Federal Law Evaluation and Response Act Exposed

The Federal Law Evaluation and Response Act was considered by ALEC's Federal Relations Working Group at the 2011 Annual Meeting on August 4, 2011. This bill was part of the ALEC task force agenda between 2010 and 2012, but due to incomplete information, it is not known if the bill passed in a vote by legislators and lobbyists at ALEC task force meetings, if ALEC sought to distance itself from the bill as the public increased scrutiny of its pay-to-play activities, or if key operative language from the bill has been introduced by an ALEC legislator in a state legislature in the ensuing period or became binding law.

ALEC Draft Bill Text

Summary

This bill creates a state Constitutional Defense Council and Federalism Subcommittee to review, evaluate and respond to federal actions that infringe upon the constitutional jurisdiction of the state. It provides the standard for such review and a mechanism for coordinating the review, evaluation and response together with other states, and with the congressional delegation from the state.

[Section 101] Creation of Constitutional Defense Council and Federalism Subcommittee -- Membership -- Vacancies -- Meetings -- Staff -- Reports -- Per diem, travel expenses, and funding.

(1) There is created the Constitutional Defense Council.

(2)

(a) The council shall consist of the following members:

(i) the governor or the lieutenant governor, who shall serve as chair of the council;

(ii) the president of the Senate or the president of the Senate's designee who shall serve as vice chair of the council;

(iii) the speaker of the House or the speaker of the House's designee who shall serve as vice chair of the council;

(iv) the minority leader of the Senate or the minority leader of the Senate's designee;

(v) the minority leader of the House or the minority leader of the House's designee;

(vi) the attorney general or the attorney general's designee, who shall be one of the attorney general's appointees, not a current career service employee;

(vii) the director of the School and Institutional Trust Lands Administration;

(viii) four elected county commissioners, county council members, or county executives from different counties who are selected by the Utah Association of Counties, at least one of whom shall be from a county of the first or second class;

(ix) the executive director of the Department of Natural Resources, who may not vote;

(x) the commissioner of the Department of Agriculture and Food, who may not vote;

(xi) the director of the Governor's Office of Economic Development, who may not vote; and

(xii) two elected county commissioners, county council members, or county executives from different counties appointed by the Utah Association of Counties, who may not vote.

(b) The council vice chairs shall conduct a council meeting in the absence of the chair.

(c) If both the governor and the lieutenant governor are absent from a meeting of the council, the governor may designate a person to attend the meeting solely for the purpose of casting a vote on any matter on the governor's behalf.

(3) When a vacancy occurs in the membership for any reason, the replacement shall be appointed for the unexpired term in the same manner as the original appointment.

(4)

(a)

(i) Except as provided in Subsection (4)(a)(ii), the council shall meet at least monthly or more frequently as needed.

(ii) The council need not meet monthly if the chair, after polling the members, determines that a majority of the members do not wish to meet.

(b) The governor or any six members of the council may call a meeting of the council.

(c) Before calling a meeting, the governor or council members shall solicit items for the agenda from other members of the council.

(d)

(i) The council shall require that any entity that receives money from the Constitutional Defense Restricted Account provide financial reports and litigation reports to the council.

(ii) Nothing in this Subsection (4)(d) prohibits the council from closing a meeting under [Open and Public Meetings Act], or prohibits the council from complying with [Government Records Access and Management Act].

(e) A majority of the voting membership on the council is required for a quorum to conduct council business. A majority vote of the quorum is required for any action taken by the council.

(5)

(a) The Office of the Attorney General shall advise:

(i) the council; and

(ii) the Federalism Subcommittee.

(b) The Public Lands Policy Coordinating Office shall provide staff assistance for meetings of the council and Federalism Subcommittee.

(6) A member may not receive compensation or benefits for the member's service, but may receive per diem and travel expenses [in accordance with State Law].

(7)

(a) The council and Federalism Subcommittee shall be funded from the Constitutional Defense Restricted Account created in Section 103].

(b) Money appropriated for or received by the council may be expended by the governor in consultation with the council.

(8)

(a) There is created a Federalism Subcommittee of the council.

(b) The subcommittee shall consist of members listed in Subsections (2)(a)(i) through (vi).

(c)

(i) The governor or the lieutenant governor shall serve as chair of the subcommittee.

(ii) The council vice chair shall conduct a subcommittee meeting in the absence of the chair.

[Section 102] Duties.

(1) The Constitutional Defense Council is a council to assist the governor and the Legislature on the following types of issues:

(a) the constitutionality of federal mandates;

(b) when making recommendations to challenge the federal mandates and regulations described in Subsections (1)(e)(i) through (v), the rationale for and effectiveness of those federal mandates or regulations;

(c) legal and policy issues surrounding state and local government rights under R.S. 2477;

(d) legal issues relating to the rights of the School and Institutional Trust Lands Administration and its beneficiaries; and

(e) the advisability, feasibility, estimated cost, and likelihood of success of challenging:

(i) federal court rulings that:

(A) hinder the management of the state's prison system and place undue financial hardship on the state's taxpayers;

(B) impact a power or a right reserved to the state or its citizens by the United States Constitution, Amendment IX or X; or

(C) expand or grant a power to the United States government beyond the limited, enumerated powers granted by the United States Constitution;

(ii) federal laws or regulations that reduce or negate water rights or the rights of owners of private property, or the rights and interest of state and local governments, including sovereignty interests and the power to provide for the health, safety, and welfare, and promote the prosperity of their inhabitants;

(iii) conflicting federal regulations or policies in land management on federal land;

(iv) federal intervention that would damage the state's mining, timber, and ranching industries;

(v) the authority of the Environmental Protection Agency and Congress to mandate local air quality standards and penalties; and

(vi) other issues that are relevant to this Subsection (1).

(2) The council shall:

(a) provide advice to the governor, state planning coordinator, and the public lands policy coordinator concerning coordination of:

(i) state and local government rights under R.S. 2477; and

(ii) other public lands issues;

(b) approve a plan for R.S. 2477 rights developed in accordance with Section 63C- 4-104; and

(c) review, at least quarterly:

(i) financial statements concerning implementation of the plan for R.S. 2477 rights; and

(ii) financial and other reports from the Public Lands Policy Coordinating Office concerning its activities.

(3) The council chair may require the attorney general or a designee to provide testimony on potential legal actions that would enhance the state's sovereignty or authority on issues affecting Utah and the well-being of its citizens.

(4) The council chair may direct the attorney general to initiate and prosecute any action that the council determines will further its purposes.

(5)

(a) Subject to the provisions of this section, the council may select and employ attorneys to implement the purposes and duties of the council.

(b) The council chair may, in consultation with the council, direct any council attorney in any manner considered appropriate by the attorney general to best serve the purposes of the council.

(c) The attorney general shall negotiate a contract for services with any attorney selected and approved for employment under this section.

(6) The council chair may, only with the concurrence of the council, review and approve all claims for payments for:

(a) legal services that are submitted to the council;

(b) an action filed [in accordance with State Law]; and

(c) costs related to a constitutional defense plan approved in accordance with Section 104 that are submitted by:

(i) the Public Lands Policy Coordinating Office;

(ii) the School and Institutional Trust Lands Administration; or

(iii) the Office of the Attorney General.

(7) Within five business days' notice, the council chair may, with the concurrence of the council, order the attorney general or an attorney employed by the council to cease work to be charged to the fund.

(8)

(a) At least 20 calendar days before the state submits comments on the draft environmental impact statement or environmental assessment for a proposed land management plan of any federal land management agency, the governor shall make those documents available to:

(i) members of the council; and

(ii) any county executive, county council member, or county commissioner of a county that is covered by the management plan and that has established formal cooperating agency status with the relevant federal land management agency regarding the proposed plan.

(b)

(i) Council members or local government officials receiving the documents may make recommendations to the governor or the governor's designee concerning changes to the documents before they are submitted to the federal land management agency.

(ii) Council members or local government officials shall submit recommendations to the governor or the governor's designee no later than 10 calendar days after receiving the documents under Subsection (8)(a).

(c) Documents transmitted or received under this Subsection (8) are drafts and are protected records pursuant to [State Law].

(9) The council shall submit a report on December 1 of each year by electronic mail that summarizes the council's activities to each legislator.

[Section 103] Creation of Constitutional Defense Restricted Account -- Sources of funds -- Uses of funds -- Reports.

(1) There is created a restricted account within the General Fund known as the Constitutional Defense Restricted Account.

(2) The account consists of money from the following revenue sources:

(a) money deposited to the account as required by [State Law];

(b) voluntary contributions;

(c) money received by the council from other state agencies; and

(d) appropriations made by the Legislature.

(3) Funds in the account shall be nonlapsing.

(4) The Legislature may annually appropriate money from the Constitutional Defense-Restricted Account to one or more of the following:

(a) the council for the council's or Federalism Subcommittee's duties established in this chapter;

(b) the Public Lands Policy Coordinating Office to carry out its duties in [State Law];

(c) the Office of the Governor, to be used only for the purpose of asserting, defending, or litigating state and local government rights under R.S. 2477, in accordance with a plan developed and approved as provided in Section 104;

(d) a county or association of counties to assist counties, consistent with the purposes of the council, in pursuing issues affecting the counties; or

(e) the Office of the Attorney General, to be used only:

(i) for public lands counsel and assistance and litigation to the state or local governments including asserting, defending, or litigating state and local government rights under R.S. 2477 in accordance with a plan developed and approved as provided in Section 104;

(ii) for an action filed in accordance with [State Law]; or

(iii) to advise the council and Federalism Subcommittee.

(5)

(a) The council shall require that any entity that receives money from the Constitutional Defense Restricted Account provide financial reports and litigation reports to the council.

(b) Nothing in this Subsection (5) prohibits the council from closing a meeting under [Open and Public Meetings Act], or prohibits the council from complying with [Government Records Access and Management Act.

[Section 104] Plans for R.S. 2477 rights and Constitutional defense -- Contents.

(1) As used in this section:

(a) "Constitutional defense plan" means a plan that outlines actions and expenditures to fulfill the council's and Federalism Subcommittee's duties established by this chapter.

(b) "R.S. 2477 plan" means a guiding document that:

(i) is developed jointly by the Utah Association of Counties and the state;

(ii) is approved by the Constitutional Defense Council; and

(iii) presents the broad framework of a proposed working relationship between the state and participating counties collectively for the purpose of asserting, defending, or litigating state and local government rights under R.S. 2477.

(2) The Constitutional Defense Council may approve a R.S. 2477 plan if the R.S. 2477 plan:

(a) provides for a good faith, cooperative effort between the state and each participating county;

(b) allows a county to formally agree to participate in the R.S. 2477 plan by adopting a resolution;

(c) provides that the state and a participating county are equal partners in determining litigation strategy and the expenditure of resources with respect to that county's rights under R.S. 2477; and

(d) provides a process for resolving any disagreement between the state and a participating county about litigation strategy or resource expenditure that includes the following requirements:

(i) the governor or the governor's designee and a representative of the Utah Association of Counties shall first attempt to resolve the disagreement;

(ii) if the county and the state continue to disagree, the county, the governor, and the Utah Association of Counties shall present their recommendations to the Constitutional Defense Council for a final decision about the strategy or expenditure in question; and

(iii) the county may pursue a strategy or make an expenditure contrary to the final decision of the Constitutional Defense Council only if the county does not claim resources provided to fund the R.S. 2477 plan.

(3) The Constitutional Defense Council shall ensure that the R.S. 2477 plan contains:

(a) provisions identifying which expenditure types require approval of the R.S. 2477 plan committee and which expenditure types may be made without the R.S. 2477 plan committee approval;

(b) provisions requiring that financial statements be provided to members of the R.S. 2477 plan committee and members of the Constitutional Defense Council, and the frequency with which those financial statements must be provided; and

(c) provisions identifying those decisions or types of decisions that may be made by the R.S. 2477 plan committee and those decisions or types of decisions that must be referred to the Constitutional Defense Council for decision.

(4)

(a) The Public Lands Policy Coordinating Office, in consultation with the Office of the Attorney General and the School and Institutional Trust Lands, shall prepare and submit a constitutional defense plan to the Constitutional Defense Council for the council's approval.

(b) The constitutional defense plan shall contain proposed action and expenditure for:

(i) the council's or the subcommittee's duties established by this chapter; or

(ii) an action filed in accordance with [State Law].

(5) The Constitutional Defense Council shall:

(a) review expenditures, at least quarterly, made to further a plan approved under this section;

(b) approve an update to a plan under this section at least annually, or more often, if necessary; and

(c) jointly, with the Public Lands Policy Coordinating Office, present a R.S. 2477 plan approved under this section, with any updates, to:

(i) the Legislature's Natural Resources, Agriculture, and Environment Interim Committee by July 1 of each calendar year, after providing the R.S. 2477 plan to the committee at least seven days before the presentation; and

(ii) the president of the Senate and the speaker of the House of Representatives, which may be by mail.

[Section 106] Evaluation of federal law and policy -- Response.

(1) As used in this chapter:

(a) "Federal governmental entity" means:

(i) the President of the United States;

(ii) the United States Congress;

(iii) a United States agency; or

(iv) an employee or official appointed by the President of the United States.

(b) "Federal law" means:

(i) an executive order by the President of the United States;

(ii) a statute passed by the United States Congress;

(iii) a regulation adopted by a United States agency; or

(iv) a policy statement, guidance, or action by:

(A) a United States agency; or

(B) an employee or official appointed by the President of the United States.

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

(2) In accordance with Section 107, the Federalism Subcommittee shall evaluate a federal law submitted to the Federalism Subcommittee by a council member.

(3) The Federalism Subcommittee may request information regarding a federal law under evaluation from a United States Senator or Representative elected from the state.

(4) If the Federalism Subcommittee finds that a federal law is not authorized by the United States Constitution or violates the principle of federalism as described in Subsection 63C-4-107(2), the Federalism Subcommittee chair may:

(a) request from a United States Senator or Representative elected from the state:

(i) information about the federal law; or

(ii) assistance in communicating with a federal governmental entity regarding the federal law;

(b)

(i) give written notice of the evaluation required by Subsection (2) to the federal governmental entity responsible for adopting or administering the federal law; and

(ii) request a response by a specific date to the evaluation from the federal governmental entity; and

(c) request a meeting, conducted in person or by electronic means, with the federal governmental entity and a council member, a representative from another state, or a United States Senator or Representative elected from the state to discuss the evaluation of federal law and any possible remedy.

(5) The Federalism Subcommittee may recommend to the governor that the governor call a special session of the Legislature to give the Legislature an opportunity to respond to the subcommittee's evaluation of a federal law.

(6) The Federalism Subcommittee chair may coordinate the evaluation of and response to federal law with another state as provided in Section 63G-4-108.

(7) The Federalism Subcommittee shall submit a report by electronic mail that summarizes action taken in accordance with this section to the Government Operations Interim Committee on May 20 and October 20 of each year.

[Section 107] Standard for evaluation of federal law.

(1) The Federalism Subcommittee shall evaluate whether a federal law submitted under Subsection 106(2) is authorized by:

(a) United States Constitution, Article I, Section 2, to provide for the decennial census;

(b) United States Constitution, Article I, Section 4, to override state laws regulating the times, places, and manner of congressional elections, other than the place of senatorial elections;

(c) United States Constitution, Article I, Section 7, to veto bills, orders, and resolutions by Congress;

(d) United States Constitution, Article I, Section 8, to:

(i) lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defense and general welfare of the United States, but all duties, imposts, and excises shall be uniform throughout the United States;

(ii) borrow money on the credit of the United States;

(iii) regulate commerce with foreign nations, among the several states, and with the Indian tribes;

(iv) establish a uniform rule of naturalization and uniform laws on the subject of bankruptcies throughout the United States;

(v) coin money, regulate the value of coin money and of foreign coin, and fix the standard of weights and measures;

(vi) provide for the punishment of counterfeiting the securities and current coin of the United States;

(vii) establish post offices and post roads;

(viii) promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

(ix) constitute tribunals inferior to the supreme court;

(x) define and punish piracies and felonies committed on the high seas and offences against the law of nations;

(xi) declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

(xii) raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

(xiii) provide and maintain a navy;

(xiv) make rules for the government and regulation of the land and naval forces;

(xv) provide for calling forth the militia to execute the laws of the union, suppress insurrections, and repel invasions;

(xvi) provide for organizing, arming, and disciplining the militia, and for governing the part of the militia that may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers and the authority of training the militia according to the discipline prescribed by Congress;

(xvii) exercise exclusive legislation in all cases whatsoever, over such district, which may not exceed 10 miles square, as may, by cession of particular states and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the place shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings; or

(xviii) make all laws which shall be necessary and proper for carrying into execution the powers listed in this section, and all other powers vested by the United States Constitution in the government of the United States, or in any department or officer of the United States;

(e) United States Constitution, Article I, Section 9, to authorize a federal officer to receive benefits from a foreign nation;

(f) United States Constitution, Article I, Section 10, to fix the pay of members of Congress and of federal officers;

(g) United States Constitution, Article II, Section 1, to:

(i) set the time for choosing electors; or

(ii) establish who succeeded to the presidency after the vice president;

(h) United States Constitution, Article II, Section 2, to:

(i) serve as Commander-in-Chief of the armed forces;

(ii) require the written opinions of executive officers;

(iii) grant reprieves and pardons;

(iv) make vacancy appointments;

(v) make treaties, subject to the advice and consent of the United States Senate;

(vi) appoint foreign affairs officers subject to the advice and consent of the United States Senate;

(vii) appoint domestic affairs officers subject either to the advice and consent of the United States Senate or pursuant to law;

(viii) appoint judges subject to the advice and consent of the United States Senate; or

(xiv) authorize the president to fill designated inferior offices without senatorial consent;

(j) United States Constitution, Article II, Section 3, to:

(i) receive representatives of foreign powers;

(ii) execute the laws;

(iii) commission United States officers;

(iv) give Congress information;

(v) make recommendations to Congress;

(vi) convene Congress on extraordinary occasions; or

(vii) adjourn Congress if it cannot agree on a time;

(k) United States Constitution, Article III, Section 1, to:

(i) create exceptions to the supreme court's appellate jurisdiction;

(ii) fix the jurisdiction of federal courts inferior to the supreme court; or

(iii) declare the punishment for treason;

(l) United States Constitution, Article IV, Section 1, to establish the rules by which the records and judgments of states are proved in other states;

(m) United States Constitution, Article IV, Section 3, to:

(i) manage federal property;

(ii) dispose of federal property;

(iii) govern the federal territories; or

(iv) consent to admission of new states or the combination of existing states;

(n) United States Constitution, Article IV, Section 4, to defend states from invasion, insurrection, and non-republican forms of government;

(o) United States Constitution, Article V, Section 1, to propose constitutional amendments;

(p) United States Constitution, Article VI, Section 1, to prescribe the oath for federal officers;

(q) United States Constitution, Amendment XIII, to abolish slavery;

(r) United States Constitution, Amendment XIV, to guard people from certain state abuses;

(s) United States Constitution, Amendment XVI, to impose taxes on income from any source without having to apportion the total dollar amount of tax collected from each state according to each state's population in relation to the total national population;

(t) United States Constitution, Amendment XX, to revise the manner of presidential succession;

(u) United States Constitution, Amendment XV, XIX, XXIII, or XXIV, to extend and protect the right to vote; or

(v) United States Constitution, Amendment XVII, to grant a pay raise to a sitting Congress.

(2) The Federalism Subcommittee shall evaluate whether a federal law submitted under Subsection 106(2) violates the principle of federalism by:

(a) affecting the distribution of power and responsibility among the state and national government;

(b) limiting the policymaking discretion of the state;

(c) impacting a power or a right reserved to the state or its citizens by the United States Constitution, Amendment IX or X; and

(d) impacting the sovereignty rights and interest of the state or a political subdivision to provide for the health, safety, and welfare and promote the prosperity of the state's or political subdivision's inhabitants.

(3) In the evaluation of a federal law, the Federalism Subcommittee:

(a) shall rely on:

(i) the text of the United States Constitution, as amended;

(ii) the meaning of the text of the United States Constitution, as amended, at the time of its drafting and ratification; and

(iii) a primary source document that is:

(A) directly relevant to the drafting, adoption, ratification, or initial implementation of the United States Constitution, as amended; or

(B) created by a person directly involved in the drafting, adoption, ratification, or initial implementation of the United States Constitution, as amended;

(b) may rely on other relevant sources, including federal court decisions; and

(c) is not bound by a holding by a federal court.

[Section 108] Communication with other states and governmental entities.

(1) The Federalism Subcommittee chair may correspond with the presiding officer of the legislative branch of another state or an entity of another state that has powers and duties that are similar to the Federalism Subcommittee to discuss and coordinate the evaluation of and response to federal law as provided in Section 106.

(2) The Federalism Subcommittee shall send a copy of this bill and the pages of the House and Senate Journal that pertain to this bill to:

(a) the governor of each state;

(b) the presiding officer, the majority leader, and the minority leader of each house, if applicable, of each state legislature;

(c) each United States Senator or Representative elected from this state;

(d) the Chief Justice of the United States Supreme Court;

(e) the President of the United States; and

(f) the presiding officer, the majority leader, and the minority leader of each house of the United States Congress.