Senator Roger Wicker (R-MS) has introduced legislation that would enable states to dispute federal regulations. The Restoring the 10th Amendment Act, S. 1632, stipulates that any regulation proposed by federal agencies is subject to constitutional challenge if state officials determine that it infringes the 10th Amendment. Senator Wicker said that enacting the legislation would be a step towards greater accountability. The bill is co-sponsored by Senator Mike Crapo (R-ID), the Ranking Member on the Banking Committee and Senator Charles Grassley (R-IA), the Ranking Member on the Judiciary Committee.
S. 1632 provides that during the comment period for a proposed regulation state officials may submit to the head of the agency proposing the regulation, if the SEC the SEC Chair, a legal brief challenging the constitutionality of the proposed regulation under the 10th Amendment. The SEC Chair, continuing the example, would then have to prominently post on the front page of the agency’s website, in such a manner that it is immediately noticeable to individuals who visit that website, a link to the brief. Within 15 days of posting the link to the state’s brief, the SEC Chair must certify in writing that, in the opinion of the Chair, the regulation does not violate the 10th Amendment and include in the certification the full legal reasoning supporting that opinion. The certification must be prominently posted on the front page of the agency’s website next to the links to the brief. At any time after the head of an agency posts a certification that a rule does not violate the 10th Amendment, the legislation authorizes a designated state official to commence a civil action against the agency on the grounds that the rule of the agency violates the 10th Amendment.