I
104TH CONGRESS
2D SESSION
H. R. 3411
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 HOUSE OF REPRESENTATIVES
MAY 8, 1996
Mr. SHADEGG introduced the following bill; which was referred to the Commit-
tee on the Judiciary, and in addition to the Committee on Rules, for a
period to be subsequently determined by the Speaker, in each case for
consideration of such provisions as fall within the jurisdiction of the com-
mittee concerned
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 be-
tween State and Federal Governments; to restrain Fed-
eral agencies from exceeding their authority; to enforce
the Tenth Amendment to the Constitution; and for other
purposes.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This act may be referred to as the ‘‘Tenth Amend-
ment Enforcement Act of 1996’’.
SEC. 2. FINDINGS.
The Congress finds that—
(a) in most areas of governmental concern, State gov-
ernments possess both the constitutional authority and the
competence to discern the needs and the desires of the
People and to govern accordingly;
(b) Federal laws and agency regulations, which have
interfered with State powers in areas of State jurisdiction,
should be restricted to powers delegated to the Federal
Government by the Constitution;
(c) the framers of the Constitution intended to bestow
upon the Federal Government only limited authority over
the States and the People;
(d) under the Tenth Amendment to the Constitution,
the powers not delegated to the United States by the Con-
stitution, nor prohibited by it to the States, are reserved
to the States respectively, or to the people; and
(e) the courts, which have in general construed the
Tenth Amendment not to restrain the Federal Govern-
ment’s power to act in areas of state jurisdiction, should
be directed to strictly construe Federal laws and regula-
tions which interfere with State powers with a presump-
tion in favor of State authority and against Federal pre-
emption.
SEC. 3. CONGRESSIONAL DECLARATION.
(a) On or after January 1, 1997, any statute enacted
by Congress shall include a declaration—
(1) that authority to govern in the area ad-
dressed by the statute is delegated to Congress by
the Constitution, including a citation to the specific
constitutional authority relied upon;
(2) that Congress specifically finds that it has
a greater degree of competence than the States to
govern in the area addressed by the statute; and
(3) if the statute interferes with State powers
or preempts any State or local government law, reg-
ulation or ordinance, that Congress specifically in-
tends to interfere with State powers or preempt
State or local government law, regulation, or ordi-
nance, and that such preemption is necessary.
(b) Congress must make specific factual findings in
support of the declarations described in this section.
SEC. 4. POINT OF ORDER.
(a) IN GENERAL.—
(1) INFORMATION REQUIRED.—It shall not be
in order in either the Senate or House of Represent-
atives to consider any bill, joint resolution, or
amendment that does not include a declaration of
Congressional intent as required under section 3.
(2) SUPERMAJORITY REQUIRED.—The require-
ments of this subsection may be waived or sus-
pended in the Senate or House of Representatives
only by the affirmative vote of three-fifths of the
Members of that House duly chosen and sworn. An
affirmative vote of three-fifths of the Members of the
Senate or House of Representatives duly chosen and
sworn shall be required to sustain an appeal of the
ruling of the chair on a point of order raised under
this subsection.
(b) RULE MAKING.—This section is enacted—
(1) as an exercise of the rule-making power of
the Senate and House of Representatives, and as
such, it is deemed a part of the rules of the Senate
and House of Representatives, but is applicable only
with respect to the matters described in sections 3
and 4 and supersedes other rules of the Senate or
House of Representatives only to the extent that
such sections are inconsistent with such rules; and
(2) with full recognition of the constitutional
right of the Senate or House of Representatives to
change such rules at any time, in the same manner
as in the case of any rule of the Senate or House
of Representatives.
SEC. 5. EXECUTIVE PREEMPTION OF STATE LAW.
(a) IN GENERAL.—Chapter 5 of title 5, United
States Code, is amended by inserting after section 559 the
following new section:
‘‘SEC. 560. PREEMPTION OF STATE LAW.
‘‘(a) No executive department or agency or independ-
ent agency shall construe any statutory authorization to
issue regulations as authorizing preemption of State law
or local ordinance by rule-making or other agency action
unless—
‘‘(1) the statute expressly authorizes issuance of
preemptive regulations; and
‘‘(2) the executive department, agency or inde-
pendent agency concludes that the exercise of State
power directly conflicts with the exercise of Federal
power under the Federal statute, such that the State
statutes and the Federal rule promulgated under the
Federal statute cannot be reconciled or consistently
stand together.
‘‘(b) Any regulatory preemption of State law shall be
narrowly tailored to achieve the objectives of the statute
pursuant to which the regulations are promulgated and
shall explicitly describe the scope of preemption.
‘‘(c) When an executive branch department or agency
or independent agency proposes to act through rule-mak-
ing or other agency action to preempt State law, the de-
partment or agency shall provide all affected States notice
and an opportunity for comment by duly elected or ap-
pointed State and local government officials or their des-
ignated representatives in the proceedings.
‘‘(1) The notice of proposed rule-making must
be forwarded to the Governor, the Attorney General
and the presiding officer of each chamber of the
Legislature of each State setting forth the extent
and purpose of the preemption. In the table of con-
tents of each Federal Register, there shall be a sepa-
rate list of preemptive regulations contained within
that Register.
‘‘(d) Unless a final executive department or agency
or independent agency rule or regulation contains an ex-
plicit provision declaring the Federal Government’s intent
to preempt State or local government powers and an ex-
plicit description of the extent and purpose of that pre-
emption, the rule or regulation shall not be construed to
preempt any State or local government law, ordinance or
regulation.
‘‘(e) Each executive department or agency or inde-
pendent agency shall publish in the Federal Register a
plan for periodic review of the rules and regulations issued
by the department or agency that preempt, in whole or
in part, State or local government powers. This plan may
be amended by the department or agency at any time by
publishing a revision in the Federal Register.
‘‘(1) The purpose of this review shall be to de-
termine whether and to what extent such rules are
to continue without change, consistent with the stat-
ed objectives of the applicable statutes, or are to be
altered or repealed to minimize the effect of the
rules on State or local government powers.’’.
(b) Any Federal rule or regulation promulgated after
January 1, 1997, that is promulgated in a manner incon-
sistent with this section shall not be binding on any State
or local government, and shall not preempt any State or
local government law, ordinance, or regulation.
(c) CONFORMING AMENDMENT.—The table of sec-
tions for chapter 5 of title 5, United States Code, is
amended by adding after the item for section 559 the fol-
lowing:
‘‘560. Preemption of State Law.’’.
SEC. 6. CONSTRUCTION.
(a) No statute, or rule promulgated under such stat-
ute, enacted after the date of enactment of this Act, shall
be construed by courts or other adjudicative entities to
preempt, in whole or in part, any State or local govern-
ment law, ordinance or regulation unless the statute, or
rule promulgated under such statute, contains an explicit
declaration of intent to preempt, or unless there is a direct
conflict between such statute and a State or local govern-
ment law, ordinance, or regulation, such that the two can-
not be reconciled or consistently stand together.
(b) Notwithstanding any other provisions of law, any
ambiguities in this Act, or in any other law of the United
States, shall be construed in favor of preserving the au-
thority of the States and the People.
(c) If any provision of this Act, or the application
thereof to any person or circumstance, is held invalid, the
validity of the remainder of the Act and the application
of such provision to other persons and circumstances shall
not be affected thereby.
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