[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[S. 2445 Introduced in Senate (IS)]







105th CONGRESS
  2d Session
                                S. 2445

   To provide that the formulation and implementation of policies by 
    Federal departments and agencies shall follow the principles of 
                  federalism, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

             September 8 (legislative day, August 31), 1998

 Mr. Thompson (for himself, and Mr. Nickles, Mr. Craig, Mr. Thurmond, 
and Mr. Hutchison) introduced the following bill; which was read twice 
         and referred to the Committee on Governmental Affairs

_______________________________________________________________________

                                 A BILL


 
   To provide that the formulation and implementation of policies by 
    Federal departments and agencies shall follow the principles of 
                  federalism, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Federalism Enforcement Act of 
1998''.

SEC. 2. FINDINGS.

    Congress finds that--
            (1) federalism is rooted in the knowledge that political 
        liberties are best assured by limiting the size and scope of 
        the national government;
            (2) the people of the States created the national 
        government when the people delegated those enumerated 
        governmental powers relating to matters beyond the competence 
        of the individual States;
            (3) all other sovereign powers, except those expressly 
        prohibited the States by the United States Constitution, are 
        reserved to the States or to the people as the tenth amendment 
        to the United States Constitution requires;
            (4) the constitutional relationship among sovereign 
        governments, State and national, is formalized in and protected 
        by the tenth amendment to the United States Constitution;
            (5) the people of the States are free, subject only to 
        restrictions in the United States Constitution or in 
        constitutionally authorized Acts of Congress, to define the 
        moral, political, and legal character of their lives;
            (6) in most areas of governmental concern, the States 
        uniquely possess the constitutional authority, resources, and 
        the competence to discern the sentiments of the people and to 
        govern accordingly;
            (7) the nature of the constitutional system of the United 
        States encourages a healthy diversity in the public policies 
        adopted by the people of the several States according to their 
        conditions, needs, and desires;
            (8) in the search for enlightened public policy, individual 
        States and communities are free to experiment with a variety of 
        approaches to public issues;
            (9) acts of the national government, whether executive, 
        legislative, or judicial in nature, that exceed the enumerated 
        powers of that government under the United States Constitution 
        violate the principle of federalism established by the framers;
            (10) policies of the national government should recognize 
        the responsibility of, and should encourage opportunities for, 
        individuals, families, neighborhoods, local governments, and 
        private associations to achieve their personal, social, and 
        economic objectives through cooperative effort;
            (11) in the absence of clear constitutional or statutory 
        authority, the presumption of sovereignty should rest with the 
        individual States; and
            (12) uncertainties regarding the legitimate authority of 
        the national government should be resolved against regulation 
        at the national level.

SEC. 3. FEDERALISM POLICYMAKING CRITERIA.

    The executive departments and agencies shall consider, to the 
extent permitted by law, the following criteria to inform agency 
discretion when formulating and implementing policies that have 
federalism implications:
            (1) There should be strict adherence to constitutional 
        principles. Executive departments and agencies should closely 
        examine the constitutional and statutory authority supporting 
        any Federal action that would limit the policymaking discretion 
        of the States, and should carefully assess the necessity for 
        such action. To the extent practicable, the States should be 
        consulted before any such action is implemented.
            (2) Federal action limiting the policymaking discretion of 
        the States should be taken only where constitutional authority 
        for the action is clear and certain, and the national activity 
        is necessitated by the presence of a problem of national scope.
            (3) There should be recognition of the distinction between 
        problems of national scope (which may justify Federal action) 
        and problems that are merely common to the States (which will 
        not justify Federal action because individual States, acting 
        individually or together, can effectively manage such issues).
            (4) Constitutional authority for Federal action is clear 
        and certain only when authority for the action may be found in 
        a specific provision of the Constitution, when there is no 
        provision in the Constitution prohibiting Federal action, and 
        when the action does not encroach upon authority reserved to 
        the States.
            (5) With respect to national policies administered by the 
        States, the national government should grant the States the 
        maximum administrative discretion possible. Intrusive Federal 
        oversight of State administration is neither necessary nor 
        desirable.
            (6) When undertaking to formulate and implement policies 
        that have federalism implications, executive departments and 
        agencies shall--
                    (A) encourage States to develop policies to achieve 
                program objectives and to work with appropriate 
                officials in other States;
                    (B) refrain, to the maximum extent possible, from 
                establishing uniform, national standards for programs 
                and, when possible, defer to the States to establish 
                standards; and
                    (C) when national standards are required, consult 
                with appropriate officials and organizations 
                representing the States in developing those standards.

SEC. 4. SPECIAL REQUIREMENTS FOR PREEMPTION.

    The executive departments and agencies shall consider, to the 
extent permitted by law, the following criteria to inform agency 
discretion when formulating and implementing policies that have 
preemption implications:
            (1) Executive departments and agencies should construe, in 
        regulations and otherwise, a Federal statute to preempt a State 
        law only when the statute contains an express preemption 
        provision, when there is some other firm and palpable evidence 
        compelling the conclusion that Congress intended preemption of 
        State law, or when the exercise of State authority directly 
        conflicts with the exercise of Federal authority under the 
        Federal statute.
            (2) If a Federal statute does not preempt State law under 
        paragraph (1), executive departments and agencies should 
        construe any authorization in the statute for the issuance of 
        regulations as authorizing preemptive regulations only when the 
        statute expressly authorizes issuance of preemptive regulations 
        or when there is some other firm and palpable evidence 
        compelling the conclusion that Congress intended to delegate to 
        the department or agency the authority to issue regulations 
        preempting State law.
            (3) Any regulatory preemption of State law should be 
        restricted to the minimum level necessary to achieve the 
        objectives of the statute pursuant to which the regulations are 
        promulgated.
            (4) When an executive department or agency foresees the 
        possibility of a conflict between State law and federally 
        protected interests within its area of regulatory 
        responsibility, the department or agency should consult, to the 
        extent practicable, with appropriate officials and 
        organizations representing the States in an effort to avoid 
        such a conflict.
            (5) When an executive department or agency proposes to act 
        through adjudication or rulemaking to preempt State law, the 
        department or agency should provide all affected States notice 
        and an opportunity for appropriate participation in the 
        proceedings.

SEC. 5. SPECIAL REQUIREMENTS FOR LEGISLATIVE PROPOSALS.

    It is the sense of Congress that executive departments and agencies 
should not submit to Congress legislation that would--
            (1) directly regulate the States in ways that would 
        interfere with functions essential to the States' separate and 
        independent existence or operate to directly displace the 
        States' freedom to structure integral operations in areas of 
        traditional governmental functions;
            (2) attach to Federal grants conditions that are not 
        directly related to the purpose of the grant; or
            (3) preempt State law, unless preemption is consistent with 
        the fundamental federalism principles set forth in section 2, 
        and unless a clearly legitimate national purpose, consistent 
        with the federalism policymaking criteria set forth in section 
        3, cannot otherwise be met.

SEC. 6. AGENCY IMPLEMENTATION.

    (a) In General.--The head of each executive department and agency 
shall designate an official to be responsible for ensuring the 
implementation of this Act.
    (b) Federalism Assessment.--In addition to whatever other actions 
the designated official may take to ensure implementation of this Act, 
the designated official shall determine which proposed policies have 
sufficient federalism implications to warrant the preparation of a 
federalism assessment. With respect to each such policy for which an 
affirmative determination is made, a federalism assessment, as 
described in subsection (c) of this section, shall be prepared. The 
department or agency head shall consider any such assessment in all 
decisions involved in promulgating and implementing the policy.
    (c) Contents.--Each federalism assessment shall accompany any 
submission concerning the policy that is made to the Office of 
Management and Budget pursuant to Executive Order No. 12866, and 
shall--
            (1) contain the designated official's certification that 
        the policy has been assessed in light of the principles, 
        criteria, and requirements stated in sections 2 through 5 of 
        this Act;
            (2) identify any provision or element of the policy that is 
        inconsistent with the principles, criteria, and requirements 
        stated in sections 2 through 5 of this Act;
            (3) identify the extent to which the policy imposes 
        additional costs or burdens on the States, including the likely 
        source of funding for the States and the ability of the States 
        to fulfill the purposes of the policy; and
            (4) identify the extent to which the policy would affect 
        the States' ability to discharge traditional State governmental 
        functions, or other aspects of State sovereignty.

SEC. 7. GOVERNMENT-WIDE FEDERALISM COORDINATION AND REVIEW.

    (a) In General.--In implementing Executive Order No. 12866, the 
Office of Management and Budget, to the extent permitted by law and 
consistent with the provisions of such order, shall take action to 
ensure that the policies of the executive departments and agencies are 
consistent with the principles, criteria, and requirements stated in 
sections 2 through 5 of this Act.
    (b) Federalism Concerns.--In submissions to the Office of 
Management and Budget pursuant to Executive Order No. 12866, executive 
departments and agencies shall identify proposed regulatory and 
statutory provisions that have significant federalism implications and 
shall address any substantial federalism concerns. Where the 
departments or agencies determines it appropriate, substantial 
federalism concerns shall also be addressed in notices of proposed 
rulemaking and messages transmitting legislative proposals to Congress.
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