[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[S. 2250 Introduced in Senate (IS)]







105th CONGRESS
  2d Session
                                S. 2250

 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 of the United States Constitution, and for other 
                               purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             June 26, 1998

 Mr. Coverdell introduced the following bill; which was read twice and 
               referred to the Committee on the Judiciary

_______________________________________________________________________

                                 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 of the United States 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 cited as the ``Tenth Amendment Enforcement Act of 
1998''.

SEC. 2. FINDINGS.

    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 United States Constitution;
            (3) the framers of the United States Constitution intended 
        to bestow upon the Federal Government only limited authority 
        over the States and the people;
            (4) under the Tenth Amendment of the United States 
        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, 1999, 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 United States 
        Constitution, including a citation to the specific 
        constitutional authority relied upon;
            (2) that Congress specifically finds that Congress 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) Findings.--Congress shall make specific factual findings in 
support of the declarations described under 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 subsection (a) of this section 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. 559a. Preemption of State law
    ``(a) No agency shall construe any statutory authorization to issue 
rules as authorizing preemption of State law or local ordinance by 
rulemaking or other agency action unless--
            ``(1) the statute expressly authorizes issuance of 
        preemptive rules; and
            ``(2) the 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--
            ``(1) be narrowly written to achieve the objectives of the 
        statute under which the rules are promulgated; and
            ``(2) explicitly describe the scope of preemption.
    ``(c)(1) When an agency proposes to act through rulemaking or other 
agency action to preempt State law, the 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.
    ``(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 rules contained within that 
Register.
    ``(d) Unless a final agency rule 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 shall not be construed to preempt any 
State or local government law, ordinance or regulation.
    ``(e)(1) Each agency shall publish in the Federal Register a plan 
for periodic review of the rules issued by the agency that preempt, in 
whole or in part, State or local government powers. Such plan may be 
amended by the agency at any time by publishing a revision in the 
Federal Register.
    ``(2) The purpose of the review under this subsection 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) Nonbinding Regulations.--Any Federal rule or regulation 
promulgated after January 1, 1999, that is promulgated in a manner 
inconsistent with section 559a of title 5, United States Code (as added 
by 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 
relating to section 559 the following:

``559a. Preemption of State law.''.

SEC. 6. RULES OF CONSTRUCTION.

    (a) In General.--No statute enacted after the date of enactment of 
this Act (or rule promulgated under such statute), 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--
            (1) the statute, or rule promulgated under such statute, 
        contains an explicit declaration of intent to preempt; or
            (2) 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) Favorable Construction.--Notwithstanding any other provision 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. 7. 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.

SEC. 8. ANNUAL REPORT ON STATUTORY PREEMPTION.

    (a) Report.--Not later than 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) Submittal.--Copies of the report shall be submitted to the 
President and the chairman of the appropriate committees in the Senate 
and House of Representatives.
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