[Congressional Record Volume 142, Number 49 (Wednesday, April 17, 1996)]
[Senate]
[Pages S3487-S3488]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




           STATEMENT ON INTRODUCED BILLS AND JOINT RESOLUTION

      By Mr. LEVIN:
  S. 1679. A bill to clarify the application of Federal preemption of 
State and local laws, and for other purposes; to the Committee on 
Governmental Affairs.


        the preemption clarification and information act of 1996

 Mr. LEVIN. Mr. President, today I am introducing the 
Preemption and Clarification Act of 1996. It would require an explicit 
statement of Federal preemption in Federal legislation in order for 
such preemption to occur unless there exists a direct conflict between 
the Federal law and a State or local law which cannot be reconciled. 
Enactment of this bill would close the back door of implied Federal 
preemption and put the responsibility for determining whether or not 
State or local governments should be preempted back in Congress where 
it belongs.
  State and local officials have become increasingly concerned with the 
number of instances in which State and local laws have been preempted 
by Federal law--not because Congress has done so explicitly, but 
because the courts have implied such preemption. Since 1789, Congress 
has enacted approximately 350 laws specifically preempting State and 
local authority. Half of these laws have been enacted in the last 20 
years. These figures, however, do not touch upon the extensive Federal 
preemption of State and local authority which has occurred as a result 
of judicial interpretation of congressional intent, when Congress' 
intention to preempt has not been explicitly stated in law. When 
Congress is unclear about its intent to preempt, the courts must then 
decide whether or not preemption was intended and, if so, to what 
extent.
  Article VI of the Constitution, the supremacy clause, states that 
Federal laws made pursuant to the Constitution ``shall be the supreme 
law of the land.'' In its most basic sense, this clause means that a 
State law is negated or preempted when it is in conflict with a 
constitutionally enacted Federal law. A significant body of case law 
has been developed to arrive at

[[Page S3488]]

standards by which to judge whether or not Congress intended to preempt 
State or local authority--standards which are subjective and have not 
resulted in a consistent and predictable doctrine in resolving 
preemption questions.
  If we in Congress want Federal law to prevail, we should be clear 
about that. If we want the States to have discretion to go beyond 
Federal requirements, we should be clear about that. If, for example, 
we set a floor in a Federal statute, but are silent on actions which 
meet but then go beyond the Federal requirement, State and local 
governments should be able to act as they deem appropriate. State and 
local governments should not have to wait to see what they can and 
cannot do. Our bill would allow tougher State and local laws given 
congressional silence.
  Our legislation also requires the Congressional Research Service, at 
the end of each Congress, to compile a report on the number of 
statutory and judicially interpreted preemptions. This will constitute 
the first time such a complete report has been done, and the 
information will be valuable to the debate regarding the appropriate 
use of preemption to reach Federal goals.
  I introduced this bill in the 102d Congress with Senator David 
Durenburger. A form of the bill was included in the unfunded mandates 
law we passed in the spring of last year. That provision, now law, 
requires that when a committee of the Senate or House reports a bill, 
the report accompanying the bill is required to contain an explicit 
statement of the extent to which the bill is intended to preempt any 
State, local or tribal law and if so, an explanation of the effect of 
such preemption. That provision of the unfunded mandates law is an 
attempt to get congressional committees to address the issue of 
preemption before legislation is reported to the floor of the House or 
Senate. In reviewing several bills that are now on the Senate Calendar 
awaiting Senate action, I was disappointed to find that none of the 
ones I reviewed met the requirements of this provision. We can and 
should do better.
  This bill, unlike the provision in the unfunded mandates law where 
silence in the report leaves the issue unresolved, this bill 
establishes a principle for the courts to follow in determining a 
preemption case where the bill is silent on the matter. This bill tells 
the court that if the statement of intent to preempt is not in the 
legislation then the court is not authorized to read it into the 
statute--unless there is a direct conflict between Federal and State 
law. If legislation is silent, there is no preemption.

  Earlier this year the Governmental Affairs Committee held a hearing 
on a bill entitled the ``Tenth Amendment Enforcement Act of 1996.'' It 
contains a section on judicial construction which is virtually the same 
as that contained in this bill and the bill I introduced in the 102d 
Congress. The tenth amendment bill, however, has other provisions that 
are troublesome. I am introducing my bill today in the hope that we can 
enact this provision into law, this year, and leave the more 
troublesome features of the Tenth Amendment Enforcement Act of 1996 for 
another day.
  Mr. President, preemption clarification legislation has been endorsed 
by the National Conference of State Legislators, the Intergovernmental 
Affairs Committee of the Council of State Governments, the U.S. 
Conference of Mayors, and the Appellate Judges Conference of the 
American Bar Association.
  I ask unanimous consent that the bill be printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1679

       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 ``Preemption Clarification and 
     Information Act of 1996''.

     SEC. 2. FINDINGS.

       The Congress finds that--
       (1) the United States Constitution created a strong Federal 
     system, reserving to the States all powers not expressly 
     delegated to the Federal Government;
       (2) on numerous occasions, the Congress has enacted 
     statutes that explicitly preempt State and local government 
     powers and describe the scope of the preemption;
       (3) in addition to statutes that explicitly preempt State 
     and local government powers, many other statutes that lack an 
     explicit statement by Congress of its intent to preempt and a 
     clear description of the scope of the preemption have been 
     construed by the courts and Federal agencies to preempt State 
     and local government powers; and
       (4) without an explicit statement of Congress' intent to 
     preempt State and local government powers and a clear 
     description of the scope of preemption, preemptive statutes--
       (A) provide too little guidance and leave too much 
     discretion to Federal agencies which are required to 
     promulgate and enforce regulations pursuant to statutes;
       (B) create too great an uncertainty for State and local 
     governments; and
       (C) leave the presence or scope of preemption to be 
     litigated and determined by the Federal judiciary, producing 
     results sometimes contrary to or beyond the intent of 
     Congress.

     SEC. 3. PURPOSE.

       The purposes of this Act are to--
       (1) promote and preserve the integrity and effectiveness of 
     the Federal system;
       (2) set forth principles governing the interpretation of 
     congressional intent regarding preemption of State and local 
     government powers by Federal laws and regulations; and
       (3) establish an information collection system designed to 
     monitor the incidence of Federal statutory and regulatory 
     preemption.

     Sec. 4. DEFINITIONS.

       As used in this Act, the term--
       (1) ``local government'' means a county, city, town, 
     borough, township, village, school district, special 
     district, or other political subdivision of a State;
       (2) ``State'' means a State of the United States and an 
     agency or instrumentality of a State, but does not include a 
     local government of a State; and
       (3) ``State and local government powers'' means powers 
     reserved under the ninth and tenth amendments of the United 
     States Constitution to States or delegated to local 
     governments by States.

     SEC. 5. RULE OF CONSTRUCTION.

       No statute, or rule promulgated under such statute, shall 
     preempt, in whole or in part, any State or local government 
     law, ordinance, or regulation, unless the statute explicitly 
     states that such preemption is intended or unless there is a 
     direct conflict between such statute and a State or local 
     law, ordinance, or regulation so the two cannot be reconciled 
     or consistently stand together.

     SEC. 6. ANNUAL REPORT ON STATUTORY PREEMPTION.

       (a) Report.--Within 90 days after each Congress adjourns 
     sine die, the Congressional Research Service shall prepare 
     and make available to the public a report on the extent of 
     Federal statutory preemption of State and local government 
     powers enacted into law during the preceding Congress or 
     adopted through judicial interpretation of Federal statutes.
       (b) Contents.--The report shall contain--
       (1) a cumulative list of the Federal statutes preempting, 
     in whole or in part, State and local government powers;
       (2) a summary of Federal legislation enacted during the 
     previous Congress preempting, in whole or in part, State and 
     local government powers;
       (3) an overview of recent court cases addressing Federal 
     preemption issues; and
       (4) other information the Director of the Congressional 
     Research Service determines appropriate.
       (c) Transmittal.--Copies of the report shall be sent to the 
     President and the chairman of the appropriate committees in 
     the Senate and House of Representatives.

     SEC. 7. EFFECTIVE DATE.

       This Act shall take effect on January 1, 1997. The 
     requirements of section 5 shall apply only to statutes 
     enacted or final regulations which become effective on or 
     after January 1, 1997.
       By Mr. SPECTER (for himself and Mrs. Feinstein):

  S. 1681. A bill to establish a commission to improve the policies and 
programs of the Federal Government for combating the proliferation of 
weapons of mass destruction, and for other purposes; to the Select 
Committee on Intelligence.

                          ____________________