CONGRESS OF THE UNITED STATES

CONGRESSIONAL BUDGET OFFICE

CBO

Preemptions in 

Federal 

Legislation in the

111th Congress

JUNE 2011
Pub. No. 4200
The Congress of the United States O Congressional Budget Office

A

REPORT

CBO

Preemptions in 

Federal Legislation in the 

111th Congress

June 2011

Preface

CBO

The Congressional Budget Office (CBO) reviews nearly all legislation approved by 

authorizing committees of the Congress to identify specific types of requirements known as 

federal mandates (defined in the Unfunded Mandates Reform Act of 1995) that the legislation would impose on state, local, or tribal governments. Each year, CBO publishes a report 

that summarizes the mandates that the Congress considered during the previous year. This 

report is a supplement to that series.

Many intergovernmental mandates take the form of preemptions by the federal government 

of state, local, or tribal laws and procedures. This CBO report discusses the nature of federal 

preemptions and identifies preemptive language in legislation considered by the 111th Congress (in 2009 and 2010); it also outlines the policy areas most affected by proposed preemptions during that Congress and identifies preemptions that became law. In addition, the 

report presents data about preemptions that CBO has identified since 2001, when it published a report about preemptions it had identified in legislation proposed during the 106th 

Congress.

The report was prepared by J’nell Blanco of CBO’s State and Local Government Cost Estimates Unit under the supervision of Leo Lex. Melissa Merrell offered helpful comments, and 

Burke Doherty, formerly of CBO, provided considerable background research. Leah Mazade 

edited the report, and Christine Bogusz proofread it. Maureen Costantino took the cover 

photo, and she and Jeanine Rees prepared the report for publication. Monte Ruffin produced 

the printed copies, and Linda Schimmel handled the print distribution. An electronic version 

of the report is available on CBO’s Web site (www.cbo.gov).

Douglas W. Elmendorf 

Director

June 2011

Contents

CBO

Summary vii

Identifying Preemptions in the Context of the Unfunded Mandates Reform Act 1

Historical Overview of Mandates and Preemptions Identified by CBO 2

The Legal Interpretation of Preemptions 3

Identifying Preemptions Under UMRA 3

Preemptions Approved by Committees or Enacted in the 111th Congress 4

Congressional Consideration of Preemptions, by Subject Area 5

Preemptions Enacted by the 111th Congress 5

Appendix: Preemptions Reviewed by CBO During the 111th Congress 11

Tables

1. Number of CBO Mandate Statements That Identified Intergovernmental 

Mandates and Preemptions 2

2. Separate Preemptions That CBO Identified During the 111th Congress 6

A-1. Legislation That Was Reviewed by CBO During the 111th Congress and 

That Contained Preemptions 12

Figure

S-1. Identified and Enacted Preemptions, by Congress viii

CBO

Summary

The Unfunded Mandates Reform Act of 1995 

(UMRA) requires the Congressional Budget Office 

(CBO) to review bills approved by Congressional 

committees and identify federal mandates that the legislation would impose on state, local, or tribal governments. 

UMRA generally defines such intergovernmental 

mandates as enforceable duties; CBO interprets that 

definition as encompassing both positive (required) 

and negative (prohibited) duties. Some of those intergovernmental mandates take the form of preemptions—

typically negative duties that prohibit state, local, or tribal 

governments from taking some action or that otherwise 

limit the authority of those governments to apply and 

enforce their own laws.

UMRA authorizes the use of certain legislative procedures that are designed to make it more difficult for the 

Congress to pass bills containing intergovernmental 

mandates without also providing funding to cover the 

mandates’ costs. In most cases, however, such hurdles are 

not brought into play because many mandates—even 

those that might significantly affect the ability of state, 

local, or tribal governments to exercise their authority in 

particular areas—would not impose duties that result in 

significant additional spending or loss of revenues. Such 

is the case with most preemptions.

During the 111th Congress (2009 and 2010), CBO 

issued 134 formal mandate statements that identified 

intergovernmental mandates. Of those, 43 percent 

identified preemptions—a proportion smaller than that 

identified in other recent Congresses, when half or more 

of the mandate statements that CBO issued noted preemptions. However, more preemptions were enacted 

during the 111th Congress than during other Congresses 

of the past 10 years (see Summary Figure 1). None of 

those preemptions, in CBO’s estimation, will impose 

costs exceeding the threshold that UMRA establishes for 

intergovernmental mandates. That inflation-adjusted 

marker, which when exceeded permits Members of 

Congress to invoke rules that may keep legislation from 

advancing, was $69 million in 2009 and $70 million in 

2010. 
VIII PREEMPTIONS IN FEDERAL LEGISLATION IN THE 111TH CONGRESS

CBO

Summary Figure 1.

Identified and Enacted Preemptions, by Congress 

(Number)

Source: Congressional Budget Office. 

Notes: Preemptions are a type of intergovernmental mandate, which the Unfunded Mandates Reform Act of 1995 (UMRA) defines as an 

“enforceable duty” that the federal government imposes on state, local, or tribal governments. In CBO’s view, such duties may be 

positive (requiring some action) or, in the case of preemptions, negative—prohibiting those governments from taking some action or 

otherwise exerting their authority.

In the formal statements identifying mandates that CBO prepares as required by UMRA, an individual statement may identify more 

than one preemption. Also, the same preemption may be included in more than one bill and consequently will be identified in more 

than one mandate statement. 

107th

Congress

(2001–2002)

108th

Congress

(2003–2004)

109th

Congress

(2005–2006)

110th

Congress

(2007–2008)

111th

Congress

(2009–2010)

0

20

40

60

80

100

120

CBO Mandate Statements That

Identified Preemptions

Enacted Preemptions
CBO

Preemptions in Federal Legislation in the 

111th Congress

Some proposed legislation that comes before the 

Congress would impose requirements—that is, mandates—on state, local, or tribal governments or on the 

private sector in the form of laws or regulations to achieve 

national goals. Preemptions are a particular type of mandate that apply to the actions of those other governments. 

This Congressional Budget Office (CBO) report discusses the nature of federal preemptions and identifies 

preemptive language in legislation considered by the 

111th Congress (in 2009 and 2010); it also presents data 

about preemptions that CBO has identified in legislation 

over the 2001–2008 period. In addition, the report 

outlines the areas of policy that were most affected by 

proposed preemptions during the 111th Congress and 

identifies the preemptions that became law.

Identifying Preemptions in the Context 

of the Unfunded Mandates Reform Act 

The Unfunded Mandates Reform Act (UMRA) was 

enacted in 1995 to ensure that the Congress received 

information about mandates and their costs before it 

enacted a piece of legislation. Title 1 of UMRA requires 

CBO to review bills approved by Congressional committees for the presence of federal mandates applying to 

other levels of government (intergovernmental mandates) 

or to the private sector.1

 The law defines such intergovernmental mandates as enforceable duties that the 

federal government would impose, through laws and 

regulations, on state, local, or tribal governments. UMRA 

does not define “enforceable duty,” but CBO interprets 

the term as encompassing actions that would be either 

required (positive duties) or prohibited (negative duties). 

Preemptions typically take the form of negative duties in 

that they prohibit state, local, or tribal governments from 

taking some action or otherwise limit the authority of 

those governments to apply and enforce their own laws.2

In addition to the procedures UMRA established for providing information to the Congress, the law also lays out 

procedural rules for the House of Representatives and the 

Senate to encourage Members to take information about 

such mandates into account when they consider legislation. The rules are enforced through the use of points of 

order, which make it more difficult for the Congress to 

pass intergovernmental mandates without providing 

funding to cover their costs. Those points of order may 

be raised by a Member against legislation when an 

intergovernmental mandate is identified with costs estimated to exceed the threshold established in UMRA—

$70 million in 2010, after an adjustment for inflation. 

(All years referred to in this study are calendar years.) If a 

point of order is raised under UMRA, each chamber 

resolves the issue according to its established rules and 

procedures.

1. CBO prepares mandate statements for bills that are approved by 

authorizing committees (which have legislative jurisdiction over 

the establishment, continuation, and operation of federal programs or agencies and the authorization of appropriations for 

them). In those statements, CBO must identify any mandates in a 

bill, address whether their direct costs would be greater than the 

statutory thresholds established in UMRA, and identify any funding that the bill would provide to cover those costs. (The thresholds, which are adjusted each year for inflation, were $50 million 

for intergovernmental mandates and $100 million for privatesector mandates in 1996.) Because preemptions are inherently 

intergovernmental mandates, this study does not discuss privatesector mandates.

2. For example, the National Defense Authorization Act for Fiscal 

Year 2010 considered in the 111th Congress (H.R. 2647 and 

H.R. 5136) would have limited the application of state laws by 

prohibiting courts from changing child custody orders during a 

military service member’s deployment and from considering the 

deployment in determining the best interests of the child. CBO 

viewed that provision as a preemption and therefore an intergovernmental mandate. 
2 PREEMPTIONS IN FEDERAL LEGISLATION IN THE 111TH CONGRESS

CBO

Table 1.

Number of CBO Mandate Statements That Identified Intergovernmental 

Mandates and Preemptions

Source: Congressional Budget Office. 

Note: Preemptions are a type of intergovernmental mandate, which the Unfunded Mandates Reform Act of 1995 (UMRA) defines as an 

“enforceable duty” that the federal government imposes on state, local, or tribal governments. In CBO’s view, such duties may be 

positive (requiring some action) or, in the case of preemptions, negative—prohibiting those governments from taking some action or 

otherwise exerting their authority. 

a. The formal statements identifying mandates that CBO prepares as required under UMRA may cover more than one mandate and 

preemption. Also, because mandates and preemptions sometimes appear in multiple bills, a single mandate and preemption may be 

addressed in more than one CBO statement. In addition to the formal statements it prepares, CBO completes a number of preliminary 

reviews and informal estimates for other legislative proposals, which are not included in these figures. 

b. Includes preemptions that were enacted but that CBO did not review.

In most cases, however, such points of order are not 

raised. Many mandates, even those that might significantly affect the ability of state, local, or tribal governments to enact laws or to govern in particular areas, 

would not impose duties that would result in significant 

additional spending or losses in revenues. Such is the case 

with most preemptions, which rarely involve significant 

costs because they do not require governments to take 

action that would lead to additional spending. Limits on 

the authority of those governments to levy and collect 

taxes or fees are a major exception.

Historical Overview of Mandates and Preemptions 

Identified by CBO

From 1996 through the end of 2010, CBO prepared 

about 8,500 mandate statements for various versions of 

legislation, mostly for bills that authorizing committees 

had approved for further consideration by the entire 

House or Senate.3

 Of the mandate statements regarding 

bills that the committees “reported out,” about 13 percent identified at least one intergovernmental mandate, 

and 1 percent identified mandates whose total costs 

would exceed the annual threshold for intergovernmental 

mandates. 

Since 1996, policymakers have enacted only 13 laws that 

contain intergovernmental mandates with costs above the 

threshold. Three of those laws contain federal preemptions with costs above the threshold; those preemptions 

limit the ability of state and local governments to collect 

taxes.4

Total,

2001-

2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2010

Mandate Statements That Identified

Intergovernmental Mandates 50 60 86 66 83 88 111 57 70 64 735

Mandate Statements That Identified Preemptionsa 28 27 41 40 54 54 69 17 37 20 387

Preemptions That Became Lawb 5 9 8 12 9 13 6 10 8 17 97

Memorandum:

All Mandate Statements That CBO

Transmitted to the Congress 389 649 615 557 500 478 703 679 419 474 5,463

Congress

107th 108th 109th 110th 111th

3. Annual reports that list mandates identified in legislation and in 

public laws are available on CBO’s Web site. For the most recent 

report, see Congressional Budget Office, A Review of CBO’s 

Activities in 2010 Under the Unfunded Mandates Reform Act 

(March 2011).

4. Two of those laws prohibited states from taxing providers of access 

to the Internet (Public Laws 108-435 and 110-108), and one preempted state taxes on premiums for certain prescription drug 

plans (P.L. 108-173). All public laws containing mandates whose 

costs, in CBO’s estimation, would exceed the thresholds are listed 

in CBO’s March 2011 report (see footnote 3).
PREEMPTIONS IN FEDERAL LEGISLATION IN THE 111TH CONGRESS 3

CBO

The number of mandate statements that identify preemptions has varied from year to year. From 2001, when 

CBO last published a report on preemptions, through 

2010, the agency issued 735 statements that identified 

intergovernmental mandates (see Table 1). More than 

half (387) of those statements identified at least one preemption. The proportion of intergovernmental mandate 

statements noting preemptions increased slightly from 

50 percent in the 107th Congress to 53 percent in the 

108th Congress. The proportion rose again to 63 percent 

in the 109th Congress before dropping to 51 percent 

in the 110th Congress and to 43 percent in the 111th 

Congress. 

The Legal Interpretation of Preemptions

The legal principle of preemption is based on the 

Supremacy Clause of the U.S. Constitution, which states 

that the Constitution and federal laws enacted in accordance with it are superior to any conflicting laws enacted 

by state, local, or tribal governments.5

 That principle is 

designed to resolve conflicts between the laws of various 

government authorities, each of which may have some 

jurisdiction in regulating the conduct of individuals or 

organizations. In the face of such conflicts, the laws of 

state, local, and tribal governments must yield to those of 

the federal government.

Preemptions in federal law come in two forms: express 

and implied. In cases in which laws conflict, courts can 

invalidate nonfederal laws on the basis of both types of 

preemptions. 

 Express Preemption. An express preemption exists when 

the Congress explicitly precludes states or other governments from exercising authority over a particular 

area of conduct or type of action. Courts evaluate 

express preemptions by focusing almost exclusively on 

the language in a federal statute. In such cases, the 

courts do not need to infer Congressional intent 

because that statutory language clearly shows an intent 

to preempt the authority of other governments.

 Implied Preemption. In the absence of explicit language 

in a federal law that constitutes a preemption of state, 

local, or tribal laws, the courts examine other evidence—primarily from the statutory context of the 

provision in question and from legislative history—to 

determine whether the Congress intended to preempt 

the states’ or other governments’ authority. In some 

cases, the evidence may indicate that the Congress 

intended federal statutes to be the exclusive authority—that is, by the federal government’s “occupying” 

a particular field of law, in part because of existing 

regulatory structures.6

 In other cases, the Congress’s 

intentions may not be as clear; as a result, if federal 

and nonfederal laws conflict, under the Supremacy 

Clause, the federal law overrides those other laws.

Identifying Preemptions Under UMRA

For the purposes of its work under UMRA in identifying 

intergovernmental mandates, CBO uses the term 

“preemption” to refer to the explicit exercise of federal 

authority under the Supremacy Clause—that is, when the 

federal government expressly preempts or supersedes the 

authority of other governments in a particular policy 

area. CBO is not in a position to identify implicit (or 

“implied”) preemptions because at the legislative stage, 

attempts to determine interactions between federal legislation and state or other laws are open to significant 

ambiguity and uncertainty. Rulemaking by federal agencies and decisions by courts—rather than the legislative 

language that CBO reviews—in many cases determine 

whether and how federal laws will preempt the authority 

of other governments. Those activities frequently occur 

years after CBO has reviewed the legislative proposals.7 

When reviewing legislation, CBO identifies as a mandate 

any language that clearly indicates an intention to preempt the laws of other jurisdictions. For example, in the 

111th Congress, the American Clean Energy and Security Act of 2009 (H.R. 2454 and H.R. 2998) and the 

Clean Energy Jobs and American Power Act (S. 1733) 

would have prohibited states from implementing or 

enforcing a cap-and-trade program to reduce greenhouse 

5. The Supremacy Clause, which appears in Article VI of the U.S. 

Constitution, states the following: “This Constitution, and the 

Laws of the United States which shall be made in Pursuance 

thereof; and all Treaties made, or which shall be made, under the 

Authority of the United States, shall be the supreme Law of the 

Land; and the Judges in every State shall be bound thereby; any 

Thing in the Constitution or Laws of any State to the Contrary 

notwithstanding.”

6. For example, the federal government’s regulation of aircraft noise 

in domestic aviation was so pervasive that it left no room for a 

local ordinance placing a curfew on flights. See City of Burbank v. 

Lockheed Air Terminal, 411 U.S. 624 (1973). 

7. Title II of UMRA requires federal agencies to assess the effects of 

their regulatory actions on state, local, and tribal governments and 

to issue statements outlining those effects.
4 PREEMPTIONS IN FEDERAL LEGISLATION IN THE 111TH CONGRESS

CBO

gas emissions. CBO identified that prohibition as a preemption and thus an intergovernmental mandate.

Many provisions of federal law that constitute preemptions are expressed using such terms as “supersede” or 

“preempt,” or such phrases as “notwithstanding any other 

law.” Recognizing the explicit nature of such terms, CBO 

identifies those provisions as preemptions. For example, 

the Data Breach Notification Act (S. 139) introduced in 

the 111th Congress asserted that “the provisions of this 

Act shall supersede any other provision of federal law or 

any provision of any State” that relates to certain practices 

to maintain the security of information or to protect 

personal data from unauthorized access. The bill would 

have preempted laws in at least 45 states that require 

companies or government agencies (or both) to disclose 

breaches of security that involve personal information. 

In many such cases, preemptions impose minimal or no 

pecuniary costs; however, they affect the authority of 

states and other governments to regulate the conduct of 

people and organizations in particular contexts. Preemptions that result in little or no cost are found particularly 

in areas that are generally regulated by state, local, or 

tribal governments, such as land use, zoning, and family, 

contract, or tort law.

Some federal preemptions completely override other governments’ authority to promulgate rules or regulations or 

to enact laws. That type of preemption may be proposed 

when the Congress determines that, in some area of 

governance, uniform national regulations are needed; in 

many instances, the preemption is preceded by the phrase 

“no state may.” For example, the Calling Card Consumer 

Protection Act in the 111th Congress (H.R. 3993) would 

have prohibited states from establishing or continuing to 

impose requirements on the providers of calling cards 

to print disclosures on the cards or their packaging unless 

such requirements were identical to the federal government’s. The prohibition would have preempted existing 

laws in at least four states and precluded other states from 

establishing their own regulations. 

CBO also views an extension of an expiring preemption 

as a mandate. For example, the Mandatory Price Reporting Act of 2010 (H.R. 5852 and S. 3656, enacted as 

Public Law 111-239) extends an existing preemption that 

prohibits states from establishing or continuing to impose 

requirements that are inconsistent with those imposed by 

the Department of Agriculture for reporting information 

on sales and purchases (specifically prices and quantities) 

of livestock and livestock products.

Similarly, CBO considers provisions that expand the 

scope of existing preemptions to be mandates under 

UMRA. For instance, the Law Enforcement Officers 

Safety Act Improvements Act of 2010 (S. 1132, enacted 

as P.L. 111-272) expanded an existing preemption of 

state laws that would have prohibited certain police officers from carrying concealed weapons. The provision 

expanding the preemption authorizes additional types of 

officers to carry concealed weapons. CBO viewed both 

the original preemption and the provision that expanded 

its scope as mandates. 

Preemptions Approved by Committees 

or Enacted in the 111th Congress

The 111th Congress considered relatively few separate 

preemptions and enacted even fewer. CBO identified preemptions in 57 (43 percent) of the mandate statements it 

prepared over the 2009–2010 period (see Table 1 on 

page 2). In some of those statements, CBO noted more 

than one preemption in a particular bill; it also identified 

individual preemptions that appeared in multiple bills. 

Overall, CBO identified 52 separate preemptions during 

the 111th Congress, 20 of which became law. Five preemptions that became law were not reviewed by CBO 

during the legislative process. 

Few federal preemptions would significantly increase 

spending by state, local, or tribal governments or lead to a 

direct loss of revenues. Some preemptions, in fact, could 

reduce costs for those governments by removing the need 

for them to exert regulatory oversight and control in certain areas. In the 111th Congress, CBO identified only 

one preemption whose costs would have exceeded the 

statutory threshold for intergovernmental mandates. 

That preemption, which was a provision of the American 

Clean Energy and Security Act of 2009 (H.R. 2454 and 

H.R. 2998) and the Clean Energy Jobs and American 

Power Act (S. 1733), would have prohibited states from 

regulating cap-and-trade programs to reduce greenhouse 

gas emissions; it would also have precluded them from 

collecting revenues from such programs. That legislation 

did not become law. (For details about the preemptions 

considered during the 111th Congress, see Table A-1 on 

page 12.) 
PREEMPTIONS IN FEDERAL LEGISLATION IN THE 111TH CONGRESS 5

CBO

Congressional Consideration of 

Preemptions, by Subject Area

Nearly three-quarters of the preemptions of state, local, 

or tribal laws or authority that the Congress considered in 

2009 and 2010 fell into four main policy areas (see 

Table 2). Regardless of the category, almost all of the 

preemptions would have limited the authority of states to 

regulate. The four categories are:

 Commerce and Finance. These 14 preemptions would 

have limited state laws governing business negotiations, investment products, notifications of security 

breaches, insurance, and consumer protection. 

 Energy and the Environment. The 4 preemptions in 

this category would have limited states’ ability to 

implement cap-and-trade programs or enforce the 

programs’ requirements, regulate the energy efficiency 

of products, and issue construction permits for electricity transmission projects. 

 Health. These 13 preemptions would have limited the 

power of states to regulate health insurance, medical 

licensing, tobacco products, and the disclosure of 

nutritional information on food products. 

 Justice. The 8 preemptions in this category would have 

restricted state laws governing concealed weapons, 

background checks for individuals who transport hazardous materials, child custody proceedings involving 

military personnel, search and seizure, and antitrust 

actions. 

Another 13 preemptions fell into a variety of other 

categories. 

In categorizing bills by subject area, CBO considered the 

nature of the preemption and not necessarily the subject 

of the broader bill. In some cases, a preemption could 

have been placed in two or more categories, but CBO 

included it in only one—on the basis of the main context 

of the preemption. Because such distinctions are somewhat arbitrary, CBO’s categorizations are intended to 

illustrate broad fields of preemptive activity rather than 

definitive classifications of legislation. 

Preemptions Enacted by the 

111th Congress

During the 111th Congress, 25 preemptions became law. 

Their subject matter varied widely, including such issues 

as health insurance, consumer protection, legal rights of 

action, licensing, concealed weapons, foreign judgments, 

and safety standards for motor vehicles (see Table 2). 

CBO reviewed all but 5 of those preemptions before they 

were enacted.8

 In CBO’s estimation, none of the enacted 

preemptions will impose significant costs on state, local, 

or tribal governments.

8. In some instances, CBO does not review a mandate before its 

enactment—for example, when legislation is not considered by a 

committee or is amended on the floor or in conference. In addition, CBO does not routinely review appropriation bills—because 

UMRA does not apply to such bills.
6 PREEMPTIONS IN FEDERAL LEGISLATION IN THE 111TH CONGRESS

CBO

Table 2.

Separate Preemptions That CBO Identified During the 111th Congress

Continued

Area of Governing Authority Being Preempted Public Law Number, If Enacted

Commerce and Finance

Compensation by individuals from entities that issue certain securities (H.R. 788)

Property and securities law (H.R. 1728)

Security practices for handling personal information (H.R. 2221)

Notification of security breaches (H.R. 2221, S. 139)

Distribution of funds to certain borrowers of federal housing funds (H.R. 2336)

Public access to information (H.R. 2868—two versions)

Alternative mortgages and remittances (H.R. 3126)

Fee increases levied on depository institutions for purposes of ensuring 

consumer compliance (H.R. 3126, H.R. 4173—two versions)

P.L. 111-203 (Dodd-Frank Wall Street Reform and 

Consumer Protection Act)

Swaps (Exchanges of cash between participants based on rates or indexes, or 

the performance of assets) (H.R. 3795—two versions) 

Calling card providers (H.R. 3993)

Licensing fees imposed on brokers and regulation of reinsurers in other states 

(H.R. 4173—one version, S. 3217)

P.L. 111-203 (Dodd-Frank Wall Street Reform and 

Consumer Protection Act)

Swaps, consumer protection, and insurance (H.R. 4173—three versions, 

S. 3217)

P.L. 111-203 (Dodd-Frank Wall Street Reform and 

Consumer Protection Act)

Price reporting set by the U.S. Department of Agriculture (H.R. 5852) P.L. 111-239 (Mandatory Price Reporting Act of 2010)

Treatment of personal information (S. 1490)

Energy and the Environment

Energy efficiency of various products (H.R. 2454, H.R. 2998, S. 1462)

Enforcement of cap-and-trade programs to reduce greenhouse gas emissions 

from 2012 through 2017 (H.R. 2454, H.R. 2998, S. 1733)

Production and importation of hydrofluorocarbons (H.R. 2454, H.R. 2998, 

S. 1733)

Issuance of construction permits for electricity transmission projects (H.R. 2998, 

S. 1462)

Health

State standards for health information (H.R. 1—two versions) P.L. 111-5 (American Recovery and Reinvestment Act 

of 2009)

Tobacco products (H.R. 1256—three versions, S. 982) P.L. 111-31 (The Family Smoking Prevention and 

Tobacco Control Act)
PREEMPTIONS IN FEDERAL LEGISLATION IN THE 111TH CONGRESS 7

CBO

Table 2. Continued

Separate Preemptions That CBO Identified During the 111th Congress

Continued

Area of Governing Authority Being Preempted Public Law Number, If Enacted

Health (Continued)

Carriers’ verification of the age of individuals who accept deliveries of tobacco 

(H.R. 1676, S. 1147)

P.L. 111-154 (Prevent All Cigarette Trafficking Act of 

2009)

Health insurance, risk pools, and payroll standards (H.R. 3590—two versions) P.L. 111-148 (Patient Protection and Affordable 

Care Act)

Protections for nursing mothers in the workplace (H.R. 3590—two versions) P.L. 111-148 (Patient Protection and Affordable 

Care Act)

Risk pools for individual or small-group markets as they pertain to 

“grandfathered” health care plans (H.R. 3590—two versions)

P.L. 111-148 (Patient Protection and Affordable 

Care Act)

Disclosure of nutritional information about food (H.R. 3590—two versions, 

H.R. 3962—two versions)

P.L. 111-148 (Patient Protection and Affordable 

Care Act)

Licensing of out-of-state health care professionals (H.R. 3590—one version, 

H.R. 3962—two versions)

P.L. 111-148 (Patient Protection and Affordable 

Care Act)

Requirements to disclose payments or other items of value provided to a 

physician or teaching hospital by a drug manufacturer (H.R. 3590—two versions, 

H.R. 3962—two versions)

P.L. 111-148 (Patient Protection and Affordable 

Care Act)

Automatic payroll deductions of employees’ contributions to an employmentbased health care plan (H.R. 3962—two versions)

Health insurance coverage under the Consolidated Omnibus Budget 

Reconciliation Act (COBRA) program (H.R. 3962—two versions)

Requirements and standards for health insurance coverage and employmentbased health care plans (H.R. 3962—two versions)

Ability of National Guard health professionals to practice during emergencies or 

disasters (H.R. 5136, S. 3454)

P.L. 111-383 (Ike Skelton National Defense 

Authorization Act for Fiscal Year 2011)

Justice

Exemption from state antitrust laws of communications between auto 

manufacturers and interested parties regarding negotiated plans (H.R. 384)

Background checks on transporters of hazardous materials (H.R. 2200)

Child custody proceedings involving military service members (H.R. 2647, 

H.R. 5136)

State court activities related to foreign judgments (H.R. 2765—two versions) P.L. 111-223 (Securing the Protection of Our Enduring 

and Established Constitutional Heritage Act)

Lawsuits against investment managers on the grounds that the managers made 

investment decisions based on a corporation’s political activities (H.R. 4790)
8 PREEMPTIONS IN FEDERAL LEGISLATION IN THE 111TH CONGRESS

CBO

Table 2. Continued

Separate Preemptions That CBO Identified During the 111th Congress

Continued

Area of Governing Authority Being Preempted Public Law Number, If Enacted

Justice (Continued)

Search and seizure in some cases (H.R. 5139) P.L. 111-177 (Extending Immunities to the Office of 

the High Representative and the International 

Civilian Office in Kosovo Act of 2010)

Concealed weapons (S. 1132) P.L. 111-272 (Law Enforcement Officers Safety Act 

Improvements Act of 2010)

Civil liability (Immunity granted to the Broadcasting Board of Governors was 

expanded in some cases) (S. 2971)

Other

At-large elections in Utah (H.R. 157)

Tribal laws against the drilling or use of some water wells (H.R. 1065)

Insurance law pertaining to foreign insurers (H.R. 2609)

Safety equipment and management requirements for certain commercial and 

public vessels (H.R. 2652)

Public access to information and the security of drinking water (H.R. 3258)

Distribution of surplus funds from housing projects (H.R. 4868)

Disclosure of information or records related to electrical infrastructure 

(H.R. 5026)

Safety standards for motor vehicles (H.R. 5381, S. 3302) P.L. 111-373 (Pedestrian Safety Enhancement 

Act of 2010)

Taxation of nonresident military spouses (S. 475) P.L. 111-97 (Military Spouses Residency Relief Act)

Access to the Atlantic Intracoastal Waterway (S. 1194)

Governance of vessels that transfer oil (S. 1194) P.L. 111-281 (Coast Guard Authorization Act of 2010)

Preferential treatment of veterans in securing transitional housing (S. 3325)

Public transportation safety (S. 3638)
PREEMPTIONS IN FEDERAL LEGISLATION IN THE 111TH CONGRESS 9

CBO

Table 2. Continued

Separate Preemptions That CBO Identified During the 111th Congress

Source: Congressional Budget Office. 

Notes: Preemptions are a type of intergovernmental mandate, which the Unfunded Mandates Reform Act of 1995 defines as an “enforceable 

duty” that the federal government imposes on state, local, or tribal governments. In CBO’s view, such duties may be positive 

(requiring some action) or, in the case of preemptions, negative—prohibiting those governments from taking some action or 

otherwise exerting their authority. 

The 111th Congress was in session in 2009 and 2010.

Within each category, preemptions are arranged by bill number. Unless otherwise noted, bill numbers refer to versions of the 

legislation ordered reported by authorizing committees.

a. In some instances, CBO does not review a mandate before its enactment—for example, when legislation is not considered by a committee or is amended on the floor or in conference. In addition, CBO does not routinely review appropriation bills—because the Unfunded 

Mandates Reform Act does not apply to such bills. 

Memorandum:

Enacted Preemptions That CBO Did Not Reviewa

Antitrust laws P.L. 111-30 (Antitrust Criminal Penalty Enhancement 

and Reform Act of 2004 Extension Act) 

Fees for gift or prepaid cards P.L. 111-24 (Credit Card Accountability Responsibility 

and Disclosure Act of 2009)

Claims related to mortgage-backed securities P.L. 111-22 (Helping Families Save their Homes Act of 

2009)

Laws requiring nondepository institutions to charge interest rates of less than 

17 percent on loans or other financing transactions

P.L. 111-32 (Supplemental Appropriations Act, 2009) 

Laws requiring governmental entities to pay interest rates of less than 

17 percent on loans or other financing transactions

P.L. 111-83 (Department of Homeland Security 

Appropriations Act, 2010)

CBO

Appendix: 

Preemptions Reviewed by 

CBO During the 111th Congress

During the 111th Congress, the Congressional 

Budget Office prepared 893 mandate statements for legislation pending before the Congress. Of those statements, 134 identified intergovernmental mandates, and 

57 contained 52 individual preemptions (5 preemptions 

were repeated in multiple bills). Table A-1 contains generally the same information as Table 2 but is arranged 

according to bill numbers rather than areas of preemption. 
12 PREEMPTIONS IN FEDERAL LEGISLATION IN THE 111TH CONGRESS

CBO

Table A-1. 

Legislation That Was Reviewed by CBO During the 111th Congress and 

That Contained Preemptions

Continued

Bill Number

(Committee or 

status) Title of Legislation Area of Governing Authority Being Preempted

H.R. 1 

(Introduced)

American Recovery and Reinvestment Act of 

2009

State standards governing health information

H.R. 1 American Recovery and Reinvestment Act of 

2009 (Amendment in the nature of a substitute, 

as introduced by Senators Inouye and Baucus on 

January 31, 2009)

State standards governing health information

H.R. 157 District of Columbia House Voting Rights Act of 

2009

State laws governing at-large elections in Utah

H.R. 384 TARP [Troubled Asset Relief Program] Reform 

and Accountability Act of 2009

State antitrust laws dealing with communications between 

auto manufacturers and interested parties regarding 

negotiated plans

H.R. 788 A bill to provide a safe harbor for mortgage 

servicers who engage in specified mortgage loan 

modifications, and for other purposes

State, local, or tribal laws governing compensation to 

individuals from the entities that issue certain securities

H.R. 1065 White Mountain Apache Tribe Water Rights 

Quantification Act of 2009

Tribes’ objections to the drilling or use of some water 

wells 

H.R. 1256 

(As passed by the 

House)

Family Smoking Prevention and Tobacco Control 

Act

State laws governing tobacco products

H.R. 1256 

(Energy and 

Commerce)

Family Smoking Prevention and Tobacco Control 

Act

State laws governing tobacco products

H.R. 1256 

(Oversight and 

Government Reform)

Family Smoking Prevention and Tobacco Control 

Act

State laws governing tobacco products

H.R. 1676 Prevent All Cigarette Trafficking Act of 2009 State, local, and tribal laws that require common carriers 

to verify the age of individuals who accept a delivery of 

tobacco

H.R. 1728 Mortgage Reform and Anti-Predatory Lending Act State property and securities laws

H.R. 2200 Transportation Security Administration 

Authorization Act

State and local laws governing background checks on 

individuals seeking to transport hazardous materials

H.R. 2221 Data Accountability and Trust Act State laws that impose notification requirements in the 

event of a security breach

State and local laws that require entities to implement 

security practices for handling personal information
APPENDIX PREEMPTIONS IN FEDERAL LEGISLATION IN THE 111TH CONGRESS 13

CBO

Table A-1. Continued

Legislation That Was Reviewed by CBO During the 111th Congress and 

That Contained Preemptions

Continued

Bill Number

(Committee or 

status) Title of Legislation Area of Governing Authority Being Preempted

H.R. 2336 GREEN [Green Resources for Energy Efficient 

Neighborhoods] Act of 2010

State and local laws that limit the amount of funds that 

may be distributed to certain borrowers of federal housing 

funds

H.R. 2454 American Clean Energy and Security Act of 2009 State authority to enforce a cap-and-trade program to 

reduce greenhouse gas emissions from 2012 through 2017

State laws relating to the energy efficiency of various 

products

State laws relating to the production and importation of 

hydrofluorocarbons

H.R. 2609 Federal Insurance Office Act of 2009 State insurance laws pertaining to foreign insurers 

H.R. 2647 National Defense Authorization Act for Fiscal 

Year 2010

State laws relating to child custody proceedings involving 

military service members 

H.R. 2652 Maritime Safety Act of 2009 State and local laws governing safety equipment and 

management requirements of certain commercial and 

public vessels

H.R. 2765 

(House Judiciary)

A bill to amend title 28, United States Code, to 

prohibit recognition and enforcement of foreign 

defamation judgments and certain foreign 

judgments against the providers of interactive 

computer services 

State laws related to foreign judgments 

H.R. 2765 

(Senate Judiciary)

Securing the Protection of Our Enduring and 

Established Constitutional Heritage Act

State laws related to foreign judgments

H.R. 2868 

(Energy and 

Commerce)

Chemical Facility Anti-Terrorism Act of 2010 State and local laws related to public access to 

information

H.R. 2868 

(Homeland Security)

Chemical Facility Anti-Terrorism Act of 2010 State and local laws related to public access to 

information

H.R. 2998 American Clean Energy and Security Act State authority to enforce a cap-and-trade program to 

reduce greenhouse gas emissions from 2012 through 2017

State laws governing construction permits (the act would 

have authorized the Federal Energy Regulatory 

Commission to issue such permits for transmission 

projects when a state had earlier rejected a request for 

one)
14 PREEMPTIONS IN FEDERAL LEGISLATION IN THE 111TH CONGRESS

CBO

Table A-1. Continued

Legislation That Was Reviewed by CBO During the 111th Congress and 

That Contained Preemptions

Continued

Bill Number

(Committee or 

status) Title of Legislation Area of Governing Authority Being Preempted

H.R. 2998 (Continued) State laws relating to the energy efficiency of various 

products

State laws relating to the production and importation of 

hydrofluorocarbons

H.R. 3126 Consumer Financial Protection Agency Act of 

2009

State, local, or tribal laws governing alternative 

mortgages and remittances

Increases in the fees states levy on depository institutions 

for purposes of consumer compliance

H.R. 3258 Drinking Water System Security Act of 2009 State and local laws governing public access to 

information and drinking water security

H.R. 3590 Patient Protection and Affordable Care Act 

(Amendment in the nature of a substitute 

proposed in the Senate on November 18, 2009)

State or local laws that require the disclosure of the 

nutritional content of food offered for sale by restaurants, 

retail food establishments, and operators of vending 

machines if the requirements in those laws are not similar 

to requirements under the bill

State laws governing health insurance, risk pools, and 

payroll standards

State laws that govern protection for nursing mothers in 

the workplace 

State and local laws that require manufacturers of a drug, 

device, or biological/medical item covered by the bill to 

disclose or report a payment or the transfer of some other 

item of value to a physician or teaching hospital

State laws that govern risk pools for individual or smallgroup markets as they pertain to “grandfathered” health 

care plans 

H.R. 3590 Patient Protection and Affordable Care Act 

(Amendment in the nature of a substitute, 

incorporating the manager’s amendment 

released on December 19, 2009)

State or local laws that require the disclosure of the 

nutritional content of food offered for sale by restaurants, 

retail food establishments, and operators of vending 

machines if the requirements in those laws are not similar 

to requirements under the bill

State laws governing health insurance, risk pools, and 

payroll standards

State laws that govern protection for nursing mothers in 

the workplace 
APPENDIX PREEMPTIONS IN FEDERAL LEGISLATION IN THE 111TH CONGRESS 15

CBO

Table A-1. Continued

Legislation That Was Reviewed by CBO During the 111th Congress and 

That Contained Preemptions

Continued

Bill Number

(Committee or 

status) Title of Legislation Area of Governing Authority Being Preempted

H.R. 3590 

(Continued)

State and local laws that require manufacturers of a drug, 

device, or biological/medical item covered by the bill to 

disclose or report a payment or the transfer of some other 

item of value to a physician or teaching hospital

State licensing laws in cases in which a health care 

professional is licensed in one state but provides services 

in another state under a contract or compact with a tribal 

health program

State laws that govern risk pools for individual or smallgroup markets as they pertain to “grandfathered” health 

care plans

H.R. 3795 

(Agriculture)

Derivative Markets Transparency and 

Accountability Act of 2009

State laws that affect swaps (exchanges of cash between 

participants based on rates or indexes, or the performance of assets)

H.R. 3795 

(Financial Services)

Over-the-Counter Derivatives Markets Act of 

2009

State laws that affect swaps (exchanges of cash between 

participants based on rates or indexes, or the performance of assets)

H.R. 3962 Affordable Health Care for America Act 

(Incorporating the manager’s amendment from 

November 3, 2009)

State and local laws that establish periods for coverage 

under the Consolidated Omnibus Budget Reconciliation Act 

(COBRA) through a state high-risk pool if those laws would 

limit or prevent access to COBRA coverage because of the 

extension provided by the bill

State laws that prevent the application of requirements 

and standards established in the bill for health insurance 

coverage and employment-based health care plans

State laws that prevent automatic payroll deductions of 

employees’ contributions to an employment-based health 

care plan

State or local laws that require the disclosure of the 

nutritional content of food offered for sale by restaurants, 

retail food establishments, and operators of vending 

machines if the requirements in those laws are not similar 

to requirements under the bill

State licensing laws in cases in which a health care 

professional is licensed in one state but provides services 

in another state under a contract or compact with a tribal 

health program
16 PREEMPTIONS IN FEDERAL LEGISLATION IN THE 111TH CONGRESS

CBO

Table A-1. Continued

Legislation That Was Reviewed by CBO During the 111th Congress and 

That Contained Preemptions

Continued

Bill Number

(Committee or 

status) Title of Legislation Area of Governing Authority Being Preempted

H.R. 3962 (Continued) State and local laws that require manufacturers of a drug, 

device, or biological/medical item covered by the bill to 

disclose or report a payment or the transfer of some other 

item of value to a physician or teaching hospital

H.R. 3962 Affordable Health Care for America Act 

(Incorporating the manager’s amendment from 

November 3, 2009, updated to reflect enactment 

of H.R. 3548)

State and local laws that establish periods for coverage 

under the Consolidated Omnibus Budget Reconciliation Act 

(COBRA) through a state high-risk pool if those laws would 

limit or prevent access to COBRA coverage because of the 

extension provided by the bill

State laws that prevent the application of requirements 

and standards established in the bill for health insurance 

coverage and employment-based health care plans

State laws that prevent automatic payroll deductions of 

employees’ contributions to an employment-based health 

care plan

State or local laws that require the disclosure of the 

nutritional content of food offered for sale by restaurants, 

retail food establishments, and operators of vending 

machines if the requirements in those laws are not similar 

to requirements under the bill

State licensing laws in cases in which a health care 

professional is licensed in one state but provides services 

in another state under a contract or compact with a tribal 

health program

State and local laws that require manufacturers of a drug, 

device, or biological/medical item covered by the bill to 

disclose or report a payment or the transfer of some other 

item of value to a physician or teaching hospital

H.R. 3993 Calling Card Consumer Protection Act State laws that impose requirements on providers of 

calling cards

H.R. 4173 

(Introduced)

Wall Street Reform and Consumer Protection Act 

of 2009

State laws that affect swaps (exchanges of cash between 

participants based on rates or indexes, or the performance of assets), consumer protection, and insurance

Increases in the fees states levy on depository institutions 

for purposes of consumer compliance
APPENDIX PREEMPTIONS IN FEDERAL LEGISLATION IN THE 111TH CONGRESS 17

CBO

Table A-1. Continued

Legislation That Was Reviewed by CBO During the 111th Congress and 

That Contained Preemptions

Continued

Bill Number

(Committee or 

status) Title of Legislation Area of Governing Authority Being Preempted

H.R. 4173 

(Rules)

Wall Street Reform and Consumer Protection Act 

of 2009 

State laws that affect swaps (exchanges of cash between 

participants based on rates or indexes, or the performance of assets), consumer protection, and insurance

Increases in the fees states levy on depository institutions 

for purposes of consumer compliance

H.R. 4173 

(As passed by the 

Senate)

Restoring American Financial Stability Act of 

2010

State laws that affect swaps (exchanges of cash between 

participants based on rates or indexes, or the performance of assets), consumer protection, and insurance

States’ imposition of certain licensing fees on brokers and 

their regulation of reinsurers in other states

H.R. 4790 Shareholder Protection Act of 2010 State securities laws that would allow lawsuits against 

investment managers on the grounds that the managers 

made investment decisions based on a corporation’s 

political activities 

H.R. 4868 Housing Preservation and Tenant Protection Act 

of 2010

State and local laws that govern how surplus funds from 

housing projects are distributed to owners of those 

projects in some cases

H.R. 5026 Grid Reliability and Infrastructure Defense Act State, local, or tribal laws relating to the disclosure of 

information or records related to electricity transmission 

projects

H.R. 5136 National Defense Authorization Act for Fiscal 

Year 2011

State licensing laws related to the ability of National 

Guard health professionals to practice during 

emergencies or disasters

State laws relating to child custody proceedings involving 

military service members

H.R. 5139 Extending Immunities to the Office of the High 

Representative and the International Civilian 

Office in Kosovo Act of 2010

State laws governing search and seizure in some cases

H.R. 5381 Motor Vehicle Safety Act of 2010 State laws relating to safety standards for motor vehicles

H.R. 5852 Mandatory Price Reporting Act of 2010 State and local laws that are in addition to or inconsistent 

with any requirements of the Department of Agriculture’s 

program for price reporting

S. 139 Data Breach Notification Act State laws that impose notification requirements in the 

event of a security breach
18 PREEMPTIONS IN FEDERAL LEGISLATION IN THE 111TH CONGRESS

CBO

Table A-1. Continued

Legislation That Was Reviewed by CBO During the 111th Congress and 

That Contained Preemptions

Continued

Bill Number

(Committee or 

status) Title of Legislation Area of Governing Authority Being Preempted

S. 475 Military Spouses Residency Relief Act States’ collection of taxes from nonresident military 

spouses

S. 982 Family Smoking Prevention and Tobacco Control 

Act

State laws governing tobacco products

S. 1132 Law Enforcement Officers Safety Act 

Improvements Act of 2010

State or local laws prohibiting the carrying of concealed 

weapons—expansion of an existing mandate

S. 1147 Prevent All Cigarette Trafficking Act of 2009 State, local, and tribal laws that require common carriers 

to verify the age of individuals who accept a delivery of 

tobacco 

S. 1194 Coast Guard Authorization Act for Fiscal Years 

2010 and 2011

State and local laws governing access to the Atlantic 

Intracoastal Waterway

State and local laws governing vessels that transfer oil

S. 1462 American Clean Energy Leadership Act of 2009 State laws governing construction permits (the act 

would have authorized the Federal Energy Regulatory 

Commission to issue such permits for transmission 

projects when a state had earlier rejected a request for 

one)

State laws relating to the energy efficiency of various 

products

S. 1490 Personal Data Privacy and Security Act of 2009 State laws regarding the treatment of personal 

information

S. 1733 Clean Energy Jobs and American Power Act State authority to enforce a cap-and-trade program to 

reduce greenhouse gas emissions from 2012 through 2017

State laws relating to the production and importation of 

hydrofluorocarbons

S. 2971 Foreign Relations Authorization Act, Fiscal Years 

2010 and 2011

State liability laws in some cases (immunity granted to the 

Broadcasting Board of Governors was expanded) 

S. 3217 Restoring American Financial Stability Act of 

2010

State laws that affect swaps (exchanges of cash between 

participants based on rates or indexes, or the 

performance of assets), consumer protection, and 

insurance

States’ imposition of certain licensing fees on brokers and 

their regulation of reinsurers in other states

S. 3302 Motor Vehicle Safety Act of 2010 State laws relating to safety standards for motor vehicles

S. 3325 Veterans Telehealth and Other Care 

Improvements Act of 2010

State laws that prohibit certain transitional housing 

programs from offering preferential treatment to veterans
APPENDIX PREEMPTIONS IN FEDERAL LEGISLATION IN THE 111TH CONGRESS 19

CBO

Table A-1. Continued

Legislation That Was Reviewed by CBO During the 111th Congress and 

That Contained Preemptions

Source: Congressional Budget Office. 

Notes: Preemptions are a type of intergovernmental mandate, which the Unfunded Mandates Reform Act of 1995 defines as an “enforceable 

duty” that the federal government imposes on state, local, or tribal governments. In CBO’s view, such duties may be positive (requiring some action) or, in the case of preemptions, negative—prohibiting those governments from taking some action or otherwise 

exerting their authority.

The 111th Congress was in session in 2009 and 2010.

Bill Number

(Committee or 

status) Title of Legislation Area of Governing Authority Being Preempted

S. 3454 National Defense Authorization Act for Fiscal 

Year 2011

State licensing laws related to the ability of National Guard 

health professionals to practice during emergencies or 

disasters

S. 3638 Public Transportation Safety Act of 2010 State laws related to public transportation safety