Restoring the 10th Amendment Act - Authorizes a designated state official to submit to the head of a federal agency proposing a rule, during the period when the proposed rule is open for public comment, a legal brief challenging the constitutionality of the rule under the Tenth Amendment to the Constitution.
Directs the agency head: (1) to notify the designated official of each state within 15 days after such a brief was submitted; (2) to post prominently on the front page of the agency's website a link to the brief; and (3) within 15 days after posting such link, to certify in writing that such rulemaking does not violate the Tenth Amendment and post the certification prominently on the agency's website next to the briefs pertaining to the rule, unless the agency determines not to finalize such proposed rule.
Authorizes a designated state official, at any time after an agency head posts such a certification, to commence a civil action against the agency on the grounds that the rule violates the Tenth Amendment. Permits such state official, in addition to any other venue or jurisdiction provided by law, to bring such action in the U.S. district court for the district in which the official's place of business is located.
Directs the appropriate U.S. court of appeals, upon the filing of a notice by a designated state official, to grant expedited review of a decision by the district court in such an action.
[Congressional Bills 113th Congress]
[From the U.S. Government Publishing Office]
[S. 1632 Introduced in Senate (IS)]
113th CONGRESS
1st Session
S. 1632
To protect 10th Amendment rights by providing special standing for
State government officials to challenge proposed regulations, and for
other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
October 31, 2013
Mr. Wicker (for himself, Mr. Cochran, Mr. Grassley, Mr. Isakson, Mr.
Sessions, Mr. Roberts, Mr. Thune, Mr. Inhofe, and Mr. Crapo) introduced
the following bill; which was read twice and referred to the Committee
on the Judiciary
_______________________________________________________________________
A BILL
To protect 10th Amendment rights by providing special standing for
State government officials to challenge proposed regulations, and for
other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Restoring the 10th Amendment Act''.
SEC. 2. FINDINGS.
The Congress finds:
(1) The 10th Amendment to the Constitution of the United
States (referred to in this Act as the ``10th Amendment''),
ratified on December 15, 1791, provides, ``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.''.
(2) 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.
(3) 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.
(4) 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.''.
(5) The Supreme Court, in United States v. Sprague, 282
U.S. 716 (1931), noted, ``The Tenth 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.''.
(6) The Supreme Court, in Fry v. United States, 421 U.S.
542 (1975), also noted, ``The Amendment 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.''.
(7) The Executive departments and agencies of the Federal
Government often promulgate regulations contrary to the spirit
and letter of the 10th Amendment.
(8) The 10th Amendment assures that the people of the
United States, and each sovereign State in the Union of States,
have, and have always had, rights that the Federal Government
may not usurp.
(9) Congress has the responsibility to safeguard the 10th
Amendment and to recognize that it is as vital and valuable
today as on the date of its ratification.
SEC. 3. SPECIAL STANDING FOR CERTAIN STATE OFFICIALS TO CHALLENGE
FEDERAL RULEMAKING AS A VIOLATION OF THE 10TH AMENDMENT.
(a) Definitions.--In this section--
(1) the term ``agency'' has the meaning given that term in
section 551 of title 5, United States Code;
(2) the term ``designated State official'' means, with
respect to a State--
(A) the chief executive of the State;
(B) the lieutenant governor or equivalent officer
of the State;
(C) the chief legal officer of the State; or
(D) a legislative leader of the State;
(3) the term ``legislative leader'' means a speaker,
majority leader, or minority leader, of a State legislature or
any House thereof; and
(4) the term ``rule'' has the meaning given that term in
section 551 of title 5, United States Code.
(b) Submission of Legal Brief.--During any period during which a
proposed rule is open for public comment under chapter 5 of title 5,
United States Code, any designated State official may submit to the
head of the agency proposing the rule a legal brief challenging the
constitutionality of the proposed rule under the 10th Amendment.
(c) Duty of Federal Official To Post Link to the Brief.--The head
of the agency proposing a rule described in subsection (b) shall
prominently post on the front page of Web site of the agency, in such a
manner that it is immediately noticeable to individuals who visit that
Web site, a link to each brief submitted under subsection (b).
(d) Response by Federal Agency.--Unless an agency determines not to
finalize a proposed rule described in subsection (b), not later than 15
days after posting the link under subsection (c), the head of the
agency shall--
(1) certify in writing that, in the opinion of the head of
the agency, the rule does not violate the 10th Amendment;
(2) include in the certification the full legal reasoning
supporting that opinion; and
(3) prominently post the certification on the front page of
the Web site of the agency next to the links to the legal
briefs pertaining to the rule posted under subsection (c).
(e) Notice to Officials of Other States.--Not later than 15 days
after the date on which a designated State official submits a brief
under subsection (b), the head of the agency proposing the rule shall
give notice to each designated State official of each State that the
brief was submitted.
(f) Actions by State Officials.--
(1) Commencement of action.--At any time after the head of
an agency posts a certification under subsection (d) that a
rule does not violate the 10th Amendment, a designated State
official may commence a civil action against the agency on the
grounds that the rule of the agency violates the 10th
Amendment.
(2) Venue and jurisdiction.--If a designated State official
decides to commence an action under paragraph (1), in addition
to any other venue or jurisdiction that may be provided by law,
the official may bring the action in the district court of the
United States for the district in which the place of business
of the official is located, which shall be a proper venue for
the action and the court shall have jurisdiction of the action.
(3) Expedited appeal.--Upon the filing of a notice of
appeal by a designated State official who is a party to an
action described in paragraph (1) brought in a district court
of the United States, the appropriate court of appeals of the
United States shall grant expedited review of a decision by the
district court in the action.
<all>
Introduced in Senate
Read twice and referred to the Committee on the Judiciary.
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