article: SECTION 1. SHORT TITLE. This Act may be cited as the ``Tenth Amendment Enforcement Act of 1998''. SEC. 2. FINDINGS. Congress finds that-- (1) in most areas of governmental concern, State governments possess both the constitutional authority and the competence to discern the needs and the desires of the people and to govern accordingly; (2) 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 United States Constitution; (3) the framers of the United States Constitution intended to bestow upon the Federal Government only limited authority over the States and the people; (4) under the Tenth Amendment of the United States Constitution, the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people; and (5) the courts, which have in general construed the Tenth Amendment not to restrain the Federal Government's power to act in areas of State jurisdiction, should be directed to strictly construe Federal laws and regulations which interfere with State powers with a presumption in favor of State authority and against Federal preemption. SEC. 3. CONGRESSIONAL DECLARATION. (a) In General.--On or after January 1, 1999, any statute enacted by Congress shall include a declaration-- (1) that authority to govern in the area addressed by the statute is delegated to Congress by the United States Constitution, including a citation to the specific constitutional authority relied upon; (2) that Congress specifically finds that Congress 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, regulation or ordinance, that Congress specifically intends to interfere with State powers or preempt State or local government law, regulation, or ordinance, and that such preemption is necessary. (b) Findings.--Congress shall make specific factual findings in support of the declarations described under this section. SEC. 4. POINT OF ORDER. (a) In General.--It shall not be in order in either the Senate or House of Representatives to consider any bill, joint resolution, or amendment that does not include a declaration of congressional intent as required under section 3. (b) Rulemaking.--This section is enacted-- (1) as an exercise of the rulemaking 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 section 3 and subsection (a) of this section 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. 559a. Preemption of State law ``(a) No agency shall construe any statutory authorization to issue rules as authorizing preemption of State law or local ordinance by rulemaking or other agency action unless-- ``(1) the statute expressly authorizes issuance of preemptive rules; and ``(2) the 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-- ``(1) be narrowly written to achieve the objectives of the statute under which the rules are promulgated; and ``(2) explicitly describe the scope of preemption. ``(c)(1) When an agency proposes to act through rulemaking or other agency action to preempt State law, the agency shall provide all affected States notice and an opportunity for comment by duly elected or appointed State and local government officials or their designated representatives in the proceedings. ``(2) The notice of proposed rulemaking shall 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. ``(3) In the table of contents of each Federal Register, there shall be a separate list of preemptive rules contained within that Register. ``(d) Unless a final agency rule contains an explicit provision declaring the Federal Government's intent to preempt State or local government powers and an explicit description of the extent and purpose of that preemption, the rule shall not be construed to preempt any State or local government law, ordinance or regulation. ``(e)(1) Each agency shall publish in the Federal Register a plan for periodic review of the rules issued by the agency that preempt, in whole or in part, State or local government powers. Such plan may be amended by the agency at any time by publishing a revision in the Federal Register. ``(2) The purpose of the review under this subsection shall be to determine whether and to what extent such rules are to continue without change, consistent with the stated 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) Nonbinding Regulations.--Any Federal rule or regulation promulgated after January 1, 1999, that is promulgated in a manner inconsistent with section 559a of title 5, United States Code (as added by 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 sections for chapter 5 of title 5, United States Code, is amended by adding after the item relating to section 559 the following: ``559a. Preemption of State law.''. SEC. 6. RULES OF CONSTRUCTION. (a) In General.--No statute enacted after the date of enactment of this Act (or rule promulgated under such statute), shall be construed by courts or other adjudicative entities to preempt, in whole or in part, any State or local government law, ordinance or regulation unless-- (1) the statute, or rule promulgated under such statute, contains an explicit declaration of intent to preempt; or (2) there is a direct conflict between such statute and a State or local government law, ordinance, or regulation, such that the two cannot be reconciled or consistently stand together. (b) Favorable Construction.--Notwithstanding any other provision of law, any ambiguities in this Act, or in any other law of the United States, shall be construed in favor of preserving the authority of the States and the people. (c) Severability.--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. SEC. 7. APPROPRIATION BY STATE LEGISLATURES. Any funds received by a State under Federal law shall be subject to appropriation by the State legislature, consistent with the terms and conditions required under such applicable provisions of law. SEC. 8. ANNUAL REPORT ON STATUTORY PREEMPTION. (a) Report.--Not later than 90 days after each Congress adjourns sine die, the Congressional Research Service shall prepare and make available to the public a report on the extent of Federal statutory preemption of State and local government powers enacted into law during the preceding Congress or adopted through judicial interpretation of Federal statutes. (b) Contents.--The report shall contain-- (1) a cumulative list of the Federal statutes preempting, in whole or in part, State and local government powers; (2) a summary of Federal legislation enacted during the previous Congress preempting, in whole or in part, State and local government powers; (3) an overview of recent court cases addressing Federal preemption issues; and (4) other information the Director of the Congressional Research Service determines appropriate. (c) Submittal.--Copies of the report shall be submitted to the President and the chairman of the appropriate committees in the Senate and House of Representatives.
summary: Tenth Amendment Enforcement Act of 1998 - Requires any statute enacted by the Congress after 1998 to include declarations that: (1) the authority to govern in the area addressed is delegated to the Congress by the Constitution; (2) Congress has a greater degree of competence than the States to govern in that area; and (3) any preemption of State law is specifically intended by the Congress and is necessary. Makes it out of order for the Senate or House of Representatives to consider any legislation that does not include such declarations. Amends Federal law to prohibit any Federal agency from construing any statutory authorization to issue rules as authorizing preemption of State law or local ordinance by rulemaking or other agency action, unless the statute expressly authorizes issuance of preemptive rules and the 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. Requires all States to be provided with notice and an opportunity for comment when a Federal agency proposes preemptive rulemaking or other agency action. Requires the table of contents of each Federal Register to contain a list of preemptive rules contained within that Register. Provides that a final agency rule shall not be construed to preempt any State or local law unless it contains an explicit declaration of the intention to do so. Requires each Federal agency to publish in the Federal Register a plan for periodic review of the rules issued by the agency that preempt State or local government powers to determine whether such rules should be altered or repealed. Prohibits any adjudicative body to construe a statute enacted after enactment of this Act to preempt State or local law unless: (1) the statute contains an explicit declaration of intent to preempt; or (2) there is a direct conflict with State or local law that cannot be reconciled. Requires any ambiguity to be construed in favor of preserving the authority of the States. Requires that funds received by a State under Federal law shall be subject to appropriation by the State legislature. Directs the Congressional Research Service, after each Congress adjourns, to prepare and make publicly available a report on the extent of Federal statutory preemption of State and local government powers enacted into law during that Congress or adopted through judicial interpretation of Federal statutes.