Jeffrey D. Allred, Deseret News
As Winston Churchill once observed, "Democracy is the worst form of government, except for all those others that have been tried." It's easy to agree with him when the inefficiencies of the legislative process fail to achieve the intended policy results. Such is the case with HB155, which a federal judge recently — and rightly — determined to have run afoul of the United States Constitution.
HB155 was strongly supported by the Utah Sheriff's Association, who were concerned about the overreach of federal law-enforcement agents arresting people who violate Utah state law. They reported incidents of such agents using the pretext of Utah law to extend, and, in some cases, to abuse their authority. HB155 was designed to limit such authority to enforce Utah law solely to Utah state officials.
The impulse behind such a move may have been well-intentioned, but it is unenforceable in practice.
As the judge noted at the time he issued his preliminary injunction, "[f]ederal agents are authorized to enforce federal laws that incorporate state standards," and that it "makes sense that laws enforced by state and federal agencies in overlapping jurisdictions should be the same." If that's the case, it becomes very difficult, if not impossible, for a state law enforcement officer to police the legitimacy of federal authority when they are pursuing the same ends. HB155 attempted to solve that problem by denying federal agents any such authority in state matters on federal land. That's a clear and simple solution, but it's also an unconstitutional one.
As Judge David Nuffer noted, the U.S. Constitution's Supremacy Clause ensures that state legislatures cannot override the U.S. Congress. That's true even in cases where some people believe the state is right and Congress is wrong. A more efficient government wouldn't concern itself with such messy legal constraints, but constitutional government is designed to ensure limits on governmental power, not efficiency. The process is cumbersome by design. The overriding goal is to circumvent government's inexorable impulse toward tyranny when power is left unchecked. One of the few upsides to despotism is how efficient the dictatorial approach can be.
The judge offered Utah's state government some encouragement, stressing that nothing prevents Utah from enforcing its state laws on federal land. He also recognized the appropriateness of addressing the problem on an ad hoc basis, which is the approach that lawmakers ought to take as they attempt to fashion a solution consistent with constitutional principles.
It's not enough to create good policy. It has to be good law, too.