A Republican senator is planning on introducing legislation this week that would allow state officials to challenge federal regulations before they go into effect.
Sen. Roger WickerRoger Frederick WickerState Department spokesperson tests positive for COVID-19 North Dakota Republican latest House breakthrough COVID-19 case Texas House Republican tests positive for coronavirus in latest breakthrough case MORE (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.
"That's certainly a statute that invites a lot of regulatory overreach, which could be reviewed and challenged on an expedited basis with this legislation," Wicker told The Hill.
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 15 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 within 15 days.
State officials could also challenge the regulation in district court and get expedited review at the appeals level. It would be up to a judge to decide whether to freeze the regulatory process as a challenge makes its way through the courts.
The Obama administration did not respond to queries about whether it would challenge the bill if it became law and how it could affect the regulatory process.
"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."
Wicker was one of the Republican senators up for reelection who was recently identified by the conservative blog Red State as a potential target for a Tea Party challenge in 2012. He said his support for the bill was influenced not by political considerations but by a genuine interest in legislation that's nevertheless likely to be popular in conservative Mississippi.
A spokesman for Mississippi Gov. Haley Barbour (R) said the governor is aware and supportive of the legislation. State officials could conceivably avail themselves of the new states' rights in the legislation, said Dan Turner, depending on the regulations.
"We're obviously reviewing the [healthcare reform] legislation," Turner said, "and we'll be tracking [regulations] closely."
Wicker said he favors getting rid of the healthcare reform law and will push for a vote on repeal early next year, to get everyone on the record on the issue. But, he said, his bill is one potential way forward given that repeal isn't likely to pass in the Senate.
"I think it's going to take another election, and probably another president, to get this taken care of," he said. "But this is a step. It's a salvo."
Correction: This post was updated Monday afternoon to clarify an agency whose regulation is challenged would have to meet two 15-day deadlines: one to certify that a regulation doesn't violate the 10th Amendment, and another to prominently display the certification on the agency's website.