This fall will mark 500 years since Martin Luther nailed his 95 Theses to the Wittenburg Church door. The distribution of this list of what he believed were abusive practices within the Catholic church is credited for sparking the Protestant reformation.

Taking a page out of Luther’s playbook, this session the #UTLEG made their own bold statement against an abuse of power. It wasn’t about theology or nailed to a door but we are hoping the distribution of this list of (roughly 95) principles of federalism will spark a reformation in governmental power between the national government and the states.

This month H.J.R. 17 Joint Resolution to Restore the Division of Governmental Responsibilities Between the National Government and the States will be sent to:

  • President of 313 the United States
  • The Majority Leader of the United States Senate
  • The Speaker of the United 314 States House of Representatives
  • The governor of each state outside of Utah
  • The Senate President or President Pro Tempore
  • The Speaker of the House as of March 1, 2017
  • Each state legislature outside of Utah
  • The members of Utah’s congressional delegation

H. J. R. 17

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

WHEREAS:

  1. The genius of the United States of America lies in the liberty of our people to govern ourselves at the most local level, to solve our unique problems, to foster prosperity through our liberty, and to cultivate our unique endowment of human, capital, and natural resources;
  2. America’s unique structure of government known as federalism, secures the local voice and liberty of the people through clear divisions of responsibility between state and federal governments, as explained in Federalist 51, “the power surrendered by the people is … divided between two distinct governments”-state and national;
  3. The Tenth Amendment of the United States Constitution establishes the overarching theory and structure of our constitutional form of government to protect the people’s liberty by stating, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”;
  4. Former Utah Governor Scott Matheson stated “Federalism is neither a partisan issue, nor is it an issue dividing liberals and conservatives. It’s a philosophical concept of how the federal governmental system operates, an effort to determine the proper role of state and federal governments”;
  5. James Madison, the primary author of the Constitution, described these clear and certain constitutional divisions of responsibility most plainly in Federalist 45, saying the powers delegated to the national government are “few and defined,” over primarily “external objects,” and clarified that the powers reserved to the states concern “the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State,” and are “numerous and indefinite” (Federalist 45);
  6. In Federalist 47, Madison warned the “accumulation of all powers, legislative, executive, and judiciary, in the same hands … may justly be pronounced the very definition of tyranny,” and the power delegated through the executive branch to unelected, unaccountable federal bureaucrats who make, enforce, and adjudicate their own rules, as if they were laws, fits the definition of tyranny that Madison described;
  7. Chief Justice of the Supreme Court John Roberts stated “If no enumerated power authorizes Congress to pass a certain law, that law may not be enacted, even if it would not violate any of the express prohibitions in the Bill of Rights or elsewhere in the Constitution” Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2577 (2012);
  8. Absent a clear and certain division of responsibility between state and national governments, the structure of federalism is undermined and the resulting power vacuum is, by nature, filled by the government with the most accumulated power;
  9. Throughout the 20th and 21st centuries, regulations, laws, executive orders, and court rulings emanating from the federal government have proliferated, and have been met by agreement, acquiescence, or inaction of the states, which has blurred the divisions of responsibility between the federal government and the states, resulting in a power vacuum that has further distorted the constitutional divisions, separations, and limits on the “few and defined” powers constitutionally delegated to the national government;
  10. James Madison wisely noted, “There are more instances of the abridgement of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations”;
  11. The assumption of power that was never delegated to the federal government under the Constitution undermines the constitutional architecture of federalism instituted to “secure to citizens the liberties that derive from the diffusion of sovereign power” Bond v. United States, 564 U.S. 211, 221 (2011);
  12. “The structure of our government is central to liberty, and when we destroy it, we place liberty at peril” Nat.l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2676-77 (2012) (Scalia, Thomas, Kennedy, and Alito dissenting);
  13. Any activity that undermines the core federalism structure of our government also erodes the voice and liberty of the people in determining the destiny, opportunity, creativity, and dynamism of their own lives and their unique communities and states-to the detriment of the nation as a whole;
  14. On October 26, 1987, President Ronald Reagan signed Executive Order 12612 on federalism “to restore the division of governmental responsibilities between the national government and the States that was intended by the framers of the Constitution and to ensure that the principles of federalism established by the framers guide the executive departments and agencies in the formulation and implementation of policies”;
  15. President Donald J. Trump declared in his 2017 Inaugural Address, “we are not merely transferring power from one administration to another, or from one party to another-but we are transferring power from Washington, D.C., and giving it back to you, the American People”;
  16. Jason Chaffetz, Chairman of the House Committee on Oversight and Government Reform, has reached out to state legislatures around the country to document their experiences with federal overreach and unfunded mandates with a view to restoring power to the states and to the people;
  17. In 2013, the Utah Legislature established the Utah Commission on Federalism (the Commission) to: assess overreaching federal actions; respond to actions through a measured dispute resolution process; coordinate with Utah’s congressional delegation and with other states; and report actions and results to the Legislature;
  18. At the request of Utah Senate President Wayne Niederhauser and Utah Speaker of the House of Representatives Greg Hughes, the Commission convened public hearings throughout the 2017 legislative session to receive reports from the various Senate and House standing and appropriation committee chairs, state officials, staff, and members of the public concerning federal actions that constitute examples of federal overreach, erode the structural guarantees of federalism, or restrain the right and liberty of our people to govern ourselves;

WHEREAS, The Commission received the following summary of federal overreach:

  1. EDUCATION:
  2. Recognize that education is not a power delegated to the federal government under the Constitution, it is reserved to the states;
  3. Abolish the United States Department of Education and block grant administration costs and federal appropriations to the state;
  4. Repeal the mandates of the Elementary and Secondary Education Act; and
  5. Relax the overly expansive interpretation of federal regulations, which increase costs and adversely affects education at all levels;
  6. PUBLIC LANDS AND NATURAL RESOURCES:
  7. Recognize and abide by the comprehensive federal study and 1962 General Services Administration Inventory Report on Jurisdictional Status of Federal areas within the States that concluded that the national government has no jurisdiction but merely a proprietorial interest over the vast majority of public lands within Utah;
  8. Repay to the state the nearly $1 million appropriated by the Utah Legislature in 2013 to reopen the national parks, and forever refrain from closing or withdrawing public lands, without the consent of the Legislature.
  9. Relinquish control over public lands within the state of Utah consistent with the equal sovereignty and equal footing enjoyed by all other states;
  10. Acquire no new land within the state without the express consent of a state legislature (United States Constitution, Article I, Section 8, Cl. 17);
  11. Amend the Antiquities Act, 54 U.S.C. Sec. 320301, to require consent of a state legislature for any national monument designation;
  12. Recognize, restore, and respect state jurisdiction over free-roaming horses and burros, livestock management, wildlife, and wildlife management within the state, and provide state control over the use of federal funds for these purposes;
  13. Perform and finalize the maintenance backlog in the national parks, national monuments, national forests, congressionally designated wilderness areas, and congressionally designated wilderness study areas;
  14. Mitigate catastrophic fire risk on national forests and rangelands.
  15. Reinstate land use plans, policies, and practices that require public land management for multiple use and sustained yield consistent with local resource management plans.
  16. Restrict the Secretary of the Interior’s broad discretion over coal, mineral, oil, and gas reservations, deferrals, and moratoriums;
  17. Revoke the United States Fish and Wildlife Service sage-grouse land use plans in favor of Utah’s sage-grouse management plan that maintains or increases the animal’s population within the state;
  18. Authorize and conduct a full Government Accountability Office audit of all legal fee awards under the Equal Access to Justice Act and revise the act to require full disclosure and transparency, as was sought in the Open Book on Equal Access to Justice Act, which would require an annual report to Congress from the Chairman of the Administrative Conference of the United States, would describe the number, nature, and amount of the awards and the claims involved, and would be made available to the public;
  19. Authorize and conduct a full Government Accountability Office audit of the “sue and settle” court decisions that established new management criteria for public lands, and overrule all decisions lacking express ratification by Congress;
  20. End the federal prosecution of the Revised Statute 2477 road litigation and recognize state and county authority of Revised Statute 2477 roads over public lands as established since 1866 and reaffirmed in the Federal Land Policy and Management Act of 1976; and
  21. Repeal Bureau of Land Management Planning 2.0 rule, which shifts most public land use and planning decisions to Washington, D.C., and away from local officials and managers on the ground;
  22. HEALTH AND HUMAN SERVICES:
  23. Recognize, restore, and respect the jurisdiction of the state over “the conduct of public utilities, of banks, of insurance, of business, of agriculture, of education, of social welfare,” which “have not been surrendered to the national government by the Constitution, or its amendments” Gov. Franklin D. Roosevelt, On State’s Rights and Constitutional Authority, March 2, 1930;
  24. Restore, where possible, through federal health care reform, state regulatory control over the payment and delivery of health care;
  25. Reform Medicaid to (1) a block grant program, (2) eliminate the need for upfront federal approval of state innovations that could lead to better health outcomes and improved system performance, and (3) simplify and accelerate the approval process and expand the ability of states to tailor Medicaid benefits and eligibility;
  26. Revise Medicaid federal participation rate formulas that are biased against states with high performing, low-cost health care systems. Rates should reflect the health care needs of states with diverse populations;
  27. Remove rules, regulations, or laws that deter states from developing and using health claims data for health care cost and quality improvement initiatives;
  28. Eliminate unnecessary barriers to telemedicine and other health care reforms, while retaining adequate privacy safeguards for patients and providers by aligning health care information sharing restrictions under 42 C.F.R. with the Health Insurance Portability and 180 Accountability Act of 1996;
  29. Eliminate rules, regulations, and laws that prohibit states from engaging in credible, institution-based research on the medical use of cannabis and other Schedule I drugs;
  30. Restore state powers so that states can address the opioid addiction crisis within their borders, including the revision of U.S. Department of Health and Human Services regulations that prohibit certified outpatient opioid treatment programs from reporting methadone, suboxone, or buprenorphine use to state-run prescription drug monitoring programs; and
  31. Reform the federal financing of child welfare;
  32. TRANSPORTATION:
  33. Recognize, restore, and respect state and local authority over transportation matters that are not national in scope and provide state control over the use of federal funds for those purposes;
  34. Consolidate funding categories and block grant federal highway funding to the states;
  35. Expand nationwide waivers to Buy America requirements for certain commercially available off-the-shelf items;
  36. Rescind duplicative and overly burdensome rules and regulations, such as:
  37. guidance issued by the Federal Highway Administration that prohibits issuance of a Record of Decision under the National Environmental Policy Act (NEPA) until the project sponsor has fully identified project funding; and
  38. current rules for performance measures regarding greenhouse gas emissions to establish certain national performance management measures;
  39. Restore regulatory authority to “grandfather” highway and transit projects that previously demonstrated air conformity;
  40. Amend Sec. 319 of the Clean Air Act, 42 U.S.C. Sec. 7619(b), to include “stagnation of air masses or meteorological inversions” as an exceptional event for air quality monitoring purposes; and
  41. Require the Federal Transit Administration, the Federal Highway Administration, and the Federal Aviation Administration to develop the “one NEPA” platform;
  42. LOCAL GOVERNMENT:
  43. Recognize, restore, and respect the jurisdiction of the state over “the conduct of public utilities, of banks, of insurance, of business, of agriculture, of education, of social welfare,” which “have not been surrendered to the national government by the Constitution, or its amendments” Gov. Franklin D. Roosevelt, On State’s Rights and Constitutional Authority, 213 March 2, 1930;
  44. Respect state authority to administer programs in the most cost-effective manner (e.g., eliminate the Davis-Bacon Act, eliminate the Disadvantaged Business Enterprise, and restore state control over storm water and waste water management, etc.);
  45. Recognize and respect local zoning and planning authorities and refrain from interfering with local government flexibility to address the housing needs of individuals within their communities;
  46. Review and restrain federal agencies from interfering in areas of traditional state jurisdiction, such as elections (e.g., the Elections Assistance Commission, originally established to assist states to comply with the Help America Vote Act, should not become a regulatory body in the area of elections); and
  47. Refrain from coercing state policy through the threat of withholding federal funds.
  48. LAW ENFORCEMENT
  49. Recognize that the general power of governing, or the “police power,” is “possessed by the States but not by the Federal Government” see, e.g., Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2578 (2012); United States v. Morrison, 529 U.S. 598, 619 (2000);
  50. Recognize and abide by state jurisdiction related to road closures, patrols, and search and rescue operations and other enforcement activities not specifically under federal jurisdiction;
  51. Recognize and abide by the sheriff’s authority as the chief law enforcement officer in a county;
  52. Recognize and abide by the Utah Division of Wildlife Resources’ scope of authority on wildlife and hunting enforcement and protection of various game animals, fowl, or fish;
  53. Clarify the state versus the federal share of assets resulting from a federal asset seizure within the state;
  54. Reduce and consolidate federal law enforcement agencies to become more comparable and compatible with state law enforcement agencies;
  55. Pass and sign the Regulatory Agency Demilitarization Act, which stems the trend of federal regulatory agencies developing SWAT-like teams; and
  56. Prohibit executive activities that pursue “bulk collection” surveillance of American citizens;
  57. REVENUE AND TAXATION:
  58. Recognize that nonuniform federal tax policy threatens the structure of federalism.
  59. Enact legislation to solve the remote sales tax issue;
  60. Maintain the tax-exempt status of municipal bonds;
  61. Eliminate restrictions that prevent state legislatures from governing the sharing of state income tax return data;
  62. Fully fund federal mandates or release states from compliance with the federal mandates;
  63. Recognize all unreported liabilities in the federal financial statements and formally include all obligations in national debt computations;
  64. The increasing use of federal administrative action and laws consolidated absolute power of the federal government in a manner that the United States Constitution was designed to prevent; and
  65. The Commission engaged Utah Valley University’s Center for Constitutional Studies to produce a federalism curriculum presented by a national assembly of constitutional experts, including George Washington School of Law Professor Jonathan Turley who warned of the consequences of federal overreach: “People have become reliant on the federal government. The result is that federalism seems like a quaint concept. What’s dangerous about that is it’s a protection of individual liberty. The degree to which people become passive about the increasing power of the federal government, they can watch the greatest protection of their individual liberty simply dissipate”.

NOW, THEREFORE, BE IT RESOLVED:

  1. That the Legislature of the state of Utah echoes the warning of Justice Anthony Kennedy that the increasing assumption and centralization of power to the national government is destroying the federalism structure of our government and placing the liberty of our people “at peril.”
  2. That the Legislature of the state of Utah calls on President Donald J. Trump to reenact Executive Order 12612 with additional provisions sufficient to ensure and enforce compliance with the order.
  3. That the Legislature of the state of Utah calls upon President Donald J. Trump to create a national commission on federalism, comprised of representatives of the 50 states (chosen by the state legislatures) and representatives of the federal government.
  4. That the Legislature of the state of Utah urges Congress to pass and strictly adhere to the Enumerated Powers Act, which would require any bill introduced in Congress to specify the constitutional authority under which the bill would be enacted.
  5. That the Legislature of the state of Utah urges Congress to direct the Government Accountability Office to conduct an audit of federal programs, rules, regulations, and laws that have federalism implications as provided in Executive Order 12612.
  6. That the Legislature of the state of Utah calls upon Congress to pass, and the President to sign, the Regulations from the Executive in Need of Scrutiny Act, as the first step to restrict administrative agencies from exercising the Article I powers of Congress and the Article III powers of the Judiciary.
  7. That the Legislature of the state of Utah recognizes that the increasing federal debt and unfunded obligations directly imperil the states and our citizens and urges Congress to pass the Intergenerational Financial Obligations Reform Act, which would require the federal government to conduct fiscal gap accounting and generational accounting on an annual basis.
  8. That the Legislature of the state of Utah demands that all branches of the federal government refrain from any action that limits the policymaking discretion of the states without clear and express constitutional authority for the action, and that any such action by the federal government must be necessitated by the presence of a problem of national scope, as provided in Executive Order 12612.
  9. That the Legislature of the state of Utah invites and encourages the legislatures of all other states to join with the Utah Legislature to document the issues of federal overreach, to demand that actions be taken by the federal government to restore the divisions and limits of federal power, and to restore the vibrancy of American federalism for the protection of our people’s liberty.
  10. That the Legislature of the state of Utah recognizes that the restoration of our federalism structure will require extensive cooperation among the 50 states and with our federal counterparts, and calls upon all state and national government leaders to engage toward achieving a new nationwide consensus for decentralizing governmental power in the United States.
  11. That the Legislature of the state of Utah views a restoration of American federalism and decentralization of power and authority from the federal government to states, local communities, neighborhoods, families, and individual citizens, beginning with the actions enumerated in this resolution, as essential to the structural protection of the liberties of our people.
  12. That a copy of this resolution be sent to the President of the United States, the Majority Leader of the United States Senate, the Speaker of the United States House of Representatives, the governor of each state outside of Utah, the Senate President or President Pro Tempore and the Speaker of the House as of March 1, 2017, of each state legislature outside of Utah, and to the members of Utah’s congressional delegation.

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