In 1983, the Federal District Court for the District of Utah addressed, as one of its issues, something related to the open-ended incorporation by reference issue discussed earlier. In Utah League of Insured Savings Associations v. Utah (555 F.Supp. 664 (D.Utah, 1983)) the court considered instances where the legislature makes another document the law of the state when it does not yet exist.
[S]ection 7-7-41 [–a state statute–] in effect grants to federal entities the power to make law for the State of Utah. As the section reads, no action by any state official or entity is required for these new rights, powers, privileges, benefits and immunities to be effective; they are operational solely by federal action. The broad provisions of section 7-7-41 grant to the federal government the power to make law for the State of Utah.
The constitutionality of conveying this state legislative power to Congress or other federal entities has not been specifically decided in Utah, though the question has been determined in other states. Even so, it appears Utah law would support the same conclusion. As early as 1932 the Utah Supreme Court in State v. Goss, 79 Utah 559, 11 P.2d 340, 341-42 (Utah 1932), delineated the constitutional problem:
The legislative power of the state is by the Constitution vested in the Legislature, and, under circumstances therein specified, in the people of the state, and such legislative power may not by the Legislature be delegated to other agencies, except as expressly directed or permitted by the Constitution. Where, however, a certain policy has been prescribed by statute, the power to make rules and regulations to carry such policy into effect may be conferred upon or delegated to an administrative agent such as a board or commission.
Quoting from State v. Chicago, Milwaukee and St. P. Ry. Co., 38 Minn. 281, 37 N.W. 782, 787, the court pointed out:
The difference between the power to say what the law shall be, and the power to adopt rules and regulations, or to investigate and determine the facts, in order to carry into effect a law already passed, is apparent. The true distinction is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and the conferring and authority or discretion to be exercised under and in pursuance of the law.
Recent Utah Supreme Court cases would adhere to Goss‘ conclusion. In IML Freight, Inc. v. Ottosen, 538 P.2d 296 (Utah 1975), the Utah Supreme Court cited with approval the language in New Mexico ex rel. McCullouch v. Ashby, 73 N.M. 267, 387 P.2d 588 (1963) that:
It is well [settled] that the legislature may not delegate authority to a board or commission to adopt rules or regulations which abridge, enlarge, extend or modify the statute creating the right or imposing the duty.
Salt Lake City v. International Association of Firefighters, 563 P.2d 786, 790 (Utah 1977), concludes similarly that Article I, Section 2 and Article VI, Section 1 of the Utah Constitution would be violated if the legislature surrendered its legislative authority to another decision-making body.
As the Utah Legislature has no power to prescribe how powers under section 7-7-41 should be given or controlled, this court concludes that section 7-7-41 violates Articles I and VI as being an unconstitutional delegation of legislative authority. The Utah Legislature cannot delegate to the federal government its constitutional duty to make laws for the State of Utah. Thus, section 7-7-41 is hereby declared null and void insofar as it is purported to supersede sections 57-15-1 to -10. (Utah League of Insured Savings Associations v. Utah, 555 F. Supp. 664, 673-4 (D. Utah 1983); emphasis added.)
In 1996, S.B. 25 amended the Utah Administrative Rulemaking Act to require an agency incorporating materials by reference to provide the “the date, issue, or version of the material being incorporated….”