I 

112TH CONGRESS 

1ST SESSION H. R. 455 

To protect 10th Amendment rights by providing special standing for State 

government officials to challenge proposed regulations, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

JANUARY 26, 2011 

Mr. COLE (for himself, Mr. ROONEY, Mr. BISHOP of Utah, Mr. BOREN, Mr. 

GARRETT, Mr. WILSON of South Carolina, Mr. LUCAS, Mr. MILLER of 

Florida, Mr. SCOTT of South Carolina, Mr. SULLIVAN, Mr. GRIFFIN of 

Arkansas, Mr. BILBRAY, Mr. KLINE, Mrs. BLACKBURN, Mr. HANNA, Mr. 

TERRY, Mr. DANIEL E. LUNGREN of California, Mr. KING of Iowa, Mr. 

LANKFORD, Mr. BARTON of Texas, Mr. SCHOCK, Mr. MCHENRY, Mr. 

HALL, Mr. PEARCE, Mr. CARTER, Mr. ISSA, Mr. CHABOT, Mr. CONAWAY, 

Mr. NEUGEBAUER, Mr. WALBERG, Mr. FLORES, Mr. POE of Texas, Mr. 

YOUNG of Indiana, Mr. STUTZMAN, Mr. MARCHANT, Mrs. LUMMIS, Mr. 

FRANKS of Arizona, Mr. ROE of Tennessee, Mr. WESTMORELAND, Mr. 

SOUTHERLAND, Mr. NUGENT, Ms. GRANGER, Mr. POSEY, Mr. BILIRAKIS, Mr. POMPEO, Mr. HUELSKAMP, Mr. FARENTHOLD, Mr. 

SCHWEIKERT, Mr. AKIN, Mr. WALSH of Illinois, Mr. CRAWFORD, Mr. 

FLEMING, Mr. CHAFFETZ, Mr. GIBBS, Mr. CAMPBELL, Mr. KINGSTON, 

Mr. MANZULLO, Mr. PAUL, Mr. CANSECO, and Mr. BENISHEK) introduced the following bill; which was 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, 


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1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘10th Amendment Reg3 ulatory Reform Act’’. 

4 SEC. 2. FINDINGS. 

5 The Congress finds: 

6 (1) The 10th article of amendment to the Con7 stitution of the United States (hereinafter in this 

8 section referred to as the ‘‘10th Amendment’’) , rati9 fied on December 15, 1791, states, ‘‘The powers not 

10 delegated to the United States by the Constitution, 

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

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

13 (2) The 10th Amendment expressly limits the 

14 powers of the Federal Government to those dele15 gated by the Constitution and reaffirms and protects 

16 the freedom of the States to exercise those that are 

17 not. 

18 (3) The 10th Amendment reflects the opposi19 tion of the Founding Fathers to a Federal Govern20 ment with expansive powers; their intention for the 

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

22 the Federal Government; and their concern that the 

23 Federal Government would attempt to usurp powers 

24 intended to remain with the States. 

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

26 wrote, ‘‘The powers delegated by the proposed ConVerDate Mar 15 2010 01:32 Feb 03, 2011 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H455.IH H455

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1 stitution to the Federal Government are few and de2 fined. Those which are to remain in the State gov3 ernments are numerous and indefinite.’’. 

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

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

6 Amendment was intended to confirm the under7 standing of the people at the time the Constitution 

8 was adopted, that powers not granted to the United 

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

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

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

12 Amendment expressly declares the constitutional pol13 icy that Congress may not exercise power in a fash14 ion that impairs the States’ integrity or their ability 

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

16 (7) The Executive Departments and Agencies 

17 of the Federal Government often promulgate regula18 tions contrary to the spirit and letter of the 10th 

19 Amendment. 

20 (8) The 10th Amendment assures that the peo21 ple of the United States of America and each sov22 ereign State in the Union of States, now have, and 

23 have always had, rights the Federal Government 

24 may not usurp. 


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1 (9) It is the responsibility of Congress to safe2 guard the 10th Amendment and to recognize that it 

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

4 ratification. 

5 SEC. 3. SPECIAL STANDING FOR CERTAIN STATE OFFI6 CIALS TO CHALLENGE FEDERAL RULE7 MAKING AS A VIOLATION OF THE 10TH 

8 AMENDMENT. 

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

10 when a proposed Federal rule is required under chapter 

11 5, title 5, United States Code, to be open for public com12 ment, any designated State official may file with the head 

13 of the agency proposing the rule a legal brief challenging 

14 the constitutionality of the proposed rule under the 10th 

15 article of amendment to the Constitution. 

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

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

18 the rule shall, not later than 10 days after a brief is sub19 mitted under subsection (a), prominently post on the agen20 cy’s primary Web page, in such a manner that it is imme21 diately noticeable to those who visit that Web site, a link 

22 to that brief. 

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

24 Federal agency determines not to carry into effect the proVerDate Mar 15 2010 01:32 Feb 03, 2011 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H455.IH H455

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1 posed rule, not later than 15 days after posting the link 

2 under subjection (a), the head of that agency shall— 

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

4 head, such rulemaking does not violate the 10th ar5 ticle of amendment to the Constitution and include 

6 in that certification a full and complete written 

7 statement of the legal reasoning supporting that 

8 opinion; and 

9 (2) prominently post the certification on the 

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

11 briefs pertaining to that rule posted under sub12 section (b). 

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

14 later than 15 days after a designated State official sub15 mits a brief under this section, the head of the agency 

16 proposing the rule shall give notice to each designated 

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

18 (e) VENUE AND JURISDICTION OF LEGAL ACTIONS

19 BY STATE OFFICIALS.—If a designated State official de20 cides to commence legal action against a proposed or final 

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

22 article of amendment to the Constitution, in addition to 

23 any other venue or jurisdiction that may be provided by 

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

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


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

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

3 and determine it. 

4 (f) EXPEDITED APPEAL.—Upon the request of a des5 ignated State official who is a party in the case, the rel6 evant United States Court of Appeals shall grant expe7 dited review of a decision by a district court in any case 

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

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

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

11 with respect to a State— 

12 (A) the chief executive of the State; 

13 (B) the lieutenant governor or equivalent 

14 officer of the State; 

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

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

17 (2) the term ‘‘legislative leader’’ means a speak18 er, majority leader, or minority leader, of the State 

19 legislature or any House thereof. 

Æ 


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