[Congressional Record Volume 156, Number 105 (Thursday, July 15, 2010)]
[Senate]
[Pages S5966-S5967]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
By Mr. JOHANNS:
S. 3593. A bill to require the Federal Government to pay the costs
incurred by a State or local government in defending a State or local
immigration law that survives a constitutional challenge by the Federal
Government in Federal court; to the Committee on the Judiciary.
Mr. JOHANNS. Mr. President, I rise to discuss a bill I have
introduced because I see a very unfair battle unfolding right in front
of us. The battle I foresee is this: In one corner we have the enormous
resources of the Federal Government; in the other corner, cities and
States with very limited resources, especially in these economic times,
but with a good-faith desire to protect their communities.
What I am speaking of today and what my legislation goes to is the
Federal Government's use of litigation to insert itself into State and
potentially local immigration laws.
I rise with a great deal of knowledge about this. As a former mayor
and county commissioner, city council member and Governor, I know what
it is like when the Federal Government swoops in and brings its power
to bear on an issue. I have seen it from both sides, having also served
as a member of the President's Cabinet. I know that when the resources
of the Federal Government are used to weigh in with litigation, it is
crushing. The administration can send in a team of lawyers and
overwhelm the resources of a community or a State. Litigation brings
with it a huge financial burden for cities and States. In fact,
litigation can and does have a chilling effect on the local
decisionmaking process, even if local leaders believe their action in
good faith is appropriate and necessary.
I believe that is the exact reaction this administration is hoping to
cause among communities and States across the Nation that are
considering action on immigration issues.
In this case, I believe litigation is being used to send a warning to
other communities, other States that might be considering taking action
in this arena.
The administration's claim that the Federal Government has sole
authority to enforce immigration laws because of the supremacy clause
of the Constitution is, in fact, inconsistent with the President's own
internal policies. Just last year, President Obama authored a memo,
sent it out to all Federal departments and agencies, requiring serious
and careful consideration when using Federal preemption of State laws.
In this memo, dated May 20, 2009, with the subject ``Preemption,''
the President stated:
The purpose of this memorandum is to state the general
policy of my Administration that preemption of State law by
executive departments and agencies should be taken only with
full consideration of legitimate prerogatives of the States
and with sufficient legal basis for preemption.
That seems clear. But the memo went on further to say:
Executive departments and agencies should be mindful that
in our Federal system, the citizens of the several States
have distinctive circumstances and values, and that in many
instances it is appropriate for them to apply to themselves
rules and principles that reflect those circumstances and
values.
Then, finally, the President goes on to say:
It is one of the happy incidents of the federal system that
a single courageous state may, if its citizens choose, serve
as a laboratory; and try novel social experimental
experiments without risk to the rest of the country.
Mr. President, I ask unanimous consent that a copy of this memo be
printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
The White House,
Office of the Press Secretary,
May 20, 2009.
Memorandum for the Heads of Executive Departments and Agencies
Subject: Preemption
From our Nation's founding, the American constitutional
order has been a Federal system, ensuring a strong role for
both the national Government and the States. The Federal
Government's role in promoting the general welfare and
guarding individual liberties is critical, but State law and
national law often operate concurrently to provide
independent safeguards for the public. Throughout our
history, State and local governments have frequently
protected health, safety, and the environment more
aggressively than has the national Government.
An understanding of the important role of State governments
in our Federal system is reflected in longstanding practices
by executive departments and agencies, which have shown
respect for the traditional prerogatives of the States. In
recent years, however, notwithstanding Executive Order 13132
of August 4, 1999 (Federalism), executive departments and
agencies have sometimes announced that their regulations
preempt State law, including State common law, without
explicit preemption by the Congress or an otherwise
sufficient basis under applicable legal principles.
The purpose of this memorandum is to state the general
policy of my Administration that preemption of State law by
executive departments and agencies should be undertaken only
with full consideration of the legitimate prerogatives of the
States and with a sufficient legal basis for preemption.
Executive departments and agencies should be mindful that in
our Federal system, the citizens of the several States have
distinctive circumstances and values, and that in many
instances it is appropriate for them to apply to themselves
rules and principles that reflect these circumstances and
values. As Justice Brandeis explained more than 70 years ago,
``[i]t is one of the happy incidents of the federal system
that a single courageous state may, if its citizens choose,
serve as a laboratory; and try novel social and economic
experiments without risk to the rest of the country.''
To ensure that executive departments and agencies include
statements of preemption in regulations only when such
statements have a sufficient legal basis:
(1) Heads of departments and agencies should not include in
regulatory preambles statements that the department or agency
intends to preempt State law through the regulation except
where preemption provisions are also included in the codified
regulation.
(2) Heads of departments and agencies should not include
preemption provisions in codified regulations except where
such provisions would be justified under legal principles
governing preemption, including the principles outlined in
Executive Order 13132.
(3) Heads of departments and agencies should review
regulations issued within the past 10 years that contain
statements in regulatory preambles or codified provisions
intended by the department or agency to preempt State law, in
order to decide whether such statements or provisions are
justified under applicable legal principles governing
preemption. Where the head of a department or agency
determines that a regulatory statement of preemption or
codified regulatory provision cannot be so justified, the
head of that department or agency should initiate appropriate
action, which may include amendment of the relevant
regulation.
Executive departments and agencies shall carry out the
provisions of this memorandum to the extent permitted by law
and consistent with their statutory authorities. Heads of
departments and agencies should consult as necessary with the
Attorney General and the Office of Management and Budget's
Office of Information and Regulatory Affairs to determine how
the requirements of this memorandum apply to particular
situations.
This memorandum is not intended to, and does not, create
any right or benefit, substantive or procedural, enforceable
at law or in equity by any party against the United States,
its departments, agencies, or entities, its officers,
employees, or agents, or any other person.
The Director of the Office of Management and Budget is
authorized and directed to publish this memorandum in the
Federal Register.
Barack Obama.
Mr. JOHANNS. So if the use of Federal power to preempt a State
requires such an extremely high threshold, how can one reconcile that
with the administration's decision to file a lawsuit?
My bill sends a message to the administration that it cannot use the
crushing force and threat and reality of litigation to intimidate local
officials or to scare them into inaction.
It would allow a State or a municipal government the ability, the
right, to recover attorney's fees and other court costs associated with
defending a Federal challenge of their immigration laws. In other
words, this straightforward legislation just simply levels
[[Page S5967]]
the playing field between the huge power of the Federal Government in
one corner, as I said, and the right of local communities in States to
pass laws to protect their citizens.
It carries this simple message to any administration: If you file a
lawsuit and lose, cities and States will not face depleted resources as
a result.
My bill ensures that when the Federal Government takes on communities
in court, the reasons are pure and based in law or else the impact on
our communities will be neutralized.
The administration should focus time and resources on what is the
crux of this issue; that is, securing our borders and doing the job and
enforcing existing immigration laws and not using litigation as a tool
to send a message.
I encourage my colleagues to sign on and cosponsor this commonsense
measure and level the playing field for communities when they are
forced to defend themselves against the enormous, nearly unlimited
power of the Federal Government.
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