Sen. Roger Wicker (R-Miss.) told The Hill that his states’-rights bill is in large part a reaction to Democrats’ healthcare 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 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 healthcare 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.
To be clear, this bill is nothing more than a solution in search of a problem. There is no evidence whatsoever that there is an epidemic of new regulations violating the Tenth Amendment or any other provision of the Constitution — indeed, Supreme Court decisions declaring federal actions unconstitutional are exceedingly rare. There is however, a very real epidemic of conservatives proclaiming that everything from the Affordable Care Act to Social Security to Medicare to the minimum wage violates the Tenth Amendment. And while these tenther claims have no basis in the Constitution itself, they have no lack of advocates willing to file frivolous litigation pretending that they do.
At its heart, Wicker’s bill is an enormous giveaway to the Ken Cuccinellis of the world, empowering them to not only file frivolous litigation, but also to throw sand in the gears of the already lengthy federal rulemaking process. Under Wicker’s proposal, any governor, lt. governor, state attorney general or state legislative leader can file a legal brief challenging a new regulation under the Tenth Amendment. The agency wishing to promulgate the new regulation must then “certify in writing that…such rulemaking does not violate the 10th article of amendment to the Constitution and include in that certification a full and complete written statement of the legal reasoning supporting that opinion.”
In other words, Wicker’s bill would force federal officials to devote scarce federal resources to providing written rebuttals to even the most frivolous tenther claims — wasting millions of federal dollars and gumming up the regulatory process. Indeed, it’s likely that these wasteful delays are the whole point of this proposal. Senate conservatives have manipulated the Senate’s rules to delay hundreds of bills and nominations into oblivion, and Wicker’s proposal would do little more than transform the still-functioning executive branch into something more like the broken Senate.