[Congressional Record Volume 142, Number 137 (Saturday, September 28, 1996)]
[Senate]
[Pages S11723-S11725]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. STEVENS:
  S. 2156. 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 tenth amendment enforcement act of 1996

  Mr. STEVENS. Mr. President, the 10th amendment was a promise to the

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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 
closer 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. As chairman of the Governmental 
Affairs Committee, I wanted to continue its shift of power. More than a 
dozen colleagues and I introduced S. 1629 on March 20 of this year. 
Within 5 months of its introduction, the bill had 32 cosponsors. On May 
8 of this year, a House companion bill was also introduced.
  I want to introduce a bill today which is the product of work by the 
Governmental Affairs Committee over the past several months. 
Unfortunately, the session is ending before we can complete action. 
However, before adjourning I wanted to provide a summary of the 
committee's consideration of this issue, and put forward a bill that 
reflects revisions made as a result of our hearings and discussions 
with interested parties. The legislation that I offer today is a 
starting point for when we reconvene next year. This is an 
important issue and I intend to pursue it in the next Congress.

  The purpose of out legislation is to return power to the States and 
to our 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.
  This would be accomplished in five ways. 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.
  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 to do so.
  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.
  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 an opportunity to 
be heard in the rulemaking process.
  The act, further, 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.
  During the course of the past year, we received bipartisan 
expressions of support from many Governors and State attorneys general, 
State legislatures, groups including the National Conference of State 
Legislatures [NCSL] and the Council of State Governments [CSG].
  As the Supreme Court stated in 1991 when Justice Sandra Day O'Connor 
delivered the majority opinion of the court in the case Gregory versus 
Aschroft:

       If Congress intends to alter the usual constitutional 
     balance between the states and the Federal Government, it 
     must make its intention to do so unmistakably clear in the 
     language of the statute. Congress should make its intention 
     clear and manifest if it intends to preempt the historic 
     powers of the States. In traditionally sensitive areas such 
     as legislation affecting the federal balance, the requirement 
     of clear statement assures that the legislature has in fact 
     faced, and intended to bring into issue, the critical matters 
     involved in the judicial decision.

  The Tenth Amendment Enforcement Act that I have introduced 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 the power of our democracy 
to the States and to our people.
  The Governmental Affairs Committee held three hearings on the Tenth 
Amendment Enforcement Act:
  March 21, 1996, featured Senators Dole, Hatch, and Nickles. Attorneys 
general from Virginia and South Carolina, the solicitor general of 
Colorado, and elected representatives from Alaska, Ohio, and New York 
appeared, as well as Professors Nelson Lund and John Kincaid. Senator 
Dole said:

       I don't care what your party is. This isn't a Republican or 
     a Democratic issue. Even the President has said ``The era of 
     big government is over.'' . . . This is a bipartisan issue 
     and this is a bipartisan bill.

  June 3, 1996 in Nashville, TN, cochaired by Senator Thompson, 
included elected representatives for Tennessee State and local 
governments, as well as the director of the Tennessee Advisory Council 
on Intergovernmental Relations and the deputy director of the Tennessee 
Division of Water Supply. This hearing enlightened us to the wisdom 
that resides in Tennessee. State legislators, mayors, and 
administrators know how to solve most problems, but Federal 
overreaching often prevents them from doing that. One of our witnesses 
offered an update on a familiar saying in Washington. To this 
Tennessean, it's not just all politics that are local, ``All solutions 
are local.''
  July 16, 1996, testimony was presented by NCSL President-Elect 
Michael Box and constitutional lawyer Roger Marzulla speaking in favor 
of the bill, while Professors Mary Brigid McManamon and Ed Rubin spoke 
in opposition. Mr. Marzulla pointed out that Congress is the only 
branch of the Federal Government that does not analyze the source of 
its power before it acts. Courts and Federal agencies both do. We in 
Congress can do our jobs better by looking at our constitutional 
jurisdiction and authority first, then exercising or power 
appropriately to solve the Nation's problems.
  Let me conclude by saving, as a result of our work throughout this 
year and with input form the National Conference of State Legislatives, 
we have made the following changes to the Tenth Amendment Enforcement 
Act.
  We have removed the supermajority requirement on the point of 
order. It would take a simple majority to remove the point of order, 
not just a supermajority.

  It will require the Congressional Research Service to report on 
Federal preemption at the close of each Congress. It will exempt 
participation by State officials in agency rulemaking from the Federal 
Advisory Committee Act and allow State and Federal officials to work 
together on preemption issues without following the Federal Advisory 
Committee Act's detailed notice and reporting procedures. It would make 
funds received by States under Federal law subject to appropriation by 
the State legislatures.
  I ask unanimous consent, Mr. President, the text of this bill be 
printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 2156

       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;

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       (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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