[Congressional Record Volume 144, Number 117 (Tuesday, September 8, 1998)]
[Senate]
[Pages S9976-S9977]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. THOMPSON (for himself, Mr. Nickles, Mr. Craig, Mr. 
        Thurmond and Mr. Hutchinson):
  S. 2445. 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; to the Committee on 
Governmental Affairs.


                  THE FEDERAL ENFORCEMENT ACT OF 1998

 Mr. THOMPSON. Mr. President, today I rise to introduce the 
Federalism Enforcement Act, a bill to promote the principles of 
federalism and to restore the proper respect for State and local 
governments and the communities they serve. I am pleased that Senators 
Nickles, Craig, Thurmond, and Hutchinson have joined me as cosponsors 
of this legislation.
  Federalism is the cornerstone of our Democracy. It is the principle 
that the Federal Government has limited powers and that government 
closest to the people--States and localities--play a critical role in 
our governmental system. Our Founding Fathers had grave concerns about 
the tendency of a central government to aggrandize itself and thus 
encroach on State sovereignty, and ultimately, individual liberty. 
Federalism is our chief bulwark against Federal encroachment and 
individual liberty. Our Founders also knew that keeping decision making 
powers closer to home led to more accountable and effective government. 
Their federalist vision is clearly reflected in the 10th amendment, 
which states:

       The powers not delegated to the United States by the 
     Constitution, nor prohibited by it to the States, are 
     reserved to the States respectively, or to the people.

  The legislation I am introducing today requires agencies to respect 
this vision of federalism when formulating policies and implementing 
the laws passed by Congress. It will preserve the division of 
responsibilities between the States and the Federal Government 
envisioned by the Framers of the Constitution and established in 
Executive order by President Ronald Reagan.
  The Reagan order on federalism had it right. It directed Federal 
departments and agencies to refrain from imposing one-size-fits-all 
regulation on the States. It held that the laws passed by Congress were 
not presumed to preempt State law unless done so explicitly. It 
required agencies to assess the impact of agency action on federalism. 
But the people running the executive branch today, from the top on 
down, do not seem to feel the Reagan order applies to them. They made 
this abundantly clear when they tried to revoke it with Clinton 
Executive Order 13083.
  In May, President Clinton quietly signed Executive Order 13083, which 
by its terms claims to promote federalism. Ironically, this order that 
is supposed to promote better communication between Federal and local 
government was issued in secret--without even talking to State and 
local officials at all. Worse still, the order would seriously 
undermine federalism and effectively turn the 10th amendment on its 
head. The Reagan Executive Order 12612 promoted the 10th amendment and 
set a clear presumption against Federal meddling in local affairs. The 
new Clinton order would create, but not be limited to, nine new policy 
justifications for Federal meddling. The list is so ambiguous that it 
would give Federal bureaucrats free rein to trample on local matters. 
The new Clinton order also would revoke President Clinton's own 1993 
Executive Order 12875 that directed Federal agencies not to impose 
unfunded mandates on the States.
  Understandably, State and local officials were deeply offended by the 
Clinton order and the White House snub in drafting it. On July 17, the 
major groups representing State and local officials sent a remarkable 
letter to the President, urging him to withdraw the order and to 
restore the Reagan federalism order and the 1993 unfunded mandates 
order. On July 22, several of my colleagues and I supported State and 
local officials by sponsoring a resolution calling on President Clinton 
to repeal his new order. That resolution passed the Senate unanimously. 
The House also has voiced opposition to the Clinton order. Congressman 
McIntosh held a hearing, and joined with six of his colleagues to 
introduce a bill nullifying Executive Order 13083.
  The White House had a chance to extinguish the firestorm of protest 
from Governors, State legislators, mayors, county executives, and other 
local officials around the country by permanently revoking Executive 
Order 13083. Instead, the White House chose to preserve some wiggle 
room by ``suspending'' the order on August 5, leading some to ask if 
that action is permanent or just an effort to delay the order until the 
opposition dies down. If the President can admit that he made a mistake 
in signing his federalism order, he should permanently revoke it, plain 
and simple.
  Unfortunately, the White House has yet to correct its insult to State 
and local officials and the communities they serve. Instead of revoking 
the Clinton order, the administration is preparing for belated 
consultations with State and local government representatives. This 
effort at damage control does not hide the fact that the Clinton order 
is an open invitation for Federal interference in local affairs, and in 
the administration's eyes, it is still on the table.

  In light of this threat to the tenth amendment principle of a limited 
Federal Government, Congress must stand ready to act. The Federalism 
Enforcement Act is necessary to ensure that the current administration 
exercises some restraint when regulating in areas that affect our 
States and communities, and respects the principles of State 
sovereignty and limited Federal Government on which our Nation was 
founded.
  First, the bill directs Federal agencies to adhere to constitutional 
principles and not to encroach on the constitutional authority of the 
States. The Clinton federalism order would have shifted the presumption 
against Federal intervention to provide new policy justifications for 
Federal interference in State and local affairs. My bill returns us to 
the language of the Reagan order.
  Second, the bill would restore the preemption standards established 
in the Reagan order. The Clinton order would have encouraged Federal 
agencies to intrude into State affairs and deleted the Reagan 
preemption principle that, when in doubt, agencies should err on the 
side of State sovereignty.
  Third, the bill would direct agencies to prepare a federalism 
assessment of certain agency actions, such as regulations that have 
significant federalism implications. The Clinton order would have 
deleted this requirement.
  Finally, the Federalism Enforcement Act would express the sense of 
the Congress that Federal agencies should not propose legislation that 
would regulate the States in ways that would interfere with their 
separate and independent functions, attach conditions to Federal grants 
which are unrelated to the purposes of the grant, or preempt State law 
in ways inconsistent with the act. Because only the President can 
enforce

[[Page S9977]]

this requirement using his article II constitutional powers, it is 
expressed as a resolution urging him to do so.
  The principles of federalism rightly are being reinvigorated. Much of 
the innovation that has improved this country began at the State and 
local level. People want important decisions that affect their daily 
lives to be made in their community--not dictated on high from 
Washington. And federalism is blossoming in recent constitutional 
interpretations of the Supreme Court. The Federalism Enforcement Act I 
am introducing today will continue this restoration of the balance 
between national and State power as conceived by the Framers of the 
Constitution.
                                 ______