Commission on Federalism Act

Summary

This bill creates a Commission on Federalism 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 Commission on Federalism — Membership — Vacancies — Meetings — Staff — Reports — Per diem, travel expenses, and funding.

(1)  There is created the Commission on Federalism comprised of the following seven members:

(a) the president of the Senate or the president of the Senate’s designee who shall serve as co-chair of the council;

(b) another member of the Senate, appointed by the president of the Senate;

(c) the speaker of the House or the speaker of the House’s designee who shall serve as co-chair of the council;

(d) two other members of the House, appointed by the speaker of the House;

(e) the minority leader of the Senate or the minority leader of the Senate’s designee; and

(f) the minority leader of the House of the minority leader of the House’s designee.

(2) (a) A majority of the members of the commission constitute a quorum of the commission.

(b) Action by a majority of the members of a quorum constitutes action by the commission.

(3) The commission shall meet [ number ] times a year, unless additional meetings are approved by the [Leadership Management Committee].

(4) The [legislative staff entity] shall provide staff support to the commission.

(5) Salary and expenses of a member of the commission shall be paid in accordance with [salary and expense provisions of State].

[Section 102] Definitions

(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.

[Section 103] Duties of Commission on Federalism

(1) The commission may evaluate a federal law submitted to the commission by a commission member or a member of legislative leadership.

(2) The commission may request information regarding a federal law under evaluation from a United States Senator or representative elected from the state.

(3) If the commission finds that a federal law is not authorized by the United States Constitution or violates the principle of federalism, a commission cochair 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) give written notice of an evaluation made under Subsection [104] to the federal governmental entity responsible for adopting or administering the federal law and 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, 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.

(4) The commission 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 commission’s evaluation of a federal law.

(5) A commission cochair may coordinate the evaluation of and response to a federal law with another state as provided in Section [105].

(6) By the end of May and the end of October of each year, the commission shall submit a report by electronic mail to the [Legislative Management Committee] and the [Government Operations Committee] that summarizes:

(a) action taken by the commission in accordance with this section; and

(b) action taken by, or communication received from, any of the following in response to a request or inquiry made, or other action taken, by the commission:

(i) a United States Senator or representative elected from the state;

(ii) a representative from another state; or

(iii) a federal entity, official, or employee.

(7) The commission shall keep a current list on the Legislature’s website of:

(a) a federal law that the commission evaluates under Subsection [104];

(b) an action taken by a cochair of the commission under Subsection [103];

(c) any coordination undertaken with another state under Subsection [105];

(d) any response received from a federal governmental entity that was requested under Subsection [103].

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

[Section 104]  Standard for evaluation of federal law.

(1)  The Federalism Subcommittee shall evaluate whether a federal law submitted under Subsection 103 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 103 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 105]  Communication with other states and governmental entities.

(1)  A Commission on Federalism cochair 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 Commission on Federalism to discuss and coordinate the evaluation of and response to federal law as provided in Section [103].

(2)  The Commission on Federalism 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.

Re-approved by the ALEC Board of Directors on December 26, 2018.