HR 4946: Pushing Back Against Federal Overreach

In a recent column, Cal Thomas took note of a hopeful congressional development, a rarity these days in government: in league with Reps Bishop (UT), Manzullo (IL), Chaffetz (UT) and Rooney (FL), Rep. Tom Cole (R-OK) introduced HR 4946, the 10th Amendment Regulatory Reform Act, which would grant legal standing to specific state executive leaders (Governor, Lt. Governor or Attorney General) or legislative leaders (Speaker, Majority Leader, or Minority Leader) to directly challenge in federal court regulations issued by federal administrative agencies. Finally!!!!

On March 25, 2010, the bill was referred to the Subcommittee on the Constitution, Civil Rights & Civil Liberties. Of course, how soon the bill will get out of subcommittee and be favored with a floor vote in both the House and Senate is anyone's guess. But, as Cal Thomas says, “it's a start.”

In light of George Soros' recent public advice to Obama to circumvent a Republican-dominated House by issuing executive orders and encouraging his regulatory bureaucrats to implement rules to advance his socialist agenda over the next two years, as well as reports that other far-left Obama supporters, stung by the GOP takeover in the House, are providing similar advice to the White House, Rep. Cole's legislative effort is, indeed, timely.

Coupled with the GOPs “Pledge to America” which will require specific constitutional justification for each bill introduced in Congress before being voted on, could it be that some semblance of constitutional order on the Hill might actually be forthcoming in the months ahead? Though much depends upon the GOPs virtue and integrity, we can certainly hope these actions mark at least a modest return to constitutional governance.

To justify passage, para 7 of the bill pointedly states that “The Executive Departments and Agencies of the Federal Government often promulgate regulations contrary to the spirit and letter of the 10th Amendment. ” As poignantly, para 9 states that “It is the responsibility of Congress to safeguard the 10th Amendment and to recognize that it is as vital and valuable today as on the date of its ratification." Nothing like hitting 'em between the eyes. Yes, indeed!

If passed, the law would provide that whenever a federal agency proposes a rule for public comment, a designated State official may file a legal brief challenging its constitutionality at which point that challenge must be prominently posted by the proposing agency on its website. And if, despite the legal challenge, the agency still intends to implement the rule it must, within 15 days of the challenge's posting, issue a legal opinion as to why the proposed rule does not violate the 10th Amendment. A state designated official may then commence legal action in district court to invalidate the rule. Further, the bill calls for expedited review of the district court's ruling in the US Court of Appeals. How did we do without such a law for so many years?

So, while this bill does not impose an especially onerous requirement on federal agencies, it does compel those agencies to exercise due diligence, political caution and appropriate restraint before inadvertently or willfully attempting to overstep their constitutional authority. In short, it attempts to keep those agencies in check and truer to their constitutional limitations.

And what of blatant executive overreach, per se, occasioned by imperial Presidential executive orders? Well, suffice it to say that the Republican Congress still possesses the power of impeachment and the purse. And given the deep and growing public distrust toward the White House's current occupant and his socialist coterie, articles of impeachment is no longer unthinkable.

Let's hope that the threat of impeachment alone will be enough to restrain Obama's imperiousness, failing which another epic constitutional crisis for the country may well be in the offing. But, if impeachment is what it takes to properly restore the balance of power in DC, then in the immortal words of G W Bush, "Bring it on!"

Postscript: HR 4946 died in committee; reintroduced as HR 455 on 1/26/11 which also died in committe; reintroduced as S 1842 on 11/10/11, but dies in committee