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On Tuesday, July 28, Governor Dave Freudenthal transmitted the following memorandum and proposed resolution on state sovereignty to the Wyoming Legislature’s Management Council.

MEMORANDUM

To: Management Council Members
From: Dave Freudenthal, Governor
Date: July 28, 2009
Re: Sovereignty Resolution

As you know, individual states have been adopting Sovereignty Resolutions over the past few years. Such resolutions have been considered by the Wyoming Legislature over the years as well. Representative Illoway is working on one for this session. The attached version expands slightly on the versions currently circulating. The resolution includes a list of specific federal laws and a reference to the idea that retaining lands in federal ownership runs afoul of the "equal footing" doctrine. I am enclosing a possible resolution for your consideration. Clearly this is ultimately a legislative prerogative.

From time to time we all wonder whether sending resolutions to Washington, DC really does any good. On the other hand, it’s nice to at least get our view on the record.

DRAFT 07/13/09

A Bill

for

A JOINT RESOLUTION requesting Congress to cease and desist from enacting mandates that are beyond the scope of the enumerated powers granted to Congress by the Constitution of the United States.

WHEREAS, the Tenth Amendment to the Constitution of the United States reads as follows: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people"; and

WHEREAS, the Tenth Amendment defines the total scope of federal power as being that specifically granted by the Constitution of the United States and no more; and

WHEREAS, the scope of power defined by the Tenth Amendment means that the federal government was created by the states specifically to be anagent of the states; and

WHEREAS, today, in 2010, the states are demonstrably treated as agents of the federal government; and

WHEREAS, many powers assumed by the federal government and federal mandates are directly in violation of the Tenth Amendment to the Constitution of the United States; and

WHEREAS, the Tenth Amendment assures that we, the people of the United States of America and each sovereign state in the union of states, now have, and have always had, rights the federal government may not usurp; and

WHEREAS, section 4, article IV, of the Constitution provides, "The United States shall guarantee to every State in this Union a Republican Form of Government," and the Ninth Amendment provides, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people"; and

WHEREAS, the United States Supreme Court has ruled in New York v. United States, 505 U.S. 144 (1992), that Congress may not simply commandeer the legislative and regulatory processes of the states; and

WHEREAS, the Congress of the United States frequently considers and passes laws, and the executive agencies of the federal government frequently promulgate regulations, the constitutional authority for which is either absent or tenuous, including, without limitation, the Real ID Act (which imposes significant unfunded mandates upon the states with respect to the traditional state function of driver’s licensing), the Endangered Species Act (which, as construed by the United States Fish & Wildlife Service, authorizes a federal executive agency to require specific legislation related to the traditional state function of wildlife management), the Clean Water Act (which, as construed by the Environmental Protection Agency, authorizes a federal executive agency to exercise regulatory jurisdiction over waters which are not subject to federal regulation), the Federal Land Policy and Management Act (which implements a policy of federal lands retention in derogation of the "equal footing" doctrine); and

WHEREAS, a number of proposals from previous administrations and some now pending from the present administration and from Congress may further violate the Constitution of the United States;

NOW, THEREFORE, BE IT RESOLVED BY THE MEMBERS OF THE LEGISLATURE OF THE STATE OF WYOMING:

Section 1. That the Wyoming Legislature claims sovereignty under the Tenth Amendment to the Constitution of the United States over all powers not otherwise enumerated and granted to the federal government by the Constitution of the United States.

Section 2. That this resolution serve as notice and demand to the federal government, as our agent, to cease and desist, effective immediately, from enacting mandates that are beyond the scope of these constitutionally delegated powers.

Section 3. That all compulsory federal legislation that directs the states to comply under threat of civil or criminal penalties or sanctions or that requires states to pass legislation or lose federal funding be prohibited or repealed.

Section 4. That the Secretary of State of Wyoming transmit copies of this resolution to the President of the United States, the President of the Senate and Speaker of the House of Representatives of the United States Congress and to the Wyoming Congressional Delegation, with a request that this resolution be officially entered in the congressional record as a memorial to the Congress of the United States of America.