Originally published in Utah Policy.

Although federal politics usually draw the most public attention, the framers of the U.S. Constitution had a different set of priorities. In the system they designed, the people of the United States are the ultimate source of authority, and responsibility is assigned to two different levels of government – the states and the nation. Utah has an opportunity to strengthen the framers’ vision with a bill aimed at restoring some of the much-needed balance between the states and Washington.

For the framers, the states were more significant than the federal government. The Bill of Rights specifies that powers not “delegated to” the national government or prohibited “to the States, are reserved to the States respectively, or to the people.” By contrast, the powers of the national government were to be “few and defined.” Even after the Civil War, this division was respected even as the national government was given clear authority to protect rights and liberties when states overreached.

More recently, however, the respective responsibilities of the different levels of government have been distorted, and the national government makes increasingly more decisions affecting the daily lives of citizens than the states do. And to add insult to injury, much of the influence of federal agencies on state policy decisions – often through pressure put on state executive agencies tasked with implementing state policies – happens out of sight of the public or policymakers, through federal guidance sent directly to state agencies.

A bill being considered in this legislative session would make a necessary first step in addressing this problem. Senate Bill 198 Federal Guidance Letter Amendments, sponsored by Sen. Keven Stratton, would require that guidance materials provided by federal agencies to state officials be made publicly available online so that legislators, other state officials, and the public could see what the government was telling the states to do. This is particularly important because while this guidance is not legally binding, states face strong pressure to comply since they are regulated (and funded) by the federal agencies providing guidance materials. There is currently no requirement that this guidance be publicly disclosed, so it is not clear how much direction is being provided or what it says.

It is not surprising to see Utah taking the lead on this issue: The Center for Practical Federalism’s federalism scorecard ranks Utah as a leader among the states in protecting the constitutional authority of the state from federal overreach (it was No. 1 in 2023 and a close second in 2024).

While this bill is a great first start, the federalism scorecard helps to identify other areas where Utah can strengthen its part of the line in defense of federalism.

Sutherland Institute has just released a “federalism audit” that looks at each measure on the scorecard and describes what Utah is doing. In most cases the news is good, but there are areas for improvement.

Some ideas identified in the report are:

• Allow the Legislature’s administrative oversight committee to suspend proposed rules pending review by the full Legislature and to review all rules, not just those recently proposed.
• Adopt limitations, elected official oversight, and transparency on lobbying by state officials.
• Allow the people who would be affected to seek an injunction of a proposed rule that could be harmful to them.
• Require legislative approval of state implementation plans of the Clean Air Act and Medicaid.

Utah has the ability to punch above its weight on this critical constitutional issue, and this legislative session can provide a critical next step in its effort to preserve federalism – with more to follow.