POLITICS + GOVERNMENT

BALANCE OF POWER: Did Utah’s legislature violate the state constitution with its remote school plan?

Feb 2, 2022, 7:35 AM | Updated: Feb 3, 2022, 7:29 am
KSL File Photo

SALT LAKE CITY — The law that outlines how Utah schools can move to remote learning raises new questions about whether state lawmakers violated the state constitution in the process.

State constitution in question

Utah’s Republican-led legislature first decided how schools can go remote last year with S.B.107, then tweaked the process this session when they nixed “test to stay” with H.B. 183.

H.B. 183 tweaked the process for school districts and suspended Test-to-Stay. But it didn’t change the part that says the governor, state superintendent, speaker of the House, and Senate president together must give final approval before a district can go online.

“So effectively that means the speaker of the House has a veto on that decision, the Senate president has a veto on that decision, as do the governor and state superintendent,” said Adam Brown, Associate Professor of Political Science at BYU, who studies state constitutional politics.

“The thing that seems strange constitutionally is giving the speaker of the House and the Senate president a unilateral decision-making role when there’s nothing in the state constitution suggesting they have been given that.”

According to Brown, the speaker and president can act for their respective chambers. However, they cannot make binding decisions affecting a school district.

A violation of the Utah state constitution?

This law may also violate the state’s Separation of Powers Doctrine, which says:

The powers of the government of the State of Utah shall be divided into three distinct departments, the Legislative, the Executive, and the Judicial; and no person charged with the exercise of powers properly belonging to one of these departments, shall exercise any functions appertaining to either of the others, except in the cases herein expressly directed or permitted.

A local Salt Lake City-based appellate judge argues the legislature is in violation because lawmakers passed this bill putting themselves in charge of something they do not have the authority to be in charge of – the execution of when schools go remote.

A function of the executive branch

That, argues Brent Wride, is a function of the executive branch in the form of the state school board.  

“The legislature, in my view, is seeking to inject itself into the day-to-day oversight of the schools. That is inherently an executive function.” Wride said.

Sen. Todd Weiler, R-Woods Cross, a lawmaker and an attorney who sponsored that bill, disagrees. 

“It’s not an executive function,” he said. “The legislature set the policy and this committee is giving us some nimbleness to turn the policy off.”

Power with the legislature

Weiler argues the power actually belongs to the legislature because they say what happens with Utah’s schools.

“I think we are on very solid constitutional grounds,” Weiler said.

Furthermore, he says this bill makes these four top leaders, a commission. And says Utah’s Supreme Court allows lawmakers to be on commissions without violating the separation of powers.

“We have a long history of appointing legislators to committees and those committees making decisions,” he said. “And that’s what’s happening here.”

One main difference: commissions are ruled by the majority. Therefore, they don’t typically grant what amounts to veto power to a single individual.

Brown says it might take a while, if we ever, see the judicial branch weighs in on all of this.

“We tend to assume the courts will adjudicate questions of constitutionality,” he said. “Therefore, the legislative and executive branches should do whatever they want until the courts stop them. And that’s a very impoverished view of constitutionality.”

Read more:

We want to hear from you.

Have a story idea or tip? Send it to the KSL NewsRadio team here.

Today’s Top Stories

Politics + Government

A pair of bills in the Utah Legislature address if and how Utah teens could use social media. One w...
Lindsay Aerts

Bill would require parental permission for Utah teens to use social media

Two bills circulating at the 2023 Utah Legislative Session involve social media, parents, and their teens. A group of tech CEOs opposes one.
21 hours ago
Rep. George Santos, R-N.Y., departs after attending a House GOP conference meeting on Capitol Hill ...
Manu Raju and Melanie Zanona, CNN

George Santos tells House Republicans he wants off of his committees until issues are resolved

Republican Rep. Marjorie Taylor Greene of Georgia told CNN that it was Santos' decision that he made on his own to "abstain" from the committees.
21 hours ago
Nicole Schmidt, mother of Gabby Petito, wipes away a tear during a press conference for SB117, a bi...
SAM METZ, The Associated Press

Petito family lobbies for ‘lethality assessment’ law in Utah

SALT LAKE CITY (AP) — When officers pulled over a van for speeding outside of Arches National Park in August 2021, they found a visibly distraught young couple in an emotional fight. Gabby Petito, 22, and her boyfriend Brian Laundrie, 23, were driving across the United States, and upon observing the couple, police officers in […]
21 hours ago
education legislation...
Mark Jones

One Utah lawmaker wants to ban cellphones in classrooms

One Utah lawmaker wants to ban cellphones in Utah classrooms.
2 days ago
FILE - A doctor loads a dose of Pfizer COVID-19 vaccine into a syringe, Thursday, Dec. 2, 2021, at ...
Aimee Cobabe

Bill banning vaccine passports heading to Utah Senate

A bill to ban vaccine passports is heading out of the Utah House and into the Utah Senate. The bill is similar to a failed bill from 2022.
2 days ago
Hundreds gather in support of transgender youth in a rally at the Capitol on Tuesday, Jan. 24, 2023...
Lindsay Aerts

LGBTQ advocacy groups to file lawsuit over Utah’s transgender-related surgery law

SALT LAKE CITY — The National Center for Lesbian Rights and the ACLU of Utah will file a lawsuit against the new Utah law banning transgender minors from getting surgeries and limiting hormone treatments. “We’re putting together a challenge as quickly as we can,” said Shannon Minter, the NCLR’s legal director, to KSL NewsRadio’s Lindsay […]
2 days ago

Sponsored Articles

Banner with Cervical Cancer Awareness Realistic Ribbon...
Intermountain Health

Five Common Causes of Cervical Cancer – and What You Can Do to Lower Your Risk

January is National Cervical Cancer Awareness month and cancer experts at Intermountain Health are working to educate women about cervical cancer, the tests that can warn women about potential cancer, and the importance of vaccination.
Kid holding a cisco fish at winterfest...
Bear Lake Convention and Visitors Bureau

Get Ready for Fun at the 2023 Bear Lake Monster Winterfest

The Bear Lake Monster Winterfest is an annual weekend event jam-packed full of fun activities the whole family can enjoy. This year the event will be held from January 27-29 at the Utah Bear Lake State Park Marina and Sunrise Resort and Event Center in Garden City, Utah. 
happy friends with sparklers at christmas dinner...
Macey's

15 Easy Christmas Dinner Ideas

We’ve scoured the web for you and narrowed down a few of our favorite Christmas dinner ideas to make your planning easy. Choose from the dishes we’ve highlighted to plan your meal or start brainstorming your own meal plan a couple of weeks before to make sure you have time to shop and prepare.
Spicy Homemade Loaded Taters Tots...
Macey's

5 Game Day Snacks for the Whole Family (with recipes!)

Try these game day snacks to make watching football at home with your family feel like a special occasion. 
Happy joyful smiling casual satisfied woman learning and communicates in sign language online using...
Sorenson

The Best Tools for Deaf and Hard-of-Hearing Workplace Success

Here are some of the best resources to make your workplace work better for Deaf and hard-of-hearing employees.
Team supporters celebrating at a tailgate party...
Macey's

8 Delicious Tailgate Foods That Require Zero Prep Work

In a hurry? These 8 tailgate foods take zero prep work, so you can fuel up and get back to what matters most: getting hyped for your favorite
BALANCE OF POWER: Did Utah’s legislature violate the state constitution with its remote school plan?