II

104TH CONGRESS

2D SESSION S. 1629

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 Tenth Amendment

to the Constitution; and for other purposes.

IN THE SENATE OF THE UNITED STATES

MARCH 20, 1996

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)

introduced the following bill; which was read twice and referred to the

Committee on Governmental Affairs

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 Tenth Amendment to the Constitution; 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,
2

S 1629 IS

1 SECTION 1. SHORT TITLE.

2 This act may be referred to as the ‘‘Tenth Amend3 ment Enforcement Act of 1996’’.

4 SEC. 2. FINDINGS.

5 The Congress finds that—

6 (a) in most areas of governmental concern, State gov7 ernments possess both the Constitutional authority and

8 the competence to discern the needs and the desires of

9 the People and to govern accordingly;

10 (b) Federal laws and agency regulations, which have

11 interfered with State powers in areas of State jurisdiction,

12 should be restricted to powers delegated to the Federal

13 Government by the Constitution;

14 (c) the framers of the Constitution intended to bestow

15 upon the Federal Government only limited authority over

16 the States and the People;

17 (d) under the Tenth Amendment to the Constitution,

18 the powers not delegated to the United States by the Con19 stitution, nor prohibited by it to the States, are reserved

20 to the States respectively, or to the people; and

21 (e) the courts, which have in general construed the

22 Tenth Amendment not to restrain the Federal Govern23 ment’s power to act in areas of state jurisdiction, should

24 be directed to strictly construe Federal laws and regula25 tions which interfere with State powers with a presump-
3

S 1629 IS

1 tion in favor of State authority and against Federal pre2 emption.

3 SEC. 3. CONGRESSIONAL DECLARATION.

4 (a) On or after January 1, 1997, any statute enacted

5 by Congress shall include a declaration—

6 (1) that authority to govern in the area ad7 dressed by the statute is delegated to Congress by

8 the Constitution, including a citation to the specific

9 Constitutional authority relied upon;

10 (2) that Congress specifically finds that it has

11 a greater degree of competence than the States to

12 govern in the area addressed by the statute; and

13 (3) if the statute interferes with State powers

14 or preempts any State or local government law, reg15 ulation or ordinance, that Congress specifically in16 tends to interfere with State powers or preempt

17 State or local government law, regulation, or ordi18 nance, and that such preemption is necessary.

19 (b) Congress must make specific factual findings in

20 support of the declarations described in this section.

21 SEC. 4. POINT OF ORDER.

22 (a) IN GENERAL.—

23 (1) INFORMATION REQUIRED.—It shall not be

24 in order in either the Senate or House of Represent25 atives to consider any bill, joint resolution, or
4

S 1629 IS

1 amendment that does not include a declaration of

2 Congressional intent as required under section 3.

3 (2) SUPERMAJORITY REQUIRED.—The require4 ments of this subsection may be waived or sus5 pended in the Senate or House of Representatives

6 only by the affirmative vote of three-fifths of the

7 Members of that House duly chosen and sworn. An

8 affirmative vote of three-fifths of the Members of the

9 Senate or House of Representatives duly chosen and

10 sworn shall be required to sustain an appeal of the

11 ruling of the chair on a point of order raised under

12 this subsection.

13 (b) RULE MAKING.—This section is enacted—

14 (1) as an exercise of the rule-making power of

15 the Senate and House of Representatives, and as

16 such, it is deemed a part of the rules of the Senate

17 and House of Representatives, but is applicable only

18 with respect to the matters described in sections 3

19 and 4 and supersedes other rules of the Senate or

20 House of Representatives only to the extent that

21 such sections are inconsistent with such rules; and

22 (2) with full recognition of the Constitutional

23 right of the Senate or House of Representatives to

24 change such rules at any time, in the same manner
5

S 1629 IS

1 as in the case of any rule of the Senate or House

2 of Representatives.

3 SEC. 5. EXECUTIVE PREEMPTION OF STATE LAW.

4 (a) IN GENERAL.—Chapter 5 of title 5, United

5 States Code, is amended by inserting after section 559 the

6 following new section:

7 ‘‘SEC. 560. PREEMPTION OF STATE LAW.

8 ‘‘(a) No executive department or agency or independ9 ent agency shall construe any statutory authorization to

10 issue regulations as authorizing preemption of State law

11 or local ordinance by rule-making or other agency action

12 unless—

13 ‘‘(1) the statute expressly authorizes issuance of

14 preemptive regulations; and

15 ‘‘(2) the executive department, agency or inde16 pendent agency concludes that the exercise of State

17 power directly conflicts with the exercise of Federal

18 power under the Federal statute, such that the State

19 statutes and the Federal rule promulgated under the

20 Federal statute cannot be reconciled or consistently

21 stand together.

22 ‘‘(b) Any regulatory preemption of State law shall be

23 narrowly tailored to achieve the objectives of the statute

24 pursuant to which the regulations are promulgated and

25 shall explicitly describe the scope of preemption.
6

S 1629 IS

1 ‘‘(c) When an executive branch department or agency

2 or independent agency proposes to act through rule-mak3 ing or other agency action to preempt State law, the de4 partment or agency shall provide all affected States notice

5 and an opportunity for comment by duly elected or ap6 pointed State and local government officials or their des7 ignated representatives in the proceedings.

8 ‘‘(1) The notice of proposed rule-making must

9 be forwarded to the Governor, the Attorney General

10 and the presiding officer of each chamber of the

11 Legislature of each State setting forth the extent

12 and purpose of the preemption. In the table of con13 tents of each Federal Register, there shall be a sepa14 rate list of preemptive regulations contained within

15 that Register.

16 ‘‘(d) Unless a final executive department or agency

17 or independent agency rule or regulation contains an ex18 plicit provision declaring the Federal Government’s intent

19 to preempt State or local government powers and an ex20 plicit description of the extent and purpose of that pre21 emption, the rule or regulation shall not be construed to

22 preempt any State or local government law, ordinance or

23 regulation.

24 ‘‘(e) Each executive department or agency or inde25 pendent agency shall publish in the Federal Register a
7

S 1629 IS

1 plan for periodic review of the rules and regulations issued

2 by the department or agency that preempt, in whole or

3 in part, State or local government powers. This plan may

4 be amended by the department or agency at any time by

5 publishing a revision in the Federal Register.

6 ‘‘(1) The purpose of this review shall be to de7 termine whether and to what extent such rules are

8 to continue without change, consistent with the stat9 ed objectives of the applicable statutes, or are to be

10 altered or repealed to minimize the effect of the

11 rules on State or local government powers.’’.

12 (b) Any Federal rule or regulation promulgated after

13 January 1, 1997, that is promulgated in a manner incon14 sistent with this section shall not be binding on any State

15 or local government, and shall not preempt any State or

16 local government law, ordinance, or regulation.

17 (c) CONFORMING AMENDMENT.—The table of sec18 tions for chapter 5 of title 5, United States Code, is

19 amended by adding after the item for section 559 the fol20 lowing:

‘‘560. Preemption of State Law.’’.

21 SEC. 6. CONSTRUCTION.

22 (a) No statute, or rule promulgated under such stat23 ute, enacted after the date of enactment of this Act, shall

24 be construed by courts or other adjudicative entities to

25 preempt, in whole or in part, any State or local govern-
8

S 1629 IS

1 ment law, ordinance or regulation unless the statute, or

2 rule promulgated under such statute, contains an explicit

3 declaration of intent to preempt, or unless there is a direct

4 conflict between such statute and a State or local govern5 ment law, ordinance, or regulation, such that the two can6 not be reconciled or consistently stand together.

7 (b) Notwithstanding any other provisions of law, any

8 ambiguities in this Act, or in any other law of the United

9 States, shall be construed in favor of preserving the au10 thority of the States and the People.

11 (c) If any provision of this Act, or the application

12 thereof to any person or circumstance, is held invalid, the

13 validity of the remainder of the Act and the application

14 of such provision to other persons and circumstances shall

15 not be affected thereby.

Æ