~~ A COMMISSION REPORT Federal Statutory Preemption of State and Local Authority: History, Inventory, and Issues U.S. Advisory Commission on A-121 Intergovernment a1 Relations September 199: US. Advisory Commission on Intergovernmental Relations 800 K Street, NW South Building Suite 450 Washington, DC 20575 (202) 653-5640 FAX (202) 653-5429 ii U.S. Advisory Commission on Intergovernmental Relations EXECUTIVE SUMMARY Preemption refers to the authority of the Congress Dual Sovereignty. There are three types of dual sovereignty: under the supremacy clause of the U.S. Constitution to (2) State powers not subject to preemption-including enact statutes that displace or replace state and/or local the power of states to levy taxes and to enter into laws and powers. The Congress' power to preempt, how- nonpolitical interstate compacts; ever, is limited to the fields of authority delegated to it (2) Direct andpositive conflict between state andfederal (e.g., bankruptcy) by the people of the states through the laws-a state law is valid unless there is a conflict U.S. Constitution. with a federal law on the same subject (e.g., Civil Preemption may entail (1) federal displacement of state Rights Act of 1964); and and/or local law so as to prohibit state or local governments from exercising particular powers (e.g., a prohibition of state (3) Administrative or judicial rulings precluding pre- or local regulation of an economicactivityderegulated by the emption-for example, the Voting Rights Act of 1965 and its amendments provide for either an Congress), (2) federal replacement of a state and/or locallaw administrative ruling by the U.S. Attorney Gen- or regulation by a federal law or regulation, or (3) federal eral or a declaratory judgement by the U.S. Dis- enactment of a requirement that state and/or local govern- trict Court for the District of Columbia that any ments comply with a federal standard. proposed change in the election system of a cov- Preemption is sometimes stated explicitly in a federal ered state or local government will not abridge statute. Often, however, there is no explicit statement of the voting rights of citizens protected by the act. preemption; consequently, the federal courts and admin- istrative agencies infer preemption based on their own Partial Preemption. Under partial federal preemption, interpretations of congressional intent. the Congress or federal administrative agencies may es- This report finds that: tablish minimum national standards for a function or ser- vice and authorize the states to exercise primary The pace and breadth of federal preemptions of state and local authority have increased regulatory responsibility, provided that state standards are significantly since the late 1960s. Of the ap- at least as high and are enforced. Partial preemption per- proximately 439 significant preemption stat- mits a state to tailor regulatory programs to meet special utes enacted by the Congress since 1789, needs and conditions. Partial preemption has become more than 53 percent (233) have been en- more commonplace since 1965 and has had a greater im- acted only since 1969. pact on federal-state relations than total federal preemp- tion. There are three types of partial federal preemption: Many public officials are unaware of the ex- tent of federal preemption. (I) Standard-a state law supersedes a correspond- ing federal law if standards are equal to or higher The state officials surveyed acknowledged than the national standards (e.g., Water Qualify the need for federal preemptions, but ob- Act of 1985 and Clean Water Act of 1977); jected to or expressed concern about some of their features. (2) Combined- the Occupational Safety and Health Act of 2970 combines partial federal preemption The U.S. Supreme Court has given the Con- with traditional dual sovereignty regulation au- gress broad discretion to exercise its preemp- thority; and tion powers. (3) State transfer of regulatory authority-the Whole- The federal courts often imply federal some Meat Act grants the Secretary of Agriculture preemption where there is no explicit statu- authority to transfer responsibility to a state that tory statement. has enacted an inspection law consistent with fed- Some federal preemptions provide substan- eral standards. tial latitude to state and local governments in the means of compliance. Total Preemption. Under total preemption, the federal government assumes complete regulatory authority. Ten There are three broad categories of federal preemp- types of total preemption were found: tion statutes-dual sovereignty, partial federal preemp- (1) No need for state andlor local assistance-bank- tion, and total federal preemption. ruptcy; U.S. Advisory Commission on Intergovernmental Relations iii No state economic regulation allowed-deregula- nearly unanimous agreement that each preemption stat- tion of the airline and bus industries; ute should contain a sunset provision. State and local assistance needed-state and local ACIR also included five questions about federal assistance to the Nuclear Regulatory Commis- preemption in its 1992 national public opinion poll. sion in protecting public health and safety in the 75 percent of the respondents favored federal event of an accident at a nuclear generating preemption of the listing of health risks on the plant, and state enforcement of the federal ban labels of food products. on the use of products containing lead in public 50 percent of the respondents favored federal regu- water systems; lation of interstate banking. State activities exception- the National Traffic and 37 percent of the public favored federal regulation Motor Ehicle Safe& Act of 1966 allows a state or of companies that sell life, fire, property, casual- local government to establish safety require- ty, and automobile insurance. ments for equipment for its own use; 20 percent of the respondents favored federal regu- Limited regulatory turnbacks-several statutes au- lation of the location and building of low-income thorize turnback of responsibility to the states housing in local communities. (e.g., Hazardous and Solid Waste Act Amendments The report also examines factors that seem to be of 1984 and Atomic Energy Act of 1946); encouraging the rise of preemption, including: (1) the Federal mandating of state law enactment- the general trend of increased federal regulation; (2) the loos- Equal Employment OpportuniQ Act of 1972 and ening of constitutional restraints on congressional power; similar acts mandate that states comply with fed- (3) the Congress’ constitutional obligations to protect eral laws by enacting state laws under threat of rights nationwide; (4) the reduced fiscal capability of the civil or criminal penalties; federal government, resulting in a turn to regulation to accomplish objectives; (5) the opening of new fields of Federal promotion of interstate compacts-the federal regulation in recent decades; (6)the proliferation of Low-Level Radioactive Waste Policy Act of 1980 encourages formation of compacts to provide for interest groups in Washington; (7) public concern about availability of disposal capacity; herim’s competitive position in the world economy; (8) small-state concerns about the adverse impacts of big-state Gubernatorialpetitionforpreemption removal --t he regulation; (9) bipartisan support for preemptions of differ- governor of New York may petition the Secretary ent types; and (10) the popularity of many preemptions, such of Transportation for removal of a limitation on as health, safety, and environmental protection. the collection of bridge tolls on Staten Island; The report concludes by examining salient issues of State veto of a federal administrative decision-a preemption, including; (1) the large scope of preemption governor or state legislature may veto a site se- today; (2) the clarity of statutory preemption language; (3) lected by the Secretary of Energy to construct a preemption by evolution through administrative and judi- high-level radioactive waste facility (the Con- cial interpretation; (4) congressional delegation of gress may override the veto); preemption authority to administrative agencies; (5) set- (10) Contingent totalpreemption- the Voting Rights Act ting minimum versus maximum federal standards; (6)flex - of 1965 and its amendments contain provisions ibility for state and local governments; (7) the extent to that are not applied to a state or local government which the diverse forms of preemption are well matched unless certain conditions are met. to particular issues; (8) the lack of evaluation of preemp- tion statutes; (9) the question of whether preemptions To assess the impact of federal preemption and per- should be subject to sunset rules; and (10) the balance be- ceptions regarding the desirability of various approaches, tween the supremacy clause and the Tenth Amendment. ACIR surveyed state elected officials, agency heads, and ACIR has recommended limitations on federal the 26 state ACIRs. There was a consensus that there is preemption. In 1984, in Regulatory Federalism: Policy, Pro- too much federal preemption and that the Congress dele- cess, Impact and Reform, the Commission issued five prin- gates too much authority to federal administrators. Nev- ciples to guide the Congress in the exercise of those ertheless, many respondents acknowledge the need for powers. In 1987, in “Federal Preemption of State and federal preemption under certain circumstances. Local Authority’’ (Intergovernmental Perspective, Winter In general, state offcials