
The Anti-Commandeering Doctrine posits that, although the federal Constitution, laws, and
regulations supersede the same from the states, the federal government cannot compel states to implement or carry out the federal edict using the state’s resources, including the state’s elected officials. It is the responsibility of the federal government to enforce federal laws, not the state. This doesn’t stop the state from doing it on their own or in concert with the federal government, but the state doesn’t have to use its own resources to do so. The federal government is prohibited from commandeering state resources to enforce federal laws.
Later decisions by the United States Supreme Court continued to uphold and even expand this doctrine. In 1992 (New York v. United States), the Supreme Court ruled that Congress could not coerce states to choose between accepting ownership of toxic waste created by the federal government or mirroring federal laws in their state statutes, both of which were also unconstitutional. In 1997 (Printz v. United States), a ruling stated locally elected officials could not be conscripted into enforcing federal regulations.
A 2012 ruling (Independent Business v. Sebelius) meant that the federal government could not threaten to stop funding an already existing program if the state refused to expand the program. The majority opinion equated the threat to be equal to changing the terms of a contract after it was enacted. Lastly, the Court ruled that federal law cannot issue direct orders to state legislatures in the 2018 case regarding sports gambling. This ruling stood on the shoulders of the 1992 decision.
Even today, states are using the doctrine to their advantage. States, counties, and cities have declared themselves “sanctuaries” from federal laws and regulations. The policies which they refuse to enforce, while controversial among various states, are unpopular in their jurisdictions. When the decision is made to refuse to enforce a federal law, that decision is made by the executive branch as they are the branch of government that enforces the law. SB 57 from Utah state Senator Scott Sandall gives the same decision-making authority to the people’s elected representatives, the Utah state legislature.
The bill gives no direction or imperative on what policies to refuse to enforce. It doesn’t nullify federal law because it can’t. It only creates a process to include the legislature in the
decision-making. It also includes a unique provision which requires the Governor to sign off on the idea, like any normal bill. This is an acknowledgement of the fact that it will be the
responsibility of the executive branch to actually cooperate or not. Getting buy-in from the Governor at the beginning will avert any needless political posturing should the two branches disagree. However, if the Governor does disagree and ends up vetoing the resolution, the legislature can override the Governor, which would probably lead to a lot of political tit-for-tat.