[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[S. Con. Res. 109 Introduced in Senate (IS)]







105th CONGRESS
  2d Session
S. CON. RES. 109

    Expressing the sense of Congress that executive departments and 
 agencies must maintain the division of governmental responsibilities 
between the national government and the States that was intended by the 
  framers of the Constitution, and must ensure that the principles of 
 federalism established by the framers guide the executive departments 
    and agencies in the formulation and implementation of policies.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             July 23, 1998

  Mr. Coverdell (for himself, Mr. Craig, and Mr. Enzi) submitted the 
following concurrent resolution; which was referred to the Committee on 
                          Governmental Affairs

_______________________________________________________________________

                         CONCURRENT RESOLUTION


 
    Expressing the sense of Congress that executive departments and 
 agencies must maintain the division of governmental responsibilities 
between the national government and the States that was intended by the 
  framers of the Constitution, and must ensure that the principles of 
 federalism established by the framers guide the executive departments 
    and agencies in the formulation and implementation of policies.

Whereas federalism is rooted in the knowledge that our political liberties are 
        best assured by limiting the size and scope of the national government;
Whereas the people of the States created the national government when they 
        delegated to it those enumerated governmental powers relating to matters 
        beyond the competence of the individual States;
Whereas all other sovereign powers, save those expressly prohibited the States 
        by the Constitution, are reserved to the States or to the people as the 
        tenth amendment to the Constitution requires;
Whereas the people of the States are free, subject only to restrictions in the 
        Constitution itself or in constitutionally authorized Act of Congress, 
        to define the moral, political, and legal character of their lives;
Whereas 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;
Whereas the nature of our constitutional system encourages a healthy diversity 
        in the public policies adopted by the people of the several States 
        according to their own conditions, needs, and desires;
Whereas acts of the national government, whether executive, legislative, or 
        judicial in nature, that exceed the enumerated powers of that government 
        under the Constitution violate the principle of federalism established 
        by the framers;
Whereas 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; and
Whereas, in the absence of clear constitutional or statutory authority, the 
        presumption of sovereignty should rest with the individual States: Now, 
        therefore, be it
    Resolved by the Senate (the House of Representatives concurring), 
That executive departments and agencies should adhere, to the extent 
permitted by law, to the following criteria 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) It is important to recognize 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 should--
                    (A) encourage States to develop their own 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.
            (7) The following special requirements for preemption of 
        State law should be observed:
                    (A) To the extent permitted by law, 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 the 
                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.
                    (B) If a Federal statute does not preempt State 
                law, executive departments and agencies should construe 
                any authorization in the statute for the issuance of 
                regulations as authorizing preemption of State law by 
                rulemaking only when the statute expressly authorizes 
                issuance of preemptive regulations or when there is 
                some other firm and palpable evidence compelling the 
                conclusion that the Congress intended to delegate to 
                the department or agency the authority to issue 
                regulations preempting State law.
                    (C) 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.
                    (D) 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.
                    (E) 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.
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