NCPA - National Center for Policy Analysis

Senate Republican to Push States' Rights in Response to Health Care Law

December 7, 2010

A Republican senator is planning on introducing legislation this week that would allow state officials to challenge federal regulations before they go into effect, says Julian Pecquet.

  • Sen. Roger Wicker (R-Miss.) says his states'-rights bill is in large part a reaction to Democrats' health care reform law, which Republicans claim would create 159 "boards, commissions, bureaus, programs and offices of the federal government."
  • That figure may be open to debate, but states have certainly raised concerns with the law, with 43 so far joining in legal challenges or taking other action to prevent certain provisions from taking effect.

The proposed law could also be used to challenge other regulations, such as those from the Environmental Protection Agency, Wicker added.

The legislation, called the 10th Amendment Regulatory Reform Act, mirrors a bill introduced by Rep. Tom Cole (R-Okla.) on March 25, two days after the president signed health care reform into law.  

  • It would allow designated state officials to file a legal brief challenging the constitutionality of proposed regulations during the time when they're open for comment.
  • The head of the federal agency whose regulation is challenged would then have 30 days to certify that the regulation doesn't violate the 10th Amendment.
  • That certification, and a link to the state's legal brief, would have to be displayed prominently on the agency's primary webpage.
  • State officials could also challenge the regulation in district court and get expedited review at the appeals level.

Wicker said the provision could save time and money.

"This would allow a challenge earlier, by governors, lieutenant governors, attorneys general or state legislative leaders, to go ahead and take the matter into federal court," he said.  "And it requires the agency to engage quickly in response."

Source: Julian Pecquet, "Senate Republican to Push States' Rights in Response to Health Care Law," The Hill, December 5, 2010.

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