Utah wants to pick and choose federal laws to ignore. Why that’s not as impossible as it sounds.

A legal analysis from legislative lawyers warns an attempt to push back on the feds could run into constitutional problems

(Trent Nelson | The Salt Lake Tribune) The Utah Capitol in Salt Lake City on Tuesday, Jan. 23, 2024. Utah lawmakers are considering a bill that would allow them to pick and choose which federal regulations they would follow and ignore.

Are Utah lawmakers taking steps to push back against federal overreach — or are they picking a fight with the federal government?

A bill creating a process to give legislators the power to order state officials and agencies to ignore federal laws and regulations was approved by the Utah House of Representatives on Friday.

The House passage follows Gov. Spencer Cox’s endorsement of Texas Republican Gov. Greg Abbott’s decision to defy the Supreme Court and supplant federal authority over the southern border.

The process SB57 from Sen. Scott Sandall, R-Tremonton, would work like this: If lawmakers believe an action or regulation from the federal government would harm the state, they could introduce a resolution opposing the federal mandate. If that resolution is passed with a two-thirds vote in both the Utah House and Senate and signed by the governor, then state agencies and officials would be directed not to implement or ignore federal authority until a court orders the state to comply.

Rep. Ken Ivory, R-West Jordan, praised the legislation during floor debate, arguing Supreme Court Chief Justice Roberts has given his tacit permission for states to push back more against the federal government.

“The Chief Justice of the US Supreme Court said states are separate and independent sovereigns. Sometimes, they have to act like it,” Ivory told his colleagues. “This is one mechanism by which the state of Utah takes the Chief Justice of the US Supreme Court at his word, where we defend against federal prerogatives that we do not want to embrace as our own. And we act like separate independent sovereigns.”

That may not be the case, though. A legal analysis of the bill from legislative attorneys obtained by The Salt Lake Tribune warns the proposal could run into a constitutional roadblock if lawmakers decide to deploy the process SB57 creates, but that all will depend on the circumstances.

In broad terms, the Constitution’s Supremacy Clause says federal law usually takes precedence over state law. That was why the Supreme Court sided with the Biden administration in the dispute with Texas over enforcement at the border. The justices ruled that Texas could not stop federal agents from removing a wire barrier Texas installed to stop migrants from crossing into the state. On Wednesday evening, Texas Governor Greg Abbott ramped up tensions between the state and the federal government by announcing he would effectively ignore the decision from the court.

There may be a path where the state could successfully challenge federal authority.

The legal analysis for Utah’s lawmakers argues that the “anti-commandeering” principle in the 10th Amendment prevents the federal government from commanding states to implement federal regulations that commandeer authority that should be given to the states. In 2018, the Supreme Court ruled in Murphy v. NCAA that a federal ban on sports gambling unconstitutionally interfered with New Jersey’s authority to regulate gambling within its borders.

Ultimately, lawmakers may have to thread a narrow constitutional needle because any future attempt to defy federal policy would hinge on whether a court would see the move as conflicting with the Supremacy Clause or federal government overreach.

Missouri lawmakers tried something similar in 2021. The Show-Me State’s Second Amendment Preservation Act restricted state employees and officials from enforcing various federal gun laws they felt infringed on the constitutional right to bear arms. A federal judge struck down the law last year, saying it was an “impermissible nullification attempt” and, according to The New York Times, the Supreme Court upheld that decision.

Salt Lake City Democrat Rep. Joel Briscoe said, despite the flowery rhetoric from Republicans about states’ rights and the 10th Amendment, SB57 goes further than any piece of legislation he’s ever seen since being first elected in 2010.

“There are remedies for things the government does that we don’t like, but we don’t like the remedies all the time because they take time. Sometimes, they take courts. They take difficult meetings and very difficult conversations, and we don’t always get our way,” Briscoe said. “It looks to me like we’re asking for a fight. I’m not convinced, as satisfying as that may be for some people, that’s in the best interest of the state of Utah.”

The Senate still must sign off on changes made to the legislation by the House before the bill makes its way to Gov. Spencer Cox’s desk for his signature. Cox’s office did not respond to questions from The Tribune about whether he intends to sign the bill.