[Congressional Bills 113th Congress]
[From the U.S. Government Publishing Office]
[S. 1632 Introduced in Senate (IS)]

113th CONGRESS
  1st Session
                                S. 1632

  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

                            October 31, 2013

 Mr. Wicker (for himself, Mr. Cochran, Mr. Grassley, Mr. Isakson, Mr. 
Sessions, Mr. Roberts, Mr. Thune, Mr. Inhofe, and Mr. Crapo) 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 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.''.
            (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, and each sovereign State in the Union of States, 
        have, and have always had, rights that the Federal Government 
        may not usurp.
            (9) 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.

SEC. 3. SPECIAL STANDING FOR CERTAIN STATE OFFICIALS TO CHALLENGE 
              FEDERAL RULEMAKING AS A VIOLATION OF THE 10TH AMENDMENT.

    (a) Definitions.--In this section--
            (1) the term ``agency'' has the meaning given that term in 
        section 551 of title 5, United States Code;
            (2) 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;
            (3) the term ``legislative leader'' means a speaker, 
        majority leader, or minority leader, of a State legislature or 
        any House thereof; and
            (4) the term ``rule'' has the meaning given that term in 
        section 551 of title 5, United States Code.
    (b) 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.
    (c) 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 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).
    (d) 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--
            (1) certify in writing that, in the opinion of the head of 
        the agency, the rule does not violate the 10th Amendment;
            (2) include in the certification the full legal reasoning 
        supporting that opinion; and
            (3) 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).
    (e) 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.
    (f) Actions by State Officials.--
            (1) 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.
            (2) 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.
            (3) 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.
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