[Congressional Bills 104th Congress]
[From the U.S. Government Publishing Office]
[S. 2156 Introduced in Senate (IS)]







104th CONGRESS
  2d Session
                                S. 2156

 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

                           September 28, 1996

  Mr. Stevens 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--
            (1) 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;
            (2) 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;
            (3) the framers of the Constitution intended to bestow upon 
        the Federal Government only limited authority over the States 
        and the people;
            (4) 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
            (5) 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) In General.--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) if the statute interferes with State powers or preempts 
        any State or local government law, regulation or ordinance, 
        that Congress specifically finds that the Federal Government is 
        the better level of government 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) Factual Findings.--The Congress shall make specific factual 
findings in support of the declarations described in this section.

SEC. 4. POINT OF ORDER.

    (a) In General.--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.
    (b) Rulemaking.--This section is enacted--
            (1) as an exercise of the rulemaking 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 
        section 3 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. ANNUAL REPORT ON STATUTORY PREEMPTION.

    (a) Report.--Within 90 days after each Congress adjourns sine die, 
the Congressional Research Service shall prepare and make available to 
the public a report on the extent of Federal statutory preemption of 
State and local government powers enacted into law during the preceding 
Congress or adopted through judicial interpretation of Federal 
statutes.
    (b) Contents.--The report shall contain--
            (1) a cumulative list of the Federal statutes preempting, 
        in whole or in part, State and local government powers;
            (2) a summary of Federal legislation enacted during the 
        previous Congress preempting, in whole or in part, State and 
        local government powers;
            (3) an overview of recent court cases addressing Federal 
        preemption issues; and
            (4) other information the Director of the Congressional 
        Research Service determines appropriate.
    (c) Transmittal.--Copies of the report shall be sent to the 
President and the chairman of the appropriate committees in the Senate 
and House of Representatives.

SEC. 6. 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 rulemaking 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)(1) When an executive department or agency or independent 
agency proposes to act through rulemaking or other agency action to 
preempt State law, the department or agency shall provide all affected 
States notice and an opportunity for meaningful and timely input by 
duly elected or appointed State and local government officials or their 
designated representatives in the proceedings.
    ``(2) The notice of proposed rulemaking shall 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.
    ``(3) In the table of contents of each Federal Register, there 
shall be a separate list of preemptive regulations contained within 
that Register.
    ``(4) The Federal Advisory Committee Act (5 U.S.C. App.) shall not 
apply to participation in rulemaking or other agency action by duly 
elected or appointed State and local government officials or their 
designated representatives acting in their official capacities.
    ``(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)(1) Each executive department or agency or independent agency 
shall review the rules and regulations issued by the department or 
agency that preempt, in whole or in part, State or local government 
powers. Each executive department or agency or independent agency shall 
publish in the Federal Register a plan for such review. Such plan may 
be amended by the department or agency at any time by publishing a 
revision in the Federal Register.
    ``(2) The purpose of the review under paragraph (1) 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.
    ``(3) The plan under paragraph (1) shall provide for the review of 
all such department or agency rules and regulations within 10 years 
after the date of publication of such rules and regulations as final 
rules. For rules and regulations in effect more than 10 years on the 
effective date of this section, the plan shall provide for review 
within 3 years after such effective date.
    ``(f) 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.''.
    (b) 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. 7. CONSTRUCTION.

    (a) In General.--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) Construction in Favor of States and People.--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) Severability.--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.

SEC. 8. APPROPRIATION BY STATE LEGISLATURES.

    Any funds received by a State under Federal law shall be subject to 
appropriation by the State legislature, consistent with the terms and 
conditions required under such applicable provisions of law.
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