II 

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. 

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 Amendment to the Constitution of 

9 the United States (referred to in this Act as the 


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1 ‘‘10th Amendment’’), ratified on December 15, 

2 1791, provides, ‘‘The powers not delegated to the 

3 United States by the Constitution, nor prohibited by 

4 it to the States, are reserved to the States respec5 tively, or to the people.’’. 

6 (2) The 10th Amendment expressly limits the 

7 powers of the Federal Government to those dele8 gated by the Constitution and reaffirms and protects 

9 the freedom of the States to exercise those that are 

10 not. 

11 (3) The 10th Amendment reflects the opposi12 tion of the Founding Fathers to a Federal Govern13 ment with expansive powers, their intention for the 

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

15 the Federal Government, and their concern that the 

16 Federal Government would attempt to usurp powers 

17 intended to remain with the States. 

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

19 wrote, ‘‘The powers delegated by the proposed Con20 stitution to the federal government are few and de21 fined. Those which are to remain in the State gov22 ernments are numerous and indefinite.’’. 

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

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

25 Amendment was intended to confirm the underVerDate Mar 15 2010 02:25 Nov 02, 2013 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1632.IS S1632

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1 standing of the people at the time the Constitution 

2 was adopted, that powers not granted to the United 

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

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

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

6 Amendment expressly declares the constitutional pol7 icy that Congress may not exercise power in a fash8 ion that impairs the States’ integrity or their ability 

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

10 (7) The Executive departments and agencies of 

11 the Federal Government often promulgate regula12 tions contrary to the spirit and letter of the 10th 

13 Amendment. 

14 (8) The 10th Amendment assures that the peo15 ple of the United States, and each sovereign State 

16 in the Union of States, have, and have always had, 

17 rights that the Federal Government may not usurp. 

18 (9) Congress has the responsibility to safeguard 

19 the 10th Amendment and to recognize that it is as 

20 vital and valuable today as on the date of its ratifi21 cation. 


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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) DEFINITIONS.—In this section— 

6 (1) the term ‘‘agency’’ has the meaning given 

7 that term in section 551 of title 5, United States 

8 Code; 

9 (2) the term ‘‘designated State official’’ means, 

10 with respect to a State— 

11 (A) the chief executive of the State; 

12 (B) the lieutenant governor or equivalent 

13 officer of the State; 

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

15 (D) a legislative leader of the State; 

16 (3) the term ‘‘legislative leader’’ means a speak17 er, majority leader, or minority leader, of a State 

18 legislature or any House thereof; and 

19 (4) the term ‘‘rule’’ has the meaning given that 

20 term in section 551 of title 5, United States Code. 

21 (b) SUBMISSION OF LEGAL BRIEF.—During any pe22 riod during which a proposed rule is open for public com23 ment under chapter 5 of title 5, United States Code, any 

24 designated State official may submit to the head of the 

25 agency proposing the rule a legal brief challenging the conVerDate Mar 15 2010 02:25 Nov 02, 2013 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1632.IS S1632

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1 stitutionality of the proposed rule under the 10th Amend2 ment. 

3 (c) DUTY OF FEDERAL OFFICIAL TO POST LINK TO

4 THE BRIEF.—The head of the agency proposing a rule 

5 described in subsection (b) shall prominently post on the 

6 front page of Web site of the agency, in such a manner 

7 that it is immediately noticeable to individuals who visit 

8 that Web site, a link to each brief submitted under sub9 section (b). 

10 (d) RESPONSE BY FEDERAL AGENCY.—Unless an 

11 agency determines not to finalize a proposed rule de12 scribed in subsection (b), not later than 15 days after 

13 posting the link under subsection (c), the head of the 

14 agency shall— 

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

16 head of the agency, the rule does not violate the 

17 10th Amendment; 

18 (2) include in the certification the full legal rea19 soning supporting that opinion; and 

20 (3) prominently post the certification on the 

21 front page of the Web site of the agency next to the 

22 links to the legal briefs pertaining to the rule posted 

23 under subsection (c). 

24 (e) NOTICE TO OFFICIALS OF OTHER STATES.—Not 

25 later than 15 days after the date on which a designated 


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1 State official submits a brief under subsection (b), the 

2 head of the agency proposing the rule shall give notice to 

3 each designated State official of each State that the brief 

4 was submitted. 

5 (f) ACTIONS BY STATE OFFICIALS.— 

6 (1) COMMENCEMENT OF ACTION.—At any time 

7 after the head of an agency posts a certification 

8 under subsection (d) that a rule does not violate the 

9 10th Amendment, a designated State official may 

10 commence a civil action against the agency on the 

11 grounds that the rule of the agency violates the 10th 

12 Amendment. 

13 (2) VENUE AND JURISDICTION.—If a des14 ignated State official decides to commence an action 

15 under paragraph (1), in addition to any other venue 

16 or jurisdiction that may be provided by law, the offi17 cial may bring the action in the district court of the 

18 United States for the district in which the place of 

19 business of the official is located, which shall be a 

20 proper venue for the action and the court shall have 

21 jurisdiction of the action. 

22 (3) EXPEDITED APPEAL.—Upon the filing of a 

23 notice of appeal by a designated State official who 

24 is a party to an action described in paragraph (1) 

25 brought in a district court of the United States, the 


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1 appropriate court of appeals of the United States 

2 shall grant expedited review of a decision by the dis3 trict court in the action. 

Æ 


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