[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.
                                 ______