[Congressional Bills 104th Congress]
[From the U.S. Government Publishing Office]
[S. 1629 Introduced in Senate (IS)]







104th CONGRESS
  2d Session
                                S. 1629

 To protect the rights of the States and the people from abuse by the 
       Federal Government; to strengthen the partnership and the 
 intergovernmental relationship between State and Federal Governments; 
to restrain Federal agencies from exceeding their authority; to enforce 
    the Tenth Amendment to the Constitution; and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             March 20, 1996

   Mr. Stevens (for himself, Mr. Dole, Mr. Abraham, Mr. Bennett, Mr. 
 Brown, Mr. Coats, Mr. Cochran, Mr. Coverdell, Mr. Craig, Mr. D'Amato, 
    Mr. Faircloth, Mr. Grams, Mr. Gregg, Mr. Hatch, Mr. Helms, Mrs. 
    Hutchison, Mr. Inhofe, Mr. Inouye, Mr. Kempthorne, Mr. Kyl, Mr. 
   Nickles, Mr. Simpson, Mr. Smith, and Mr. Thompson) introduced the 
 following bill; which was read twice and referred to the Committee on 
                          Governmental Affairs

_______________________________________________________________________

                                 A BILL


 
 To protect the rights of the States and the people from abuse by the 
       Federal Government; to strengthen the partnership and the 
 intergovernmental relationship between State and Federal Governments; 
to restrain Federal agencies from exceeding their authority; to enforce 
    the Tenth Amendment to the Constitution; 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 referred to as the ``Tenth Amendment Enforcement 
Act of 1996''.

SEC. 2. FINDINGS.

    The Congress finds that--
    (a) in most areas of governmental concern, State governments 
possess both the Constitutional authority and the competence to discern 
the needs and the desires of the People and to govern accordingly;
    (b) Federal laws and agency regulations, which have interfered with 
State powers in areas of State jurisdiction, should be restricted to 
powers delegated to the Federal Government by the Constitution;
    (c) the framers of the Constitution intended to bestow upon the 
Federal Government only limited authority over the States and the 
People;
    (d) under the Tenth Amendment to the Constitution, 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; and
    (e) the courts, which have in general construed the Tenth Amendment 
not to restrain the Federal Government's power to act in areas of state 
jurisdiction, should be directed to strictly construe Federal laws and 
regulations which interfere with State powers with a presumption in 
favor of State authority and against Federal preemption.

SEC. 3. CONGRESSIONAL DECLARATION.

    (a) On or after January 1, 1997, any statute enacted by Congress 
shall include a declaration--
            (1) that authority to govern in the area addressed by the 
        statute is delegated to Congress by the Constitution, including 
        a citation to the specific Constitutional authority relied 
        upon;
            (2) that Congress specifically finds that it has a greater 
        degree of competence than the States to govern in the area 
        addressed by the statute; and
            (3) if the statute interferes with State powers or preempts 
        any State or local government law, regulation or ordinance, 
        that Congress specifically intends to interfere with State 
        powers or preempt State or local government law, regulation, or 
        ordinance, and that such preemption is necessary.
    (b) Congress must make specific factual findings in support of the 
declarations described in this section.

SEC. 4. POINT OF ORDER.

    (a) In General.--
            (1) Information required.--It shall not be in order in 
        either the Senate or House of Representatives to consider any 
        bill, joint resolution, or amendment that does not include a 
        declaration of Congressional intent as required under section 
        3.
            (2) Supermajority required.--The requirements of this 
        subsection may be waived or suspended in the Senate or House of 
        Representatives only by the affirmative vote of three-fifths of 
        the Members of that House duly chosen and sworn. An affirmative 
        vote of three-fifths of the Members of the Senate or House of 
        Representatives duly chosen and sworn shall be required to 
sustain an appeal of the ruling of the chair on a point of order raised 
under this subsection.
    (b) Rule Making.--This section is enacted--
            (1) as an exercise of the rule-making power of the Senate 
        and House of Representatives, and as such, it is deemed a part 
        of the rules of the Senate and House of Representatives, but is 
        applicable only with respect to the matters described in 
        sections 3 and 4 and supersedes other rules of the Senate or 
        House of Representatives only to the extent that such sections 
        are inconsistent with such rules; and
            (2) with full recognition of the Constitutional right of 
        the Senate or House of Representatives to change such rules at 
        any time, in the same manner as in the case of any rule of the 
        Senate or House of Representatives.

SEC. 5. EXECUTIVE PREEMPTION OF STATE LAW.

    (a) In General.--Chapter 5 of title 5, United States Code, is 
amended by inserting after section 559 the following new section:

``SEC. 560. PREEMPTION OF STATE LAW.

    ``(a) No executive department or agency or independent agency shall 
construe any statutory authorization to issue regulations as 
authorizing preemption of State law or local ordinance by rule-making 
or other agency action unless--
            ``(1) the statute expressly authorizes issuance of 
        preemptive regulations; and
            ``(2) the executive department, agency or independent 
        agency concludes that the exercise of State power directly 
        conflicts with the exercise of Federal power under the Federal 
        statute, such that the State statutes and the Federal rule 
        promulgated under the Federal statute cannot be reconciled or 
        consistently stand together.
    ``(b) Any regulatory preemption of State law shall be narrowly 
tailored to achieve the objectives of the statute pursuant to which the 
regulations are promulgated and shall explicitly describe the scope of 
preemption.
    ``(c) When an executive branch department or agency or independent 
agency proposes to act through rule-making or other agency action to 
preempt State law, the department or agency shall provide all affected 
States notice and an opportunity for comment by duly elected or 
appointed State and local government officials or their designated 
representatives in the proceedings.
            ``(1) The notice of proposed rule-making must be forwarded 
        to the Governor, the Attorney General and the presiding officer 
        of each chamber of the Legislature of each State setting forth 
        the extent and purpose of the preemption. In the table of 
        contents of each Federal Register, there shall be a separate 
        list of preemptive regulations contained within that Register.
    ``(d) Unless a final executive department or agency or independent 
agency rule or regulation contains an explicit provision declaring the 
Federal Government's intent to preempt State or local government powers 
and an explicit description of the extent and purpose of that 
preemption, the rule or regulation shall not be construed to preempt 
any State or local government law, ordinance or regulation.
    ``(e) Each executive department or agency or independent agency 
shall publish in the Federal Register a plan for periodic review of the 
rules and regulations issued by the department or agency that preempt, 
in whole or in part, State or local government powers. This plan may be 
amended by the department or agency at any time by publishing a 
revision in the Federal Register.
            ``(1) The purpose of this review shall be to determine 
        whether and to what extent such rules are to continue without 
        change, consistent with the stated objectives of the applicable 
        statutes, or are to be altered or repealed to minimize the 
        effect of the rules on State or local government powers.''.
    (b) Any Federal rule or regulation promulgated after January 1, 
1997, that is promulgated in a manner inconsistent with this section 
shall not be binding on any State or local government, and shall not 
preempt any State or local government law, ordinance, or regulation.
    (c) Conforming Amendment.--The table of sections for chapter 5 of 
title 5, United States Code, is amended by adding after the item for 
section 559 the following:

``560. Preemption of State Law.''.

SEC. 6. CONSTRUCTION.

    (a) No statute, or rule promulgated under such statute, enacted 
after the date of enactment of this Act, shall be construed by courts 
or other adjudicative entities to preempt, in whole or in part, any 
State or local government law, ordinance or regulation unless the 
statute, or rule promulgated under such statute, contains an explicit 
declaration of intent to preempt, or unless there is a direct conflict 
between such statute and a State or local government law, ordinance, or 
regulation, such that the two cannot be reconciled or consistently 
stand together.
    (b) Notwithstanding any other provisions of law, any ambiguities in 
this Act, or in any other law of the United States, shall be construed 
in favor of preserving the authority of the States and the People.
    (c) If any provision of this Act, or the application thereof to any 
person or circumstance, is held invalid, the validity of the remainder 
of the Act and the application of such provision to other persons and 
circumstances shall not be affected thereby.
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