Comment: Several comments asserted that the proposed rules violated the Ninth and Tenth Amendments. One commenter suggested that the Ninth Amendment prohibits long and complicated regulations. Other commenters suggested that the proposed rules authorized the compelled disclosure of individually identifiable health information in violation of State constitutional provisions, such as those in California and Florida. Similarly, a couple of commenters asserted that the privacy rules violate the Tenth Amendment.
Response: We disagree. The Ninth and Tenth Amendments address the rights retained by the people and acknowledge that the States or the people are reserved the powers not delegated to the federal government and not otherwise prohibited by the Constitution. Because HHS is regulating under a delegation of authority from Congress in an area that affects interstate commerce, we are within the powers provided to Congress in the Constitution. Nothing in the Ninth Amendment, or any other provision of the Constitution, restricts the length or complexity of any law. Additionally, we do not believe the rules below impermissibly authorize behavior that violates State constitutions. This rule requires disclosure only to the individual or to the Secretary to enforce this rule. As noted in the preamble discussion of "Preemption," these rules do not preempt State laws, including constitutional provisions, that are contrary to and more stringent, as defined at § 160.502, than these rules. See the discussion of "Preemption" for further clarification. Therefore, if these State constitutions are contrary to the rule below and provide greater protection, they remain in full force; if they do not, they are preempted, in accordance with the Supremacy Clause of the Constitution.