[Congressional Record Volume 142, Number 39 (Wednesday, March 20, 1996)]
[Senate]
[Pages S2424-S2429]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By 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):
  S. 1629. 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 10th amendment to the Constitution; and for 
other purposes; to the Committee on Governmental Affairs.


               the 10th amendment enforcement act of 1996

  Mr. STEVENS. Mr. President, today, on behalf of 23 of my colleagues, 
as well as Governors, attorneys general, State legislators, and mayors 
across the Nation, I rise to introduce the 10th Amendment Enforcement 
Act of 1996.
  The 10th amendment was a promise to the States and to the American 
people that the Federal Government would be limited, and that the 
people of the States could, for the most part, govern themselves as 
they saw fit.
  Unfortunately, in the last half century, that promise has been 
broken. The American people have asked us to start honoring that 
promise again: to return power to State and local governments which are 
close to and more sensitive to the needs of the people.
  The 104th Congress and in particular, the Unfunded Mandates Reform 
Act, started to shift power out of Washington by returning it to our 
States and to the American people. Today we continue that process.
  The 10th Amendment Enforcement Act of 1996 will return power to the 
States and to the people by placing safeguards in the legislative 
process, by restricting the power of Federal agencies and by 
instructing the Federal courts to enforce the 10th amendment.
  The act enforces the 10th amendment in five ways:
  First, the act includes a specific congressional finding that the 
10th amendment means what it says: The Federal Government has no powers 
not delegated by the Constitution, and the States may exercise all 
powers not withheld by the Constitution;
  Second, the act states that Federal laws may not interfere with State 
or local powers unless Congress declares its intent to do so and 
Congress cites its specific constitutional authority;
  Third, the act gives Members of the House and Senate the ability to 
raise a point of order challenging a bill that lacks such a declaration 
or that cites insufficient constitutional authority. Such a point of 
order would require a three-fifths majority to be defeated;
  Fourth, the act requires that Federal agency rules and regulations 
not interfere with State or local powers without constitutional 
authority cited by Congress. Agencies must allow States notice and an 
opportunity to be heard in the rulemaking process;
  Fifth, the act directs courts to strictly construe Federal laws and 
regulations that interfere with State powers, with a presumption in 
favor of State authority and against Federal preemption.
  Before the bill was even introduced, I received letters of support 
from many Governors and attorneys general--men and women from across 
the Nation and from both parties who support our efforts to return 
power to the States and to the people.
  Mr. President, I ask unanimous consent that the text of the bill and 
letters from Governors Allen, Bush,

[[Page S2425]]

Engler, Leavitt, Merrill, Racicot, Cayetano, and Thompson, and from 
Attorneys General Bronster, Condon, and Norton be included in the 
Record.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. STEVENS. Mr. President, as the Supreme Court has stated,

     just as the separation and independence of the coordinate 
     branches of the Federal Government serves to prevent the 
     accumulation of excessive power in any one branch, a healthy 
     balance of power between the States and the Federal 
     Government will reduce the risk of tyranny and abuse from 
     either front.

  The 10th Amendment Enforcement Act of 1996 will prevent overstepping 
by all three branches of the Federal Government, and will focus 
attention on what State and local officials have been advocating for so 
long: the need to return power to the States and to the people.

                               Exhibit 1

                                S. 1629

       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;
       (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 State 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:

     ``Sec. 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 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) 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.
                                                                    ____

                                                    State of Utah,


                                       Office of the Governor,

                                   Salt Lake City, March 18, 1996.
     Hon. Ted Stevens,
     Chairman, Government Affairs Committee,
     U.S. Senate, Washington, DC.
       Dear Mr. Chairman: Thank you for your recent correspondence 
     sharing with me your proposal to strengthen the 10th 
     Amendment by requiring the federal government to restrict its 
     legislative and regulatory activities to those powers 
     delegated to it under the Constitution.
       As you know, I have spent a great deal of time over the 
     past few years working on 10th Amendment issues, and I am 
     very supportive of your proposed legislation. As I have 
     studied the history of the 10th Amendment, it has become 
     clear to me that we must act overtly to strengthen this 
     important precept of the Constitution, or it will continue to 
     erode away.
       Let me provide some background on why I believe this is so 
     important. The founders of our country attempted to carefully 
     balance power between the competing interests of the states 
     and the national government. They worried that the national 
     government might gain too much power, so they gave

[[Page S2426]]

     states tools, or rules, that if followed would maintain the 
     healthly tension necessary to protect self-governance by the 
     people and prevent any level of government from overstepping 
     its bounds.
       Among those rules or tools given to states were these:
       The 10th Amendment, which reserved any power not 
     specifically delegated to the national government to the 
     states and the people. Clearly, the founders intended the 
     national government to stay within the bounds of duties 
     enumerated in the Constitution.
       The election of U.S. senators by state legislatures. Having 
     senators directly accountable to state legislatures would 
     keep the national government in check. If the national 
     government centralized authority or passed bills disliked by 
     the states, legislatures could call their senators in for an 
     accounting. It would not be likely for the Congress to usurp 
     state authority if senators owed their political lives to 
     state legislatures. The power was carefully balanced and the 
     tension was healthy.
       The ability of state legislatures to initiate 
     constitutional amendments. This also would keep the national 
     government in check because if it got out of line the states 
     could take action to rein it in. It is clear that the 
     founders intended state leaders to have the ability to 
     initiate constitutional amendments.
       The sense that state leaders would rise in indignation and 
     band together to oppose congressional centralization of 
     authority and usurpation of power. In Federalist 46, James 
     Madison predicted that ``ambitious encroachments of the 
     federal government on the authority of the state governments 
     . . . would be signals of general alarm. Every government 
     would espouse the common cause . . . plans of resistance 
     would be concerted.'' States would react as though in danger 
     from a ``foreign yoke,'' he suggested.
       Those were some of the tools the founders put in place to 
     safeguard the roles of both levels of government and to 
     prevent either from becoming too dominant.
       It would likely be a matter of some bitterness and 
     disappointment to the founders if they were to return today 
     to see what happened to the finely-crafted balance, the 
     healthy tension that they built into the Constitution. As 
     they see a national government that dictates to states on 
     nearly every issue and that is involved in every aspect of 
     citizens' lives, they might wonder what happened to those 
     tools and rules they established to maintain balance.
       The sad fact is that each one of those tools has either 
     been eroded away, given away, or rendered impossible to use. 
     Thus, today there does not exist any restraint to prevent the 
     national government from taking advantage of the states. To 
     their credit, leaders of the Republican Congress have gone 
     out of their way to involve governors in important decisions. 
     But there is nothing permanent in that relationship. With a 
     change in leadership, state leaders could easily be relegated 
     to their past status as lobbyists and special interest 
     groups. Over the past several decades, they have had to 
     approach Washington hat in hand, hoping and wishing that 
     Congress will listen to them. There has been no balance of 
     power, no full partnership in a federal-state system. States 
     must accept whatever the Congress gives them. States have no 
     tools, no rules, ensuring them an equal voice.
       Let's look at what happened to those tools and rules the 
     founders so carefully provided to ensure balance.
       The 10th Amendment has been eroded to the point that in the 
     minds of most Washington insiders it barely exists. The 
     preponderance of congressional action and federal court 
     decisions over the past 60 years have rendered the 10th 
     Amendment nearly meaningless. It would barely be recognizable 
     by the founders. States did not defend or guard it properly 
     and it no longer protects states.
       States gave away the power to have their U.S. senators 
     directly accountable to state legislatures. There was good 
     reason for this, as graft and corruption sometimes occurred 
     in the appointment of senators by legislatures. States 
     ratified the 17th Amendment making senators popularly 
     elected, and citizens should not be asked to give up the 
     right to elect their senators. But while it does not make 
     sense to try to restore that tool, it should be replaced 
     with something else more workable.
       The ability of states to initiate constitutional amendments 
     has never been used and is essentially unworkable. Clearly, 
     the founders intended for state leaders to be able to 
     initiate amendments as a check on federal power, but it has 
     never happened and likely never will. The Congress sits as a 
     constitutional convention every day it is in session, and can 
     propose constitutional amendments any time it desires. But 
     many citizens have an enormous fear of state leaders coming 
     together to do the same thing, even though any amendment 
     proposed would require ratification by three-fourths of 
     states. Thus, this tool provided by the founders has become 
     impractical and does not protect states from federal 
     encroachment.
       The fourth tool was the founders' belief that state leaders 
     would jealously guard their role in the system and rise up in 
     opposition to federal intrusions. That has not happened, 
     especially as state governments have become dependent on 
     federal dollars and have been willing to give up freedom for 
     money. States have proven themselves to be politically 
     anemic. Instead of mobilizing against federal encroachments, 
     state leaders have spent their time lobbying for money and 
     hoping for flexibility.
       Thus, it is no wonder that states have little true clout as 
     budget cuts are made and as the pie is being divided in 
     Washington D.C. There is no healthy tension. States have no 
     tools or rules to protect themselves. What is passing for 
     federalism in Washington today is not a true sharing of 
     power, but a subcontracting of federal programs to states. 
     The federal government is merely delegating, not devolving 
     true authority.
       Because the tools protecting states have been rendered 
     ineffective, it is important that Congress replace them with 
     new versions that accomplish what the Founders intended. That 
     is why I am so supportive of your Tenth Amendment Enforcement 
     Act. It would help prevent all three branches of the federal 
     government from overstepping their constitutional authority 
     and would help restore the careful balance put in place by 
     the Founders.
       I thank you for your efforts to return power to the states 
     and to the people. Please count me among the supporters of 
     this legislation.
           Sincerely,
                                               Michael O. Leavitt,
     Governor, State of Utah.
                                                                    ____

                                         Commonwealth of Virginia,


                                       Office of the Governor,

                                                   March 12, 1996.
     Hon. Ted Stevens,
     Member, U.S. Senate, Chairman, Committee on Governmental 
         Affairs, Washington, DC.
       Dear Ted: Thank your for your letter regarding the Tenth 
     Amendment Enforcement Act of 1996.
       Two centuries ago, the challenge to individual liberty came 
     from an arrogant, overbearing monarchy across the sea. Today, 
     that challenge comes all too often from our own federal 
     government, which has ignored virtually every constitutional 
     limit fashioned by the framers to confine its reach and thus 
     to guard the freedoms of the people.
       In our day, the threat to self-determination posed by the 
     centralization of power in the nation's capital has been 
     dramatically demonstrated. Under my administration, Virginia 
     has challenged the constitutionality of federal mandates in 
     court, and I have testified before the Congress in support of 
     restoring powers to the States and the people.
       The legislation you are proposing will help the States and 
     the people regain prerogatives usurped by an overbearing 
     federal government. I wholeheartedly support your efforts and 
     would be pleased to work with you to highlight the impact of 
     federal intrusion in Virginia.
       With kind personal regards, I remain,
           Sincerely,
     George Allen.
                                                                    ____

                                                State of Michigan,


                                       Office of the Governor,

                                      Lansing, MI, March 19, 1996.
     Hon. Ted Stevens,
     U.S. Senate,
     Washington, DC.
       Dear Senator Stevens: I am writing in support of the Tenth 
     Amendment Enforcement Act of 1996, which I understand you 
     intend to introduce this week. Congressional action of this 
     type is necessary to restore vigor to this often-neglected 
     provision of our constitution and I wholeheartedly support 
     your effort to do so.
       Congress has over the years run roughshod over state 
     concerns and prerogatives and has generally lost sight of the 
     fact that ours is a federal system of government. In that 
     system, the federal government has only those powers 
     specifically delegated to it and enumerated in the 
     constitution, with the balance remaining with the states or 
     the people. Too often in our recent history the federal 
     government has ignored the meaning of the Tenth Amendment in 
     a mad rush to impose a one-size-fits-all approach in areas of 
     traditional state and local concern. This approach stifles 
     innovation and takes the policy debate further from the 
     people by centralizing decision-making in Washington, D.C.
       A recent example of federal intrusion into a matter best 
     left to the states is the Motor Voter law, which imposes an 
     unfunded mandate on the states to offer voter registration 
     services at state social services offices. Michigan must 
     comply with this requirement even though nearly 90 percent of 
     its eligible population is already registered to vote. In 
     fact, Michigan demonstrated the states' superior ability to 
     craft innovative solutions in areas such as this when it 
     initiated the motor voter concept some 21 years ago by 
     offering voter registration services at Secretary of State 
     branch offices. The imposition of a federal ``solution'' in 
     this area ignores the fact that states are better positioned 
     to address the needs of their citizens and can do so without 
     prodding from the federal government.
       The Tenth Amendment Enforcement Act of 1996 will help 
     restore the balance to our federal system that the framers of 
     the constitution intended. It will do so by requiring 
     congress to identify specific constitutional authority for 
     the exercise of federal power. This will have the salutary 
     effect of reminding the congress that it can legislate only 
     pursuant to an enumerated power in the constitution. 
     Requiring congress to state its intention to preempt existing 
     state or federal law or interfere with state power should 
     assist in limiting the intrusion the federal Motor Voter law 
     exemplifies.
       I recently offered amendments to the National Governors' 
     Association's policy on

[[Page S2427]]

     state-federal relations that the governors adopted at our 
     1996 winter meeting. That policy calls upon Congress to 
     ``limit the scope of its legislative activity to those areas 
     that are enumerated and delegated to the federal government 
     by the constitution.'' The Tenth Amendment Enforcement Act of 
     1996 will help reinvigorate this fundamental constitutional 
     principle and for that reason enjoys my full support.
           Sincerely,
                                                      John Engler,
     Governor.
                                                                    ____

                                           Office of the Governor,


                                             State of Montana,

                                        Helena, MT, March 6, 1996.
     Hon. Ted Stevens,
     Chairman, U.S. Senate Committee on Governmental Affairs, 
         Washington, DC.
       Dear Chairman Stevens: I am writing in support of your 
     proposed legislation entitled the Tenth Amendment Enforcement 
     Act of 1996. I applaud your efforts to protect states from 
     federal legislation that, while perhaps unintentionally, has 
     had a strangling effect on the states' ability to act 
     effectively on behalf of their citizens.
       The failure to respect states' rights takes a variety of 
     forms, from unfunded mandates to complex requirements that 
     prohibit states from adopting innovative programs to solve 
     problems that may be unique to the state or region. I am sure 
     it is difficult to determine which functions the federal 
     government should properly manage and which should be left to 
     state or local governments. I think most would agree, 
     however, with the intent of the Tenth Amendment--that a 
     better balance must be struck between the federal government 
     and each of the states.
       The revitalization of government is essential in these 
     times of declining trust and diminishing respect of its 
     cities. The Tenth Amendment Enforcement Act of 1996 would 
     make government more responsive to our citizens and help 
     restore the public's faith in the policy process.
       I hope your proposal is received well in Congress. I know 
     it would be received well in the states.
           Sincerely,
                                                     Marc Racicot,
     Governor.
                                                                    ____

                                               State of Wisconsin,


                            Office of Federal/State Relations,

                                    Washington, DC, March 5, 1996.
     Hon. Ted Stevens,
     Chairman, Rules & Administration Committee, U.S. Senate, 
         Washington, DC.
       Dear Chairman Stevens: I am writing you in support of 
     legislation that you intend to introduce in your committee 
     regarding the Tenth Amendment. Your vision in regard to this 
     delegation of powers should be commended. Our founding 
     fathers would applaud your courageous efforts.
       As you know, the Tenth Amendment restricts the federal 
     government's legislative and regulatory activities to those 
     powers delegated to the federal government under the U.S. 
     Constitution.
       Since I have held elective office I have always been a 
     staunch supporter of States Rights' and a firm believer that 
     decisions are best made at the local level. Your bill 
     identifies the problems associated with the lack of 
     enforcement of the Tenth Amendment at present and aims to 
     amend some of these inconsistencies.
       Under the Tenth Amendment, federal laws may not interfere 
     with state or local powers unless Congress declares its 
     intent to do so, and Congress cites its specific 
     constitutional authority. Allowing Members of Congress to 
     challenge future legislation that attempts to supersede the 
     Tenth Amendment in my opinion would be beneficial.
       As Governor of the State of Wisconsin, I have always been a 
     firm believer that legislation is a far better course of 
     action than litigation. Your bill would do away with needless 
     regulation, infringement of states' abilities to provide 
     quality services to its residents', and encourage local 
     decision making opportunities.
       The Tenth Amendment Enforcement Act of 1996 would prevent 
     confusion between the three branches of government and would 
     keep the pressure on Washington to address the concerns 
     Governors have been advocating for years; the need to return 
     power to the states and to the people.
       Again, I would like to take this opportunity to thank you 
     for your support on this important legislative matter. Please 
     do not hesitate to contact me in the future.
           Sincerely,
                                                Tommy G. Thompson,
     Governor.
                                                                    ____

                                           State of New Hampshire,


                                       Office of the Governor,

                                   Concord, NH, February 26, 1996.
     Hon. Ted Stevens,
     U.S. Senate, Chairman, Committee on Governmental Affairs, 
         Washington, DC.
       Dear Senator Stevens: Thank you for your letter outlining 
     your introduction of the Tenth Amendment Enforcement Act of 
     1996. I am pleased to offer my strong endorsement of this 
     piece of legislation.
       The individual states have seen a continual degradation of 
     their power and sovereignty during the past 60 years. 
     Beginning with the creation of the welfare state through 
     President Roosevelt's New Deal in the 1930's, the federal 
     government has inappropriately usurped power traditionally 
     left to the states. Issues such as education, crime, commerce 
     and the environment have been co-opted at the federal level. 
     The result is an erosion of local control and the creation of 
     a system of twisted rules and regulations. This 
     overregulation has stifled State initiatives and innovations. 
     The time has come to say enough is enough.
       In the State of New Hampshire, many examples exist of 
     federal overreaching. The most telling of these is our 
     continuing attempts at reforming welfare. Our ambitious 
     program would end welfare as we know it, putting people into 
     the workforce. It is based upon the simple notion that those 
     who are able to work for a living should do so. Instead of 
     collecting a welfare check, individuals would receive 
     unemployment benefits and job training. The result would be a 
     motivated workforce, properly trained and prepared to sustain 
     themselves instead of accepting government largesse. 
     Unfortunately, the federal government has gone out of its way 
     to hinder our efforts. New Hampshire is not alone in this 
     fight. Each state has a similar story to tell.
       Liberty is defined by American Heritage as the ``condition 
     of being free of restriction or control.'' It is clear that 
     this definition does not relate to our current set of 
     circumstances. The individual states are the engines of 
     democracy, pushing new and exciting concepts which enrich the 
     country as a whole. The states have been thwarted in their 
     efforts to accomplish this. The time has come to reassert the 
     authority of the Tenth Amendment and to return power back to 
     the states and to the individual where it belongs. I believe 
     that the Tenth Amendment Enforcement Act of 1996 will do this 
     and strongly support its passage.
           Very truly yours,
                                                  Stephen Merrill,
     Governor.
                                                                    ____

                                                   State of Texas,


                                       Office of the Governor,

                                                February 27, 1996.
     Hon. Ted Stevens,
     U.S. Senate Committee on Governmental Affairs, Washington, 
         DC.
       Dear Senator Stevens: I strongly support your legislation, 
     the Tenth Amendment Enforcement Act of 1996.
       I applaud your efforts and hope to see this bill's passage 
     this year.
           Sincerely,
     George W. Bush.
                                                                    ____

                                          State of South Carolina,


                               Office of the Attorney General,

                                     Columbia, SC, March 14, 1996.
     Hon. Ted Stevens,
     U.S. Senate,
     Washington, DC.
       Dear Senator Stevens: Please accept this letter as a pledge 
     of support for the Tenth Amendment Enforcement Act of 1996, 
     which you are introducing in the Senate. This is clearly one 
     of the most important pieces of legislation to come before 
     Congress this year.
       As attorney general of South Carolina, I see first-hand the 
     trouble that arises every time the federal government 
     oversteps its boundaries and intrudes on states' rights. In 
     fact, South Carolina can claim one of the most egregious 
     examples of the federal government meddling in states' 
     affairs with disastrous results.
       Several years ago, when I was a solicitor in Charleston, 
     S.C., a local hospital approached me with a plea: Help us do 
     something about crack babies. In increasing numbers, pregnant 
     women were abusing crack cocaine and giving birth to addicted 
     newborns, who cry and shake uncontrollably, refuse to take 
     food and, too often, ultimately die in intensive care.
       Working with the hospital, I developed a program to 
     aggressively confront pregnant women with the consequences of 
     their drug use. Over five years, we presented all pregnant 
     women who tested positive for cocaine with a choice: seek 
     drug treatment or face arrest and jail time.
       The program was undeniably successful--until the federal 
     government intervened. Without offering any reasonable 
     alternative solutions for saving these crack babies, federal 
     officials came to Charleston and yowled about discrimination 
     and privacy rights. When we refused to back down, they 
     resorted to blackmail. They continued with the program.
       So, now, once again, these crack babies cry unconsolably in 
     Charleston--thanks to the federal government's intrusion 
     where is has no business.
       There are myriad other examples of ways the federal 
     government ignores the 10th amendment--with effects that 
     would be laughable if they didn't do so much harm. A 
     sampling:
       The Hunley. The federal government claims it owns the H.L. 
     Hunley because it won the Civil War. However, the first 
     submarine to sink another vessel lies on soil that belonged 
     to the state of South Carolina even before the United States 
     came into existence. Although common and maritime law, as 
     well as state and federal statutes, point to South Carolina's 
     ownership of the sunken submarine, the federal government's 
     insistence on interfering in South Carolina affairs will cost 
     all of the nation's taxpayers. Worse, its meddling in this 
     matter has caused this war treasure to sit at the bottom of 
     the Atlantic Ocean, rusting away, until the issue can be 
     resolved with the federal government.
       The Citadel. Traditionally, education has been a province 
     of the states. And polls show

[[Page S2428]]

     that the majority of South Carolinians--both male and 
     female--want the option of single-gender education offered by 
     The Citadel. But the federal government thinks it knows 
     what's best for South Carolinians and is trying to destroy an 
     outstanding educational environment that South Carolinians 
     overwhelmingly support.
       Tobacco regulation. The Food and Drug Administration is 
     trampling on states' turf with its new proposals for 
     regulating cigarettes and chewing tobacco. Perhaps its 
     silliest demand is that all advertising label cigarettes as 
     ``a nicotine-delivery device.'' The fact is, Congress has not 
     given the FDA power to regulate tobacco except in limited 
     instances. Everything else is up to the states--at least, 
     it's supposed to be. We know the laws in South Carolina, and 
     we can enforce them without Washington's ``help.''
       Garnishment of wages. The federal government is threatening 
     to sue South Carolina for not complying with a federal law 
     that authorizes the garnishment of wages of people who get 
     behind on student loans. The problem is, the law contains no 
     express provision applying its terms to state government. In 
     fact, its language attempts to override state laws 
     altogether. It provides no clear direction to state 
     governments, but now we're faced with the possibility of 
     defending South Carolina in a suit.
       Motor Voter. South Carolina is one of seven states to 
     challenge the ``Motor Voter'' law that allows people to 
     register to vote when they obtain a driver's license. The 
     issue is not easy and accessible registration; we already 
     have that in place. The issues are the rights of sovereign 
     states and unfunded federal mandates. The federal government 
     demanded that South Carolina spend a million dollars to 
     expand its voter registration program--without giving the 
     state a dime. Then, when we began to implement the program, 
     the Justice Department demanded that the state contact all 
     the people who theoretically could have registered while we 
     were in litigation. And it ordered a monthly report on our 
     progress. This micro-management of state business by the 
     federal government should be an outrage to all U.S. citizens.
       In closing, the legislation you are proposing promises a 
     meaningful solution to the federal government's continued 
     disregard of the 10th Amendment. Count me in as an 
     enthusiastic supporter of the bill, and let me know of 
     anything I can do to promote its passage.
           With kindest personal regards,
                                            Charles Molony Condon,
     Attorney General.
                                                                    ____

                                                  State of Hawaii,


                           Department of the Attorney General,

                                      Honolulu, HI, March 4, 1996.
     Hon. Ted Stevens,
     U.S. Senator, Chairman, Committee on Governmental Affairs, 
         Washington, DC.
       Dear Senator Stevens: As the Attorney General for the State 
     of Hawaii, I am writing to express my strong support for the 
     Tenth Amendment Enforcement Act of 1996 (``TAEA'').
       There have been far too many instances in which federal 
     laws impede, interfere with, or nullify state legislative or 
     administrative actions to the detriment of the interests of 
     the people of Hawaii. This has occurred in large part because 
     the federal courts have given much congressional legislation 
     very broad preemptive scope, in many cases far beyond what it 
     appears Congress itself intended. These preemption rulings 
     have prevented the states from enforcing and implementing 
     needed state policies in areas of traditional state concern, 
     while at the same time failing to serve any significant 
     federal interests.
       In my fourteen month tenure as Attorney General of Hawaii, 
     examples of important state policies which were frustrated by 
     preemption rulings made by the federal courts include the 
     striking down of Hawaii's employment disability 
     discrimination laws as applied to airline pilots, see Aloha 
     Islandair v. Tseu, Civ. No. 94-00937 (D. Haw. 1995), appeal 
     filed, C.A. No. 95-16656 (9th Cir.), the overturning of state 
     labor department discretion to bar preexisting condition 
     limitations in state-wide employee health care plans, 
     Foodland Super Market v. Hamada, Civ. No. 95-00537 (D. Haw. 
     1996), appeal filed (9th Cir.), and the nullification of a 
     state law merely asking the State's two major newspapers, 
     granted the privilege of doing business under a joint 
     operating agreement with antitrust immunity, to turn over 
     their tax returns to the state Attorney General, for 
     subsequent disclosure to the United States Justice 
     Department, in order to assess the economic consequences of, 
     and the newspapers' continued need for, the antitrust 
     immunity, see Hawaii Newspaper Agency v. Bronster, Civ. No. 
     95-00635 (D. Haw. 1996), appeal filed, C.A. No. 96-15142 (9th 
     Cir.).
       Enactment of the TAEA would be a significant step in 
     reversing this disturbing trend, and would help restore state 
     direction over areas of predominant, if not exclusive, state 
     concern. Under the TAEA (Section 6), preemption would only 
     occur when Congress has explicitly stated that a given area 
     is preempted. This would curtail the potentially unlimited 
     sweep of the ``implied preemption'' doctrine, and ideally 
     result in a more narrowly construed ``express preemption.''
       Although certain provisions of the TAEA may pose procedural 
     difficulties, or raise some questions of interpretation, I 
     support the overall effect of, and goals behind, the TAEA, 
     and specifically endorse Section 6, which would do much to 
     minimize unwarranted preemption of state actions. I would, 
     however, broaden the language of Section 6(a) to clarify that 
     federal law shall not preempt ``State or local government 
     law, ordinance, regulation, or action,'' unless the statute 
     explicitly declares an intent to preempt. This should ensure 
     that all types of state action, including, for example, state 
     discretionary administrative actions not commanded by any 
     rule or statute, are not preempted without express 
     congressional statement of intent to do so.
       Thank you for your support of these critical state 
     interests.
           Very truly yours.
                                              Margery S. Bronster,
     Attorney General.
                                                                    ____

         State of Colorado, Department of Law, Office of the 
           Attorney General,
                                       Denver, CO, March 15, 1996.
     Re Tenth Amendment Enforcement Act

     Hon. Ted Stevens,
     U.S. Senate, Hart Senate Office Building, Washington, DC.
       Dear Senator Stevens: I am writing to express my strong 
     support for the proposed Tenth Amendment Enforcement Act of 
     1996. The proposal is an important part of the continuing 
     effort to return to the States matters which properly belong 
     within their control.
       Every state has a vast number of examples of federal laws 
     and regulatory actions which have interfered with state 
     powers and objectives. I will mention just a few examples 
     from Colorado.
       The federal government has been especially intrusive into 
     state affairs in the area of the environment. The country 
     faces many environmental problems, from our quality problems 
     to hazardous waste cleanups. The states are diligently 
     working to solve these problems, while taking into account 
     local needs and concerns. Federal interference with state 
     efforts often results in less protection to the environment 
     and less experimentation by the states.
       For example, in 1994, Colorado passed legislation which was 
     intended to encourage businesses to perform voluntary audits 
     of their environmental compliance and to promptly correct any 
     violations found. In exchange for these voluntary efforts, 
     state regulators will not impose penalties for the 
     violations. This program, which will be of great benefit to 
     the environment, is severely hampered by the federal 
     Environmental Protection Agency's refusal to give the same 
     assurances, that is, to refrain from prosecuting companies 
     that voluntarily report and correct violations.
       Another example of EPA hindering state efforts at 
     experimentation concerns Colorado's attempts to put in place 
     a unique water quality testing program. Colorado was one of 
     the first states to attempt to employ a different 
     biomonitoring test. Rather than encouraging these efforts, 
     EPA continuously rejected Colorado's regulation implementing 
     the program until the state rule was drafted to be word-for-
     word like a comparable federal regulation.
       Another example in the area of the environment concerns air 
     quality. Our state has been developing strategies to deal 
     with air quality issues for years. But our problems and 
     solutions are unique since Colorado is a high elevation 
     state. A federal ``one size fits all'' approach does not work 
     here. The Environmental Protection Agency's answer--a 
     centralized emissions testing program--has created large 
     implementation costs and reduced state flexibility in 
     addressing pollution problems. Even though Colorado drivers 
     will expend hundreds of millions of dollars in testing costs 
     over the next few years, State officials have no practical 
     alternatives if the program does not work or if better 
     solutions are discovered.
       Another example of federal intrusion into matters of state 
     concern arose recently in Colorado with regard to the 
     Medicaid program. As you know, Congress' 1993 change to the 
     Hyde Amendment made federal funds available for abortions 
     terminating pregnancies resulting from rape and incest, but 
     did not require that States pay for any abortions. However, 
     an official at the federal Health Care Financing 
     Administration wrote a letter concluding that states must pay 
     for the disputed abortions. Based solely upon this letter, 
     and without any change in federal statutes or regulations, 
     several federal appellate courts have required States to pay 
     for these procedures, notwithstanding state laws to the 
     contrary.
       Colorado state officials are in an impossible dilemma 
     because our state constitution forbids the use of public 
     funds to pay for these procedures. To avoid violating the 
     state constitution but still be consistent with federal 
     mandates, state officials must either (1) withdraw from the 
     Medicaid program and forfeit hundreds of millions of dollars 
     in federal funds, thereby denying thousands of low income 
     Colorado residents access to needed medical care or (2) face 
     contempt citations from federal judges. This problem could 
     have been avoided if federal officials clearly understood 
     their own responsibility to protect state prerogatives.
       The federal ``motor voter'' law presents a different type 
     of intrusion. This law doesn't treat States just like the 
     private sector, it actually imposes special burdens simply 
     because they are States. As the Supreme Court recognized in 
     Oregon v. Mitchell, 400 U.S. 112

[[Page S2429]]

     (1970), it is peculiarly the right of States to establish the 
     qualifications of voters in state elections. In the absence 
     of a constitutional violation such as an outright denial of 
     the right to vote, the States should have control over voter 
     registration. This sort of unfunded mandate is simply not 
     justified, particularly since even though this law 
     unquestionably interferes with the States' internal 
     affairs, it has not appreciably increased turnout at the 
     polls.
       The Tenth Amendment Enforcement Act helps turn the tide in 
     favor of State prerogatives. Particularly noteworthy is the 
     proposal's focus upon agency rulemaking. This is important in 
     two respects. First, many of the most intrusive instances of 
     federal preemption come not by virtue of congressionally-
     enacted legislation, but through extensive regulations 
     promulgated by administrative agencies and expanding upon the 
     congressional authorization.
       Second, statutes seeking to limit subsequent congressional 
     enactments are of limited efficacy, since each subsequent 
     Congress is not bound by the acts of its predecessors. 
     However, focusing upon the regulatory process does not 
     present this problem. My only suggestion would be to include 
     a review or sunset provision requiring every agency to ensure 
     that all of its current rules comply with this new 
     requirement by some date certain, or risk having them 
     invalidated. This would ensure that agencies review the 
     numerous existing federal regulations currently impinging 
     upon Tenth Amendment values--which is, after all, what led to 
     this proposal.
       I appreciate your willingness to carry this proposal 
     forward, and encourage you to continue your efforts to 
     restore a proper balance in our federal system.
           Sincerely,
                                                   Gale A. Norton,
                                        Colorado Attorney General.
                                 ______