This is an archived article that was published on sltrib.com in 2011, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
Recently, Sheryl Allen, former state representative and member of the Constitutional Revision Commission, commented on the Legislature's move, through SB44, to end the commission's independence ("Election doesn't make legislators constitutional scholars," Opinion, June 7). We at the Alliance for a Better UTAH believe that SB44 is a strike against the principles of good government and good governance.
Alongside SB44, we find it particularly alarming that the Legislature also passed HB76, creating the Constitutional Defense Council and Federalism Subcommittee. The mission of this council and subcommittee is "to assist the governor and the Legislature to ... evaluate the constitutionality of federal mandates and the advisability, feasibility, estimated cost, and likelihood of success of challenging federal court rulings that impact a power or right reserved to the state or its citizens by the United States Constitution or expands or grants a power to the United States government beyond the limited, enumerated powers granted by the United States Constitution."
In what is perhaps a foreshadowing of future lost-cause court battles, the legislation is oddly specific in further providing that the council and subcommittee may also advise the governor and the Legislature regarding the authority of the federal Environmental Protection Agency to mandate local air quality standards and penalties.
The council's job description is formidable and it holds significant power.
Given the council's sweeping mission, you might imagine that it is composed of lawyers and constitutional experts. And how fortunate that there are two highly ranked law schools within an hour of the Capitol from which to draw members. Unfortunately, you would be wrong.
The statute provides that the council shall be made up of (i) the governor or lieutenant governor, (ii) the president of the Senate, (iii) the speaker of the House, (iv) the minority leader of the Senate, (v) the minority leader of the House, (vi) the attorney general, and (vii) various administrative directors and county commissioners, some of whom do not vote and may designate proxies should they be unable or unwilling to serve.
According to this official roster, then, the attorney general would appear to be the only lawyer in the group, and there is no slot designated for even a single constitutional expert.
So, SB44 ends the independence of the CRC, ostensibly because the Legislature that is proposing amendments to the state Constitution has decided that it already has all the expertise and independence it needs to analyze the constitutionality of these proposed amendments.
Simultaneously, through HB76, the Legislature has taken a further step, determining itself to be so steeped in constitutional expertise that it has created the Constitutional Defense Council and Federalism Subcommittee to fend off the federal government's perceived constitutional excesses.
This is, of course, a role historically reserved for nine men and women periodically appointed by the president of the United States and confirmed by the U.S. Senate as justices of the U.S. Supreme Court.
Combined, these two bills draw a picture that is staggering in its arrogance.
The Legislature feels it is so educated, responsible and wise that it has decided that it does not need the independent advice of the CRC. Yet, at the same time, it will take on the role of policing the federal government in matters involving the U.S. Constitution.
While Utahns should be proud of the breadth of experience that Utah's elected officials bring to our part-time Legislature, there is nothing shameful in the need to call for experts when dealing with matters outside their areas of expertise.
Failing to do so, however, is yet another strike against the principles of good government and good governance.
Josh Kanter is an attorney and the founder of the Alliance for a Better UTAH.