IN THE SENATE OF THE UNITED STATES
December 9, 2010
Mr. Wicker (for himself and Mr. Barrasso) introduced the following bill; which was read twice and referred to the Committee on the Judiciary
To protect 10th Amendment rights by providing special standing for State government officials to challenge proposed regulations, and for other purposes.
This Act may be cited as the
Restoring the 10th Amendment
The Congress finds:
The 10th article of amendment to the
Constitution of the United States (hereinafter in this section referred to as
the 10th Amendment), ratified on December 15, 1791, states,
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 10th Amendment expressly limits the powers of the Federal Government to those delegated by the Constitution and reaffirms and protects the freedom of the States to exercise those that are not.
The 10th Amendment reflects the opposition of the Founding Fathers to a Federal Government with expansive powers; their intention for the powers of the States to act as a check on those of the Federal Government; and their concern that the Federal Government would attempt to usurp powers intended to remain with the States.
James Madison, in
The Federalist No. 45, wrote,
The powers delegated by the proposed
Constitution to the Federal Government are few and defined. Those which are to
remain in the State governments are numerous and indefinite..
The Supreme Court,
in United States v. Sprague, 282 U.S. 716 (1931), noted,
Amendment was intended to confirm the understanding of the people at the time
the Constitution was adopted, that powers not granted to the United States were
reserved to the States or to the people..
The Supreme Court,
in Fry v. United States, 421 U.S. 542 (1975), also noted,
expressly declares the constitutional policy that Congress may not exercise
power in a fashion that impairs the States' integrity or their ability to
function effectively in a federal system..
The Executive Departments and Agencies of the Federal Government often promulgate regulations contrary to the spirit and letter of the 10th Amendment.
The 10th Amendment assures that 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.
It is the responsibility of Congress to safeguard the 10th Amendment and to recognize that it is as vital and valuable today as on the date of its ratification.
Special standing for certain State officials to challenge Federal rulemaking as a violation of the 10th Amendment
To submit a legal brief
During any period when a proposed Federal rule is required under chapter 5, title 5, United States Code, to be open for public comment, any designated State official may file with the head of the agency proposing the rule a legal brief challenging the constitutionality of the proposed rule under the 10th article of amendment to the Constitution.
Duty of Federal official To post link to the brief
The head of the Federal agency proposing the rule shall prominently post on the agency’s primary Web page, in such a manner that it is immediately noticeable to those who visit that Web site, a link to each brief submitted under subsection (a).
Response by Federal agency
Unless the Federal agency determines not to carry into effect the proposed rule, not later than 15 days after posting the link under subsection (a), the head of that agency shall—
certify in writing that, in the opinion of that head, such rulemaking does not violate the 10th article of amendment to the Constitution and include in that certification a full and complete written statement of the legal reasoning supporting that opinion; and
prominently post the certification on the front page of the agency’s Web site next to the legal briefs pertaining to that rule posted under subsection (b).
Notice to other States’ officials
Not later than 15 days after a designated State official submits a brief under this section, the head of the agency proposing the rule shall give notice to each designated State official of each State that the brief was filed.
Venue and jurisdiction of legal actions by State officials
If a designated State official decides to commence legal action against a proposed or final Federal rule on the grounds that the rule violates the 10th article of amendment to the Constitution, in addition to any other venue or jurisdiction that may be provided by law, the official may elect to file the action in the United States district court for the district in which the official’s place of business is located, which shall be a proper venue for the case and the court shall have jurisdiction to hear and determine it.
Upon the request of a designated State official who is a party in the case, the relevant United States Court of Appeals shall grant expedited review of a decision by a district court in any case that could have been brought under subsection (e).
As used in this section—
the term designated State official means, with respect to a State—
the chief executive of the State;
the lieutenant governor or equivalent officer of the State;
the chief legal officer of the State; or
a legislative leader of the State and
the term legislative leader means a speaker, majority leader, or minority leader, of the State legislature or any House thereof.