[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[S. 4020 Introduced in Senate (IS)]

111th CONGRESS
  2d Session
                                S. 4020

  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

                            December 9, 2010

  Mr. Wicker (for himself and Mr. Barrasso) 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 article of amendment to the Constitution of 
        the United States (hereinafter in this section referred to as 
        the ``10th Amendment''), ratified on December 15, 1791, states, 
        ``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 of America and each sovereign State in the Union 
        of States, now have, and have always had, rights the Federal 
        Government may not usurp.
            (9) It is the responsibility of Congress 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) To Submit a Legal Brief.--During any period when a proposed 
Federal rule is required under chapter 5, title 5, United States Code, 
to be open for public comment, any designated State official may file 
with the head of the agency proposing the rule a legal brief 
challenging the constitutionality of the proposed rule under the 10th 
article of amendment to the Constitution.
    (b) Duty of Federal Official To Post Link to the Brief.--The head 
of the Federal agency proposing the rule shall prominently post on the 
agency's primary Web page, in such a manner that it is immediately 
noticeable to those who visit that Web site, a link to each brief 
submitted under subsection (a).
    (c) Response by Federal Agency.--Unless the Federal agency 
determines not to carry into effect the proposed rule, not later than 
15 days after posting the link under subsection (a), the head of that 
agency shall--
            (1) certify in writing that, in the opinion of that head, 
        such rulemaking does not violate the 10th article of amendment 
        to the Constitution and include in that certification a full 
        and complete written statement of the legal reasoning 
        supporting that opinion; and
            (2) prominently post the certification on the front page of 
        the agency's Web site next to the legal briefs pertaining to 
        that rule posted under subsection (b).
    (d) Notice to Other States' Officials.--Not later than 15 days 
after a designated State official submits a brief under this section, 
the head of the agency proposing the rule shall give notice to each 
designated State official of each State that the brief was filed.
    (e) Venue and Jurisdiction of Legal Actions by State Officials.--If 
a designated State official decides to commence legal action against a 
proposed or final Federal rule on the grounds that the rule violates 
the 10th article of amendment to the Constitution, in addition to any 
other venue or jurisdiction that may be provided by law, the official 
may elect to file the action in the United States district court for 
the district in which the official's place of business is located, 
which shall be a proper venue for the case and the court shall have 
jurisdiction to hear and determine it.
    (f) Expedited Appeal.--Upon the request of a designated State 
official who is a party in the case, the relevant United States Court 
of Appeals shall grant expedited review of a decision by a district 
court in any case that could have been brought under subsection (e).
    (g) Definitions.--As used in this section--
            (1) 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 and
            (2) the term ``legislative leader'' means a speaker, 
        majority leader, or minority leader, of the State legislature 
        or any House thereof.
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