II

104TH CONGRESS

2D SESSION S. 2156

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

SEPTEMBER 28, 1996

Mr. STEVENS 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,

3 SECTION 1. SHORT TITLE.

4 This Act may be referred to as the ‘‘Tenth Amend5 ment Enforcement Act of 1996’’.
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1 SEC. 2. FINDINGS.

2 The Congress finds that—

3 (1) in most areas of governmental concern,

4 State governments possess both the Constitutional

5 authority and the competence to discern the needs

6 and the desires of the People and to govern accord7 ingly;

8 (2) Federal laws and agency regulations, which

9 have interfered with State powers in areas of State

10 jurisdiction, should be restricted to powers delegated

11 to the Federal Government by the Constitution;

12 (3) the framers of the Constitution intended to

13 bestow upon the Federal Government only limited

14 authority over the States and the people;

15 (4) under the Tenth Amendment to the Con16 stitution, the powers not delegated to the United

17 States by the Constitution, nor prohibited by it to

18 the States, are reserved to the States respectively, or

19 to the people; and

20 (5) the courts, which have in general construed

21 the Tenth Amendment not to restrain the Federal

22 Government’s power to act in areas of State jurisdic23 tion, should be directed to strictly construe Federal

24 laws and regulations which interfere with State pow25 ers with a presumption in favor of State authority

26 and against Federal preemption.
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1 SEC. 3. CONGRESSIONAL DECLARATION.

2 (a) IN GENERAL.—On or after January 1, 1997, any

3 statute enacted by Congress shall include a declaration—

4 (1) that authority to govern in the area ad5 dressed by the statute is delegated to Congress by

6 the Constitution, including a citation to the specific

7 Constitutional authority relied upon;

8 (2) if the statute interferes with State powers

9 or preempts any State or local government law, reg10 ulation or ordinance, that Congress specifically finds

11 that the Federal Government is the better level of

12 government to govern in the area addressed by the

13 statute; and

14 (3) if the statute interferes with State powers

15 or preempts any State or local government law, reg16 ulation or ordinance, that Congress specifically in17 tends to interfere with State powers or preempt

18 State or local government law, regulation, or ordi19 nance, and that such preemption is necessary.

20 (b) FACTUAL FINDINGS.—The Congress shall make

21 specific factual findings in support of the declarations de22 scribed in this section.

23 SEC. 4. POINT OF ORDER.

24 (a) IN GENERAL.—It shall not be in order in either

25 the Senate or House of Representatives to consider any

26 bill, joint resolution, or amendment that does not include
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1 a declaration of Congressional intent as required under

2 section 3.

3 (b) RULEMAKING.—This section is enacted—

4 (1) as an exercise of the rulemaking power of

5 the Senate and House of Representatives, and as

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

7 and House of Representatives, but is applicable only

8 with respect to the matters described in section 3

9 and supersedes other rules of the Senate or House

10 of Representatives only to the extent that such sec11 tions are inconsistent with such rules; and

12 (2) with full recognition of the constitutional

13 right of the Senate or House of Representatives to

14 change such rules at any time, in the same manner

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

16 of Representatives.

17 SEC. 5. ANNUAL REPORT ON STATUTORY PREEMPTION.

18 (a) REPORT.—Within 90 days after each Congress

19 adjourns sine die, the Congressional Research Service

20 shall prepare and make available to the public a report

21 on the extent of Federal statutory preemption of State and

22 local government powers enacted into law during the pre23 ceding Congress or adopted through judicial interpretation

24 of Federal statutes.

25 (b) CONTENTS.—The report shall contain—
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1 (1) a cumulative list of the Federal statutes

2 preempting, in whole or in part, State and local gov3 ernment powers;

4 (2) a summary of Federal legislation enacted

5 during the previous Congress preempting, in whole

6 or in part, State and local government powers;

7 (3) an overview of recent court cases addressing

8 Federal preemption issues; and

9 (4) other information the Director of the Con10 gressional Research Service determines appropriate.

11 (c) TRANSMITTAL.—Copies of the report shall be sent

12 to the President and the chairman of the appropriate com13 mittees in the Senate and House of Representatives.

14 SEC. 6. EXECUTIVE PREEMPTION OF STATE LAW.

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

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

17 following new section:

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

19 ‘‘(a) No executive department or agency or independ20 ent agency shall construe any statutory authorization to

21 issue regulations as authorizing preemption of State law

22 or local ordinance by rulemaking or other agency action

23 unless—

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

25 preemptive regulations; and
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1 ‘‘(2) the executive department, agency or inde2 pendent agency concludes that the exercise of State

3 power directly conflicts with the exercise of Federal

4 power under the Federal statute, such that the State

5 statutes and the Federal rule promulgated under the

6 Federal statute cannot be reconciled or consistently

7 stand together.

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

9 narrowly tailored to achieve the objectives of the statute

10 pursuant to which the regulations are promulgated and

11 shall explicitly describe the scope of preemption.

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

13 independent agency proposes to act through rulemaking

14 or other agency action to preempt State law, the depart15 ment or agency shall provide all affected States notice and

16 an opportunity for meaningful and timely input by duly

17 elected or appointed State and local government officials

18 or their designated representatives in the proceedings.

19 ‘‘(2) The notice of proposed rulemaking shall be for20 warded to the Governor, the Attorney General and the pre21 siding officer of each chamber of the legislature of each

22 State setting forth the extent and purpose of the preemp23 tion.
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1 ‘‘(3) In the table of contents of each Federal Reg2 ister, there shall be a separate list of preemptive regula3 tions contained within that Register.

4 ‘‘(4) The Federal Advisory Committee Act (5 U.S.C.

5 App.) shall not apply to participation in rulemaking or

6 other agency action by duly elected or appointed State and

7 local government officials or their designated representa8 tives acting in their official capacities.

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

10 or independent agency rule or regulation contains an ex11 plicit provision declaring the Federal Government’s intent

12 to preempt State or local government powers and an ex13 plicit description of the extent and purpose of that pre14 emption, the rule or regulation shall not be construed to

15 preempt any State or local government law, ordinance or

16 regulation.

17 ‘‘(e)(1) Each executive department or agency or inde18 pendent agency shall review the rules and regulations is19 sued by the department or agency that preempt, in whole

20 or in part, State or local government powers. Each execu21 tive department or agency or independent agency shall

22 publish in the Federal Register a plan for such review.

23 Such plan may be amended by the department or agency

24 at any time by publishing a revision in the Federal Reg25 ister.
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1 ‘‘(2) The purpose of the review under paragraph (1)

2 shall be to determine whether and to what extent such

3 rules are to continue without change, consistent with the

4 stated objectives of the applicable statutes, or are to be

5 altered or repealed to minimize the effect of the rules on

6 State or local government powers.

7 ‘‘(3) The plan under paragraph (1) shall provide for

8 the review of all such department or agency rules and reg9 ulations within 10 years after the date of publication of

10 such rules and regulations as final rules. For rules and

11 regulations in effect more than 10 years on the effective

12 date of this section, the plan shall provide for review with13 in 3 years after such effective date.

14 ‘‘(f) Any Federal rule or regulation promulgated after

15 January 1, 1997, that is promulgated in a manner incon16 sistent with this section shall not be binding on any State

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

18 local government law, ordinance, or regulation.’’.

19 (b) CONFORMING AMENDMENT.—The table of sec20 tions for chapter 5 of title 5, United States Code, is

21 amended by adding after the item for section 559 the fol22 lowing:

‘‘560. Preemption of State law.’’.

23 SEC. 7. CONSTRUCTION.

24 (a) IN GENERAL.—No statute, or rule promulgated

25 under such statute, enacted after the date of enactment
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1 of this Act, shall be construed by courts or other adjudica2 tive entities to preempt, in whole or in part, any State

3 or local government law, ordinance or regulation unless

4 the statute, or rule promulgated under such statute, con5 tains an explicit declaration of intent to preempt, or unless

6 there is a direct conflict between such statute and a State

7 or local government law, ordinance, or regulation, such

8 that the two cannot be reconciled or consistently stand to9 gether.

10 (b) CONSTRUCTION IN FAVOR OF STATES AND PEO11 PLE.—Notwithstanding any other provisions of law, any

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

13 States, shall be construed in favor of preserving the au14 thority of the States and the people.

15 (c) SEVERABILITY.—If any provision of this Act, or

16 the application thereof to any person or circumstance, is

17 held invalid, the validity of the remainder of the Act and

18 the application of such provision to other persons and cir19 cumstances shall not be affected thereby.

20 SEC. 8. APPROPRIATION BY STATE LEGISLATURES.

21 Any funds received by a State under Federal law

22 shall be subject to appropriation by the State legislature,

23 consistent with the terms and conditions required under

24 such applicable provisions of law.

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