I 

113TH CONGRESS 

2D SESSION H. R. 4047 

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 

FEBRUARY 11, 2014 

Mr. CULBERSON 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, 

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 

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


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1 1791, provides, ‘‘The powers not delegated to the 

2 United States by the Constitution, nor prohibited by 

3 it to the States, are reserved to the States respec4 tively, 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 of 

10 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, and each sovereign State 

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

16 rights that the Federal Government may not usurp. 

17 (9) Congress has the responsibility to safeguard 

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

19 vital and valuable today as on the date of its ratifi20 cation. 

21 SEC. 3. SPECIAL STANDING FOR CERTAIN STATE OFFI22 CIALS TO CHALLENGE FEDERAL RULE23 MAKING AS A VIOLATION OF THE 10TH 

24 AMENDMENT. 

25 (a) DEFINITIONS.—In this section— 


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

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

3 Code; 

4 (2) 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; 

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

13 legislature or any House thereof; and 

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

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

16 (b) SUBMISSION OF LEGAL BRIEF.—During any pe17 riod during which a proposed rule is open for public com18 ment under chapter 5 of title 5, United States Code, any 

19 designated State official may submit to the head of the 

20 agency proposing the rule a legal brief challenging the con21 stitutionality of the proposed rule under the 10th Amend22 ment. 

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

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

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


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

2 that it is immediately noticeable to individuals who visit 

3 that Web site, a link to each brief submitted under sub4 section (b). 

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

6 agency determines not to finalize a proposed rule de7 scribed in subsection (b), not later than 15 days after 

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

9 agency shall— 

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

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

12 10th Amendment; 

13 (2) include in the certification the full legal rea14 soning supporting that opinion; and 

15 (3) prominently post the certification on the 

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

17 links to the legal briefs pertaining to the rule posted 

18 under subsection (c). 

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

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

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

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

23 each designated State official of each State that the brief 

24 was submitted. 

25 (f) ACTIONS BY STATE OFFICIALS.— 


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

2 after the head of an agency posts a certification 

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

4 10th Amendment, a designated State official may 

5 commence a civil action against the agency on the 

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

7 Amendment. 

8 (2) VENUE AND JURISDICTION.—If a des9 ignated State official decides to commence an action 

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

11 or jurisdiction that may be provided by law, the offi12 cial may bring the action in the district court of the 

13 United States for the district in which the place of 

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

15 proper venue for the action and the court shall have 

16 jurisdiction of the action. 

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

18 notice of appeal by a designated State official who 

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

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

21 appropriate court of appeals of the United States 

22 shall grant expedited review of a decision by the dis23 trict court in the action. 

Æ 


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