1. Short title
This Act may be cited as the “Restoring the 10th Amendment Act”.
Restoring the 10th Amendment Act
A BILL
To protect 10th Amendment rights by providing special standing for State government officials to challenge proposed regulations, and for other purposes.
2. Findings
The Congress finds:
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.”.
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, “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.”.
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.”.
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, and each sovereign State in the Union of States, have, and have always had, rights that the Federal Government may not usurp.
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.
3. Special standing for certain State officials to challenge Federal rulemaking as a violation of the 10th Amendment
Definitions— In this section—
the term agency has the meaning given that term in section 551 of title 5, United States Code;
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;
the term legislative leader means a speaker, majority leader, or minority leader, of a State legislature or any House thereof; and
the term rule has the meaning given that term in section 551 of title 5, United States Code.
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.
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 the 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).
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—
certify in writing that, in the opinion of the head of the agency, the rule does not violate the 10th Amendment;
include in the certification the full legal reasoning supporting that opinion; and
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).
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.
Actions by State officials—
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.
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.
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.