II 

112TH CONGRESS 

1ST SESSION S. 1842 

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 

NOVEMBER 10, 2011 

Mr. WICKER 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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Restoring the 10th 

5 Amendment Act’’. 

6 SEC. 2. FINDINGS. 

7 The Congress finds: 

8 (1) The 10th article of amendment to the Con9 stitution of the United States (hereinafter in this 

10 section referred to as the ‘‘10th Amendment’’), ratimstockstill on DSK4VPTVN1PROD with BILLS

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1 fied on December 15, 1791, states, ‘‘The powers not 

2 delegated to the United States by the Constitution, 

3 nor prohibited by it to the States, are reserved to 

4 the States respectively, or to the people.’’. 

5 (2) The 10th Amendment expressly limits the 

6 powers of the Federal Government to those dele7 gated by the Constitution and reaffirms and protects 

8 the freedom of the States to exercise those that are 

9 not. 

10 (3) The 10th Amendment reflects the opposi11 tion of the Founding Fathers to a Federal Govern12 ment with expansive powers; their intention for the 

13 powers of the States to act as a check on those of 

14 the Federal Government; and their concern that the 

15 Federal Government would attempt to usurp powers 

16 intended to remain with the States. 

17 (4) James Madison, in The Federalist No. 45, 

18 wrote, ‘‘The powers delegated by the proposed Con19 stitution to the Federal Government are few and de20 fined. Those which are to remain in the State gov21 ernments are numerous and indefinite.’’. 

22 (5) The Supreme Court, in United States v. 

23 Sprague, 282 U.S. 716 (1931), noted, ‘‘The Tenth 

24 Amendment was intended to confirm the under25 standing of the people at the time the Constitution 

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1 was adopted, that powers not granted to the United 

2 States were reserved to the States or to the people.’’. 

3 (6) The Supreme Court, in Fry v. United 

4 States, 421 U.S. 542 (1975), also noted, ‘‘The 

5 Amendment expressly declares the constitutional pol6 icy that Congress may not exercise power in a fash7 ion that impairs the States’ integrity or their ability 

8 to function effectively in a federal system.’’. 

9 (7) The Executive Departments and Agencies 

10 of the Federal Government often promulgate regula11 tions contrary to the spirit and letter of the 10th 

12 Amendment. 

13 (8) The 10th Amendment assures that the peo14 ple of the United States of America and each sov15 ereign State in the Union of States, now have, and 

16 have always had, rights the Federal Government 

17 may not usurp. 

18 (9) It is the responsibility of Congress to safe19 guard the 10th Amendment and to recognize that it 

20 is as vital and valuable today as on the date of its 

21 ratification. 

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1 SEC. 3. SPECIAL STANDING FOR CERTAIN STATE OFFI2 CIALS TO CHALLENGE FEDERAL RULE3 MAKING AS A VIOLATION OF THE 10TH 

4 AMENDMENT. 

5 (a) TO SUBMIT A LEGAL BRIEF.—During any period 

6 when a proposed Federal rule is required under chapter 

7 5, title 5, United States Code, to be open for public com8 ment, any designated State official may file with the head 

9 of the agency proposing the rule a legal brief challenging 

10 the constitutionality of the proposed rule under the 10th 

11 article of amendment to the Constitution. 

12 (b) DUTY OF FEDERAL OFFICIAL TO POST LINK TO

13 THE BRIEF.—The head of the Federal agency proposing 

14 the rule shall prominently post on the agency’s primary 

15 Web page, in such a manner that it is immediately notice16 able to those who visit that Web site, a link to each brief 

17 submitted under subsection (a). 

18 (c) RESPONSE BY FEDERAL AGENCY.—Unless the 

19 Federal agency determines not to carry into effect the pro20 posed rule, not later than 15 days after posting the link 

21 under subsection (a), the head of that agency shall— 

22 (1) certify in writing that, in the opinion of that 

23 head, such rulemaking does not violate the 10th ar24 ticle of amendment to the Constitution and include 

25 in that certification a full and complete written 

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1 statement of the legal reasoning supporting that 

2 opinion; and 

3 (2) prominently post the certification on the 

4 front page of the agency’s Web site next to the legal 

5 briefs pertaining to that rule posted under sub6 section (b). 

7 (d) NOTICE TO OTHER STATES’ OFFICIALS.—Not 

8 later than 15 days after a designated State official sub9 mits a brief under this section, the head of the agency 

10 proposing the rule shall give notice to each designated 

11 State official of each State that the brief was filed. 

12 (e) VENUE AND JURISDICTION OF LEGAL ACTIONS

13 BY STATE OFFICIALS.—If a designated State official de14 cides to commence legal action against a proposed or final 

15 Federal rule on the grounds that the rule violates the 10th 

16 article of amendment to the Constitution, in addition to 

17 any other venue or jurisdiction that may be provided by 

18 law, the official may elect to file the action in the United 

19 States district court for the district in which the official’s 

20 place of business is located, which shall be a proper venue 

21 for the case and the court shall have jurisdiction to hear 

22 and determine it. 

23 (f) EXPEDITED APPEAL.—Upon the request of a des24 ignated State official who is a party in the case, the rel25 evant United States Court of Appeals shall grant expemstockstill on DSK4VPTVN1PROD with BILLS

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1 dited review of a decision by a district court in any case 

2 that could have been brought under subsection (e). 

3 (g) DEFINITIONS.—As used in this section— 

4 (1) the term ‘‘designated State official’’ means, 

5 with respect to a State— 

6 (A) the chief executive of the State; 

7 (B) the lieutenant governor or equivalent 

8 officer of the State; 

9 (C) the chief legal officer of the State; or 

10 (D) a legislative leader of the State; and 

11 (2) the term ‘‘legislative leader’’ means a speak12 er, majority leader, or minority leader, of the State 

13 legislature or any House thereof. 

Æ 

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