~~ 

A COMMISSION REPORT 

Federal Statutory Preemption 

of State and Local Authority: 

History, Inventory, and Issues 

A-121 

September 199: U.S. Advisory Commission on 

Inter government a1 Relations 
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 

under the supremacy clause of the U.S. Constitution to 

enact statutes that displace or replace state and/or local 

laws and powers. The Congress' power to preempt, however, is limited to the fields of authority delegated to it 

(e.g., bankruptcy) by the people of the states through the 

U.S. Constitution. 

Preemption may entail (1) federal displacement of state 

and/or local law so as to prohibit state or local governments 

from exercising particular powers (e.g., a prohibition of state 

or local regulation of an economicactivity deregulated by the 

Congress), (2) federal replacement of a state and/or locallaw 

or regulation by a federal law or regulation, or (3) federal 

enactment of a requirement that state and/or local governments comply with a federal standard. 

Preemption is sometimes stated explicitly in a federal 

statute. Often, however, there is no explicit statement of 

preemption; consequently, the federal courts and administrative agencies infer preemption based on their own 

interpretations of congressional intent. 

This report finds that: 

The pace and breadth of federal preemptions 

of state and local authority have increased 

significantly since the late 1960s. Of the approximately 439 significant preemption statutes enacted by the Congress since 1789, 

more than 53 percent (233) have been enacted only since 1969. 

Many public officials are unaware of the extent of federal preemption. 

The state officials surveyed acknowledged 

the need for federal preemptions, but objected to or expressed concern about some of 

their features. 

The U.S. Supreme Court has given the Con- gress broad discretion to exercise its preemption powers. 

The federal courts often imply federal 

preemption where there is no explicit statutory statement. 

Some federal preemptions provide substantial latitude to state and local governments in 

the means of compliance. 

There are three broad categories of federal preemption statutes-dual sovereignty, partial federal preemption, and total federal preemption. 

Dual Sovereignty. There are three types of dual sovereignty: 

(2) State powers not subject to preemption-including 

the power of states to levy taxes and to enter into 

nonpolitical interstate compacts; 

(2) Direct andpositive conflict between state and federal 

laws-a state law is valid unless there is a conflict 

with a federal law on the same subject (e.g., Civil 

Rights Act of 1964); and 

(3) Administrative or judicial rulings precluding pre- emption-for example, the Voting Rights Act of 

1965 and its amendments provide for either an 

administrative ruling by the U.S. Attorney Gen- eral or a declaratory judgement by the U.S. District Court for the District of Columbia that any 

proposed change in the election system of a cov- ered state or local government will not abridge 

the voting rights of citizens protected by the act. 

Partial Preemption. Under partial federal preemption, 

the Congress or federal administrative agencies may establish minimum national standards for a function or service and authorize the states to exercise primary 

regulatory responsibility, provided that state standards are 

at least as high and are enforced. Partial preemption permits a state to tailor regulatory programs to meet special 

needs and conditions. Partial preemption has become 

more commonplace since 1965 and has had a greater impact on federal-state relations than total federal preemption. There are three types of partial federal preemption: 

(I) Standard-a state law supersedes a corresponding federal law if standards are equal to or higher 

than the national standards (e.g., Water Qualify 

Act of 1985 and Clean Water Act of 1977); 

(2) Combined- the Occupational Safety and Health 

Act of 2970 combines partial federal preemption 

with traditional dual sovereignty regulation authority; and 

(3) State transfer of regulatory authority-the Wholesome Meat Act grants the Secretary of Agriculture 

authority to transfer responsibility to a state that 

has enacted an inspection law consistent with federal standards. 

Total Preemption. Under total preemption, the federal 

government assumes complete regulatory authority. Ten 

types of total preemption were found: 

(1) No need for state andlor local assistance-bankruptcy; 

U.S. Advisory Commission on Intergovernmental Relations iii 
No state economic regulation allowed-deregulation of the airline and bus industries; 

State and local assistance needed-state and local 

assistance to the Nuclear Regulatory Commis- sion in protecting public health and safety in the 

event of an accident at a nuclear generating 

plant, and state enforcement of the federal ban 

on the use of products containing lead in public 

water systems; 

State activities exception- the National Traffic and 

Motor Ehicle Safe& Act of 1966 allows a state or 

local government to establish safety require- ments for equipment for its own use; 

Limited regulatory turnbacks-several statutes au- thorize turnback of responsibility to the states 

(e.g., Hazardous and Solid Waste Act Amendments 

of 1984 and Atomic Energy Act of 1946); 

Federal mandating of state law enactment- the 

Equal Employment OpportuniQ Act of 1972 and 

similar acts mandate that states comply with fed- eral laws by enacting state laws under threat of 

civil or criminal penalties; 

Federal promotion of interstate compacts-the 

Low-Level Radioactive Waste Policy Act of 1980 

encourages formation of compacts to provide for 

availability of disposal capacity; 

Gubernatorialpetition forpreemption removal --t he 

governor of New York may petition the Secretary 

of Transportation for removal of a limitation on 

the collection of bridge tolls on Staten Island; 

State veto of a federal administrative decision-a 

governor or state legislature may veto a site se- lected by the Secretary of Energy to construct a 

high-level radioactive waste facility (the Congress may override the veto); 

(10) Contingent totalpreemption- the Voting Rights Act 

of 1965 and its amendments contain provisions 

that are not applied to a state or local government 

unless certain conditions are met. 

To assess the impact of federal preemption and perceptions regarding the desirability of various approaches, 

ACIR surveyed state elected officials, agency heads, and 

the 26 state ACIRs. There was a consensus that there is 

too much federal preemption and that the Congress delegates too much authority to federal administrators. Nevertheless, many respondents acknowledge the need for 

federal preemption under certain circumstances. 

In general, state offcials rated highly (1) standard partial preemption, (2) a federal statutory provision stipulating 

that a state law is valid unless there is a direct and positive 

conflict with a federal law, and (3) congressional permission 

for states to act where no federal standard is in effect. 

Federal preemption, according to state officials, does 

not often solve problems in their states originating in 

other states. Furthermore, preemption often prevents 

states from pursuing policies they prefer. The suggestion 

for a code of restrictions in each federal preemption statute received strong positive ratings. In addition, there was 

nearly unanimous agreement that each preemption statute should contain a sunset provision. 

ACIR also included five questions about federal 

preemption in its 1992 national public opinion poll. 

75 percent of the respondents favored federal 

preemption of the listing of health risks on the 

labels of food products. 

50 percent of the respondents favored federal regu- lation of interstate banking. 

37 percent of the public favored federal regulation 

of companies that sell life, fire, property, casualty, and automobile insurance. 

20 percent of the respondents favored federal regu- lation of the location and building of low-income 

housing in local communities. 

The report also examines factors that seem to be 

encouraging the rise of preemption, including: (1) the 

general trend of increased federal regulation; (2) the loosening of constitutional restraints on congressional power; 

(3) the Congress’ constitutional obligations to protect 

rights nationwide; (4) the reduced fiscal capability of the 

federal government, resulting in a turn to regulation to 

accomplish objectives; (5) the opening of new fields of 

federal regulation in recent decades; (6) the proliferation of 

interest groups in Washington; (7) public concern about 

herim’s competitive position in the world economy; (8) 

small-state concerns about the adverse impacts of big-state 

regulation; (9) bipartisan support for preemptions of different types; and (10) the popularity of many preemptions, such 

as health, safety, and environmental protection. 

The report concludes by examining salient issues of 

preemption, including; (1) the large scope of preemption 

today; (2) the clarity of statutory preemption language; (3) 

preemption by evolution through administrative and judicial interpretation; (4) congressional delegation of 

preemption authority to administrative agencies; (5) setting minimum versus maximum federal standards; (6) flexibility for state and local governments; (7) the extent to 

which the diverse forms of preemption are well matched 

to particular issues; (8) the lack of evaluation of preemption statutes; (9) the question of whether preemptions 

should be subject to sunset rules; and (10) the balance between the supremacy clause and the Tenth Amendment. 

ACIR has recommended limitations on federal 

preemption. In 1984, in Regulatory Federalism: Policy, Process, Impact and Reform, the Commission issued five principles to guide the Congress in the exercise of those 

powers. In 1987, in “Federal Preemption of State and 

Local Authority’’ (Intergovernmental Perspective, Winter 

1988), the Commission found that “federal preemption, 

while a necessary feature in the design of a federal system, 

ought to be minimized and used only as necessary to secure 

the effective implementation of national policy adopted pursuant to the Constitution.”The Commission also found that 

“preemption is properly a legislative decision, within appropriate constitutional constraints, and ought not to be exercised by administrative or judicial officers without prior 

legislative authorization and direction.” With this report, the 

Commission reaffirms its earlier recommendations (see 

Findings and Recommendations, page 1). 

iv U.S. Advisory Commission on Intergovernmental Relations 
PREFACE 

There has been a dramatic increase in federal statutory preemption of state and local authority during the last 

20 years. The research for this report uncovered the startling fact that more than half of the 439 federal preemption statutes passed by the Congress in the 200-year 

history of the United States were enacted during only the 

last two decades. Preemption has become a central feature of our federal system. Although without preemption, 

under the supremacy clause of the U.S. Constitution, the 

federal government would be a crippled giant, like everything else, too much of a good thing can be bad. 

It is difficult to get an accurate count of preemptions. 

Statutes preempting state and local authority are not always labeled as such. Moreover, preemptions are often 

buried in omnibus legislation. There also is the problem of 

implied preemption. The Congress does not say explicitly 

that it is preempting state and local authority, but courts 

and regulators infer preemption from the language and/or 

intent of the legislation. At the very least, we need 

truth-in-preemption packaging from the Congress. 

This is the third report in which ACIR has recommended that the Congress explicitly state its intention to 

preempt and that regulators and courts not be allowed to 

infer preemption where there is no such statement. ACIR 

also has recommended that the Congress keep preemption to a minimum and in strict conformity with the Constitution, and that preemption be invoked only to: 

(1) Protect basic political and civil rights guaranteed 

to all citizens by the Constitution; 

(2) Ensure national defense and the proper conduct 

of foreign relations; 

(3) Establish certain uniform and minimum standards in areas clearly affecting the flow of inter- state commerce; 

(4) Prevent state and local actions that substantially 

and adversely affect another state or its citizens; 

or 

(5) Assure essential fiscal and programmatic integrity 

in the use of federal grants and contracts into which 

state and local governments may freely enter. 

Clearly, the pace of preemption has outstripped these 

criteria. A major reason for being concerned about the 

unprecedented rise in preemption is the subordination of 

the Tenth Amendment not only to the supremacy clause 

today but also to the powers of the Congress. This subordination-some would say destruction-of the Tenth 

Amendment was made crystal clear by the U.S. Supreme 

Court in Garcia v. Sun Antonio Metropolitan 7i-an.d Anthon'ty (1985) and South Carolina v. Baker (1988). The su- premacy clause says that federal laws are supreme and 

valid only when they conform to the U.S. Constitution. A 

federal law is not supreme simply because it has been 

enacted by the Congress and signed by the President. In 

the past, the U.S. Supreme Court served as a check on the 

Congress' interpretation of its constitutional powers. 

Now, the court has given the Congress substantial freedom to interpret its own constitutional powers, checked 

only by the voters and the political muscle of state and 

local governments in the national political process. 

Robert B. Hawkins, Jr. 

Chairman 

U.S. Advisory Commission on Intergovernmental Relations v 
vi U.S. Advisory Commission on Intergovernmental Relations 
ACKNOWLEDGMENTS 

The principal investigators for this report were Joseph F. Zimmerrnan, professor of political science at the 

Nelson A. Rockefeller College of Public Affairs and 

Policy of the State University of New York at Albany, and 

Sharon Lawrence, senior policy analyst at the Advisory 

Commission on Intergovernmental Relations. 

In addition, ACIR benefited from the advice and 

suggestions and reviewed drafts of the report: Norman 

Beckman, Enid Beaumont, John Bosley, William G. Colman, Timothy Conlan, William Davis, Michael Dee, Rob- 

, counsel of the following individuals who provided useful 

ert Fogel, James Gattuso, Robert McCurley, Mavis 

Reeves, John Shannon, and Carl Stenberg. 

Of course, the Commission and its staff retain final 

responsibility for the contents of the report. 

John Kincaid 

Executive Director 

Bruce D. McDowell 

Director, Government Policy Research 

U.S. Advisory Commission on Intergovernmental Relations vii 
viii U.S. Advisory Commission on Intergovernmental Relations
CONTENTS 

Findings and Recommendations ....................................................................... 

Findings ........................................................................................ Recommendations ................................................................................ 

Chapter1 . Introduction ............................................................................... 

Preemption-Displacement of State Law ........................................................... Interpreting Federal Preemption Powers ............................................................ Historical Background ............................................................................ 

Constitutional Balance and Fiscal Impact ....................................................... Scope of Report .................................................................................. 

Chapter 2 . Federal Preemption: Criteria, Inventory, and Approaches ....................................... 

Formal Power Allocation .......................................................................... Preemption Criteria .............................................................................. Structuring Federal-State Relations ................................................................ An Inventory of Federal Preemption Statutes ....................................................... 

Preemption Relief ............................................................................ Approaches to Preemption ........................................................................ Dual Sovereignty ............................................................................. Partial Federal Preemption .................................................................... 

Trends in Preemption ............................................................................. 

Total Federal Preemption ..................................................................... 

Summary ........................................................................................ 

Survey Scope and Methods ........................................................................ Survey Findings .................................................................................. 

Amount of Preemption ....................................................................... 

Chapter 3 . State Oficials’ Perceptions of Federal Preemption ............................................. 

Amount of Authority Delegated ................................................................ Latitude for State Action ...................................................................... Restrictions on State Actions .................................................................. Potential Improvements in Preemption Laws .................................................... 

Summary ....................................................................................... 

Chapter 4 . The Future of Preemption: Growth or Decline? ................................................ 

Public Opinion on Preemption, 1992 ................................................................ Issues in Preemption ............................................................................. 

Appendixes . Explanatory Notes ........................................................................ Appendix A . Chronological Inventory of Federal Preemption Statutes ...................................... 

Factors Contributing to Increased Preemption ....................................................... 

Appendix B . Inventory of Preemption Statutes, by Purpose ............................................... Appendix C . Sample Preemption Survey Questionnaires .................................................. Appendix D . Regional Tabulations of Questionnaire Responses ............................................ 

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U.S. Advisory Commission on Intergovernmental Relations ix 
Figures and Tables 

Figire 1 

Figure 2 

Table 1-1 

Table 3-1 

Table 3-2 

Table 3-3 

Table 3-4 

Table 3-5 

Table 3-6 

Table 4-1 

Number of Federal Preemption Statutes Enacted Per Decade: 1790-1991 ........................ Number of Federal Preemption Statutes Enacted Per Decade: 1790-1989 ........................ 7 

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Federal Preemption and Preemption Relief Statutes: 1790-1991 ................................ Questionnaires Returned Classified by Region and Respondent. 1987-1988 ...................... 

State Officials’ Perceptions of Amount of Preemption Authority Delegated. 1988 ................ 

State Officials’ Perceptions of Potential Improvements in Federal Preemption Laws. 1988 ......... 

State Officials’ Perceptions of Amount of Federal Preemption. 1988 ............................ 

State Officials’ Perceptions of Latitude for State Action. 1988 .................................. State Officials’ Perceptions of Restrictions on State Action. 1988 ............................... 

Federal Preemption and Public Choices of Federal. State. or Local Regulation ................... 

x U.S. Advisory Commission on Intergovernmental Relations 
FINDINGS AND RECOMMENDATIONS 

Fi n d i ngs 

1. The pace and breadth of federal preemptions of state 

and local authority have increased significantly since the 

late 1960s. 

Federal preemptions span an ever widening range of 

commercial, monetary, civil rights, environmental, health, 

and safety fields. The number of explicit federal preemption 

statutes alone-not counting implied preemptions found by 

the courts or promulgated by administrative rulemakinghas increased to the point that over half of all such preemptions in the nation’s constitutional history have been enacted 

by the Congress only since 1969. These preemptions include 

prohibitions of economic regulation and other activity by the 

state and local governments, as well as requirements that 

states enforce federal laws, conform their own laws to federal standards, and take on new responsibilities. Federal 

preemptions also may override state and local decisions and 

prevent states and local govemments from pursuingplicies 

preferred by their citizens. 

2. Many public officials are unaware of the extent of feder. 

a1 preemption. 

Inventories of federal preemptions have been few and 

incomplete. Even the inventory in this report is only a 

beginning; it catalogs only statutory preemptions explicitly 

enacted by the Congress. As far as is known, there is no 

catalog of implied preemptions found by the courts or 

promulgated by administrative rulemaking. Consequently, no one knows how many federal preemptions there are 

or how much they cost the state and local governments or 

whether they unduly constrain the policy creativity and 

vitality of state and local governments. In addition, the 

nature of federal preemptions is such that many of them 

are transmitted to implementing officials through state 

laws that obscure their federal origins. 

3. The state oficials surveyed acknowledged the need for 

federal preemptions, but objected to or expressed concern about some of their features. 

Leading the list of objections was the excessive amount 

of federal preemption, the tendency of the Congress to 

delegate too much preemption authority to federal administrators, prohibitions on state regulation of certain industries, 

and federal requirements for states to enact legislation to 

comply with provisions of federal laws. Surveyed state officials indicated that federal preemptions seldom solve problems in their states that originated in other states; instead, 

these federal actions are seen as more likely to prevent states 

from pursuing policies they prefer. Many state respondents 

favored greater detail in federal preemption statutes concerning prohibited actions to help avoid long periods of 

litigation. Many respondents also strongly favored “sunset” 

reviews of preemption statutes to help ensure that troublesome provisions do not go unchallenged forever. 

4. The U.S. Supreme Court has given the Congress broad 

discretion to exercise its preemption powers. 

In Garcia v. Sun Antonio Metropolitan Transit Authority 

(1985) and in South Carolina v. Baker (1988), the Court 

ruled that federal power is limited only by voters and by 

the ability of state and local governments to persuade the 

Congress to exercise restraint. By this interpretation, the 

Tenth Amendment is not an independent, judicially enforceable restraint on federal preemption. Although the U.S. 

Supreme Court has recently given renewed attention to the 

Qnth Amendment, as well as the republican guarantee 

clause, in Gregov v. Ashcroft (1991) and New York v. United 

States ef al. (1992), the Court has not significantly restrained 

the reach of federal power on constitutional grounds. 

5. The federal courts have often implied federal preemption where there is no explicit statutory statement of 

preemption. 

The supremacy clause of the U.S. Constitution requires that when a state law conflicts with a law of the 

United States enacted pursuant to the Constitution, the 

state law must yield to the U.S. law. However, judicial 

interpretations have ranged from requiring the minimum 

amount of state yielding to complete yielding. At times, 

the courts also seem to broaden the reach of federal 

preemptions beyond any expressed intent of Congress. 

The courts, therefore, do not follow a consistent and predictable doctrine in deciding preemption cases. They have 

not always held the Congress to a strict test of accountability by requiring a clear statement of intent to preempt. 

Similarly, the courts have not consistently required that 

extensions of preemption by administrative rulemaking or 

court findings be based on clear delegation of such authority by the Congress. In recent years, however, the U.S. 

Supreme Court has made greater efforts to limit preemption to plain statements of legislative intent. 

U.S. Advisory Commission on Intergovernmental Relations 1 
6. Some federal preemptions provide substantial degrees 

of latitude to state and local governments in choosing the 

means of compliance. 

In various cases, the states may regulate at or above 

the established federal standards, administer their own 

laws in the preempted field except to the extent that there 

is a direct conflict with individual provisions of U.S. law, 

act where no federal standard is in effect, accept a federal 

turnback of regulatory authority, or receive certain exemptions from federal preemption. In addition, states 

may transfer certain preempted responsibilities to thefedera1 government or be reimbursed for carrying them out. 

Recommendations 

Recommendation 1: 

Reaffirmation of Requirements for Explicit Intent to 

Preempt and Principles for Limiting Federal Preemption 

The Commission finds that the pace of federal 

preemption of state and local authority has accelerated 

dramatically since the Kestnbaum Commission (1953-55) 

first offered recommendations to moderate this tendency, 

and that the pace of preemption continues despite the 

Commission’s own recommendations of 1984 and 1987. 

The Commission reaffirms its earlier findings that federal 

preemption, while a necessary feature in the design of the 

federal system, ought to be used only as necessary to 

secure the effective implementation of federal policy 

adopted pursuant to the U.S. Constitution, and that 

preemption is properly a legislative decision, within appropriate constitutional constraints, and ought not be ex- ercised by administrative or judicial officers without 

clearly stated legislative authorization and direction. 

The Commission, therefore, reafirms its earlier recommendations to the effect that (1) the Congress not preempt 

state and local authority without clearly expressing its intent to 

do so; (2) the Congress limit its use of the preemption power to 

protecting basic political and civil rights, managing national 

defense and foreign relations, ensuring the free flow of interstate commerce, preventing state and local actions that would 

harm other states or their citizens, andprotectingthe fiscal and 

programmatic integrity of federal-aid programs into which 

state and local governments freely enter; (3) the Executive 

Branch not preempt by administrative rulemaking unless the 

Congress has expressly authorized such action and established 

clear guidelines for doing so, and unless the administrative 

agency taking such action clearly expresses its intent to 

preempt; and (4) the federal courts not confirm the validity of 

statutory and administrative preemptions unless accompanied 

by a clear statement of intent to preempt and unless the extent 

ofpreemption is no greater than necessary to give effect to that 

intent within the limits of constitutional authority 

Recommendation 2: 

Congressional Preemption Notes and Executive Agency 

Notifications 

The Commission finds that federal preemptions often 

affect vital interests of the states and their local governments. As such, preemptions should not be enacted by the 

Congress without thorough consideration of their likely 

impacts and without provisions for periodic review after 

enactment. It also should be recognized that the great 

diversity among the states and their local governments 

may affect substantially the impact and effectiveness of 

federal preemptions from place to place. 

The Commission recommends, therefore, that the Congress provide by legislation for the preparation and consideration, in both committee andfloor debate in both houses of the 

Congress, ofpreemption notes concerning any bill affecting the 

powers of state or local governments. Such notes should express, in clear language, any intent of the legislation topreempt 

or not to preempt state or local governmentpowers, justifr the 

preemption in accordance with the United States Constitution, stipulate and justify the scope of such preemption, present 

options for minimizing the extent of federalpreemption and for 

providing flevibility to state and local govemments in complying with any proposed preemption, and provide either for a 

sunset provision or for periodic review of the preemption. 

The Commission recommends, fiLrthemzore, that the Congress amend the Administrative Procedure Act to provide that 

any administrative rulemakingproposed by the Executive Branch 

that would affect the powers of state or local govemments be 

required to be published in the Federal Register with apreemption note stating, in clear language, the extent of any federal 

preemption intended and citing the qlicit statutory provision on 

which any preemptive rules would be based. 

Recommendation 3: 

Preemption Notes in the Executive Branch 

The Commission finds that many legislative and regulatory proposals originate in the executive branch of the 

federal government. Systematically evaluating these executive branch proposals against principles similar to 

those recommended for the legislative and judicial 

branches will increase the likelihood that federal agencies 

will avoid unnecessary preemption. The Commission 

applauds the principles established in the Federalism Executive Order (No. 12612), but finds that this order is not 

being used to its full potential. 

The Commission recommends, therefore, that the executive branch of the federal government prepare a preemption 

note for any legislative or regulatory proposal aflecting the 

powers of the states or their local govemments and attach the 

preemption note to the proposal for consideration within the 

originating department or agency and any reviews by the Office 

of Management and Budget, the White House, the Congress, 

and formal rulemakingprocesses. The preemption note should 

be guided by the principles set forth in the Federalism Executive Order (No. 12612) and should be incorporated into any 

federalism assessment prepared thereundec The preemption 

note should express, in clear language, any intent of the proposal to preempt or not to preempt state or local government 

powers, justify the preemption in accordance with the United 

States Constitution, stipulate and justifit the scope of such 

preemption, present options for minimizing the extent of federal preemption and for providing flexibility to state and local 

governments in complying with any proposed preemption, and 

provide either for a sunset provision or for periodic review of 

the preemption. 

2 U.S. Advisory Commission on Intergovernmental Relations 
Recommendation 4: 

State and Local Vigilance on Federal Preemptions 

The Commission finds that the state and local governments have the greatest stake in limiting the use of federal 

preemption powers and in ensuring that those powers are 

used in a manner that reinforces both federalism and 

genuine national interests. 

The Commission recommends, therefore, that the national associations representing state and local governments, acting individually and jointly, (1) monitor the introduction and 

consideration ofpreemption legislation, as well as the development of preemptive administrative regulations, (2) seek to 

influence them in accordance with the principles set forth 

above, and (3) join litigation to limit the use of the federal 

preemption power to necessary and proper cases. 

Recommendation 5: 

Evaluation of Federal Preemptions 

The Commission finds that too little is known about 

the effectiveness of most federal preemptions and their 

effects on state and local governments. No one has sought 

to evaluate the cumulative impact of all federal preemptions on the states and their local governments, or whether the benefits are commensurate with the costs. Even the 

evaluations of individual preemptions are often sketchy, 

leaving us to guess about the relativeburdens and benefits 

to the federal, state, and local governments. 

The Commission recommends, therefore, that greater effort be devoted to evaluating federal preemptions, including 

efforts by the executive and legislative branches of the federal 

government, and by the national associations representing 

state and local governments. 

Note: Pursuant to the Commission’s recommendations, Senators Carl Levin and David Durenberger introduced into 

the US. Senate S. 2080, entitled “Preemption Clarification and Information Act of 1991,” and Representative 

Craig Thomas introduced into the US. House of Repre- sentatives HR 4613, entitled “States and Local Legisla- tive Prerogatives Preservations Act of 1992.” 

U.S. Advisory Commission on Intergovernmental Relations 3 
4 U.S. Advisory Commission on Intergovernmental Relations 
Chapter 7. INTRODUCTION 

Intergovernmental regulation has become one of the 

most prominent features of American federalism during 

the past quarter-century. One facet of intergovernmental 

regulation is federal preemption of state and/or local authority by acts of Congress and by judicial and administrative interpretations of federal statutes. 

Preemption refers, generally, to an appropriation or 

seizure for oneself to the exclusion of others. Often it 

means taking possession of something before others do so. 

In the feudal past, for example, preemption referred to 

royal prerogatives to purchase goods at certain prices in 

preference to other buyers. For about the first 150 years of 

U.S. history, preemption was most commonly known as a 

first option or right to purchase public land, usually a 

portion not exceeding 160 acres. 

Preemption - Displacement of State law 

In the field of intergovernmental relations, preemption refers to the authority of federal law to displace or 

replace state (and local) law under the supremacy clause 

of the U.S. Constitution (Art. VI). The clause states: “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 Authorityof 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.” 

The supremacy clause does not mean that the federal 

government is supreme in all things; it means only that 

federal law is supreme within the realms of power delegated to it by the people of the states through the U.S. 

Constitution. As Alexander Hamilton wrote in TheFederaht, the supremacy clause does not mean “that acts of the 

[federal government] which are not pursuant to its constitutional powers, but which are invasions of the residuary 

authorities of the [states], will become the supreme law of 

the land. These will be merely acts of usurpation, and will 

deserve to be treated as such.”l 

Consequently, the scope of federal preemption of 

state and local powers depends very greatly on interpretations of the scope of the powers of Congress enumerated 

in the U.S. Constitution. Over the years, as congressional 

powers (e.g., the commerce clause) have been interpreted 

more broadly, the scope of federal preemption of state 

and local authority has broadened as well because conflicting state law or administrative policy must yield to 

federal law enacted pursuant to the delegated powers of 

the Congress. 

Interpreting Federal Preemption Powers 

Interpretation, therefore, lies at the heart of preemption: the Congress’s interpretation of its delegated powers; the judiciary’s interpretation of the authority of the 

Congress to enact a particular statute pursuant to its delegated powers; judicial and administrative interpretations 

of the explicitly or implicitly preemptive effects of federal 

statutes; and judicial and administrative judgments of 

whether a state law and a federal law can both be enforced 

in a particular field. Once it is determined that a federal 

statute accords with the U.S. Constitution, then: “The 

constitutional principles of preemption, in whatever particular field of law they operate, are designed with a common end in view: to avoid conflicting regulation of conduct 

by various official bodies which might have some authority 

over the subject matter.”2 

This judgment, however, is often more of an art than a 

science. As Justice Hugo Black wrote in 1941: 

There is not-and from the very nature of 

the problem there cannot be-any rigid formula 

or rule which can be used as a universal pattern to 

determine the meaning and purpose of every act 

of Congress. This Court, in considering thevalidity of state laws in the light of treaties or federal 

laws touching the same subject, has made use of 

the following expressions: conflicting; contrary 

to; occupying the field; repugnance; difference; 

irreconcilability; inconsistency; violation; curtail- ment; and interference. But none of these expressions provides an infallible constitutional test 

or an exclusive constitutional yardstick. In the fi- nal analysis, there can be no one crystal clear distinctly marked formula. Our primary function is to 

determine whether, under the circumstances of this 

particular case, Pennsylvania’s law stands as an obstacle to the accomplishment and execution of the 

full purposes and objectives of Congre~.~ 

The question of interpretation is important because, 

unlike the general definition of preemption as “prior appropriation,” federal preemption rarely involves a prior 

appropriation of powers. That is, federal preemption usually displaces state or local laws that already occupy a 

field-laws that reflect the preferences of the citizens of 

~ 

U.S. Advisory Commission on Intergovernmental Relations 5 
states and localities as expressed through their elected 

legislators. Consequently, most federal preemptions alter 

the balance of power in the federal system by shifting 

powers to the federal government through the enactment 

of laws that reflect the preferences of citizens nationwide 

through their elected members of Congress. Given that 

federal preemptions ordinarily displace state or local laws 

that reflect the diverse preferences of the citizens of states 

and communities, it is especially important that the Con- gress be clear about its intent to preempt state or local 

powers. Such clarity is needed in order to ensure that 

preemptions genuinely reflect uniform voter preferences 

nationwide, in accordance with the U.S. Constitution, and 

that unelected judicial and executive officials do not overreach their statutory authority to displace state and local 

laws duly enacted by elected state and local officials. 

Unlike the general definition of preemption as “exclusivity,” however, federal preemption of state or local 

power does not necessarily displace state or local law 

entirely. Generally, the U.S. Supreme Court has ad- vanced three views on the question of exclusivity.4 One 

view is that in a direct collision between state law and 

federal law, state law is simply invalidated under the su- premacy clause of the U.S. Constitution. A second view, 

sometimes referred to as a nationalist view, is that when 

the Congress preempts part of a field or a phase of com- merce, it effectively occupies the entire field, leaving no 

room for supplementary state or local legislation. As Justice 

Joseph Story argued in his dissent in Nau York v. Miln: 

Full power to regulate a particular subject 

implies the whole power, and leaves no residuum; 

and a grant of the whole to one is incompatible 

with a grant to another of a part. When a state 

proceeds to regulate commerce with foreign nations, or among the states, it is doing the very 

thing which congress is authorized to 

A third view is that state or local law may continue in 

force as a supplement to federal law so long as there is no 

direct conflict between the federal and state laws. In 1963, 

for example, the U.S. Supreme Court upheld, 5-4, a Florida law that set standards for avocados sold in Florida, 

standards that were higher than those set by federal law.6 

Although the Florida law was applied to avocados grown 

out of state as well as in-state, the Court sustained the law 

on the ground that growers could comply with both the 

state and federal standards because compliance with the 

higher state standard automatically meant compliance 

with the lower federal standard. 

Preemption, therefore, is a complex field of federal 

law, but given the prominence of preemption in American 

federalism today, it is important to understand preemption because it has profound effects on intergovernmental 

relations and the balance of power in the federal system. 

Outside of the literature of law, however, relatively little 

attention has been given to preemption. 

Historical Background 

When the ratification of the United States Constitution was being debated in 1787-88, many Americans were 

concerned that the broad, general language of the document, combined with its supremacy clause, would allow 

the federal government to centralize power to a greater 

extent than anticipated by its limited enumeration of delegated powcrs. Hamilton’s argument about the limited 

scope of the supremacy clause was not entirely persuasive. 

Consequently, the Tenth Amendment was added soon 

after the Constitution was adopted to reinforce the intent 

that the powers not explicitly given to the federal govern- ment are reserved to the states or to the people. 

Despite early decisions by the U.S. Supreme Court, 

such as Gibbons v. Ogden (1824)’ and Brown v. Maryland 

(1827),* which strongly asserted federal preemption pow- ers, the intent of the Tenth Amendment was largely acceded to by the Congress until this century. As Tmble 1-1 

shows, only about 30 statutes were enacted in the llOyears 

from 1789 to 1899 to preempt powers of the states by 

substituting federal policy for state or local policies. Even 

with respect to clearly enumerated powers, such as bank- ruptcy, preemption followed a checkered path. The first 

federal bankruptcy law preempting state powers was enacted 

in 1800 but then repealed in 1803. A second bankruptcy act 

was passed in 1841, only to be repealed in 1843. A third act, 

passed in 1867, was repealed in 1878. Not until 1898 did the 

Congress enact a bankruptcy statute with staying power. 

After the turn of the century, as Table 1-1 also documents, the amount and scope of preemption began to 

grow significantly. This growth was modest at first, centering around interstate and foreign commerce, but also be- ginning to preempt (or substitute for) state roles in 

banking and finance and in health and safety. Today, 

health, safety, and environmental protection generate 

more federal preemption statutes than do any other categories except commerce. (See also Figures 1 and 2.) 

The increase in federal statutory preemption of state 

and local powers also has been reflected on the U.S. Su- preme Court’s docket. According to one study, ten 

preemption cases, or 2 percent of the Court’s docket, were 

heard during the Supreme Court’s 1962, 1963, and 1964 

terms. During its 1985,1986, and 1987 terms, however, the 

Court heard 39 preemption cases, which represented 9 

percent of its docket? 

As federal preemptions have increased in number, 

they have attracted greater attention from state and local 

officials. Federal preemptions limit the discretion of state 

and local voters and sometimes impose additional costs on 

state and local governments. When those costs were offset 

significantly by federal grants, the fiscal impacts of 

preemptions were softened, but since federal aid to state 

and local governments declined from 26.5 percent of 

state-local outlays in FY 1978 to about 20.5 percent in FY 

1991, concerns about federal preemption have intensified 

among state and local officials and citizen organizations. 

Statutory relief from some burdensome federal preemptions has been provided by the Congress, especially where 

state and local governments have been turned away by the 

courts in their requests for relief; however, relief measures are still far outweighed by preemption measures. 

Constitutional Balance and Fiscal Impact 

Thus, federal preemption presents issues of constitutional balance and fiscal impact. These are not simple 

issues. Even the definition of preemption is not simple. In 

fact, there are several different types of federal preemp6 U.S. Advisory Commission on Intergovernmental Relations 
Figure 1 

Number of Federal Preemption Statutes Enacted Per Decade: 1790-1991 

(by date of enactment and purpose) 

Number 

130 

120 

110 

100 

90 

80 

70 

60 

50 

40 

30 

20 

10 

0 

Civil Rights and Other 

0 Health, Safety, and Environment 

Commerce and 'kansportation 

Banking, Finance, and Taxation 

n 

Before 1900- 1910- 1920- 1930- 1940- 1950- 1960- 1970- 

1900 1909 1919 1929 1939 1949 1959 1969 1979 

Year 

1980- 

1989 

r---, 

' 1999 I 

I 

1990- 

1999 

*The 1990-1991 rate was multiplied by 5 to estimate how many preemptions might be enacted during 1990-1999. 

Source: Appendix A, p. 45. 

U.S. Advisory Commission on Intergovernmental Relations 7 
Figure 2 

Number of Federal Preemption Statutes Enacted Per Decade: 1790.1989 

(by date of enactment and purpose) 

Number 

--" I I 

lo01 

904 

Civil Rights and Other 

Health, Safety, and Environment 

Commerce and 'Ransportation 

Banking, Finance, and Taxation 

80 

70 

60 

50 

41 

3( 

2( 

1( 

( 

Before 1900- 1910- 1920- 1930- 1940- 1950- 1960- 1970- 1980- 

1900 1909 19 19 1929 1939 1949 1959 1969 1979 1989 

Year 

Source: Appendix A, p. 45. 

8 U.S. Advisory Commission on Intergovernmental Relations 
Table 1-1 

Federal Preemption and Preemption Relief Statutes: 1790-1991 

(by date of enactment and purposes) 

Banking & Civil Health & Natural Preemption Relief -. .. - 

Finance Rights Commerce Safety Resources Tax Other Total Statutes’ 

Before1900 

1900-1909 

1920-1929 

1930-1939 

1940-1949 

1950-1959 

1960-1969 

1910-1919 

1970-1979 

1980-1989 

1990-1991 

Totals 

0 

0 

1 

2 

8 

1 

3 

5 

15 

13 

2 

50 

7 

0 

0 

0 

0 

0 

1 

7 

10 

6 

2 

33 

15 

7 

16 

12 

21 

9 

10 

9 

31 

35 

11 

176 

4 

5 

3 

3 

2 

3 

6 

23 

32 

26 

6 

113 

1 

2 

1 

0 

0 

2 

3 

3 

9 

6 

0 

27 

3 

0 

0 

0 

2 

0 

2 

0 

6 

5 

3 

21 

0 

0 

1 

0 

0 

1 

2 

0 

5 

9 

1 

19 

30 

14 

22 

17 

33 

16 

27 

47 

108 

100 

25 

439 

3 

1 

1 

3 

4 

3 

4 

2 

5 

7 

1 

34 

‘These statutes modify federal preemptions that caused sufficient intergovernmental tensions to attract the attention of Congress. An 

example is the Fair Labor Standards Amendments of 1985 enacted to help soften the impact of the US. Supreme Court’s Garcia v. Sun 

Antonio Metropolitan Pansit Aiftl~on’ty decision mandating state and local employment conditions. 

Source: Appendix A, page 45. 

tion, and diverse ways to implement preemptions. Furthermore, many federal mandates are a subset of federal 

preemption, although preemptions and mandates are often 

not clearly distinguished in discussions of federal action. 

This rapidly emerging and highly charged topic has 

been addressed before. The temporary Commission on 

Intergovernmental Relations (the Kestnbaum Commission) in 1955 and the Advisory Commission on Intergovernmental Relations (ACIR) in 1984 and 1987 issued 

reports recommending limitations on federal preemption.lo Considerable attention also has been given to federal mandates.” Federal preemptions and mandates 

proceed apace, however, amid confusion about the differences between the two, with no adequate inventory of 

federal preemptions and with little understanding of how 

the various types of preemption work. 

Scope of Report 

The purpose of this report is to (1) define federal 

preemption, (2) present an inventory of federal preemption statutes, (3) classify the types of federal preemptions 

and the mechanisms used to implement them, (4) record 

the views of several types of state officials concerning this 

topic, (5) draw conclusions about the appropriate scope of 

federal preemption and uses of implementation mechanisms, and (6) offer new recommendations for limiting 

and clarifying federal preemptions. 

Notes 

’ 771e Federalist, No. 33. 

’Amalgamated Assn. of Street, Electric Ry. & Motor Coach 

Employees v. Lockridge, 403 U.S. 274,285-286 (1971). 

3Hines v. Davidowitz, 312 US. 52, 67 (1941). 

See Congressional Research Service, The Constitution of the 

United States ofAmerica: Ana/ysis and Inteipretation (Washington, DC, 1987), p. 281. 

5New York v. Miln, 36 U.S. (11 Pet.) 102, 158 (1837). 

6J?lorida Lime & Avocado Growers v. Paul, 373 U.S. 132 (1963). 

‘22 US. (9 Wheat.) l(1824). 

‘25 U.S. (12 Wheat.) 419 (1827). 

9Kenneth Starr, et. al., The Law of Preemption, A Report of the 

Appellate Judges Conference (Chicago: American Bar Association, 1991), p. 1. 

“The Commission on Intergovernmental Relations, A Report to 

rhe President for Transniittal to ilie Congress (Washington, DC, 

1955), pp. 63-64; US. Advisory Commission on Intergovernmental Relations, Regulatory Federalism: Policy, Process, Impact, 

and Reform (Washington, DC, 1984), p. 259; and “Federal 

Preemption of State and Local Authority,” Infergovernmental 

Perspective 14 (Winter 1988): 23-25. 

“Studiesof federal mandates are reviewed in Chapter 5 of ACIR, 

Regulatory Federalism. A recent inventory of federal “mandates” is found in Robert McCurley, Jr., “Federally Mandated 

State Legislation,” State-Federal Issue Brief 3 (June 1990). See 

also Timothy J. Conlan, “And the Beat Goes On: Intergovernmental Mandates and Preemption in an Era of Deregulation,” 

Publiics: The Jounial of Federalism 21 (Summer 1991): 43-57; 

Martha A. Fabricius, “Mandate Stratagems,” State Legislatures 

17 (November 1991): 13, and “The 102nd’s Multiplying Mandates,” State Legislatures 18 (January 1992): 17-18; Michael Fix 

and Daphne A. Kenyon, eds., Coping with Mandates: Wiat Are 

the Alternatives? (Washington, DC: The Urban Institute Press, 

1989); Richard C. Hicks, “Environmental Legislation and the 

Costs of Compliance,” Government Finance Review 8 (April 

1992): 7-10; Michael de Courcy Hinds, “U.S. Adds Programs 

with Little Review of Local Burdens,” New Yo& Times, March 

24,1992; John Kincaid, “From Cooperative to Coercive Federalism,” Annals of the American Academy of Political and Social 

US. Advisory Commission on Intergovernmental Relations 9 
Science 509 (May 1990): 139-152; Sarah E Liebschutz, “The Na- tional Minimum Drinking-Age Law,” Publius: The Journal of 

Fedemlism 15 (Summer 1985): 39-51; Susan A. MacManus, “ ‘Mad’ about Mandates: The Issue of Who Should Pay for 

What Resurfaces in the 1990s: Publius: The Joumul of Federal- ism 21 (Summer 1991): 59-75; Ellen Perlman, “Special Report: 

Mandates,” Ci& and State 7 (January 1, 1990): 16-18; Cathy 

Spain, “The Delicate Balance-Federal Preemption and Regulation of State and Local Governments,” Government Finance 

Review 8 (June 1992): 40-42; Donald Stypula, “When It Rains, It 

Pours . . . Federal Mandates,” Michigan Municipal Review 64 

(July 1991): 160-162; U.S. General Accounting Office, Legisla- tive Mandates: State Experiences Offer Insights for Fedeml Action 

(Washington, DC, 1988); Ray D. Whitman and Roger H. Bezdek, “Federal Reimbursement for Mandates on State and Lo- cal Governments,” Public Budgeting and Finance 9 (April 1989): 

47-62; and Joseph E Zimmerman, “Regulating Intergovern- mental Relations in the 1990s,” Annals of the American Acade- my of Political and Social Science 509 (May 1990): 48-59. 

10 U.S. Advisory Commission on Intergovernmental Relations 
I 

Chapter 2. FEDERAL PREEMPTION: CRITERIA, INVENTORY, AND APPROACHES 

The United States Constitution grants the Congress 

authority to preempt-or assume partial or total responsibility for-certain governmental functions (e.g., interstate 

commerce). Such preemption may be stipulated in a statute 

or inferred by the federal courts in the absence of an explicit 

statutory provision. Executive agencies also derive preemptions from federal statutes when they promulgate regulations. A federal preemption substitutes federal policy for 

state and local policies. 

In enacting a preemption statute, the Congress may 

prohibit state and local governments from doing something or may mandate that they undertake a specific activity 

and/or provide a service meeting minimum or maximum 

federal standards. 

Mandates are legal requirements-constitutional provi- sions, statutory provisions, or administrative regulationsrequiring state and local governments to undertake a specific 

activity and/or provide a service meeting federal standards. 

Sometimes these standards are established as minimum na- tional standards, such that state and/or local governments 

may enact more stringent standards. Mandates are based on 

the exercise of what has been calledpartial preemptive powers, as distinguished from restraints and conditions attached 

to federal grants-in-aid.’ me term mandate is used often 

without precise definition and is mistakenly applied to re- straints and conditions of aid.) 

A federal restraint restricts or prohibits specified state 

and local government actions. A restraint does not command action. 

Conditions attached to federal grants-in-aid are considered as a matter of law to be accepted voluntarily by the 

grant recipient; they are not formally preemptions or 

mandates.2 

Many federal preemption statutes impose costly man- dates on state and local governments. The issue of reimbursement of costs incurred as the result of federal 

mandates is left for a future study. The remainder of this 

chapter describes briefly the formal allocation of power between the Congress and the states under the U.S. Constitution, the preemption criteria advanced by the Kestnbaum 

Commission and the Advisory Commission on Intergovernmental Relations, and the principal forms of preemption 

used by the Congress to structure federal-state relations. 

Formal Power Allocation 

The drafters of the U.S. Constitution delegated limited, enumerated powers to the Congress and reserved all 

remaining powers to the states and to the people. The 

delegated powers include exclusive ones-coinage of 

money, declaration of war, and the formal conduct of 

foreign affairs through treaties and alliances-which 

states are forbidden to e~ercise.~ The Constitution forbids 

the Congress and the states to exercise certain other specified powers, such as issuing bills of attainder, enacting ex 

post facto laws, and granting titles of n~bility.~ 

The U.S. Constitution also provides for two types of 

concurrent powers. The first type (e.g., the power to tax) 

is not subject to formal preemption unless the power is 

used to discriminate against a group or to place an undue burden on interstate c~mmerce.~ The second type 

includes powers granted to the Congress and not prohibited to the states (e.g., the regulation of commerce). 

In the event of a direct conflict between a state statute 

and a federal statute or treaty with another nation, the 

supremacy clause of the Constitution provides for the 

federal law or treaty to prevail by nullifying the conflicting state law? Exercise of the second type of concurrent 

powersby the states is subject to total or partialpreemption by congressional enactment of a statute. 

States also are limited in the exercise of specified 

powers by the constitutional requirement that the Congressconsent to the exercise of those powers. Examples of 

such powers include entering into interstate compacts, 

levying import and tonnage duties, and keeping troops in 

time of peace.’ Although a literal reading of the Constitution makes clear that these powers are conditional, the 

U.S. Supreme Court, in reviewing a number of cases relating to these powers, has held in several instances that the 

consent of the Congress is not required for certain types of 

state exercises of these powers. For example, in 1893, the 

U.S. Supreme Court ruled that congressional consent is 

required for interstate compacts only if such compacts are 

“political,” affecting the balance of power between the 

Union and the states? Similarly, the Court held in 1975 that 

the prohibition on levying “imposts or duties on imports and 

exports” without the consent of Congress does not prohibit 

the levying of a property tax on imported products? 

Preemption Criteria 

The U.S. Constitution has proved to be very flexible, 

due in part to the absence of explicit criteria limiting the 

ability of the Congress to preempt the statutes and regulations of the states and their political subdivisions. Opposition to the draft Constitution in 1787 centered largely on 

U.S. Advisory Commission on Intergovernmental Relations 11 
fears that the Congress would employ its delegated powers 

aggressively to “produce. . . one consolidated government,” 

according to minority members of the Pennsylvania constitutional convention.’o 

Fear of centralized political power continued to be a 

key theme in American politics during the nineteenth 

century. That fear was accentuated in the twentieth century by (1) the growth of the federal government during the 

Great Depression; (2) rapidly increasing use of federal 

conditional grants-in-aid during the 1950s, 1960s, and 

1970s; and (3) following World War 11, occasional use of 

preemption to induce state and local governments to execute federal policies. 

The fear of rising centralization prompted President 

Dwight D. Eisenhower in 1953 to appoint a temporary 

Commission on Intergovernmental Relations, chaired by 

Meyer Kestnbaum, to study the federal system. In its 1955 

final report to the President and the Congress, the Kestnbaum Commission recommended that preemption powers be exercised by the Congress only under the following 

conditions: 

(a) When the federal government is the only 

agency that can summon the resources needed 

for an activity. For this reason the Constitution 

entrusts defense to the national government. 

Similarly, primary responsibility for governmental action in maintaining economic stability is given to the national government because it alone 

can command the main resources for the task. 

(b) When the activity cannot be handled within 

the geographical and jurisdictional limits of 

smaller units, including those that could be 

created by compact. Regulation of radio and television is an extreme example. 

(c) When the activity requires a nationwide uniformity of policy that cannot be achieved by interstate action. Sometimes there must be an 

undeviating standard and hence an exclusively 

national policy, as in immigration and naturalization, the currency, and foreign relations. 

(d) When a state through action or inaction does 

injury to the people of other states. One of the 

main purposes of the commerce clause was to 

eliminate state practices that hindered the flow of 

goods across state lines. On this ground also, national action is justified to prevent unrestrained 

exploitation of an essential natural resource. 

(e) When states fail to respect or protect basicpolitical and civil rights that apply throughout the 

United States.” 

The above principles are essentially a restatement of 

the delegated or expressed powers of the Congress, including those embedded in the Fourteenth Amendment. 

Continuing study by the U.S. Advisory Commission 

on Intergovernmental Relations (ACIR) of the issues relating to federal preemption led to the issuance in 1984 of 

a major report containing five principles to guide the Congress in exercising those powers: 

(1) To protect basic political and civil rights guaranteed to all American citizens under the Constitution; 

(2) To ensure national defense and the proper 

conduct of foreign relations; 

(3) To establish certain uniform and minimum 

standards in areas affecting the flow of interstate 

commerce; 

(4) To prevent state and local actions which substantially and adversely affect another State or its 

citizens; or 

(5) To assure essential fiscal and programmatic integrity in the use of federal grants and contracts 

into which state and local governments freely enter.’* 

In a follow-up study, the Commission found in 1987 

that “federal preemption, while a necessary feature in the 

design of a federal system, ought to be minimized and used 

only as necessary to secure the effective implementation 

of national policy adopted pursuant to the Constit~tion.”~~ 

The Commission also found that “preemption is properly 

a legislative decision, within appropriate constitutional 

constraints, and ought not to be exercised by administrative or judicial officers without prior legislative authorization and dire~tion.”~~ 

Building on these findings, the Commission adopted 

three recommendations: 

Recommendation 1: Expression of Legislative Intent. 

The Commission recommends that the Congress stipulate by 

law that no act of Congress shall be construed or interpreted as 

preempting related state and local authority unless the language of the statute explicitly expresses the intent of Congress 

to do so, and then onlyto the extent that state authority directly 

conflicts with the exercise of federal authority under the federal 

statute in question. 

Recommendation 2: Legislative Authorization of Administrative Preemption. 

(a) The Commission recommends that the Congress stipulate 

by law that no act of Congress authorizingtheprornuIgation of 

rules and regulations by an administrative agency shall be 

construed or interpreted as authorizing the preemption of state 

and local authority unless the language of the statute in authorizing such rules and regulations explicitly authorizespreemption by administrative regulation. 

(b) The Commission recommends jh+her that the Congress 

amend the Administrative Procedure Act in order to: (1) 

establish general criteria for the preemption of state and local 

authority by administrative regulation and (2) to direct that all 

such regulatory preemption of state and local authority be 

restricted to the minimum level necessary to achieve the objectives of the statute for which the rules and regulations are 

promulgated. 

12 U.S. Advisory Commission on Intergovernmental Relations 
(c) The Commission also recommends that any time the Congress authorizes the preemption of state and local authority by 

an adminisfrafive agency ii enumerate specrjk cn?ena and 

standards in accordance with which the agency is directed to 

exercise its preemption authority. 

(d) The Commission recommends, in conclusion, that the 

Congress also amend the Administrative Procedure Act to 

require that no rules or regulations promulgated by an administrative agency of the United States Government be construed 

or interpreted to preempt state and local authority unless the 

regulation explicitly expresses an intent to preempt. 

Recommendation 3: Judicial Review of Preemption. 

The Commission recommends that judicial review ofpreemption be conducted in such a manner as: 

(a) to require as a matter of constitutional law that both the 

Congress and administrative agencies must have erplicitly 

declared an intention to preempt state and local authority 

before the courts will construe as preemptive any act of the 

United States Government or rules and regulations promulgated under such an act; 

@) to require that the Congress, on the basis of thenon-delegation doctrine, must have supplied statutory criteria to govern 

preemption of state and local authority by administrative action before the courts will judge such action constitutional; 

(c) to scrutinize all acts of federal preemption, whether by 

statute or by administrative action, in order to determine that 

the extent of the preemption of state and local authority is no 

greater than necessary to give effect to the operation of the 

relevant statute enacted pursuant to the Constitution. l5 

Structuring Federal-State Relations 

The Congress has employed its powers of preemption 

in innovative ways to structure the role of the states in the 

American federal system in general and federal-state 

relations in particular. Over time, though, the Congress 

has tended to develop new solutions for problems without 

examining the effectiveness of previous preemptions and 

their effects on state and local governments. 

Experience with total preemption, however, convinced the Congress that the states can play important 

roles in administering certain statutes. For example, the 

Congress amended the atomic energy, grain standard, and 

railroad safety laws to authorize the federal government 

to turn back to the states limited regulatory authority for 

these functions. The Congress also has authorized the 

governor of New York to petition the Secretary of Transportation for removal of a particular preemption, and 

delegated authority to any governor or state legislature to 

veto a federal administrative decision based on a specified 

total preemption statute, subject to a veto ovemde by the 

Congress. 

Partial federal prccmption of the powers of states and 

their political subdivisions has become more commonplace since 1965 and has had a greater impact on federalstate relations than total federal preemption. For example, various congressional statutes provide for adoption of 

a state standard as a national standard, for state determination of additional uses for a federalfy regufatedproduct, 

for state transfer of regulatory responsibility to a federal 

government agency, and for other innovative actions. 

The extent of federal preemption has resulted in complex and changing federal-state relations that are confusing to many citizens, elected officials, and administrators. 

Preemptive powers employed to date include: 

(1) Total preemption, which denies a regulatory role 

(2) Assigning a responsibility to the states; and 

(3) Statutes that establish, through partial preemption, minimum national standards and authorize 

states to exercise primacy in regulating a specified 

activity, provided state standards are at least as 

high as federal standards and are enforced by the 

states. 

It is important to note that federal regulatory policies 

typically were administered by federal departments and 

agencies until 1965 when, through partial preemption, 

states were enlisted to administer policies meeting minimum national standards. Today, the federal government 

relies heavily on state-administered programs. 

It should also be noted that enactment of a total 

preemption statute by the Congress does not necessarily 

eliminate the need for state and local assistance to ensure 

the achievement of a federal policy objective. For example, the Nuclear Regulatory Commission has total responsibility for regulating nuclear power generating plants, but 

it lacks the resources to provide adequate protection to 

residents in the vicinity of the plants. Controversies involving emergency evacuation plans within a ten-mile 

radius of the Seabrook plant in New Hampshire and the 

Shoreham plant in New York illustrate the important public safety role of state and local governments if the goal of 

producing nuclear power is to be realized without undue 

hazards to residents.lb 

to the states; 

An Inventory of Federal Preemption Statutes 

As the inventory in Appendix A indicates, the Congress was initially slow to employ its powers of preemption.The Congress began by establishing its authority with 

respect to such specifically delegated powers as patents, 

copyrights, and bankruptcy. Then it expanded the scope of 

preemption with respect to interstate and foreign commerce. The first congressional preemptions in the field of 

civil rights were enacted during the Civil War and Reconstruction. The Congress did not exercise its power of partial preemption, however, until 1965 (environmental 

protection)." 

Anew era in federalism was initiated after World War 

11, when the Congress began to enact total preemptions 

more frequently. The eventual use of partial preemption-statutory establishment of minimum national standards designed to protect civil rights and voting 

rights-led to more congressional and judicial mandates 

being applied to state and local governments. 

U.S. Advisory Commission on Intergovernmental Relations 13 
Developing the Inventory 

To develop this inventory, federal laws were reviewed in the US. Statutes at Large. A set of decision 

rules was applied to avoid the inclusion of statutes that 

contain insignificant or tangential preemptions. AstatUte was included in this inventory if: 

rn It contained language preempting state or local government authority; 

rn The courts had ruled that the law was 

preemptive; or 

rn Committee reports, where available, indicated an intent to preempt. 

In cases where committee reports or court decisions were not available, statutes were included if they 

set forth federal standards or requirements of such 

detail or specificity that conflicts with state and local 

laws or ordinances would be unavoidable. Under those 

circumstances, preemption would result under general supremacy clause standards. 

With a few exceptions, this list contains the initial 

enactment of a preemption. Subsequent recodifications of the law or minor amendments to it, although 

they reenact the preemption, are not listed. For example, the Shipping Act of 1984 reenacted a preemptive 

provision that originated with An Act Relating ro Pilots 

and Pilot Regulation in 1866. 

Multiple preemptions within the same statute are 

listed only to the extent that they enact preemptions in 

different categories (e.g., the Outer Continental Shelf 

Lands Act Amendments of 1978 contain provisions relating to liability limits and information disclosure). A 

few exceptions were made for different titles of a law 

because they are of such importance or are so well 

known that they merit standing alone (e.g., the Fair 

Housing Act of 2968 and the Civil Obedience Act of 

1968 are two titles of the Civil Rights Act of 1968). 

Care was taken to exclude federal actions which, 

at first, appeared to impinge on state and local authority (e.g., restrictions on allowable highway speed limits), but which, on closer examination, were 

grant-in-aid conditions. Although it might be unrealistic to do so (especially in the Medicaid program), 

theoretically, states and localities could avoid these 

infringements by declining federal funding. They are, 

therefore, excluded from this listing. 

Cataloging these statutes is difficult because, frequently, preemptive language is adopted as a nongermane amendment to legislation. For example, the 

Federal Energy Management Improvement Act of 1988 

contains preemptive language relating to realistic 

looking toy guns. The increasing use of omnibus budget reconciliation legislation, often containing dozens 

of unrelated legislative initiatives, further complicates the cataloging effort. Resource constraints prevented a complete search of all relevant court decisions to determine the acts on which preemptions 

were found. As a result, some preemptive statutes 

may be missing from this inventory. 

The extent of preemption activity is demonstrated by 

the inventory in Appendix A, which lists 439 federal 

preemptive statutes by category and date of enactment. 

State and local authority has been preempted, in whole or 

in part, in a wide variety of areas traditionally considered 

to be state and local government responsibilities. 

A number of these acts, especially in the fields of 

banking, environmental protection, and transportation, 

contain multiple preemptive provisions. For example, the 

Clean Air Act Amendments of 1990 preempt state and local 

authority regarding emissions from non-road vehicles 

(Section 222), solid-waste combustion units (Section 305), 

and appliance design (Section 614), among other things. 

A full picture of the scope of federal intervention in 

state and local activities also must take account of the 

numerous federal statutes that have authorized general 

rulemaking by federal agencies, which, in turn, have adopted 

regulations that preempt state and local government authority as well (e.g., the Department of Housing and Urban Development Act of 1965). Resource constraints prevented a 

cataloging of these indirect preemption provisions. 

Trends in Preemption 

The earliest preemptions dealt with patents, bankruptcy, and other issues related to interstate commerce. 

Since the beginning of the twentieth century, a constant 

stream of interstate commerce preemptions has been enacted, involving labor, transportation, energy, and communications. 

As Appendix B demonstrates, preemptions involving 

labor issues, weights and measures, and agriculture became 

common between 1900 and the onset of the Depression. 

Since World War II, the federal government’s preemptive 

arm has stretched into consumer protection, energy security, 

communications, technology, and other fields. 

In accordance with its obligations under a number of 

international treaties, the federal government also has 

superseded state authority regarding fish and wildlife conservation. Preemption of state and local taxing authority, 

particularly regarding the transportation and banking industries, also has been common. 

Although the list of preemptive statutes is extensive, 

not all of the statutes fullypreempt state and local authority. Many of the statutes, or provisions thereof, fall into 

the category of partial preemptions. 

One type of partial preemption, a minimum standard 

preemption, contains language that preserves state or local authority to the extent that their laws and ordinances 

require higher standards than the federal law. State and 

local authority is superseded only to the extent that those 

governments set lower standards or their laws are inconsistent with federal statutes or regulations. Such an approach was taken in the Expedited Funds Availability Act of 

1987, which allows states to require that banks give cus14 U.S. Advisory Commission on Intergovernmental Relations 
tomers credit for deposits in less time than set by the 

federal law or by any regulation pursuant to that law. 

Preemption Relief 

In some instances, the Congress has acted to reduce 

the scope of preemption or provide some other measure 

of relief. Appendix A lists 34 statutes designed to reduce 

preexisting federal preemption of state and local governments or to clarify state and local authority in cases where 

preemption might otherwise result. 

Amendments to the Age Discrimination in Employment 

Act adopted in 1986, for example, allowed state and local 

governments to apply different age guidelines to fire fighters and law enforcement officials than they could apply to 

other employees. 

Federal preemptions not in these six main categories have been few. Examples include tort liability and 

election laws. 

Approaches to Preemption 

Several approaches to preemption are evident in the 

statutes, and the development of other approaches appears to be limited only by the innovative capacity of the 

members of Congress. The Congress has authorized the 

issuance of administrative and judicial rulings in cases 

where, short of total preemption, a specific statutory provision cannot clarify the degree of preemption. 

There are three broad categories of federal preemp- tion statutes-dual sovereignty, partial federal preemption, and total federal preemption. Each category is 

described below. 

Dual Sovereignty 

Without dual sovereignty, whereby the federal gov- ernment has supremacy for certain purposes and the 

states remain independent for other purposes, there 

would be no federal system in the United States. The 

governmental system would be either unitary or confederate. In establishing a federal system, the drafters of the 

U.S. Constitution recognized that there could be a clash 

between congressional power and state power; therefore, 

they included the “supremacy of the laws” clause (Art. VI) 

to ensure the integrity of national laws in such cases. 

Experience with the Articles of Confederation con- vinced the drafters of the Constitution of the need to 

delegate to the Congress the power to regulate interstate 

commerce. This power has proven to be the source of 

most, but not all, preemptive statutes. Its dormant nature 

and wide reach were described in 1949 by U.S. Supreme 

Court Justice Robert H. Jackson in the following terms: 

The commerce power is one of the most prolific sources of national power and an equallyprolific source of conflict with legislation of the 

states. While the Constitution vests in Congress 

the power to regulate commerce among the 

states, it does not say what the states may or may 

not do in the absence of congressional action, nor 

how to draw the line between what is and what is 

not commerce among the states. Perhaps even 

more than by interpretation of its written word, 

this Court has advanced the solidarity and prosperity of this nation by the meaning it has given to 

these great silences of the Constitution.18 

There are three types of dual sovereignty-state powers not subject to preemption, direct and positive conflict 

between state and federal laws, and administrative or judicial rulings precluding preemption. These types can be 

described as follows. 

State Powers Not Subject to Preemption. The states’ 

taxation power cannot be preempted formally by the Congress in the absence of evidence that a state tax imposes an 

inordinate burden on interstate commerce. For example, 

the U.S. Supreme Court in 1975 held that the constitutional prohibition of the levying of “imposts or duties on 

imports”by the states without the consent of the Congress 

does not prohibit the levying of a nondiscriminatory property tax on imported products.l9 

The Congress, however, may exercise the commerce 

power to nullify state taxation. For example, the U.S. 

District Court for the Northern District of California 

ruled in 1981 that “as a matter of federal supremacy, the 

power of the state to discriminate against rail transportation property for purposes of applying tax rates was 

preempted by the passage of the Railroad Revitalization 

and Regulatory Reform Act . . . in 1976.”20 The Court also 

has held that states cannot require out-of-state mail order 

firms to collect state use taxes unless such firms have a 

clear nexus with a state or unless the Congress permits 

such taxation.21 

The U.S. Supreme Court has ruled that states have 

the power to enter into nonpolitical compacts with each 

other. Although the U.S. Constitution states that an interstate compact requires the consent of Congress, the Court 

in 1893 held that such consent is required only if the states 

desire to enter into “political” compacts affecting the balance of power between the states and the Union.22 

Direct and Positive Conflict between State and Federal 

Laws. The Congress, in exercising its delegated powers, 

often includes a legislative provision stipulating that a state 

law on the same subject is valid unless there is a direct and 

positive conflict between the two, in which case the supremacy clause of the U.S. Constitution provides for the prevalence of the federal law. For example, in enacting the Civil 

Rights Act of 1964, the Congress stipulated that: 

Nothing in this Act shall be construed as indicating an intent on the part of Congress to occupy 

the field in which any such title operates to the exclusion of state laws on the same subject matter, 

nor shall any provision of this Act be construed as 

invalidating any provision of state law unless such 

provision is inconsistent with any of the purposes 

of this Act, or any provision 

Similarly, the Gun Control Act of1968 stresses: 

No provision of this chapter shall be construed as indicating an intent on the part of the 

Congress to occupy the field in which such provision operates to the exclusion of the law of any 

U.S. Advisory Commission on Intergovernmental Relations 15 
state on the same matter, unless there is a direct 

and positive conflict between such provision and 

the law of the state so that the two cannot be reconciled or consistently stand together.24 

The Drug Abuse Control Amendments of 1965 contain an 

almost identical provision.2s 

The Federal Railroad Safety Act of 1970 specifically 

authorizes the states to adopt laws, rules, regulations, 

orders, and standards that are more stringent than the 

counterpart federal ones “when necessary to eliminate or 

reduce an essentially local safety hazard, and when not 

incompatible with any federal law, rule, regulation, order, 

or standard, and when not creating an undue burden on 

interstate commerce.”26 

The Occupational Safety and Health Act of 1970 wntains slightly different wording: “Nothing in this Act shall 

prevent any state agency or court from asserting jurisdiction under state law over any occupational safety or health 

issues with respect to which no [federal] standard is in 

effect. . . .’’27 

Administrative or Judicial Rulings Precluding Federal Preemption. The Voting Rights Act of 1965 is a total 

preemption statute only if two conditions are met in a 

state or its political subdivisions-(1) a voting device, such 

as a literacy test, was employed in 1964 and (2) less than 50 

percent of the electorate cast ballots in the preceding 

presidential election.= The 1965 law was designed to prevent the abridgment of voting rights because of race or 

color. 

The 1975 amendments to the act broadened the coverage to include language minorities, defined as “persons 

who are American Indian, Asian American, Alaskan Natives, or of Spanish heritage,” and cited the Fourteenth 

and Fifteenth Amendments as authority for the act. The 

language minority “triggers” are pulled if either of the 

following conditions applies: 

(1) More than 5 percent of the citizens of voting age 

in a state or political subdivision are members of 

one language group and less than 50 percent of all 

citizens of voting age voted in the 1972 presidential election.29 

(2) More than 5 percent of the citizens of voting age 

in a jurisdiction are members of one language 

group and the illiteracy rate of the group exceeds 

the national illiteracy rate. 

Any proposed change in the election system of a covered state or local government must be submitted to the 

U.S. Attorney General. No change may be made unless 

the Attorney General does not register an objection within 60 days or the U.S. District Court for the District of 

Columbia issues a declaratory judgment that the proposed 

change would not abridge the right to vote of citizens 

protected by the act.3O 

Whereas the P5fing Rights Act provides for either an 

administrative or a judicial ruling precluding federal 

preemption, the Transportation Safety Act of 1974 provides 

for only an administrative ruling by the Materials Transportation Bureau of the U.S. Department of Transportatiom31 To avoid preemption, state requirements must 

afford an equal or greater level of protection than federal 

requirements and must not place an unreasonable burden 

on interstate commerce. 

In introducing consistency rulings of the Materials 

Transportation Bureau, the Research and Special Programs Administration of the Department of Transportation in 1984 wrote that the Congress, in effect, intended to 

establish a type of dual authority to regulate in the field. 

Despite the dominant role that Congress 

contemplated for departmental standards, there 

are certain aspects of hazardous materials transportation that are not amenable to exclusive nationwide regulation. One example is traffic 

control. Although the Federal Government can 

regulate in order to establish certain national 

standards promoting the safe, smooth flow of 

highway traffic, maintaining this in the face of 

short-term disruption is necessarily a predominantly local responsibility. Another aspect of hazardous materials transportation that is not 

amenable to effective nationwide regulation is 

the problem of safety hazards which are peculiar 

to a local area. To the extent that nationwide regulations do not adequately address an identified 

safety hazard because of unique local conditions, 

state or local governments can regulate narrowly 

for the purpose of eliminating or reducing the 

hazard. The mere claim of uniqueness, however, 

is insufficient to insulate a non-federal requirement from the preemption provisions of the 

Hh4TA.32 

An example of an administrative ruling is the request 

of the Nuclear Assurance Corporation for a determination about whether the prohibition of the transportation 

of radioactive materials on the facilities of the New York 

State Thruway Authority is inconsistent with and thereby 

preempted by the Hazardous Materials Transportation 

Safety Act of 1974. The key question was whether the 

corporation could comply with both the Thruway Authority rules and federal rules. The bureau held that the authority’s “rule is not based on any finding that 

transportation of highway route controlled-quantity radioactive materials over the Thruway would present an 

unacceptable safety risk” and the “rule thus stands as a 

repudiation of the Department’s rule of national applicability on highway routing of radioactive material^."^^ 

Partial Federal Preemption 

Under partial federal preemption, the Congress by 

statute, or federal administrative agencies by rules and 

regulations, may establish minimum national standards 

forafunction or service and authorize the states to wntinue to exercise primary regulatory responsibility, provided 

that state standards are at least as high as the national 

minimum and are enforced by state authorities. This general type of preemption permits a state to tailor regulatoy 

programs to meet special needs, conditions, and prefer16 U.S. Advisory Commission on Intergovernmental Relations 
ences, provided that the supervising federal agency certifies the state’s programs. 

Partial preemption permits dual regulation at the sufferance of the Congress, which at any time may preempt 

totally the responsibility for a regulatory function. In contrast to the type of dual sovereignty inherent in a federal 

system, the states under partial federal preemption may 

not continue to exercise primary regulatory responsibility 

unless each state voluntarily submits a plan to the appropriate federal agency and the agency certifies the plan as 

being in conformance with the congressional statute. 

In this section, three types of partial federal preemption 

of state and local government authority are described-standard, combined, and state transfer of regulatory authority. 

Standard Partial Preemption. Standard partial federal preemption can be described as “contingent” total 

preemption based on the “gun behind the door” theory 

that states have to be forced to initiate action to meet 

minimum national standards under the threat of losing 

primacy in regulating the partially preempted function. 

Under standard partial federal preemption, a state law 

supersedes the corresponding national law if state standards are equal to or higher than the national standards. 

The Water Quality Act of 1965 was the first partial 

federal preemption statute. The law directed that each 

state adopt “water quality standards applicable to interstate waters or portions thereof within such state” as well 

as an implementation and enforcement plan.34 The Secretary of the Interior (succeeded by the EPA Administrator) is 

authorized to promulgate interstate water quality standards, 

which become effective at the end of six months in the event 

that a state fails to establish adequate standards. 

The federal role was strengthened by other congressional enactments, particularly the Federal Water Pollution 

Control Act Amendments of 1972.35 The governors are directed to identify areas suffering water-quality control 

problems and to designate “a single representative organization, including elected officials from local government 

or their designees, capable of developing effective 

areawide waste treatment management plans” for each 

area. EPA issued regulations on September 14, 1973, giving governors until March 14, 1974, to designate or 

non-designate such areas and agencies.36 

The 1972 law was amended by subsequent acts, including the Cfean Water Act of 1977, which extended the 

coverage of the Water Pollution Control Act and stipulated 

that “itis the policy of Congress that the statesmanage the 

construction grant program under this Act and implement 

the permit programs under sections 402 and 404 of this 

In 1983, California returned its primacy for the 

construction grants program to EPA “because state officials believed the EPA required more of primacy states 

than it did of its own regional officials who served as 

implementors in states that did not accept primacy.”38 

The Air Quality Act of 1967completely preempted the 

right to establish motor vehicle exhaust-emission standards for 1968 and subsequent years for all states except 

California, which had tougher preexisting standards.” 

The act also partially preempted other air pollution abatement activities of state and local governments by following 

the general procedure embodied in the Water Quality Act 

of 1965. States were encouraged to assume primary enforcement responsibility, but federal action was authorized in the event of state inaction or inadequate action 

was combat air pollution. 

The Clean Air Amendments of 1970 represented a dramatic break with the earlier approach of relying on the 

states to provide the necessary leadership while taking 

into consideration the economic and technical feasibility 

of abatement Direct federal action to protect 

public health was made national policy, and dates were 

specified for state adoption of air quality standards and 

abatement plans. The amendments stipulated that 1975 

model automobiles must achieve a 90 percent reduction of 

the 1970 standards for emissions of carbon monoxide, 

hydrocarbons, and nitrogen oxides.41 

Idaho in 1981 “returned its air delegations to the EPA 

but reaccepted them in 1983 when EPA assured stringent 

enforcement within Idaho by contracting out supervision 

to a private firm; This incident illustrates that states will 

rescind their acceptance of primacy if it suits their political 

interest~.”~~ 

The Safe Drinking Water Act of 1974 is another partial 

preemption statute. It stipulates that “a state has primary 

enforcement responsibility for public water systems” provided the EPA Administrator determines that the state 

“has adopted drinking water regulations which . . . are no 

less stringent” than national ~tandards.4~ Should a state 

fail to adopt or enforce such standards, the agency applies 

national standards within that state. The act’s 1986 

amendments expanded coverage of contaminants and extended federal standards to underground sources of 

drinking water (this authority previously was scattered in 

various federal laws and regulation^).^^ 

The Surface Mining Control and Reclamation Act of 

1977 also is a standard partial preemption statute. Each 

state with coal-mined land eligible for reclamation may 

submit to the Secretary of the Interior a state reclamation 

plan and annual projects to be carried No federal 

funds are provided to a state for a reclamation program 

unless the state regulatory program has been approved. 

Combined Partial Preemption and Dual Sovereignty. 

The Occupational Safety and Health Act of 1970 combines 

partial federal preemption with traditional dual regulatory authority.& The law specifically stipulates that “nothing 

in this Act shall prevent any state agency or court from 

asserting jurisdiction under state law over any occupa tiona1 safety or health issue with respect to which no standard 

is in effect under section 6.”” 

The 1970 act also provides that a state agency may 

submit a plan to the Secretary of Labor to assume responsibility for the regulatory function, on the condition that 

state and local government employees be extended protection equivalent to that afforded private employees.a If 

the plan is approved by the Secretary, the Occupational 

Safety and Health Administration (OSHA) will pay up to 

half of the operating costs of the program. 

As of 1992, 21 states, Puerto Rico, and the Virgin 

Islands operate programs covering public and private sector employees. Connecticut and New York cover only 

U.S. Advisory Commission on Intergovernmental Relations 17 
public employees. An additional eight states had federal 

plan approval but withdrew from parti~ipation.4~ 

In 1986, EPA made final a proposed rule to protect 

state and local government employees from the potential 

hazards of asbestos-abatement work under authority of 

the Toxic Substances ControlAct of I976? OSHA normally is responsible for federal regulations protecting workers, but the agency’s authority does not extend to state and 

local government employees. However, as noted above, 

21 states have established employee protection standards 

as strict or stricter than OSHA’s rules and regulations. 

OSHA also has determined that worker protection regulations in Idaho, Kansas, Oklahoma, and Wisconsin are 

comparable to or more stringent than federal standards. 

The EPA regulation applies to the remaining states. 

There are three principal differences between the 

OSHA standard and the EPA regulations: 

= EPA includes a provision not in the OSHA rule 

that generally requires persons to report to EPA 

at least ten days prior to beginning an asbestos-abatement project using public employees. 

EPA uses a different definition of asbestos, consistent with other EPA regulations. Specifically, 

EPA does not include non-asbestiform tremolite 

fibers while OSHA does. 

EPA does not include the OSHA preference for 

rotating employees in and out of the work place to 

meet exposure limits rather than using respirators. 

State Transfer of Regulatory Responsibility. Another 

type of partial federal preemption is illustrated by the 

Wholesome Meat Act of 1967, which grants the Secretary of 

Agriculture the authority to inspect meat and to transfer 

that responsibility to a state that has enacted a law requiring meat inspection and reinspection consistent with federal ~tandards.’~ This act also allows the states to transfer 

responsibility for meat inspection within intrastate cornmerce to the U.S. Department of Agriculture. To date, 18 

states have initiated such a transfer. The Poultry Products 

Inspection Act of 1968 contains similar provisions, and 26 

states have shifted inspection responsibility to the U.S. 

Department of Agricult~re.~~ 

= 

rn 

Total Federal Preemption 

An examination of total preemption statutes enacted 

by the Congress since 1933 found ten distinctive types of 

complete assumption of regulatory authority: 

(1) No need for state and/or local assistance, 

(2) No state economic regulation allowed, 

(3) State and local assistance needed, 

(4) State activities exception, 

(5) Limited regulatory turnbacks, 

(6) Federal mandating of state law enactment, 

(7) Federal promotion of interstate compact forma- 

(8) Gubernatorial petition for preemption removal, 

tion, 

(9) State veto of a federal administrative decision, 

(10) Contingent total preemption. 

and 

Each of these types of preemption will be discussed briefly. 

No Need for State andlor Local Assistance. The first 

type involves statutes that can be implemented solely by 

the federal government, with no state or local government 

role. For example: 

In 1898, the Congress decided to nullify the bankruptcy laws of the states and made the U.S. District Court and the Superior Court of the District 

of Columbia responsible for handling bankruptcy 

cases.” By assigning total responsibility for this 

function to United States Courts, the Congress 

avoided the need to rely on states and/or their 

political subdivisions for assistance in carrying out 

the function. 

In 1967, responding to pressure from domestic 

motor vehicle manufacturers, who feared they 

might have to develop different specialized emission-control systems for each state, the Congress 

completely preempted the right to establish the 

standards for 1968 and subsequent years, except 

for California, which had tougher preexisting 

 standard^.^^ (State emission testing programs, 

however, are an essential part of many state implementation plansfor the attainment of airquality goals. The Clean Air Act Amendments of 1990 

allows states to adopt the California standards.) 

No State Economic Regulation Allowed. In enacting 

laws implementing deregulation of the airline and bus 

industries, the Congress took action to ensure that there 

would be no state economic regulation of those companies. The Airline Deregulation Act of 1978 added the following section to the Federal Aviation Act of I958 

Sec. 105. (1) Except as provided in paragraph (2) 

of this subsection, no state or political subdivision 

thereof and no interstate agency or otherpolitical 

agency of two or more states shall enact or enforce any law, rule, regulation, standard, or other 

provision having the force and effect of law relating to rates, routes, or services of any air carrier 

having authority under title IV of this Act to provide interstate air transportation. 

rn 

rn 

Except with respect to air transportation 

(other than charter air transportation) provided 

pursuant to a certificate issued by the board under section 401 of this Act, the provisions of paragraph (1) of this subsection shall not apply to any 

transportation by air of persons, property, or mail 

conducted wholly within the state of Alaska.s5 

The Bus Regulatory Reform Act of 1982 deregulated that 

industry and stipulated that there could be no state economic regulation of bus companies.s6 

So-called fair trade laws offer another example. 

These laws, which were enacted in a number of states 

18 U.S. Advisory Commission on Intergovernmental Relations 
during the Great Depression, typically provided that an 

agreement signed by a manufacturer with one retailer to 

maintain a fixed price for an article became binding on all 

retailers in the state. When state authority to enact such 

laws was questioned in view of the commerce clause, the 

Congress enacted the Robinson-Patman Act in 1936, validating such laws.57 The authorization for state fair trade 

laws was repealed as part of the economic deregulation 

movement of the 1970s. 

State and Local Assistance Needed. The Atomic Energy Ad of I946, as amended, assigned complete responsibility for the regulation of nuclear power plants to the 

Nuclear Regulatory Commission (formerly the Atomic 

Energy Commission). However, the lack of adequate resources makes the commission dependent on state and local 

governments for emergency personnel and equipment to 

protect public health and safety in the event of a radioactive 

discharge at a nuclear generating station. A major controversy swirled around attempts to repeal a commission regulation requiring emergency planning around new uvhn 

nuclear power plants, including establishment of ten-mile 

evacuation zones, before the plants are allowed to operate at 

full po~er.~*The state of Massachusetts and several towns in 

Massachusetts and New Hampshire refused to participate in 

federally sponsored evacuation exercises near the Seabrook 

nuclear power plant, and New York State and Suffolk 

County refused to participate in similar exercises near the 

Shoreham nuclear power plant. 

A second example involves the ban imposed by the 

Congress in the Safe Drinking Water Act Amendments of 

1986 on the use of lead pipes, solder, and flux in any public 

water system.s9 The amendments direct states to enforce 

the prohibition “through state or local plumbing codes, or 

such other means of enforcement as the state may determine to be appropriate.”60 Failure of a state to enforce the 

lead ban may result in the loss of 5 percent of federal 

grants under the act. 

State Activities Exception. In enacting the National 

Trafic and Motor Ehicle Safety Act of 1966, the Congress 

totally preempted responsibility for establishing safety 

standards. However, the act authorizes a state or local 

government to establish “a safety requirement applicable 

to motor vehicles or motor vehicle equipment procured 

for its own use if such requirement imposes a higher standard of performance than that required to comply with the 

otherwise applicable federal standard.’’61 

Limited Regulatory Turnbacks. Several total preemption statutes authorize a federal offid or agency to turn 

back limited regulatory responsibility to states. The United 

States Grain Standard Act of 1968 is totally preemptoty in 

that it stipulates that states and their political subdivisions 

may not “require the inspection or description in accordance 

with any standards of kind, class, quality, condition, or other 

characteristic of grain as a condition of shipment or sale of 

such grain in interstate or foreign commerce, or require any 

license for, or impose any other restrictions on, the perfomance of any official inspection function under this Act by 

official inspection personnel.”62 

The act also authorizes the administrator of the Federal Grain Inspection Service to delegate to state agencies 

authority to perform official inspection and ~eighing.6~ 

Currently, eight states are authorized to perform these 

functions at export locations, and 13 states do so at interior 

locations. Given that the states operate their programs on 

a fee-for-service basis, they incur no costs that must be 

reimbursed by the Federal Grain Inspection Service. 

Similarly, the Hazardous and Solid Waste Amendments 

of I984 allow the states to assume responsibility for EPA’s 

hazardous waste programsa The states have been partially preempted for hazardous waste programs since 1976. 

The Federal Railroad Safety Act of 1970 provides for 

state assumption of railroad in~pections?~ 

The Agreement State Program of the Nuclear Regulatory Commission is the largest and most successful program 

of voluntary state administration of federal laws and regulations. The Atomic Energy Act of1946, which totally preempts 

regulation of ionizing radiation, was amended in 1959 to 

authorize the commission to enter into agreements under 

which states would assume certain regulatory responsibilities.66 Twenty-nine states have signed such agreements. 

In contrast to partial federal preemption statutes, 

which assign regulatory responsibility to the states provided they adopt and enforce standards at least as high as 

federal standards, the Agreement State Program simply 

requires that a state radiation control program be compatible with, and not necessarily identical to, the commission’s regulatory program. 

New Mexico returned to the commission responsibility for the uranium mill licensing program in 1986, primarily because of the cost of the program, which was diverting 

Radiation Protection Bureau personnel from other licensing resp~nsibilities.~’ 

Federal Mandating of State Law Enactment. The 

Equal Employment Opportunity Act of 1972 and similar acts 

mandate that states comply with federal laws by enacting 

state laws under the threat of civil or criminal penalties.@ 

Since the Garcia v. Sun Antonio Metropolitan Transit Authority decision of 1985, state and local governments must 

comply with the provisions of the Fair Labor Standards Act 

of 1938 as amended or be subject to both civil and criminal 

penalties.69 A similar mandate is contained in the Federal 

Mine Safety and Health Act of 1977.’’ 

The Tax Equity and Fiscal Responsibility Act of 1982 

mandated that state and local governments making income tax refunds report that information to the Internal 

Revenue Service,71 necessitating amendment of state and 

local income tax laws to authorize the reporting. 

Federal Promotion of Interstate Compact Formation. 

The Low-Level Radioactive Wmte Policy Act of 1980 declares that “each state is responsible for providing for the 

availability of capacity either within or outside the state for 

the disposal of low-level radioactive waste generated within 

itsborden,” with the exceptions of such wastes generatedby 

national defense or federal research activities.72 The act 

encourages the formation of interstate compacts for this 

purpose, to take effect after “the Congress has by law consented to the compact. Each such compact shall provide that 

every five years after the compact has taken effect Congress 

U.S. Advisory Commission on Intergovernmental Relations 19 
may by law withdraw its consent.”73 Effective January 1, 

1986, a compact may provide that only wastes generated 

within a region may be disposed of within the region. 

The Low-Level Radioactive Waste Policy Amendments 

Act of1985 granted the consent of the Congress to seven 

interstate compacts.74 Several states have initiated action 

to locate a disposal site within their borders because Nevada, South Carolina, and Washington, which currently 

accept low-level wastes from other states, may refuse to 

do so effective January 1, 1993. 

Gubernatorial Petition for Preemption Removal.The 

Department of Transportation and Related Agencies Appropriation Act of 1986 stipulates that tolls on any bridge connecting Brooklyn and Staten Island, New York, are to be 

collected only as vehicles leave the bridge in Staten Island.75 

However, the Secretary of Transportation is authorized to 

remove the limitation on the petition of the governor. 

State Veto of a Federal Administrative Decision. The 

Nuclear Waste Policy Act of 1982 authorizes the Secretary 

of Energy to select a site for the construction of a high-level radioactive waste facility, but the site may be vetoed by 

the governor or the state legi~lature.~~ The Congress may 

override the state veto. 

Contingent Total Preemption. The l‘otingRights Act of 

1965, as amended, contains national provisions that are 

not applied to a state or a local government unless two 

conditions exist. The law automatically applies if the U.S. 

Attorney General determines that, as of November 1, 

1964, a test or device was employed to abridge the rights of 

citizens to vote because of race or color and the director of 

the U.S. Bureau of the Census determines that less than 

50 percent of citizens of voting age were registered to vote 

on November 1, 1964, or less than 50 percent of those of 

voting age voted in the 1964 presidential election.77 

If a determination is made that the act applies to a 

state or political subdivision, the covered jurisdiction becomes subject to the preclearance requirement, which 

prohibits any change, no matter how minor, in the election 

system unless the Attorney General, within 60 days of 

submission of a proposed change, fails to register an objection or the District Court for the District of Columbia, in 

response to an action initiated by the jurisdiction, issues a 

declaratory judgment that the change would not abridge 

the right to vote of citizens protected by the act. 

Summary 

This chapter has presented the results of an examination of federal preemption statutes. There are three basic 

approaches-dual sovereignty, partial federal preemption, and total federal preemption. The use of these mechanisms by the Congress since 1965 has produced major 

changes in intergovernmental relations and some confusion regarding the respective powers of the federal government and the states. 

Notes 

‘Joseph E Zimmerman, Federal Preemption: The Silent Revolution (Ames: Iowa State University Press, 1991). 

*South Dakota v. Dole, 483 U.S. 203 (1987). 

United States Constitution, art. I, sea. 8 and 10. 

Ibid., art. I, sea. 9 and 10. 

’Ibid., art. I, sec. 8. 

61bid., art. VI, para. 2. 

71bid., art. I, sec. 10. 

‘Virginia v. Tennessee, 148 US. 503 (1893). See also United 

States SteelCorp. v. Multistate TaxComm., 434U.S. 452(1978). 

Michelin Tire Corporation v. Wages, 423 U.S. 276 at 286 (1975). 

“Robert H. Walker, ed. i7ie Reform Spirit in America A Docu- mentation of Reform in the American Republic (New York G.P. 

Putnam’s Sons, 1976), pp. 25-26. 

“The Commission on Intergovernmental Relations, A Report to 

the President for Transmittal to the Congress (Washington, DC, 

l2 US. Advisory Commission on Intergovernmental Relations, 

Regulatory Federalism: Policy, Process, Impact, and Refonn 

(Washington, DC, 1984), p. 259. 

l3 “Federal Preemption of State and Local Authority,” Zntergovemmental Penpctive 14 (Winter 1988): 23. 

141bid., p. 24. 

l51bid., p. 25. 

I6For details of these controversies, see Joseph E Zimmerman, 

“Federal Preemption of State and Local Government Activities,” a paper presented at the 1986 annual meeting of the 

American Political Science Association, Washington, DC, pp. 

16-20. See also Zimmerman, “Regulating Atomic Energy in a 

Federal System,” Publius: Tlze Journal of Federalism 18 (Summer 19881 51-65. 

17Water Quality Act of 1965,79 Stat. 903,33 U.S.C. $5 1151 et 

=q. 

“H.P. Hood & Sons, Incorporated v. DuMound, 336 U.S. 525 at 

534-35 (1949). 

lgMichelin Tire Corporation v. Wages, U.S. 276 at 286 (1975). 

20Trailer Train Company v. State Board of Equalization, 538 E 

Supp. 509 at 599 (1981). 

21National Bellas Hess v. Illinois Department of Revenue, 386 

U.S. 753 (1967) and Quill Corporation v. North Dakota, 119 L 

Ed. 2d 91 (1992). See also US. Advisory Commission on Intergovernmental Relations, State Tmtion of Znterstate Mail Order 

Sales: Estimates of Revenue Potential, 1990-1992 (Washington, 

DC, 1991). 

1955), pp. 63-64. 

”Virginia v. Tennessee, 148 US. 503 (1893). 

23Civil Rights Act of 1964,78 Stat. 268d, 2 U.S.C 9 206. 

24Gun Control Act of 1968,82 Stat. 1226, 18 U.S.C. 9 921. 

2SDrug Abuse Control Amendments of 1965, 79 Stat. 235, 21 

26Federal Railroad Safety Act of 1970,84 Stat. 972, 45 U.S.C.g 

270ccupational Safety and Health Act of 1970, 84 Stat. 1608,29 

2’Voting Rights Act of 1965,79 Stat 437,42 U.S.C. 5 1973. 

%Voting Rights Act Amendments of 1975,89 Stat. 402,42 U.SC. 

55 1973a, 1973d, and 19731. 

30Voting Rights Act of 1965,79 Stat. 438,42 U.S.C. 5 1973c. See 

also, Charles L Cotrell, ed., “Assessing the Effects of the US. 

Voting Rights Act,” Publius: The Joirnial of Federalism 16 (Fall 

1986). 

31Transportation Safety Act of 1974,88 Stat. 2156,49 U.S.C. $5 

1801 et seq. See also 49 CFR 170-79. 

U.S.C. 5 321. 

151. 

U.S.C. 5 667. 

20 US. Advisory Commission on Intergovernmental Relations 
32 U.S. Department of Transportation, “Hazardous Materials: In- consistency Rulings IR-7--IR-15,” Federal Register, November 

27, 1984, p. 46633. 

331bid., p. 46646. 

34 Water Quality Act of 1965, 79 Stat. 903, 33 U.S.C. QQ 1151 et 

3sFederal Water Pollution Control Act Amendments of 1972,70 

36Federal Register, September 14, 1973, pp. 25681 et seq. 

37Clean Water Act of 1977, 91 Stat. 1575,33 U.S.C. Q 1251. 

38Patricia M. Crotty, “The New Federalism Game: Options for 

thestates,” apaperpresented at the 1986 annual meeting of the 

Northeastern Political Science Association, Philadelphia, 

Pennsylvania, p. 13. 

39Air Quality Act of 1967,81 Stat. 485,42 U.S.C. $3 1857-18571. 

40CleanAirActAmendmentsof 1970,84Stat. 1676,42U.S.C. $9 

411bid., $5 1421 and 1430. 

42Cr~tty, “The New Federalism Game,” p. 13. 

43Safe Drinking Water Act of 1974,88 Stat. 1665,42 U.S.C. 9 201. 

“Safe Drinking Water Act Amendments of 1986,100 Stat. 642,42 

45Surface Mining Control and Reclamation Act, 91 Stat. 445,30 

460ccupational Safety and Health Act of 1970, 84 Stat. 1590, 5 

471bid., 84 Stat. 1608, 29 U.S.C. Q 667. 

481bid. 

“U.S. Department of Labor, Occupational Safety and Health 

Administration, “State Programs: Background” (Washington, 

DC, July 1992). 

soFederal Register, July 12,1985, pp. 28530 et seq. See also the Toxic Substance Control Act, 90 Stat. 2003, 15 U.S.C. QQ 2601 et 

seq. 

seq. 

Stat. 498. 

1857 et seq. and 49 U.S.C. QQ 1421 and 1430. 

U.S.C. Q 3OOg-1. 

U. S.C. QQ 1201 et seq. 

U.S.C. Q.5108. 

5’Wholesome Meat Act, 81 Stat. 59521 U.S.C. Q 71. 

52Po~lt~ Products Inspection Act, 82 Stat. 791,21 U.S.C. $451. 

53Bankruptcy Act of 1898, 30 Stat. 544, 11 U.S.C. $9 1 et. seq. 

Congress in 1933 established the U.S. Bankruptcy Court to han- dle all bankruptcy filings. Bankruptcy Act of 1933,47 Stat. 1467, 

54Air Quality Act of 1967,81 Stat. 485,42 U.S.C. $5 1857 et seq. 

55Airline Deregulation Act of 1978,92 Stat. 1708,49 U.S.C. 55 

11 U.S.C. Q 101. 

1305 and 1371. 

56B~s Regulatory Reform Act of 1982,96 Stat. 1104,49 U.S.C. Q 

s7Robinson-Patman Act of 1936,49 Stat. 1526, 15 U.S.C. 5 13a. 

58Emergency Plans, 10 CFR Q 50.47 (1986). 

59Safe Drinking Water Act Amendments of 1986,100 Stat. 651,42 

601bid., 100 Stat. 652,42 U.S.C. Q 300g. 

61National Traffic and Motor Vehicle Safety Act of 1966,80 Stat. 

62United States Grain Standard Act, 82 Stat. 769,7 U.S.C. 9 71. 

63 Ibid. 

64Hazardous and Solid Waste Amendmentsof 1984,98 Stat. 3256, 

42 U.S.C. $0 6297-298 and 6901-991. 

65Federal Railroad Safety Act of 1970,84 Stat. 971,45 U.S.C. QQ 

431 et seq. 

66Atomic Energy Act of 1946,60 Stat. 755,42 U.S.C. $ 2011 and 

Atomic Energy Act of 1959,73 Stat. 688,42 U.S.C. 5 2021. 

67Mem~randum dated March 19,1986, to New Mexico Governor 

Toney Anaya from Director Denise Fort of the Environmental 

Improvement Division, pp. 4-5. 

@Equal Employment Opportunity Act of 1972,86 Stat. 104,42 

U.S.C. Q 2000 (e)@). 

@Fair Labor Standards Act of 1938,52 Stat. 1060,29 U.S.C. QQ 

201-19 et. seq. 

70Federal Mine Safety and Health Act of 1977,83 Stat. 803,30 

U.S.C. QQ 801 et seq. 

71Tax Equity and Fiscal Responsibility Act of 1982,% Stat. 603,26 

U.S.C. Q WE. 

72Low-Level Radioactive Waste Policy Act of 1980.94 Stat. 3347, 

42 U.S.C. Q 2021d. 

731bid., 94 Stat. 3348, 42 U.S.C. $ 2021d. 

74Low-Level Radioactive Waste Policy Amendments Act of 1985, 

99 Stat. 1842,42 U.S.C. $9 2021b et seq. 

75Department of Transportation and Related Agencies Appropriation Act of 1986,9!9 Stat. 1288. 

76Nuclear Waste Policy Act of 1982, 96 Stat. 2217,42 U.S.C. Q 

10125. 

77V~tingRightsAct of1965,79Stat. 437,42 U.S.C. $ 1973. Subsequent amendments changed the wording of the reference to the 

presidential election to the most recent election. See Joseph E 

Zimmerman, “The Federal Voting Rights Act and Alternative 

Election Systems,” William and Mary Law Review, Summer 

10521. 

U.S.C. $ 300g. 

719, 15 U.S.C. $ 1291(d). 

1978, pp, 621-60. 

U.S. Advisory Commission on Intergovernmental Relations 21 
22 U.S. Advisory Commission on Intergovernmental Relations 
Chapter 3. STATE OFFICIALS' PERCEPTIONS OF FEDERAL PREEMPTION 

The preemption statutes enacted by the Congress in 

recent years now rival grant-in-aid statutes in their structuring of federal-state relations. The extensive research 

on conditional grants, however, contrasts sharply with the 

limited analyses of federal preemption outside of the legal 

analyses found in law reviews. This chapter helps rectify 

that imbalance by presenting the results of a survey of the 

views of state officials toward federal preemption. 

Table 3-1 

Questionnaires Returned 

Classified by Region and Respondent, 

1987-1988 

Questionnaires Questionnaires Response 

Distributed Returned Rate 

Region' (number) (number) (percent) 

Survey Scope and Methods 

To assess the impact of federal preemption and perceptions regarding the desirability of various statutory approaches, a questionnaire was sent in 1988 to each governor, 

attorney general, and state community affairs department, 

and to the 26 ACIR state counterpart organizations (state 

ACIRs).' A second, more detailed questionnaire was sent to 

the heads of state departments or agencies responsible for 

agriculture; atomic energy; banking; environmental protection; labor, health, and safety; natural resources; and transportation and public works. 

Returns were received from 25 governors, 23 attorneys general, 25 departments of community affairs, and 15 

state ACIRs (see Table 3-1).2 Returns also were received 

from 34 departments of agriculture; 10 atomic energy 

agencies; 18 departments of banking; 35 environmental 

protection agencies; 31 departments of labor relations, 

health, and safety; 21 departments of natural resources; 

and 24 departments of transportation or public works. 

Multiple questionnaires were returned from a few states 

where two or more agencies had responsibility for a function. 

Because several questionnaires were completed only 

partially, the total number of responses for each question 

often varies. Particularly disappointing was the limited 

response of departments and agencies concerning specific 

federal preemption statutes in their regulatory fields. 

The failure of many officials to return questionnaires 

and the partial responses to certain questions necessitates 

caution in drawing firm conclusions about state officials' 

perceptions of federal preemption based on the survey 

data alone. 

Survey Findings 

Each questionnaire contained four general questions 

relating to federal preemption. In addition, the governors, 

attorneys general, community affairs departments, and 

Northeast 30 17 57% 

North Central 39 18 46 

South 52 27 52 

West 39 22 56 

Total 160 84 52 

Respondents 

Governo? 50 25 50 

Attorney General 50 23 46 

Department of 

Community Affairs3 50 25 50 

State ACIR4 24 15 63 

' Northeast-Connecticut, Maine, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, and 

Vermont. 

North Central-Illinois, Indiana, Iowa, Kansas, Michigan, 

Minnesota, Missouri, Nebraska, North Dakota, Ohio, South 

Dakota, and Wisconsin. 

South-Alabama, Arkansas, Delaware, Florida, Georgia, Kentucky, Louisiana, Maryland, Mississippi, North Carolina, Oklahoma, South Carolina, Tennessee, Texas, Virginia, and West 

Virginia. 

West-Alaska, Arizona, California, Colorado, Hawaii, Idaho, 

Montana, Nevada, New Mexico, Oregon, Utah, Washington, 

and Wyoming. 

One governor replied by letter. 

The state agency responsible for community affairs vanes and 

may be a Department of Community Affairs or a division within other departments, such as Commerce and Economic Development. 

Responses were received from Connecticut, Florida, Illinois, 

Iowa, Maine, Maryland, Michigan, Missouri, New Jersey, New 

York, North Carolina, South Carolina, South Dakota, Texas, 

and Vermont. 

U.S. Advisory Commission on Intergovernmental Relations 23 
state ACIRs were asked to rate the desirability of each 

type of preemption described in Chapter 2 and to respond 

to the following questions: 

- Has partial or total preemption helped solve any 

problems (such as air or water pollution) in your 

state that originated largely in another state? 

- Is there a need to clarify federal and state responsibilities and liabilities in federal preemption statutes, for example, by including a “code of 

restrictions” describing specifically what state 

and local governments cannot do? 

- Has partial or total preemption ever prevented 

your state from pursuing policies your state prefers? 

- Do federal agencies override state decisions on a 

case-by-case basis? 

- Should federal preemption statutes contain a 

“sunset” provision requiring the Congress to consider whether statutov changes are needed? 

State departments were asked questions pertaining to 

federal preemption statutes applicable to their functional 

areas. 

The responses were grouped into five categories: 

(1) Amount of preemption; 

(2) Amount of authority delegated to federal administrators and courts; 

(3) Latitude for state action provided by statutory 

(4) Restrictions on state actions; and 

provisions for structuring state-local relations; 

(5) Potential improvements in federal preemption 

laws. 

The questionnaire and tables containing a regional breakdown of responses are included as Appendices C and D. 

Amount of Preemption 

On the question of how much federal preemption 

there should be, 60 percent or more of the governors, 

attorneys general, community affairs departments, bank- ing departments, and environmental protection agencies 

are convinced that there is too much federal preemption 

(“able 3-2). In contrast, only 30 percent of the atomic 

energy agencies, 38 percent of the state ACIRs, and 41 

percent of the agricultural departments responded that 

there is too much federal preemption. 

Typical of comments volunteered by the first group is 

this view from a governor: 

As a general rule, I have been opposed to federal 

preemption of state law. I have always supported 

the concept of having decisionmaking at levels 

closest to the people. Yet I do understand that 

there are circumstances which dictate the use of 

preemption. For example, I support the use of 

preemption in the areas of voting rights and air 

quality. . . . Conversely, I do not support the 

preemption doctrine as it has been used to limit 

state and local governments’ abilities to regulate 

wages and hours of their employees. 

An attorney general commented that he had to inform 

the state legislature two or three times a year that various 

proposed actions were preempted by federal law. 

It is not surprising that the highest rate of question- naire returns from state agencies came from departments 

of environmental protection and agriculture because their 

responsibilities are preempted heavily by federal statutes. 

Sixty percent of the environmental officials reported that 

there is too much federal preemption, compared to 41 

percent of the agriculture departments. Interestingly, 

only31 percent of state atomic energy agencies, operating 

under a total preemption statute, responded that there 

was too much preemption. 

A majority of the governors, attorneys general, and 

community affairs departments responded that the federal 

government preempts state actions more than necessary to 

achieve its policy objectives (see Table 3-2). The other state 

agencies were divided on this question; for example, 30 

percent of the atomic energy agencies and 62 percent of 

departments of natural resources responded that the federal 

government preempts state actions more than necessary. 

The strongest opposition to preemption by state agri- culture departments came from the north central states, 

and these departments also tended to view the level of 

preemption as being more than necessary (see Appendix 

D, Table D-1). Two departments, however, indicated that 

the extent of preemption was less than necessary to 

achieve national goals. Counsel Herbert L. Cohen of the 

California Department of Food and Agriculture pointed 

out the difficulty in generalizing when he wrote that a 

single preemption statute often involves “multiple 

preemption issues” and added: 

The Poultry and Poultty Products Inspection Act, 21 

U.S.C. § 451 et seq. . . . will serve as an example. 

Section 467e contains a broad preemption clause. 

Compare 21 U.S.C. 3 678 of the Federal Meat Inspection Act containing comparable provisions. The 

California poultry industly competes with imports 

from other states. It would likely strongly favor the 

concept of label preemption per section 467e as to 

product description and strongly oppose label 

preemption prohibiting a state requiring label attribution of the state of production. The industry 

would perhaps be split as to preemption of net 

weight labeling, which is based on the concept of 

net weight at time of introduction into interstate 

commerce, rather than net weight at time of retail 

sale. Probably, the industry would be generally fa- vorable to preemption of separate state grade stan- dards. Consumer groups would likely disfavor 

preemption as to net weight labeling and place of 

production. State government views are not static. 

On the question of whether partial or total preemp- tion has helped solve a problem in one state that originated largely in another state, the most common response 

was “no”-28 percent of the governors, 40 percent of the 

attorneys general, 40 percent of the community affairs 

departments, and 13 percent of the state ACIRs. Only a 

small number of the respondents answered “yes”. 

24 U.S. Advisory Commission on Intergovernmental Relations 
Table 3-2 

State Officials’ Perceptions of Amount of Federal Preemption, 1988 

In general, is there too much, just about enough, or too little federal preemption of state activity? 

No Response Total* Too Much About Enough Too Little Don’t Know 

Number Percent Number Percent Number Percent Number Percent Number Percent Number Percent 

3 12 25 100 15 60 6 24 0 0 1 4 

Attorneys General 15 65 5 22 0 0 3 13 0 0 23 100 

Community Affairs Departments 16 64 8 32 0 0 1 4 0 0 25 100 

State ACIRs 9 38 4 17 0 0 2 8 9 38 24 100 

Labor Relations, Health and Safety Departments 15 48 13 42 0 0 2 6 1 3 31 100 

Natural Resources Departments 11 52 9 43 0 0 1 5 0 0 21 100 

Agricultural Departments 14 41 17 50 0 0 3 9 0 0 34 100 

Atomic Energy Agencies 3 30 6 60 0 0 1 10 0 0 10 100 

Banking Departments 12 67 6 33 0 0 0 0 0 0 18 100 

Environmental Protection Agencies 21 60 11 31 2 6 1 3 0 0 35 100 

Governors 

0 0 24 100 12 50 8 33 0 0 4 17 Transportation or Public Works Departments 

Does the federal government preempt state actions more than necessary to achieve its policy objectives? 

3 12 25 100 

0 0 23 100 

15 60 0 0 6 24 1 4 

14 61 0 0 3 13 6 26 

14 56 0 0 9 36 2 

6 25 1 4 6 25 2 

45 14 45 1 3 

13 62 2 10 2 10 4 

wl 12 50 6 25 1 4 

12 35 12 35 2 6 

9 50 7 39 0 0 2 11 

Governors 

Attorneys General 

8 0 0 25 100 

8 9 38 24 100 

2 6 0 0 31 100 

19 0 0 21 100 

5 21 0 0 24 100 

5 15 3 9 34 100 2 Atomic Energy Agencies 3 30 5 50 0 0 2 20 0 0 10 100 

8’ Environmental Protection Agencies 20 57 10 29 3 9 2 6 0 0 35 100 

e Community Affairs Departments 

vl State ACIRs 

Labor Relations, Health and Safety Departments 

S. Natural Resources Departments 

3 Transportation or Public Works Departments 

Agricultural Departments 

Banking Departments 

14 

0 0 18 100 ”. 

Has partial or total preemption helped to solve any problem (such as air or water pollution) in your state that originated largely in another state? 

4 Governors 

8 State ACIRs 

Attorneys General 

Community Affairs Departments 

E 

E 

E. *Percentages may not total 100% due to rounding. 

ul n 

h) 

VI 

No Response Total* Don’t Know 

Number Percent Number Percent Number Percent Number Percent 

2 8 5 20 7 28 6 24 

Yes, Several Times Yes, Once or Twice No 

Number Percent Number Percent 

5 20 25 100 

9 39 2 9 23 100 

0 0 4 16 10 40 1 4 10 40 25 100 

2 9 0 0 10 43 

7 29 24 100 3 13 1 4 3 13 10 42 
Labor relations, health, safety, and natural resources 

departments in the West expressed the strongest opposition to federal preemption (see Appendix Table D-2). 

Among state transportation departments, those in the 

north central region reported the strongest objections to 

preemption, but one southern department responded that 

there was less preemption than necessary. 

Amount of Authority Delegated 

The survey contained four questions about the 

amount of authority delegated by preemption statutes: 

(1) Does the Congress delegate authority to make 

preemption decisions to federal administrative 

agencies too often? 

(2) Do the federal courts too often infer preemption 

where the Congress did not specifically preempt 

state action? 

(3) Is it desirable for the Congress to authorize an 

administrative agency to issue preemption rulings? 

(4) Is it desirable for the Congress to authorize a 

federal court to issue a declaratory judgment that 

a proposed action is not preempted? 

On the question of delegating preemption decisionmaking to administrative agencies, the “too often” response ranged from 20 percent of the atomic energy 

agencies to 65 percent of the attorneys general (see Table 

3-3). Fifty percent of the banking and transportation or 

public works departments checked the same response. In 

general, most of the respondents checked “too often” or 

“often enough.” 

One governor, two agricultural departments, four environmental protection agencies, and four labor relations, 

health, and safety departments responded that the Congress does not delegate authority to make preemption 

decisions to administrative agencies often enough. 

On the question of the desirability of federal courts 

inferring preemption, a significant number of respondents 

in each category checked “frequently” or “sometimes.” 

None of the state ACIRs and only 8 percent of the governors responded “frequently,” but more than one-third of 

the attorneys general did so. 

Preemption and Environmental Problems. The question of whether preemption helped a state solve a problem 

that had originated largely in another state (e.g., air and 

water pollution) brought a variety of responses. Some 

governors noted that it could work for water but not for air 

pollution, and that setting national minimum standards 

and relying on federal-state cooperation is a workable 

approach to national remediation policies. 

Comments of attorneys general indicated that this 

mechanism could work only if enforced by the federal 

government. 

Both the Congress and EPA were criticized by a number of state departments and agencies. For example, one 

environmental agency wrote: 

Congress, in setting the highest priority on attaining the six national air quality standards, has 

shaped all air pollution control program structures and has restricted the resources available to 

pursue other pollutant controls or control approaches. The FCAA sanctions allowing EPA to 

restrict highway funding or new industrial growth 

are examples of the force the federal government 

can bring to bear to promote the accomplishment 

of its priorities in this regard. 

Other respondents commented that EPA (1) takes 

enormous liberties in its interpretation of its overview 

authority for the Clean Air Act, (2) specifies requirements 

(air) with no knowledge of how they are to be implemented, (3) is out of touch with reality, (4) is too interested 

in quantitative performance indicators, (5) does little to 

understand the unique problems of the states and to facilitate management for environmental results, and (6) produces delays and inconsistencies on rule interpretations, 

enforcement of policies, and permitting policies. 

One department reported that it had sought delegation 

of all federal programs as provided by federal environmental law, but has begun to question this policy and has 

contemplated return of primacy where there is a substantial and unresolved discrepancy between federal and state 

priorities. On the same subject, another department wrote: 

The principal barrier to assuming “primacy” over 

federal environmental programs . . . has been a 

lack of available funding to support the additional 

work required to administer federal programs. In 

addition, the EPA, in reviewing state authority to 

administer federal programs, has not shown sufficient deference to the state agencies’ interpretations of their own laws. As a consequence, the 

Environmental Protection Agency pressures the 

state to change state law when no change is necessary because state law is in fact equal to or more 

stringent than federal requirements. 

The same department expressed concern about state 

environmental regulation of federal facilities, noting that 

“state regulation of federal facilities is preempted absent a 

waiver of sovereign immunity.” Although the Clean Water 

Act and other federal environmental laws expressly waive 

sovereign immunity, these waivers have been interpreted 

narrowly by many federal agencies. The department reported that EPA supports the state’s interpretation of its 

authority over federal facilities, but the US. Department 

of Justice backs the other federal agencies’ refusal to 

comply with state law and state rules and regulations. 

On the issue of worker protection laws (see Appendix 

Table D-4), a state department of labor reported that “at 

times, federal preemption is exercised in such a way that 

worker protections guaranteed under state laws are nullified, with negative consequences to workers, their families and union.” Other departments of labor commented 

that the federal requirement that state standards be as 

stringent as OSHA standards is very restrictive and that 

there are problems resulting from federal preemption in 

the area of fringe benefits. 

26 U.S. Advisory Commission on Intergovernmental Relations 
Table 3-3 

State Officials’ Perceptions of Amount of Preemption Authority Delegated, 1988 

Does the Congress delegate authority to make preemption decisions to federal administrative agencies too often, often enough, or not often enough? 

Too Often Often Enough Not Often Enough Don’t Know No Response Total* 

Number Percent Number Percent Number Percent Number Percent Number Percent Number Percent 

Governors 9 36 8 32 1 4 4 16 3 12 25 100 

Attorneys General 15 65 5 22 0 0 3 13 0 0 23 100 

Community Affairs Departments 10 40 12 48 0 0 2 8 1 4 25 100 

State ACIRs 9 38 3 12 0 0 3 12 9 38 24 100 

Labor Relations, Health and Safety Departments 10 32 11 35 4 13 6 20 0 0 31 100 

Natural Resources Departments 9 43 8 38 0 0 4 19 0 0 21 100 

Transportation or Public Works Departments 12 50 7 29 0 0 5 21 0 0 24 100 

Agricultural Departments 12 35 14 41 2 6 6 18 0 0 34 100 

Atomic Energy Agencies 2 20 6 60 0 0 2 20 0 0 10 100 

Banking Departments 9 50 9 50 0 0 0 0 0 0 18 100 

Environmental Protection Agencies 13 37 13 37 4 12 5 14 0 0 35 100 

Do the federal courts too often infer preemption where the Congress did not specifically preempt state action? 

Yes, Frequently Yes, Sometimes No Don’t Know No Response Total* 

Number Percent Number Percent Number Percent Number Percent Number Percent Number Percent 

Governors 2 8 11 44 3 12 6 24 6 24 25 100 

Attorneys General 8 35 9 39 3 13 3 13 0 0 23 100 

Community Affairs Departments 4 16 10 40 4 16 6 24 1 4 25 100 

State ACIRs 0 0 6 25 1 4 8 33 9 38 24 100 

F Labor Relations, Health and Safety Departments 6 19 12 39 1 3 12 39 0 0 31 100 

In Natural Resources Departments 4 19 8 38 2 10 7 33 0 0 21 100 * Transportation or Public Works Departments 3 13 7 29 0 0 14 58 0 0 24 100 

Atomic Energy Agencies 0 0 4 40 1 10 5 50 0 0 10 100 

Banking Departments 2 11 11 61 1 6 4 22 0 0 18 100 2 Environmental Protection Agencies 1 3 17 49 3 9 14 40 0 0 35 100 

a 

z. 

$ Agricultural Departments 3 9 10 29 3 9 16 47 2 6 34 100 

Congress occasionally authorizes an administrative agency to issue preemptive rulings. 01 

g. Most Desirable Least Desirable 

a -1- -2- -3- -4- -5- No Response Total+ 0 Number Percent Number Percent Number Percent Number Percent Number Percent Number Percent Number Percent a 

2 Governors 0 0 1 4 12 48 6 24 2 8 4 16 25 100 

P Attorneys General 1 4 2 9 4 17 5 22 2 9 9 39 23 100 

,$ State ACIRs 1 4 2 8 3 13 4 17 5 21 9 38 24 100 

2 

s 

5 Community Affaiirs Departments 3 12 5 20 7 28 3 12 6 24 1 4 25 100 

Congress may authorize a federal court to issue a declaratory judgment that a proposed action is not preempted. rn 

1 4 11 44 7 28 3 12 0 0 3 12 25 100 

Commnity Affairs Departments 10 40 7 28 3 12 1 4 3 12 1 4 25 100 s. State ACIRs 2 8 6 25 5 21 2 8 0 0 9 38 24 100 

3 Governors ’ Attorneys General 7 30 6 26 5 22 4 17 0 0 1 4 23 100 

0 

3 

t3 

01 

4 *Percentages may not total 100% due to rounding. 
Regarding natural resources, one department reported that EPAand the Office of Surface Mining insist on 

a “one size fits all” approach to regulation, which puts 

states in the difficult position of having to develop and 

implement a regulatory program to address state concerns 

and problems despite the federal agencies. 

By way of contrast, a department of highways noted 

that the U.S. Department of Transportation and the U.S. 

Department of Energy have conflicting requirements for 

transportation of hazardous materials; yet the state department “accommodated federal preemption with little 

complaint. This is not to say that a substantial amount of 

time and money was not expended to conform.” 

Courts Inferring Preemption. To date, the Voting 

Rights Act of1965 is the only statute authorizing a court to 

issue declaratory judgments on federal preemption. It authorizes an administrative ruling by the U.S. Attorney General and a declaratory judgment by the U.S. District Court 

for the District of Columbia as to whether a proposed 

change in a state or local election system was preempted. 

Issuing administrative rulings on preemption is a 

quick and inexpensive method for determining the extent of a statutory preemption, thereby providing guidance to states as to how much discretionary regulatory 

authority they retain. 

Asked about the desirability of administrative rulings, 

on a scale of 1 (most desirable) to 5 (least desirable), no 

governor and only one attorney general checked 1. Three 

community affairs departments checked 1 and five other 

departments checked 2. Most of the governors (72 percent) checked 3 and 4, compared to 39 percent of the 

attorneys general. The community affairs departments 

registered the highest percentage (32 percent) of most 

desirable or desirable responses. 

One governor objected to this mechanism on the 

ground that federal agencies are granted too much latitude in determining whether “unspecified state statutes 

are null and void, regardless of the practical outcome for 

the state.” He also stressed that this mechanism results in 

the states carrying the burden of defending their statutes 

in the U.S. District Court. 

Attorneys general had diverse views on the administrative rulings mechanism. On one hand, it permits flexibility and can provide a relatively speedy response 

compared to litigation or legislative review (even though 

limiting state and local action). On the other hand, such a 

ruling can leave the agency with the authority to “legislate” on its own behalf and is undesirable. One attorney 

general, commenting on the Hazardous Materials Transportation Act, stated that a review of case law shows that 

the U.S. Department of Transportation “virtually always 

finds that preemption has occurred, except in those few 

instances in which a court says it has not.” He added: 

Since Congress has provided virtually no guidance to DOT on how to determine inconsistency 

with the federal statutes, DOT has fashioned its 

own criteria based on its own reading of the objectives of the statute. Where a state may have different priorities, it may be prevented from 

enforcing them, no matter how valid they may be 

in the individual case. 

Four state ACIRs commented on this question. Two 

of them said that the courts are the more appropriate 

forum for this function, but agreed that agencies can provide some guidance. Two ACIRs said that agencies should 

not be permitted to make such judgments. State officials 

clearly prefer the issuance of a declaratory judgment by a 

court to administrative rulings. Nearly half of the governors, more than half of the attorneys general, and more 

than two-thirds of the community affairs departments said 

that court judgments are most desirable or desirable (1 or 2). 

Most of the attorneys general who commented on this 

approach said that courts are a more desirable forum 

because their rulings are presumably definitive and more 

objective. One preferred congressional determination 

and one thought the administrative remedy best. 

One community affairs department and one state 

ACIR criticized this approach as applied to small local 

governments, which may find it overly complex, expensive, and time consuming. Another community affairs department, citing the federal Eting Rights Act, suggested 

that the local U.S. District Court is in a far better position 

to judge the merits of a local case than the District Court 

for the District of Columbia and should be authorized to 

issue the judgment. One governor and one state ACIR 

noted that declaratory judgments allow governments to 

ascertain the legality of issues before assuming liabilities 

that would be challenged. 

Latitude for State Action 

State officials were asked eight questions about the 

desirability of the devices the Congress uses to provide 

states with a degree of latitude in initiating action under 

federal preemption statutes (see Tables 3-4 and D-7). 

Again, the scale was 1 (most desirable) to 5 (least desirable). 

1. States may regulate if their standards are as high as 

federal standards. This is standard partial preemption, described in Chapter 2, and most respondents rated the 

approach most desirable or desirable. 

Governors comments were generally positive, noting 

that this mechanism can help states deal with issues that 

go beyond their borders and allow them to establish higher 

standards. The governors saw potential problems ifneighboring states have different standards, if the federal minimum standard is so low that the higher state standards 

have little impact on problems originating chiefly in other 

states, if the federal standard imposes a fiscal burden on 

state and local governments, and if administrative costs 

are not funded adequately. 

The attorneys general who commented on this approach found it generally desirable because it permits the 

states to address particular problems and allows for shared 

responsibilities. Two community affairs departments and 

one state ACIR rated this device highly for interstate 

boundary issues. Other state ACIRs viewed federal standards as sometimes unrealistic and costly, and maintained 

that minimum standards should be established by law, not 

by bureaucratic edict. 

I 

I 

28 U.S. Advisory Commission on Intergovernmental Relations 
Table 3-4 

State Officials' Perceptions of Latitude for State Action, 1988 

States may regulate if their standards are as high as federal standards. 

Most Desirable Least Desirable 

-1- -2- -3- -4- -5- No Response 

Number Percent Number Percent Number Percent Number Percent Number Percent Number Percent 

Governors 4 16 12 48 6 24 1 4 0 0 2 8 

Attorneys General 9 39 11 48 2 9 1 4 0 0 0 0 

Community Affairs Departments 9 36 12 48 2 8 2 8 0 0 0 0 

State ACIRs 2 8 12 50 1 4 0 0 0 0 9 38 

State law is valid unless there is a direct and postive conflict with a federal law. 

Governors 8 32 11 44 4 16 0 0 0 0 2 8 

Community Affairs Departments 16 64 3 12 3 12 0 0 1 4 2 8 

F State ACIRs 7 29 4 17 1 4 3 13 0 0 9 38 

vl 

;P 

4 

Attorneys General 8 35 10 43 3 13 2 9 0 0 0 0 

Congress may permit states to act where no federal standard is in effect. VI $ Governors 9 36 9 36 3 12 1 4 0 0 3 12 

9 Attorneys General 7 30 9 39 5 22 0 0 1 4 1 4 

B Community Affairs Departments 10 40 10 40 3 12 1 4 0 0 1 4 E. State ACIR~ 3 13 9 38 1 4 2 8 0 0 9 38 

z. 

0 

0 

3 

3 Congress may authorize states to transfer inspection authority to a federal agency, c( 

Governors 6 24 6 24 9 36 0 0 0 0 

+ Attorneys General 7 30 6 26 5 22 2 9 1 4 

g Community Affairs Departments 10 40 10 40 5 20 0 0 0 0 

State ACIRs 3 13 9 38 3 13 0 0 0 0 

Congress may authorize a limited regulatory turnback by a federal agency to states. 

Governors 3 12 16 64 3 12 0 0 0 0 

Community Nfairs Departments 8 32 13 52 2 8 0 0 1 4 

t2 State ACIRS 1 4 12 50 0 0 2 8 0 0 

rn 8 

3 

E 

;* Attorneys General 2 9 10 43 7 30 1 4 1 4 

4 16 

2 9 

0 0 

9 38 

3 12 

2 9 

1 4 

9 38 

Total* 

Number Percent 

25 100 

23 100 

25 100 

24 100 

25 100 

23 100 

25 100 

24 100 

25 100 

23 100 

25 100 

24 100 

25 100 

23 100 

25 100 

24 100 

25 100 

23 100 

25 100 

24 100 
W 

0 

c 

Table 3-4 (cont.) 

State Oficials’ Perceptions of Latitude for State Action, 1988 

P * 

n 

5. Congress may exempt states from provisions of a regulatory statute. 

Most Desirable Least Desirable 

- 1- -2- -3- -4- -5- No Response Total* 

Number Percent Number Percent Number Percent Number Percent Number Percent Number Percent Number Percent 

Governors 6 24 5 20 8 32 1 4 1 4 4 16 25 100 

4 17 5 22 9 39 5 22 0 0 0 0 23 100 z. g Attorneys General 

o Community Affairs Departments 4 16 10 40 7 28 3 12 1 4 0 0 25 100 

State ACIRs 3 13 4 17 7 29 1 4 0 0 9 38 24 100 F 

B 

(8 

Attorneys General 1 4 6 26 6 26 3 13 2 9 5 22 23 100 5 Community Affairs Departments 9 36 6 24 6 24 3 12 1 4 0 0 25 100 & State ACIRs 2 8 6 25 2 8 3 13 2 8 9 38 24 100 

z. 

3 

e Congress may authorize a governor to petition a federal department to remove the preemption. (D 

2 8 11 44 6 24 2 8 0 0 4 16 25 100 a 3 Governors 

!% 

~1 Governors 

Congress may authorize a governor or state legislature to veto a federal administrative decision subject to an override by Congress. 

6 24 7 28 3 12 4 16 1 4 4 16 25 100 

Attorneys General 6 26 9 39 2 9 2 9 1 4 3 13 23 100 

Community Affairs Departments 11 44 8 32 2 8 0 0 3 12 1 4 25 100 

State ACIRs 4 17 6 25 2 8 3 13 0 0 9 38 24 100 

3 

*Percentages may not total 100% due to rounding. 
2. State law is valid unless there is a direct and positive

conflict with a federal law. This approach was rated most

desirable by 64 percent of the community affairs departments, 35 percent of the attorneys general, and 32percent

of the governors. The only least desirable rating was given

by a community affairs department.

The two governors who commented had opposite

views. One of them called the approach very desirable,

providing for state flexibility and protecting state law unless federal courts find a “direct and positive conflict”

between state and federal law. The other governor wrote

that this device has the potential for causing unanticipated

disruptions for states (e.g., the Garcia decision).

Some attorneys general pointed out that it is difficult

to define a direct and positive conflict. Another commented that the approach shows congressional intent and

would be helpful to the states. Similarly, a state ACIR

wrote that the approach, at least on the surface, recognizes the constitutional basis for the relationship between

the states and the federal government.

3. The Congress maypermit states to act where no federal

standard is in effect. Not surprisingly, a large majority of the

respondents rated this approach as most desirable or desirable (1 or 2)-72percent of the governors, 69 percent of

the attorneys general, and 80 percent of the community

affairs departments.

Governors noted that this approach allows states to

take the initiative when there is no federal standard and to

achieve an effective balance between federal policy mandates and state program implementation that is sensitive

to local conditions and concerns. The attorneys general

who commented were equally positive about this approach, as were community affairs departments.

4. The Congress may authorize states to transfer inspection authority to a federal agency. Nine governors rated the

approach a neutral 3, while 12 rated it most desirable or

desirable (1 or 2), as did 20 community affairs departments. No governor and no department of community

affairs rated this device as not desirable or least desirable

(4 or 5). Attorneys general were more divided; two rated

the device 4 and one gave it a 5.

Governors descriied the device as encouraging states to

establish and manage their own programs and ensuring administrative efficiency in the coordination of federal and

state programs, but they noted that the federal government

should reimburse states for a portion of administrative costs.

Attorneys general and state ACIR respondents who commented also said this approach is desirable.

5. The Congress may authorize a limited regulatory

turnback by a federal agency to states. This device drew a

most desirable or desirable rating from 76 percent of the

governors, 52 percent of the attorneys general, and 84

percent of the departments of community affairs. No governor rated the device as somewhat undesirable or least

desirable.

One governor commented that a turnback is desirable

when (1) states are given flexibility to develop their own

approaches and (2) federal funds are provided to pay for

mandated activities.

Two attorneys general took the middle ground, rating

this approach better than a mandate but leaving little

discretion to the states. Others noted that turnbacks protect minimum standards and are acceptable, provided that

preemption authority is clear. Opinions of community

affairs and state ACIR officials ranged from most desirable to somewhat undesirable unless the revenues are also

turned back.

6. The Congress may exempt states from provisions of a

regulatory statute. Forty-four percent of the governors

rated this approach most desirable or desirable, compared

to 39 percent of the attorneys general and 56 percent of

the departments of community affairs.

While the governors who commented described the

approach as generally desirable, their opinions varied: (1)

states should not be required to establish a standard higher than the federal standard; (2) federal regulations

should apply in some cases, such as interstate commerce

and the environment; and (3) state regulations should be

flexible and should meet or exceed the federal standard.

The attorneys general who commented had a similar

range of views.

7. The Congress may authorize a governor to petition a

federal department to remove the preemption. Although 44

percent of the responding governors rated this approach

as desirable, only 8 percent said it is most desirable. No

governor assigned the lowest rating to this approach. The

attorneys general ratings were similar to the governors’,

but 36 percent of the departments of community affairs

rated the approach most desirable.

Among the governors’ comments were that (1) this

approach is less desirable than congressional stipulation

that a state law is valid unless there is a positive conflict

between state law and federal law on the same subject or

congressional authorization for the transfer of responsibility, (2) such a formal appeal mechanism allows a state to

demonstrate undue hardship or the unanticipated negative impact of a specific federal preemption, and (3) the

practice is an inconsistent patchwork process.

The attorneys general who commented felt generally

that this approach gives states a political choice, although

one added the qualifier of making sure there are constitutional guidelines for granting or rejecting such petitions.

Only one attorney general offered a negative opinion (uneven administration and subject to politics).

8. The Congress may authorize a governor or state legislature to veto a federal administrative decision subject to an

override by the Congress. Fifty-two percent of the responding governors rated this approach desirable or most desirable, compared to 65 percent of the attorneys general and

76 percent of the departments of community affairs.

Two governors commented on this approach, one say

ing that it is desirable if the state veto is final and the other

noting that congressional override may be essential to

address a critical national issue. Although one attorney

general described the approach as “just politics,” others

noted that it seems to be a reasonable alternative and that,

U.S. Advisory Commission on Intergovernmental Relations 31
while the ultimate authority remains federal, it is better to 

have the final say in Congress than in an agency. Community 

affairs and state ACIR officials saw this approach as a good 

check-and-balance process for issues of national importance. 

Restrictions on State Actions 

State officials were asked seven questions about federal preemption statutes that restrict the independence of 

state action (see Tables 3-5, D-3 and D-8). 

1. The Congress may forbid states to enact economic 

regulations of an industry. The most common rating for this 

practice was undesirable (4). 

Two governors commented on this approach, one seeing it as desirable as long as rural states do not suffer from 

deregulation (such as a loss of service). The other governor stated that it is desirable when dealing with interstate 

commerce, but it often prevents the regulation of purely 

intrastate activities, leaving states powerless to prevent 

improper and/or injurious activities by an industry on its 

citizens, even though state action would have little, if any, 

national consequences. The comments of the attorneys 

general, community affairs departments, and state ACIRs 

echoed concerns about intrastate regulation and consumer protection issues. 

2. The Congress may require states to enforce a federal 

statute. There was substantial divergence in perceptions 

among state officials about this practice. Whereas most 

governors and attorneys general rated it neutral (3), somewhat undesirable (4), or least desirable (5), four departments of community affairs rated it most desirable and six 

departments rated the approach desirable. 

Of the governors who commented, one saw this approach as desirable by virtue of the flexibility it provides to 

states to determine an appropriate enforcement mechanism. Another governor rated this approach least desirable because states are not permitted to exercise the 

administrative and policy flexibility inherent in some of 

the other preemption mechanisms. All of the governors 

who commented objected to the requirement that the 

states pay for enforcement. 

All of the attorneys general raised the funding issue. 

Some questioned the constitutionality of the Congress 

enacting a standard and requiring the states to pay the cost 

of enforcement. Although there were comments that this 

approach may be a good policy for health and safety issues 

and that state enforcement is more effective than creating 

a separate federal capability, the departments of community affairs and the state ACIRs also raised the issue of 

states having to pay for enforcement. 

3. The Congress may require states to enact a law complying withprovisions of a federal law. While no governor rated 

this approach as most desirable and only one said it was 

desirable, one attorney general (4 percent) and six departments of community affairs (24 percent) rated the approach most desirable. However, 40 percent of the 

governors, 39 percent of the attorneys general, and 40 

percent of the community affairs departments gave this 

approach the least desirable rating. 

The governors and attorneys general who commented 

called this approach undesirable mainly for the same reasons as with requiring states to enforce a federal statutethe constitutionality of the practice and the costs to the 

states. Some attorneys general said this is the most intrusive tactic and is unenforceable. On the other hand, some 

departments of community affairs found the approach 

most desirable in some cases. 

4. The Congress may assign responsibility for a function to 

the states. Thirty-five percent of the attorneys general 

rated this approach as most desirable, compared to only 16 

percent of the governors. Interestingly, no governor and 

only one attorney general and one department of community affairs rated this approach least desirable. 

Governors and attorneys general called this approach 

desirable because of the flexibility it gives states to form 

interstate compacts, which can develop policies and programs that reflect the needs and priorities of the affected 

parties. One attorney general stressed that the Congress 

cannot “assign” anything. Comments from departments 

of community affairs also focused on the necessity of interstate compacts for responding to conditions that may 

vary widely among regions. 

5. The Congress may enact a national suspensive law that 

becomes effective within a state if specified conditions prevail. 

While no governor rated this device least desirable, only 8 

percent rated it most desirable. In general, governors and 

attorneys general rated the device 2 or 3, but 24 percent of 

the departments of community affairs rated it as 1. 

nKo governors commented that the use of this approach needs to be on a case-by-case basis, and one noted 

that preemption power should be used in this manner only 

when there is a clear and compelling denial of the constitutional rights of a group of citizens. 

Attorneys general agreed that this mechanism could 

keep preemptions from applying to those not affected, 

and that its workability would depend on the particular 

case (e.g., the Eting Rights Act). 

6. Do federal agencies 0vern.de state decisions on a 

case-by-case basis? The most common response to this 

question was “sometimes”-48 percent of the governors 

and attorneys general, and 40 percent of the community 

affairs departments checked this response. One governor 

and five departments of community affairs checked “almost always.” Interestingly, the “don’t know” response 

was checked by six governors, four attorneys general, five 

state ACIRs, and nine community affairs departments. 

7. Has partial or total preemption ever prevented your 

state from pursuing policies your state prefers? A significant 

percentage of each group of respondents checked “yes, 

several times,” ranging from 36 percent of the community 

affairs departments to 40 percent of the governors and 53 

percent of the attorneys general. 

Combining the first two categories of responses, 60 

percent of the governors, 83 percent of the attorneys general, and 64 percent of the community affairs departments 

reported that partial or total federal preemption had pre32 U.S. Advisory Commission on Intergovernmental Relations 
Table 3-5 

State Officials’ Perceptions of Restrictions on State Action, 1988 

Congress may forbid states to enact economic regulations of an industry. 

Most Desirable Least Desirable 

-1- -2- -3- -4- -5- No Response 

Governors 2 8 6 24 3 12 8 32 3 12 3 12 

Attorneys General 3 13 1 4 6 26 11 48 2 9 0 0 

Community Affairs Departments 3 12 6 24 8 32 7 28 0 0 1 4 

Number Percent Number Percent Number Percent Number Percent Number Percent Number Percent 

State ACIRs 3 13 2 8 2 8 6 25 2 8 9 38 

Congress may require states to enforce a federal statute. 

Governors 2 8 3 12 7 28 9 36 1 4 3 12 

Attorneys General 1 4 2 9 7 30 5 22 6 26 2 9 

Community Affairs Departments 4 16 6 24 7 28 3 12 3 12 2 8 

State ACIRs 1 4 3 13 1 4 6 25 4 17 9 38 

Congress may require states to enact a law complying with provisions of a federal law. 

9 Governors 0 0 1 4 4 16 7 28 10 40 3 12 

? Attorneys General 1 4 0 0 1 4 10 43 9 39 2 9 * Community Affairs Departments 6 24 0 0 6 24 3 12 10 40 0 0 4 

5 

E’ Governors 4 16 10 40 8 32 2 8 0 0 1 4 

8 35 2 9 10 43 2 9 1 4 0 0 

0 Community Affairs Departments 8 32 7 28 3 12 5 20 2 8 0 0 

State ACIRs 3 13 7 29 4 17 0 0 1 4 9 38 

6 

2 

rD 1 

rD Most Desirable Least Desirable 3 - 1- -2- -3- -4- -5- No Response 2 Number Percent Number Percent Number Percent Number Percent Number Percent Number Percent 

w 

Governors 2 8 6 24 6 24 2 8 0 0 9 36 $- Attorneys General 1 4 10 43 6 26 1 4 2 9 3 13 

VI Community Affairs Departments 6 24 6 24 7 28 2 8 4 16 0 0 

8 State ACIRS 3 13 7 29 3 13 1 4 0 0 10 42 

6’ State ACIRs 0 0 0 0 4 17 4 17 7 29 9 38 

c1 

3 

3 

g Attorneys General 

0 

Congress may assign responsibility for a function to the states. 

-. 

v 

0 

4 

Congress may enact a national suspensive law that becomes effective within a state if specified conditions prevail. 

; 

3 

Total* 

Number Percent 

25 100 

23 100 

25 100 

24 100 

25 100 

23 100 

25 100 

24 100 

25 100 

23 100 

25 100 

24 100 

25 100 

23 100 

25 100 

24 100 

Total* 

Number Percent 

25 100 

23 100 

25 100 

24 100 
w Table 3-5 (cont.) 

c 

I" 

P 

State Oflicials' Perceptions of Restrictions on State Action, 1988 

9 iz 

b. v1 

a" 

n 

Do federal agencies overide state decisions on a case-by-case basis? 

Almost Always Sometimes Rarely Not At All Don't Know No Response 

Number Percent Number Percent Number Percent Number Percent Number Percent Number Percent .- 

0 

9 Governors 1 4 12 48 2 8 0 0 4 16 6 24 

Community Affairs Departments 5 25 10 40 1 5 0 0 9 45 0 0 

8. Attorneys General 0 0 11 48 5 22 0 0 6 26 1 4 

0 0 9 38 1 4 0 0 5 21 9 38 1 

3 State ACIRs 

Has partial or total preemption ever prevented your state from pursuing policies your state prefers? 

Yes, Several Times Yes, Once or Twice No Don't Know No Response 

Number Percent Number Percent Number Percent Number Percent Number Percent 

m 

3 Governors 

Attorneys General 

Community Affairs Departments 

g. State ACIRs 

J 

rA 

10 40 5 20 1 4 3 12 6 24 

12 53 7 30 1 4 2 9 1 4 

9 36 7 28 0 0 7 28 2 8 

5 21 6 25 0 0 4 17 9 38 

Total+ 

Number Percent 

25 100 

23 100 

25 100 

24 100 

Total+ 

Number Percent 

25 100 

23 100 

25 100 

24 100 

~ ~ ~ 

*Percentages may not total 100% due to rounding. 
vented their states from pursuing policies that states prefer once, twice, or several times. 

Several governors responded “yes”, citing (1) the 

OSHA community “right to know” statute, (2) environmental problems, (3) asbestos hazards, (4) the national 

vaccine program, (5) transportation issues, (6) the 55 mph 

speed limit, (7) water compacts, (8) regulation of banks 

and other financial institutions, (9) public utility regula- tion, and (10) public safety. 

Attorneys general who responded “yes” cited (1) cable 

TV regulation, (2) transporting nuclear waste, (3) operation 

of tandem trailers, (4) the 55 mph speed limit, (6) the 

21-year-old age requirement for alcoholic beverage purchase, (7) nuclear power plant regulation, (8) age discrimination, (9) state securities laws, (10) oil and gas production and 

transportation, (11) water management, (12) corporate gov- ernance, and (13) state employees’ political activity. 

Departments of community affairs and state ACIRs 

had similar lists, many including environmental issues, 

industry regulation, and welfare programs. 

Potential Improvements in Preemption Laws 

Questions were asked regarding two possible improvements in federal preemption statutes-codes of restrictions and sunset provisions (see Tables 3-6 and D-9). 

Code of Restrictions. It has been suggested that the 

Congress include in each preemption statute a “code of 

restrictions” detailing actions that states and localgovernments may not initiate or may initiate only by following 

specified procedures. 

The attorneys general were overwhelmingly in favor of 

a code (74 percent), compared to 44 percent of the governors 

and 48 percent of the community affairs departments. 

The governors and attorneys general who commented 

believe that such a code, with a clear statement of congressional intent for preemption enactments, would be help- ful in defining state and local responsibilities and avoiding 

litigation. The departments of communityaffairsand state 

ACIRs generally concurred with these comments. 

Negative responses to this question were received 

from five governors, two attorneys general, and five com- munity affairs departments. Three governors, three attorneys general, and seven community affairs departments 

responded “don’t know.” 

Sunset. Is there a need for a “sunset” provision requiring periodic congressional review in each preemption 

statute? A large majority of the respondents checkedyes, 

but differed as to whether the time should be 15,10, or 5 

years. Governors were closely divided between ten years 

(32 percent) and five years (36 percent), and attorneys 

general were equally divided between these two provisions (35 percent each). Sixty percent of the community 

affairs departments favored a five-year sunset provision. 

The governors and attorneys general who commented 

mentioned a ten-year sunset provision most often, but 

they also stated that the necessity for such a provision 

should be considered case by case. Some noted that such a 

review is necessary for the delicate federal-state balance 

that is a continuing concern of federalism. One suggestion 

was for an initial three-year review, followed by ten years if 

the preemption passes muster. 

0 L. 

Y 

E 

B 

5 a 

U.S. Advisory Commission on Intergovernmental Relations 35 
Summary 

There is a consensus among state officials who responded to the survey that there is too much federal 

preemption and that the Congress delegates too much 

authority to federal administrators. Nevertheless, many 

respondents acknowledge the need for federal preemption under certain circumstances. 

Most respondents were neutral in rating the issue of 

occasional congressional authorization for a federal administrative agency to issue preemptive rulings. Most preferred to have the Congress authorize a federal court to 

issue a declaratory judgment on preemption of a proposed 

action. 

In general, state officials rated highly (1) standard 

partial preemption, (2) a federal statutory provision stipulating that a state law is valid unless there is a direct and 

positive conflict with a federal law, and (3) congressional 

permission for states to act where no federal standard is in 

effect. 

There was a division of opinion about congressional 

authorization for states to transfer inspection authority to 

a federal administrative agency, with community affairs 

departments most favorable to the approach and attorneys general rating it least favorable. Respondents expressed strong opposition to federal statutes forbidding 

states to enact economic regulation of an industry. 

Congressional requirements that states enforce a federal statute received negative ratings from most governors 

and attorneys general, but favorable ratings from ten departments of community affairs. Congressional authorization for a federal administrative agency to make a limited 

turnback of regulatory authority to states was viewed favorably by most respondents. 

A federal statute requiring states to enact a law complying with provisions of a federal law received a large 

least desirable rating; yet one attorney general and six 

departments of community affairs rated the approach 

most desirable. 

Respondents gave a high rating to federal statutes 

authorizing a governor or state legislature to veto a federal administrative decision subject to an override of the 

veto by the Congress. Less enthusiasm was expressed for 

federal suspensive laws that become effective within a 

state if specified conditions prevail. 

Federal preemption, according to state officials, does 

not often solve problems in their states originating in 

other states. Furthermore, preemption often prevents 

states from pursuing policies they prefer. 

The suggestion for a code of restrictions in eachfedera1 preemption statute received strong positive ratings, 

particularly from attorneys general. In addition, there was 

nearly unanimous agreement that each preemption statute should contain a sunset provision, although there were 

differences of opinion as to the appropriate time. 

Notes 

‘Manyofthesestatebodies arestructured in thesameway as the 

U.S. Advisory Commission on Intergovernmental Relations. 

There are, however, variations in these organizations’ names, 

structures, and relationships to the governors’ offices and the 

state legislatures. There are active ACIR type state-local rela- tions organizations in 26 states. See U.S. Advisory Commission 

on Intergovernmental Relations, State-Local Relations Olgaiiimfions: i%e ACIR Counterparts (Washington, DC, 1991). 

*A questionnaire was classified as prepared by the governor if 

completed at the governor’s direction by another state official. 

36 U.S. Advisory Commission on Intergovernmental Relations 
Chapter 4. THE FUTURE OF PREEMPTION: GROWTH OR DECLINE? 

Clearly, federal preemption of state and local powers 

has become a prominent feature of our federal system. 

Federal grants-in-aid to state and local governments declined from a high of 26Spercent of state and local outlays 

in FY 1978 to an estimated 20.5 percent in FY 1991, but 

preemption continued to increase, rivaling grants-in-aid 

as the most significant facet of intergovernmental relations today. It is possible that the growth of preemption, 

like grants-in-aid, will level off or decline in the future, but 

the forces that seem to be encouraging preemption point 

to a continued expansion of federal preemption for the 

foreseeable future. 

Factors Contributing to Increased Preemption 

For one, federal preemption of state and local powers 

follows the general trend of increased federal regulation 

in the United States. Although the growth of federal regulation is difficult to measure, one indicator is suggested by 

a study which estimated that the number of Federal regulatory employees increased from less than 70,000 people in 

1970 to about 125,000 in 1992.’ However, this indicator, 

rough in itself, underestimates the extent of federal regulation because many federal regulatory activities are carried out by state and local government employees, either 

directly, pursuant to federal law, or indirectly, pursuant to 

state and local laws enacted in compliance with federal laws. 

Another factor contributing to the rise of preemption 

has been the loosening of constitutional restraints on the 

exercise of congressional powers. Expansive interpretations of the commerce clause, for example, have been the 

basis of many federal preemptions of state and local powers2 Large areas of modern life can arguably be brought 

under the aegis of interstate or foreign commerce. As the 

U.S. Supreme Court has also made clear in Garcia v. Sun 

Antonio Metropolitan Transit Authority (1985)’ and South 

Carolina v. Baker (1988),4 state and local governments 

must look to the congressional political process rather 

than to judicially enforced provisions of the Constitution, 

such as the Tenth Amendment, to protect their powers 

from federal encroachment? 

At the same time, the Congress has acquired positive 

constitutional obligations to protect rights uniformly 

across the country, largely as a result of U.S. Supreme 

Court interpretations of the Fourteenth Amendment and 

the U.S. Bill of Rights. Judicial decisions have nationalized many facets of rights protection, thereby authorizing 

and obligating the legislative and executive branches to 

follow suit. Initially reluctant to enact rights legislation in 

the late 1950s and early 1960s, the Congress has increasingly expanded rights protection and extended the reach 

of federal rights protection to more groups of persons. 

Indeed, in many respects, the Congress has surpassed the 

Supreme Court as the branch of the Federal government 

most likely to define new rights and expand old rights. 

A fourth factor in the rise of preemption is the reduced fiscal capability of the federal government, which 

has operated with deficits every year since 1969.6 Lacking 

the kind of fiscal power to influence public policy that was 

characteristic of the late 1950s to early 1970s, the federal 

government has turned more to regulatory powers to accomplish policy objective^.^ At the same time, the Congress has increasingly encroached on state and local tax 

bases-sometimes to raise more federal revenue without 

overtly increasing federal taxes, as in the elimination of 

the deductibility of state sales taxes-and also imposed or 

retained limits on state and local taxation? 

In addition, new fields of regulation have been 

opened for federal action since the 196Os, as exemplified 

by environmental protection, which was not a major field 

of federal regulation before the 1970s. The intergovernmental fiscal impact of environmental regulation, for example, was recently illustrated by the city of Columbus, 

Ohio. The city found that more than “75 new federal and 

state environmental mandates were implemented from 

1988-1991.” Less than 40 such mandates were in effect 

prior to 1988. The city estimated that 10.6 percent of its 

“1991 budget, or $62 million, was spent for environmental 

compliance on the regulations studied. In 1995 . . . this 

total will rise to $107 million, or 18.3 percent of the city 

budget. Environmental compliance costs for the years 

1996 to 2000 will average $135 million annually, or 23.1 

percent of the total budget.’* 

Still another factor influencing the rise of preemption 

has been the proliferation of interest groups operating in 

Washington, DC. During the 1960s, there was an explosion of interest-group activity “inside the Beltway” largely 

for the purpose of securing federal benefits. Preemption 

increased as these groups became more powerful and 

advocated the exercise of national power, in part to defeat 

state and local policies not to their liking and, in part, to 

make life easier for themselves by dealing with one government rather than 50 states or thousands of local governments. As some industry representatives have put it, 

U.S. Advisory Commission on Intergovernmental Relations 37 
they would prefer to cope with one 500-pound gorilla in 

Washington than with 50 monkeys on steroids. As business 

has come to recognize the political inevitability of regulation, and as states (and many local governments) have 

become more energetic regulators in the face of consumer 

pressure, business has increasingly sought federal 

preemption of state and local powers. For example, when 

the U.S. Supreme Court upheld in 1991 the statutory 

authority of local governments to enact pesticide regulations more stringent than federal rules,l0 the pesticide 

industry quickly obtained the introduction in the Congress 

of a bill to overturn the Court’s ruling and preempt local 

pesticide regulation.” 

Preemption also is being fostered by growing concern 

about America’s competitive position in the world economy, especially with the strengthening of the European 

Community. As Secretary of the Treasury Nicholas Brady 

said on introducing President George Bush’s proposals to 

reform the nation’s dual (federal and state) regulated 

banking system in 1991, something is seriously amiss when 

a bank in California can open a branch in Birmingham, 

England, but not in Birmingham, Alabama.” The President proposed, therefore, to preempt certain state powers 

over interstate banking. 

President Bush’s concern has been echoed by many 

European leaders. For example, the ambassador of the 

European Community (EC) to the United States noted: 

When Europeans look at the United States, 

we are surprised to find increasing fragmentation 

of this huge market. We see states establishing 

different rules on labeling, air quality, bottled water contents and a wide variety of other health 

and safety regulations. We also see U.S. competitiveness hampered by skyrocketing federal and 

state budget deficits and hurt by outdated banking 

and insurance systems, which states ~verregulate.’~ 

Indeed, developments similar to federal preemption in 

the United States appear to be under way in the EC. 

Pursuant to the Single EuropeAct of 1987, for example, the 

internal market program sets forth 297 measures to be 

implemented throughout the EC. It is expected, moreover, 

that 75 percent of national legislation will originate, directly 

or indirectly, from EC legislation in the near future.’“ 

Concern for international economic competition also 

has led many governors and other state and local officials 

to support federal preemptions intended to create a more 

uniform national marketplace. In addition, states have 

sometimes supported federal preemption in order to protect themselves from the adverse effects of regulations 

enacted by other states, especially large states. For exam- ple, California’s popularly initiated food labeling law, 

Proposition 65 (1986), could require cancer warning labels 

on products from other states, such as Georgia peanuts 

and Vermont maple syrup. Given that California is the 

nation’s single largest consumer market, and given that 

California, New York, and Illinois together account for 

about 27.2 percent of the drug market, for example, regulations enacted by these states can effectively drive the 

marketplace and constitute de facto preemptions of the 

preferences of other states. 

Another factor driving preemption is bipartisan support. Different kinds of preemptions advance the policy 

objectives of different interests, whether it be federal 

preemption in order to replace state and local regulation 

with federal regulation or federal preemption in order to 

displace state and local regulation by federal deregulation 

(e.g., the Cable Communications Policy Act of 1984). Although, in the past, federal preemption was often associated with liberal policy objectives, conservatives have 

also found preemption to be a useful tool. Robert H. Bork, 

for example, has argued forcefully for federal preemption 

of California’s Proposition 65.15 Consequently, federal 

preemption has continued to increase despite changes in 

the party composition of the Congress and control of the 

executive branch.lb 

Finally, preemption has been spurred by the popularity of many preemptive enactments. There is strong public 

support, for example, for federal action on behalf of environmental protection. Approximately half of all preemptions enacted during the 1970s and 1980s were in the fields 

of health, safety, and environmental protection. It is difficult, 

therefore, for state and local governments to challenge 

preemptions that appear to provide such widespread public benefits. 

Public Opinion on Preemption, 1992 

How well the public understands the dynamics of 

preemption and the costs to state and local taxpayers of 

certain preemptions is unclear. In an initial effort to gauge 

public opinion, the Advisory Commission on Intergovernmental Relations included five questions about preemption in its 1992 national public opinion poll conducted by 

the Gallup Organization.” The five issues included in the 

poll have been subject to debate as to whether the federal 

government should preempt state or local powers. The 

results are shown in nble 4-1. 

The respondents expressed strong support (74.7 percent total) for federal regulation of health-risk labels on 

food products sold throughout the country. Support for 

federal regulation was stronger (85.6 percent) among persons who have completed college, compared to 57.8 percent among persons who have not completed high school. 

Similarly, support for federal regulation generally increased 

by income, from 61.0 percent of persons in low-income 

households (less than $15,000 annual income) to 83.8 percent of persons in households having annual incomes above 

$40,000. There was also a difference between black and 

white respondents, with 57.4 percent of the former and 77.5 

percent of the latter supporting federal regulation. 

Less support (49.8 percent total) was expressed for 

federal regulation of interstate banking. Again, support 

for federal regulation increased with education, from 34.0 

percent of those who have not completed high school to 

60.4 percent of those who have completed college. There 

were no consistent variations in support for federal regulation among income groups; however, there was a 

marked difference among age groups, with 54.1 percent of 

the respondents under age 35 supporting federal preemption, compared to 38.6 percent of those over age 65. 

38 U.S. Advisory Commission on Intergovernmental Relations 
Issue Question' 

Table 4-1 

Federal Preemption and Public Choices of Federal, State, or Local Regulation 

Percent Selecting Government 

That Should Regulate 

Federal State Local No Answer 

Should the federal government regulate the listing of health risks 74.7 17.8 - 7.5 

on the labels of food products sold throughout the country, or 

should each state government regulate the listing of health risks 

on the labels of food products sold in its state? 

Should the federal government regulate banks so as to let them op- 49.8 37.9 - 12.3 

erate freely across state lines throughout the country, or should 

each state government regulate banks that operate in its state so 

as to be able to limit or keep out banks from other states if it 

wishes to do so? 

Should the federal government regulate companies that sell life, fire, 

property, casualty, and automobile insurance throughout the 

country, or should each state government regulate the companies 

that sell these types of insurance in its state? 

Should the federal government regulate the use of pesticides on 

home lawns and public grounds throughout the country, or should 

each local government regulate the use of pesticides on home 

lawns and public grounds in its community? 

Should the federal government regulate the location and building 

of low-income housing in communities throughout the country, 

or should each local government regulate the location and building of low-income housing in its community? 

37.4 

37.4 

20.4 

51.0 

52.0 

72.2 

11.6 

10.5 

7.4 

These questions were prefaced by the following statement: Now I would like to ask you about federal preemption. Preemption means 

that the federal government in Washington takes a power from state or local government in order to use that power itself. For example, 

the federal government has preempted the power of state and local governments to regulate prescription drugs, airlines, and atomic 

energy. Therefore, these things are regulated by the federal government. For each of the following, I would like to ask whether you 

think the federal government should take over the regulation of the activity in order to set uniform rules across the country, or whether 

you think state or local governments should continue to regulate the activity, each in its own way. 

Source: US. Advisory Commission on Intergovernmental Relations, Changing Public Attitudes on Governments and Tares 1992 

(Washington, DC, 1992). 

Respondents expressed little support (37.4 percent 

total) for federal as opposed to state regulation of companies that sell life, fire, property, casualty, and automobile insurance. The only marked difference among groups 

of respondents was a greater preference (45.2 percent) for 

federal regulation by persons in white-collar, sales, and 

clerical occupations. 

Similarly, respondents expressed little support (37.4 

percent total) for federal regulation of pesticide use on 

home lawns and public grounds. The strongest support 

(45.7 percent) for federal regulation was expressed by 

respondents in households having annual incomes of 

more than $40,000 and by respondents living in suburban 

areas (45.1 percent). 

Very little support (20.4 percent total) was expressed 

for federal regulation of the location and building of 

low-income housing in local communities. Support for 

local regulation tended to increase with education and 

income. Among persons who have not completed high 

school, 58.8 percent supported local regulation, compared 

to 77.7 percent of persons who have completed college. 

Support for local regulation was expressed by 61.4 percent 

of the respondents from households having annual incomes under $15,000 and by 78.0 percent of persons from 

households having annual incomes over $40,000. More 

striking differences occurred by race and region. Local 

regulation was supported by 75.3 percent of the white 

respondents, but only by 52.8 percent of the black respondents. The strongest support (85.5 percent) was expressed by 

respondents from the Midwest, compared to 74.5 percent 

from the West, 69.5 percent from the South, and 57.9 percent from the Northeast. Support for local regulation was 

greater (78.6 percent) in areas outside of metropolitan areas 

than in suburbs (68.7 percent) and central cities (68.1 per- cent). Finally, homeowners (76.0 percent) were more supportive of local regulation than were renters (64.7 percent). 

In the absence of trend data, it is impossible to deter- mine whether the public's responses to the five issues 

reflect more or less support for federal preemption than in 

the past. Nor is it possible to infer how the public might 

respond to other preemption issues. The results do indi- cate that citizens have different preferences about 

U.S. Advisory Commission on Intergovernmental Relations 39 
preemption on different policy issues. The limited results 

presented here suggest that the public may be more will- ing to support federal preemption in fields of activity that 

involve mass production and clearly interstate commerce. 

The public seems less willing to endorse federal preemp- tion in areas of activity that may involve interstate commerce but can arguably be tailored to state preferences 

and conditions, as in the case of automobile insurance. 

The public does not seem willing to support federal 

preemption in fields that involve matters of individual use 

and choice about goods and services that may be products 

of interstate commerce but nevertheless susceptible to 

local regulations without undue interference with interstate commerce. 

Issues in Preemption 

The tremendous growth of federal preemption since 

the late 1960s raises a number of important issues of intergovernmental concern. 

The first is the sheer scope of federal preemption, 

which suggests an increasingly coercive system of intergovernmental relations.’* Is the federal government going 

too far, and too fast, thus centralizing power and undermining federalism itself? Federal preemption has not 

been marked by generally steady and continuous growth 

since 1789, reflecting a pattern of accumulated wisdom 

and experience, but rather by a sudden and unprecedented spurt after 1969. This spurt has involved preemptions 

not only in historic fields of federal activity but also in 

many new fields. 

The second issue is the clarity of preemption. The 

Congress often enacts statutes that require regulatory 

agencies and courts to divine the Congress’s intentions on 

preemption. As a recent report of the Appellate Judges 

Conference of the American Bar Association (ABA) 

noted: “By their very nature, implied preemption doctrines authorize courts to displace state law based on indirect and sometimes less than compelling evidence of 

legislative intent. This indirectness in turn suggests a 

greater potential for unpredictability and instability in the 

law.”I9 The ABA report concluded, therefore, that: “In 

our federal system, Congress has a duty to address clearly 

whether a federal enactment has displaced state law.”” 

Although the U.S. Supreme Court hasbeen reining in the 

field of implied preemption by requiring plain statements 

of the Congress’s intentions, U.S. Sen. Carl Levin has 

noted that preemption is simply not high on congressional 

radar screens. Unless the Congress has to face up to 

preemption explicitly, it may preempt state or local authority even when it has no real desire to do so. 

A third issue is what Governor John Ashcroft of Missouri has called “preemption by evolution,” whereby federal agencies gradually expand preemptive legislation 

through rulemaking. In this instance, he was referring to a 

finding by the Equal Employment Opportunity Commission (EEOC) that the federal Age Discrimination in Employment Act of 1967, as amended in 1972, preempted the 

Missouri Constitution’s requirement that state judges retire at age 70. In 1991, the U.S. Supreme Court upheld the 

Missouri constitutional provision, with Justice Sandra Day 

O’Connor delivering a strong federalist opinion for five 

justices, in which she seemed to extend and strengthen the 

Court’s “plain statement” rule regarding congressional 

intent to preempt state or local powers.21 

A related issue is the extent to which the Congress 

explicitly or implicitly delegates preemption authority to 

administrative agencies to make not only general rules 

based on statutes but also specific preemption decisions. 

Such delegations may, in effect, invest substantial 

preemption powers in lower level administrators of federal agencies. 

A fifth preemption issue is whether and when the 

federal government should set minimum or maximum 

standards in a regulatory field. Minimum standards ordinarily allow state and/or local governments to enact standards that exceed the federal minimum. Minimum 

standards, therefore, preserve some scope for the exercise 

of state or local powers and discretion. Maximum standards, however, promote uniform national regulation. 

A sixth issue concerns the flexibility accorded state 

and local governments in complying with federal preemptions that involve state or local action, whether it be flexibility in meeting standards, flexibility in theadministration 

of requirements, or flexibility in terms of state versus 

federal implementation. An important element of flexibility is clarity of congressional intent, which might be 

detailed in a “code of restrictions,” as well as the clarity 

and timeliness of federal administrative rules promulgated pursuant to preemption statutes. Lack of clarity and 

flexibility can lead to unnecessary litigation. 

A seventh issue concerns the extent to which the 

diverse forms of preemption created by the Congress 

since the mid-1960s are well matched to the particular 

issues to which the forms are applied by the Congress, the 

courts, and administrative agencies. There has been no 

assessment of which forms are most appropriate for particular policy issues and objectives. Such an assessment 

would provide useful information for federal-state-local 

negotiations on the form to be taken by preemption when 

federal preemption is judged to be necessary. 

This points to a further issue: the lack of evaluation, in 

many cases, of specific preemptions and of the various 

forms of preemption. An exception was the Cable Communicationsk’olicy Act of 1984, which was reexamined within a 

few years of its inception. However, this reexamination 

was provoked largely by consumer complaints about increased cable TV rates. In most areas of preemption, 

citizens do not feel the positive or negative effects so 

directly; consequently, there may be little or no public 

pressure to evaluate the impacts of federal preemption on 

state and local governments. Once the federal government preempts a state or local power and assumes regulatory authority itself, then evaluation, to the extent it is 

conducted, is likely to focus on the adequacy of federal 

regulation rather than on alternatives to the preemption, 

such as restoring power to state or local governments or 

providing for more cooperative federal-state regulation. 

Also, given that many preemptions do not require appropnations, they are likely to be left in force without evaluation. 

40 U.S. Advisory Commission on Intergovernmental Relations 
The lack of evaluation raises the question of whether 

“sunset” rules should be applied to some or all preemption statutes. Subsequent developments can complicate 

the implementation of preemption statutes or produce 

unintended consequences. For example, when the Congress ceased funding for the Office of Noise Abatement 

and Control (ONAC) in the Environmental Protection 

Agency (EPA) in 1981, it did not repeal the Noise Control 

Act, which preempts state and local governments from 

adopting standards that differ from those adopted by 

ONAC. However, the defunding of ONAC essentially 

froze the federal noise-emission and labeling standards 

that had been promulgated as of 1981. Neither EPA nor 

state and local governments have been in a position to 

reexamine the existing preemptive standards and to 

amend or update possibly outdated standards in order to 

take advantage of scientific and technological developments that might render implementation of the Congress’s preemption intention more effective and efficient. 

Finally, the unprecedented increase in federal statutory preemption of state and local powers since the late 

1960s raises questions about the adequacy of our understanding and appreciation of the constitutional balance of 

power in the federal system, particularly in light of the 

supremacy clause. The supremacy clause does not make 

the federal government “supreme” in all matters of public 

policy, nor does it make the U.S. government dominant in 

our federal system. The clause simply means that the 

limited powers delegated to the U.S. government by the 

people may be exercised by the federal government without interference from or dependence upon the states. The 

point is to make sure that the U.S. government is not 

swallowed up by the states. 

Obviously, if states could enact laws overriding any 

federal law, we would not have much of a nation, if at all. 

“The government of the Union, though limited in its powers, is supreme within its sphere of action,” wrote Chief 

Justice John Marshall in 1819.22 At the same time, if the 

U.S. government could override any state law, we would 

not have a federal system of government; instead, we 

would have a unitary system. 

The supremacy clause, therefore, is a balance-of-power provision in the Constitution, not a provision that makes the federal government supreme or 

sovereign. The supremacy clause must be read in light of 

other provisions of the Constitution, especially the republican guarantee clause and the Tenth Amendment. The 

former clause provides that: “The United States shall 

guarantee to every State in this Union a republican form 

of government.” The Tenth Amendment reiterates that 

the powers not delegated to the U.S. government “by the 

Constitution, nor prohibited by it to the States, are resewed to the States respectively, or to the people.” Indeed, one of the reasonsfor adding the Tenth Amendment 

to the Constitution was to drive home the point that the 

federal government is not supreme, pure and simple, and 

that it cannot swallow up the states. The supremacy clause is 

a grant of limited supremacy bounded by the delegations of 

power made by the people of the states through the U.S. 

Constitution. With respect to all other powers not delegated 

to the U.S. government or denied the states, each state’s 

I 

i constitution is the supreme law of the land within the state. 

Thus, we have two “supreme” laws in the United States: the 

U.S. Constitution and each state constituti~n.~~ 

In the 1780s, of course, the framers of the Constitution were mainly concerned about guaranteeing the supremacy of the U.S. Constitution and U.S laws against the 

powerful centrifugal forces of state constitutional and 

statutory law. The framers succeeded in ensuring this 

co-supremacy of the U.S. government. Subsequent generations managed to maintain the co-supremacy of the state 

and national governments for approximately 175 years. In 

fact, considering the tremendous growth of the United 

States as well as the enormous changes and events, including a civil war and two world wars, that occurred in our 

society from 1789 to the mid-l960s, it is perhaps surprising 

that our nation prospered and became the preeminent 

world power with relatively little federal statutory 

preemption of state and local authority. 

Just where to draw lines between federal and state 

powers in a changing world will always be subject to debate, and such debate is healthy for a federal system of 

democratic governance. However, the rapidly advancing 

line of preemption, which has darted forward almost unnoticed and with little public debate, clearly needs to be 

monitored and evaluated by state and local governments 

together with their representatives in the Congress.24 

Notes 

Melinda Warren and James Lis, “Regulatory Standstill Analy- sis of the 1993 Federal Budget,” Occasional Paper No. 105 (St. 

Louis: Washington University, Center for the Study of Ameri- can Business, June 1992), p. 1. 

zU.S. Constitution, Art. 1, Sec. 8, CI. 3. 

469 U.S. 528 (1985). 

4485 U.S. 505 (1988). 

’See also John C. Pittenger, “Garcia and the Political Safeguards 

of Federalism: Is There a Better Solution to the Conundrum of 

the Tenth Amendment?” Publius: The Jounial of Federalism 22 

(Winter 1992): 1-19. 

U.S. Advisory Commission on Intergovernmental Relations, 

Fiscal Discipline in the Federal System: National Reform and the 

Experience of the Sfafes (Washington, DC, 1987). 

‘See also U.S. Advisory Commission on Intergovernmental Re- lations, Regulatory Federalism: Poliq, Process, Impact arid Refomi (Washington, DC, 1984). 

Gerald H. Goldberg, “Federal Preemption of State Tax Policy,” 

National Tar Journal 44 (September 1991): 293-296. 

Richard C. Hicks, “Environmental Legislation and the Costs of 

Compliance,” Government Finance Review 8 (April 1992): 7. 

lo Wisconsin Public Intervener v. Mortier, 111 S.Ct. 2476 (1991). 

“The Federal-State Pesticide Regulation Partnership Act (1991). 

12Nicholas E Brady, “Remarks to the Press: Financial Services 

Reform,” Treasury News (February 5, 1991): 3. 

”Andreas van Agt, “Trading with the New Europe,” State Government News 34 (December 1991): 20. 

14Theo A. J. Toonen, “Europe of the Administrations: The Chal- lenges of ’92 (and Beyond),” Public Adminisfration Review 52 

(MarcNApril 1992): 108-115. 

”Robert H. Bork, Federalism and Fedeml Regulation: The Caseof 

Product Labeling, Critical Legal Issues: Working Paper Series 

No. 46 (Washington, DC: Washington Legal Foundation, July 

1991). 

U.S. Advisory Commission on Intergovernmental Relations 41 
16See also Timothy Conlan, “Intergovernmental Mandates and 

Preemption in an Era of Deregulation,” Publius: 7’lie Journal of 

Federalism 21 (Summer 1991): 43-57. 

l7 U.S. Advisory Commission on Intergovernmental gelations, 

Changing Public Attitudes on Govertinients and Tares 1992 

(Washington, DC, 1992). 

18See also John Kincaid, “From Cooperative to Coercive Federalism,” Annals of the American Academy of Political and Social 

Science 509 (May 1990): 139-152. 

19Kenneth Starr et al., The Law ofPreehlption, A Report of theAppellate Judges Conference (Chicago: American Bar Association, 

1991), p. 15. 

201bid., p. 55. 

2’Gregory v. Ashcroft, 111 St. Ct. 630 (1991). 

22McCulloch v. Maryland, 17 US. (4 Wheat.) 316, 405 (1819). 

23See also US. Advisory Commission on Intergovernmental Relations, State Constitutions in the Federal System: Selected Issues 

and Opportunities for State Initiatives (Washington, DC, 1989) 

and State Constitutional Law Cases and Mateiials (Washington, 

DC, 1990). 

24See also Academy for State and Local Government, Preemption: Drawing the Line (Washington, DC, October 1986). 

42 U.S. Advisory Commission on Intergovernmental Relations 
Appendixes. EXPLANATORY NOTES 

Following is a list of statutes enacted by the federal 

government that preempt state and local government 

authority. Listed as well are statutes that provide 

preemption relief. 

In addition to the statutes cited here, all amendments 

thereto and recodifications thereof would be preemptive, 

although they are not listed. Only those amendments to 

an act that produce a substantive expansion of a 

preexisting preemption are listed separately. For example, 

amendments to the Age Discrimination in Employment Act 

that removed the previous maximum age limit for 

protection, 70 years, are included. 

Preemption relief statutes do not include repeals of 

preemptive measures or provisions, but only those 

instances when Congress enacted specific legislation 

reducing the preemptive impact of previous legislation or 

clarifying its intent regarding preemption. 

Some of the statutes listed have been repealed or 

declared unconstitutional. Our research did not attempt 

to identify those developments. 

U.S. Advisory Commission on Intergovernmental Relations 43 
44 U.S. Advisory Commission on Intergovernmental Relations 
Appendix A. CHRONOLOGICAL INVENTORY OF FEDERAL PREEMPTION STATUTES 

Before 1900 

Purpose' Statute 

C 

C 

C 

C 

C 

C 

R 

T 

R 

C 

C 

C 

R 

T 

R/T 

R 

H 

R 

NR 

R 

C 

C 

C 

H 

C 

H 

C 

Patent Act of 1790, 1 Stat. 109. 

Copyright Act of 1790, 1 Stat. 124. 

An Act to Regulate the Collection of Duties on 

Imports and Tonnage of 1799 (priority of sureties), 

Section 65, 1 Stat. 627. 

Bankruptcy Act of 1800, 2 Stat. 19. 

An Act Relating to Passenger Ships and Vessels (1819), 

3 Stat. 488. 

Bankruptcy Act of 1841, 5 Stat. 440. 

Coolie Trade Prohibition Act of 1862, 12 Stat. 340. 

An Act to Provide a National Currency 

(National Bank Act of 1864), 13 Stat. 99. 

Civil Rights Act of 1866, 14 Stat. 27. 

Commercial Communication Act of 1866, 14 Stat. 66. 

An Act Relating to Pilots and Pilot Regulation (1866), 

14 Stat. 93. 

Bankruptcy Act of 1867, 14 Stat. 517. 

Peonage Abolition Act of 1867, 14 Stat. 546. 

An Act in Relation to Tax Shares in National Banks 

(1868), 15 Stat. 34. 

Civil Rights Act of 1870, 16 Stat. 140. 

Civil Rights Act Amendments of 1871, 16 Stat. 433. 

Act of February 28,1871 (Dangerous Cargo Act), 

16 Stat. 440. 

Ku Klux Klan Act of 1871, 17 Stat. 13. 

Livestock Transportation Act of 1873, 17 Stat. 584. 

Civil Rights Act of 1875, 18 Stat. 336. 

Animal Industry Act of 1884,23 Stat. 31. 

The Act to Regulate Commerce of 1887 

(Interstate Commerce Act of 1887), 24 Stat. 379. 

The Act of July 2, 1890 (Sherman Antitrust Act), 

26 Stat. 209. 

Cattle Inspection Act of 1891, 26 Stat. 1089. 

Limited Liability Act of 1893, 27 Stat. 445. 

Safety Appliance Act of 1893, 27 Stat. 531. 

An Act to Establish a Uniform System of Bankruptcy 

of 1898,30 Stat. 544. 

'The purposes of the statutes are as follow 

B = Banking and Finance 

C = Commerce, Energy, Labor, and Transportation 

H = Health, Safety, and Environmental Protection 

NR = Natural Resources, Animal Welfare, Fish 

0 = Other 

R = Civil Rights 

T = Taxation 

and Wildlife Conservation 

C River and Harbor Act of 1899,30 Stat. 1151. 

[Appropriation for Rivers and Harbors, Sections 

9-20,30 Stat. 11211 

Refuse Act of 1899,30 Stat. 1152. 

[Appropriation for Rivers and Harbors, Section 13, 

30 Stat. 11211 

H 

1900-1 909 

Purpose Statute 

m 

C 

C 

H 

C 

H 

H 

C 

C 

NR 

H 

H 

C 

C 

Endangered Species Act of 1900 (Lacey Act), 

31 Stat. 187. 

An Act to Establish a National Bureau of Standards 

(1901), 31 Stat. 1449. 

Dairy and Food Products Labeling Act of 1902, 

32 Stat. 632. 

Cattle Contagious Diseases Act of 1903, 32 Stat. 791. 

An Act to Further Regulate Commerce 

with Foreign Nations, and Among the States of 1903 

(Elkins Act), 32 Stat. 847. 

Safety Appliance Act of 1903, 32 Stat. 943. 

Cattle Contagious Diseases Act of 1905,33 Stat. 1264. 

Federal Employer's Liability Act of 1%,34 Stat. 232 

Interstate Commerce Act Amendments of 1906, 

34 Stat. 584. 

Live Stock Transportation Act of 1906 (Cruelty to 

Animals Act, 28 Hour Law, or Food and Rest Law), 

34 Stat. 607. 

Food and Drug Act of 1906 (Pure Food Act), 

34 Stat. 768. 

Federal Meat Inspection Act of 1907,34 Stat. 1260. 

[Department of Agriculture Appropriations Act of 1938, 

34 Stat. 12561 

Hours of Service on Railroads Act of 1907 (Esch Act), 

34 Stat. 1415. 

Federal Employer's Liability Act Amendments of 1908, 

35 Stat. 65. 

191 0-1 91 9 

Purpose Statute 

H 

H 

C 

H 

C 

C 

Safety Appliance Act of 1910,36 Stat. 298. 

The Insecticide Act of 1910, 36 Stat. 331. 

Commerce Court Act of 1910,36 Stat. 539. 

Boiler Inspection Act of 1911, 36 Stat. 913. 

Standard Barrel Act of 1912 (apple barrels), 

37 Stat. 250. 

An Act to Regulate the Importation of Nursery Stock 

(Nursery Stock or Plant Quarantine Act of 1912), 

37 Stat. 317. 

Valuation Act of 1913, 37 Stat. 701. 

Federal Reserve Act of 1913,38 Stat. 251. 

C 

B 

U.S. Advisory Commission on Intergovernmental Relations 45 
C 

C 

C 

0 

C 

C 

C 

C 

C 

C 

C 

C 

C 

NR 

Purpose 

C 

B 

C 

H 

C 

C 

C 

H 

C 

C 

C 

B 

H 

C 

C 

C 

C 

The Act of September 26, 1914 

(Federal Trade Commission Act), 38 Stat. 717. 

The Act of October 15, 1914 (Clayton Antitrust Act), 

38 Stat. 730. 

Standard Barrel Act of 1915 (fruits, vegetables), 

8 Stat. 1186. 

National Defense Act of 1916, 39 Stat. 166. 

US. Cotton Futures Act of 1916,39 Stat. 476. 

[Department of Agriculture Appropriations Act 

of 1917, Part A, 39 Stat. 4461 

U.S. Grain Standards Act of 1916, 39 Stat. 482. 

[Department of Agriculture Appropriations Act 

of 1917, Part B, 39 Stat. 4461 

Standard Barrel Act of 1916 (lime barrels), 39 Stat. 530. 

Pomerene Bill of Lading Act of 1916,39 Stat. 538. 

Standard Baskets Act of 1916, 39 Stat. 673. 

An Act to Prevent Interstate Commerce in the 

Products of Child Labor of 1916,39 Stat. 675. 

An Act to Establish an Eight-Hour Day for Employees 

of Carriers Engaged in Interstate and Foreign 

Commerce (Adamson Act of 1916), 39 Stat. 721. 

Standard Time Act of 1918 (Calder Act), 40 Stat. 450. 

An Act to Promote Export Trade, and for Other 

Purposes of 1918 (Webb Pomerene Act), 40 Stat. 516. 

Migratory Bird Treaty Act of 1918, 40 Stat. 755. 

1920-1 929 

Statute 

Transportation Act of 1920, 41 Stat. 456. [Includes the 

Interstate Commerce Act of 1920, Title N, 41 Stat. 4741 

Ship Mortgage Act of 1920,41 Stat. 1000. 

[Merchant Marine Act of 1920, Section 30, 41 Stat. 9881 

Federal Water Power Act of 1920,41 Stat. 1063. 

41 Stat. 1444. (transportation of explosives) 

Packers and Stockyards Act of 1921,42 Stat. 159. 

Agricultural Producers Association Act of 1922, 

42 Stat. 388. 

Grain Futures Act of 1922,42 Stat. 998. 

Filled Milk Act of 1923, 42 Stat. 1486. 

U.S. Cotton Standards Act of 1923,42 Stat. 1517. 

United States Arbitration Act of 1925, 43 Stat. 883. 

Railway Labor Act of 1926,44 Stat. 577. 

Banking Act of 1927, 44 Stat. 1224. 

Federal Caustic Poison Act of 1927,44 Stat. 1406. 

Longshoremen’s and Harbor Workers’ Compensation 

Act of 1927, 44 Stat. 1424. 

45 Stat. 685. (standard measures) 

Agricultural Marketing Act of 1929,46 Stat. 11. 

Perishable Agricultural Commodities Act of 1930, 

46 Stat. 531. 

1930-1 939 

Purpose Statute 

B/T 

C 

B 

C 

B/T 

B 

C 

C 

C 

B 

C 

Federal Home Loan Bank Act of 1932,47 Stat. 725. 

Bankruptcy Act of 1933,47 Stat. 1467. 

48 Stat. 1. [Includes Bank Conservation Act of 1933, 

Title 11, 48 Stat. 21 

Agricultural Adjustment Act of 1933,48 Stat. 31. 

Home Owners’ Loan Act of 1933,48 Stat. 128. 

Banking Act of 1933,48 Stat. 162. 

National Industrial Recovery Act of 1933, 48 Stat. 195. 

Emergency Railroad Transportation Act of 1933, 

48 Stat. 211. 

Bankruptcy Act of 1934,48 Stat. 798. 

Securities Exchange Act of 1934, 48 Stat. 881. 

Communications Act of 1934, 48 Stat. 1064. 

C 

C 

B 

B 

C 

C 

C 

C 

C 

H 

C 

C 

C 

C 

C 

H 

C 

B 

C 

Producers of Aquatic Products Antitrust Act (1934), 

48 Stat. 1213. 

National Firearms Act of 1934,48 Stat. 1236. 

National Housing Act of 1934,48 Stat. 1246. 

Farm Credit Act of 1935, 49 Stat. 313. 

National Labor Relations Act of 1935, 49 Stat. 449. 

Motor Carrier Act of 1935,49 Stat. 543. 

Tobacco Inspection Act of 1935,49 Stat. 731. 

Public Utility Holding Company Act of 1935, 

49 Stat. 803. [Public Utility Act of 1935, Title I, 

49 Stat. 8031 

Antitrust Act Amendments of 1936 (Robinson-Patman 

Antidiscrimination Act), 49 Stat. 1526. 

Regulation of Steam Vessels Act (19%) 49 Stat. 1889. 

Agricultural Marketing Agreement Act of 1937, 

50 Stat. 246. 

Federal Trade Commission Act Amendments of 1938, 

52Stat. 111. 

Natural Gas Act of 1938, 52 Stat. 821. 

Bankruptcy Act Amendments of 1938 (Chandler Act), 

52 Stat. 840. 

Civil Aeronautics Act of 1938,52 Stat. 973. 

Federal Food, Drug, and Cosmetic Act of 1938, 

52 Stat. 1040. 

Fair Labor Standards Act of 1938,52 Stat. 1060. 

Securities Exchange Act Amendments of 1938, 

52 Stat. 1070. 

Federal Firearms Act of 1938, 52 Stat. 1250. 

C Trust Indenture Act of 1939, 53 Stat. 1149. 

1940-1 949 

Purpose Statute 

NR 

0 

B 

C 

H 

C 

C 

C 

H 

C 

C 

C 

C 

H 

NR 

Bald Eagle Protection Act of 1940,54 Stat. 250. 

Alien Registration Act of 1940 (Smith Act), 

54 Stat. 670. 

54 Stat. 789 [Includes Title I, Investment Company 

Act of 1940, 54 Stat. 789 and Title 11, 

Investment Advisers Act of 1940,54 Stat. 8471 

Transportation Act of 1940,54 Stat. 898. 

Dangerous Cargo Act of 1940,54 Stat. 1023. 

Wool Products Labeling Act of 1939, 54 Stat. 1128. 

Emergency Price Control Act of 1942,56 Stat. 23. 

Second War Powers Act of 1942,56 Stat. 176. 

Public Health Service Act of 1944,58 Stat. 682. 

Trademark Act of 1946 (Lanham Act), 60 Stat. 427. 

Atomic Energy Act of 1946,60 Stat. 755. 

Portal-to-Portal Act of 1947, 61 Stat. 84. 

(employer’s obligations) 

Labor-Management Relations Act of 1947 (Taft-Hartley 

Act), 61 Stat. 136. 

Federal Insecticide, Fungicide, and Rodenticide Act 

of 1947,61 Stat. 163. 

Sockeye Salmon Fishery Act of 1947,61 Stat. 511. 

C An Ait to Amend the interstate Commerce Act 

with Respect to Certain Agreements between Carriers 

of 1948 (Interstate Commerce Act of 19481 

62 Stat. 472. 

1950-1 959 

Purpose Statute 

NR 

B/C 

B 

NR 

C 

Whaling Convention Act of 1949, 64 Stat. 421. 

Defense Production Act of 1950,64 Stat. 798. 

Federal Deposit Insurance Act Amendments of 1950, 

64 Stat. 873. 

Northwest Atlantic Fisheries Act of 1950,64 Stat. 1067. 

Fur Products Labeling Act of 1951,65 Stat. 175. 

46 U.S. Advisory Commission on Intergovernmental Relations 
C 

H 

C 

H 

NR 

0 

C 

H 

C 

H 

0 

R 

C 

C/H 

H 

C 

C 

T 

B/T 

Purpose 

R 

C 

H 

H 

C 

H 

H 

R 

H 

R 

C 

H 

H 

R 

H 

H 

C 

C 

NR 

H 

H 

B 

NR 

C 

Communications Act Amendments of 1952, 

66 Stat. 711. 

Flammable Fabrics Act of 1953,67 Stat. 111. 

Outer Continental Shelf Lands Act of 1953, 

67 Stat. 462 

Pesticide Chemical Residue Act of 1954 

(the Miller amendment), 68 Stat. 511. 

North Pacific Fisheries Act of 1954, 68 Stat. 698. 

Communist Control Act of 1954,68 Stat. 775. 

Atomic Energy Act of 1954,68 Stat. 919. 

An Act to Regulate Certain Devices 

on Household Refrigerators (1956), 70 Stat. 953. 

Federal Plant Pest Act of 1957,71 Stat. 31. 

Poultry Products Inspection Act of 1957,71 Stat. 441. 

Atomic Energy Damages Act of 1957 

(Price-Anderson Act), 71 Stat. 576. (liability) 

Civil Rights Act of 1957,71 Stat. 634. 

Automobile Information Disclosure Act of 1958, 

72 Stat. 325. 

Federal Aviation Act of 1958,72 Stat. 731. 

Food Additives Amendment of 1958, 72 Stat. 1784. 

Textile Fiber Products Identification Act of 1958, 

72 Stat. 1717. 

Labor-Management Reporting and Disclosure Act 

of 1959,73 Stat. 519. 

Public Law 86-272 (1959), 73 Stat. 555. 

Federal Credit Union Act of 1959,73 Stat. 628. 

1960-1 969 

Statute 

Civil Rights Act of 1960, 74 Stat. 86. 

Great Lakes Pilotage Act of 1960,74 Stat. 259. 

Federal Hazardous Substances Labeling Act of 1960 

(subsequently retitled the Federal Hazardous 

Substances Act), 74 Stat. 372. 

Color Additive Amendments Act of 1960,74 Stat. 397. 

Communications Act Amendments of 1960, 

74 Stat. 889. 

An Act to Provide that Hydraulic Brake Fluid Sold 

or Shipped in Commerce for Use in Motor Vehicles 

Meet Certain Specifications (1962), 76 Stat. 437. 

Drug Amendments of 1962,76 Stat. 780. 

Equal Pay Act of 1963, 77 Stat. 56. 

An Act to Provide that Seat Belts Sold or Shipped 

in Commerce for Use in Motor Vehicles Shall 

Meet Certain Safety Standards (1963), 77 Stat. 361. 

Civil Rights Act of 1964, 78 Stat. 241. 

Farm Labor Contractor Registration Act of 1963, 

78 Stat. 920. 

Drug Abuse Control Amendments of 1965, 

79 Stat. 226. 

Federal Cigarette Labeling and Advertising Act of 1965, 

79 Stat. 282. 

Voting Rights Act of 1965,79 Stat. 437. 

Water Quality Act of 1965, 79 Stat. 903. 

Motor Vehicle Air Pollution Control Act of 1965, 

79 Stat. 992. [Public Law 89-272, Title I, 79 Stat. 9921 

Food and Agriculture Act of 1965, 79 Stat. 1187. 

Uniform Time Act of 1966,80 Stat. 107. 

Public Law 89-544 (1966), 80 Stat. 350. (animal welfare) 

National Traffic and Motor Vehicle Safety Act of 1966, 

80 Stat. 718. 

Federal Metal and Nonmetallic Mine Safety Act 

of 1966,80 Stat. 772. 

Banking Interest Rates Act (1966), 80 Stat. 823. 

Fur Seal Act of 1966, 80 Stat. 1091. 

Fair Packaging and Labeling Act of 1966, 

80 Stat. 1296. 

H 

H 

H 

H 

H 

R 

B 

R 

R 

C 

B 

B 

H 

H 

C 

H 

C 

H 

NR 

H 

H 

B 

H 

H 

H 

R 

C 

H 

H 

B 

0 

C 

NR 

T 

C 

NR 

H 

H 

Child Protection Act of 1966,80 Stat. 1303. 

Air Quality Act of 1967 (Clean Air Act), 81 Stat. 485. 

Clinical Laboratories Improvement Act of 1967, 

81 Stat. 536. [Partnership for Health Amendments 

of 1967, Section 5, 81 Stat. 5331 

Flammable Fabrics Act of 1967,81 Stat. 568. 

Wholesome Meat Act of 1967, 81 Stat. 584. 

Age Discrimination in Employment Act of 1967, 

81 Stat. 602. 

Public Law 90-203 (1967), 81 Stat. 608. (lotteries) 

Fair Housing Act of 1968,82 Stat. 81. 

[Civil Rights Act of 1968, Title VIII, 82 Stat. 731 

Civil Obedience Act of 1968, 82 Stat. 90. 

[Civil Rights Act of 1968, Title X, 82 Stat. 731 

Agricultural Fair Practices Act of 1968, 82 Stat. 93. 

Consumer Credit Protection Act of 1968 (Truth 

in Lending Act), 82 Stat. 146. 

Bank Protection Act of 1968,82 Stat. 294. 

Animal Drug Amendments Act of 1968,82 Stat. 342. 

Federal Aviation Act Amendments of 1968, 

82 Stat. 395. (relates to aircraft noise) 

Interstate Land Sales Full Disclosure Act of 1968, 

82 Stat. 590. [Housing and Urban Development Act 

of 1968, Title XIV, 82 Stat. 4761 

Natural Gas Pipeline Safety Act of 1968,82 Stat. 720. 

United States Grain Standards Act of 1968, 

82 Stat. 761. 

Wholesome Poultry Products Act of 1968,82 Stat. 791. 

Wild and Scenic Rivers Act of 1968, 82 Stat. 906. 

Radiation Control for Health and Safety Act of 1968, 

82 Stat. 1173. 

Gun Control Act of 1968,82 Stat. 1213. 

Credit Control Act of 1969,83 Stat. 376. 

[Public Law 91-151, Title 11, 83 Stat. 3711 

Federal Coal Mine Health and Safety Act of 1969, 

83 Stat. 742. [Includes the Black Lung Benefits Act 

of 1972, Title IV, 83 Stat. 7921 

1970-1 979 

Purpose Statute 

U.S. Advisory Commission on Intergovernmental Relations 47 

Public Health Cigarette Smoking Act of 1969, 

84 Stat. 87. 

Water Quality Improvement Act of 1970, 

84 Stat. 91. [Public Law 91-224, Title I, 84 Stat. 911 

Voting Rights Act Amendments of 1970, 84 Stat. 314. 

Newspaper Preservation Act of 1970, 84 Stat. 466. 

Organized Crime Control Act of 1970, Title XI, 

84 Stat. 922. (explosives) 

Federal Railroad Safety Act of 1970,84 Stat. 971. 

[Federal Railroad Safety and Hazardous Materials 

Control Act of 1970, Title 11, 84 Stat. 9711 

Public Law 91-508, 84 Stat. 1114 

[Includes Bank Secrecy Act of 1970, Titles 1-11, 

84 Stat. 1114; Credit Card Act of 1970, Title V, 

84 Stat. 1126; and Fair Credit Reporting Act of 1970, 

Title VI, 84 Stat. 11281 

Comprehensive Drug Abuse Prevention and Control 

Act of 1970, 84 Stat. 1236. (forfeiture) 

Rail Passenger Service Act of 1970, Section 306, 

84 Stat. 1327. 

Horse Protection Act of 1970, 84 Stat. 1404. 

Public Law 91-569 (1970), 84 Stat. 1499. 

(employees income tax withholding) 

Plant Variety Protection Act of 1970, 84 Stat. 1542. 

Animal Welfare Act of 1970, 84 Stat. 1560. 

Occupational Safety and Health Act of 1970, 

84 Stat. 1590. 

Egg Products Inspcction Act of 1970,84 Stat. 1620. 
B 

H 

H 

B 

H 

B/T 

0 

R 

C 

H 

C 

H 

NR 

NR 

H 

H 

C 

T 

T 

0 

C 

H 

C 

NR 

C 

R 

R 

H 

C 

0 

H 

B 

R 

C 

H 

C 

C 

C 

Securities Investor Protection Act of 1970,84 Stat. 1636. 

Poison Prevention Packaging Act of 1970, 84 Stat. 1670. 

Clean Air Amendments of 1970,84 Stat. 1676. 

Bank Holding Company Act Amendments of 1970, 

84 Stat. 1760. 

Federal Boat Safety Act of 1971,85 Stat. 213. 

Farm Credit Act of 1971,85 Stat. 583. 

Federal Election Campaign Act of 1971,86 Stat. 3. 

Equal Employment Opportunity Act of 1972, 

86 Stat. 103. 

Ports and Waterways Safety Act of 1972, 86 Stat. 424. 

Federal Water Pollution Control Act Amendments 

of 1972,86 Stat. 816. 

Motor Vehicle Information and Cost Savings Act 

of 1972,86 Stat. 947. 

Federal Environmental Pesticide Control Act of 1972, 

86 Stat. 973. 

Marine Mammal Protection Act of 1972, 86 Stat. 1027. 

Marine Protection, Research, and Sanctuaries Act 

of 1972,86 Stat. 1052. 

Consumer Product Safety Act of 1972,86 Stat. 1207. 

Noise Control Act of 1972,86 Stat. 1234. 

Longshoremen’s and Harbor Workers’ Compensation 

Act Amendments of 1972,86 Stat. 1251. 

Airport Development Acceleration Act of 1973, 

87 Stat. 88. (prohibits passenger facility charges) 

State Taxation of Depositories Act of 1973, 

87 Stat. 347. [Public Law 93-100, Sec. 7,87 Stat. 3421 

Trans-Alaska Pipeline Authorization Act of 1973, 

87 Stat. 584. [Public Law 93-153, Title 11, 87 Stat. 5761 

(preempts liability laws) 

Health Maintenance Organization Act of 1973, 

Section 1311,87 Stat. 914. 

Lead-Based Paint Poisoning Prevention Act 

Amendments of 1973,87 Stat. 565. 

Emergency Petroleum Allocation Act of 1973, 

87 Stat. 627. 

Endangered Species Act of 1973,87 Stat. 884. 

Fair Labor Standards Amendments of 1974, 

88 Stat 55. 

Age Discrimination in Employment Act Amendments 

of 1974,88 Stat. 74. [Fair Labor Standards 

Amendments of 1974, Section 28,88 Stat. 551 

Equal Educational Opportunities Act of 1974, 

88 Stat. 514. [Education Amendments of 1974, 

Title 11, 88 Stat. 484.1 

National Mobile Home Construction and Safety 

Standards Act of 1974 (National Manufactured 

Housing Construction and Safety Standards Act 

of 1974), 88 Stat. 700. [Housing and Community 

Development Act of 1974, Title VI, 88 Stat. 6331 

Employee Retirement Income Security Act of 1974, 

88 Stat. 829. 

Federal Election Campaign Act Amendments of 1974, 

88 Stat. 1263. 

Motor Vehicle and Schoolbus Safety Amendments 

of 1974,88 Stat. 1470. 

Fair Credit Billing Act of 1974, 88 Stat. 1511. 

[Public Law 93-495, Title 111,88 Stat. 15001 

Equal Credit Opportunity Act of 1974,88 Stat. 1521. 

[Public Law 93-495, Title V, 88 Stat. 15001 

Veterans’ Reemployment Rights Act Amendments 

of 1974, 88 Stat. 1594. Pietnam Era Veterans’ 

Readjustment Assistance Act of 1974, Section 404, 

88 Stat. 15781 

Safe Drinking Water Act of 1974,88 Stat. 1660. 

Real Estate Settlement Procedures Act of 1974, 

88 Stat. 1724. 

Deepwater Port Act of 1974,88 Stat. 2126. 

Federal Noxious Weed Act of 1974.88 Stat. 2148. 

H 

C 

H 

NR 

R 

C 

C 

B 

C 

B/C/T 

R 

B 

NR 

NR 

H 

H 

B 

C 

C 

T 

H 

H 

C 

H 

H 

B 

NR 

H 

R 

C 

c/o 

H 

H 

C 

C 

R 

H 

H 

H 

C 

BIC 

Transportation Safety Act of 1974,88 Stat. 2156. 

[Includes the Hazardous Materials Transportation Act 

of 1974, Title I, 88 Stat. 21561 

Magnuson-Moss Warranty-Federal Trade Commission 

Improvement Act of 1975,88 Stat. 2183. 

National Health Planning and Resources Development 

Act of 1974,88 Stat. 2225. 

Atlantic Tunas Convention Act of 1975,89 Stat. 385. 

Voting Rights Act of 1965-Amendments (1975), 

89 Stat. 400. 

Consumer Goods Pricing Act of 1975,89 Stat. 801. 

Energy Policy and Conservation Act of 1975, 

89 Stat. 871. 

Home Mortgage Disclosure Act of 1975, 89 Stat. 1125. 

[Public Law 94-200, Part 111, 89 Stat. 11241 

Real Estate Settlement Procedures Act Amendments 

of 1975, 89 Stat. 1157. 

Railroad Revitalization and Regulatory Reform Act 

of 1976 (4 R Act), 90 Stat. 31. 

Equal Credit Opportunity Act Amendments of 1976, 

90 Stat. 251. 

Consumer Leasing Act of 1976, 90 Stat. 257. 

Fishery Conservation and Management Act of 1976 

(subsequently retitled Magnuson Fishery Conservation 

and Management Act of 1976), 90 Stat. 331. 

Animal Wclfare Act Amendments of 1976, 90 Stat. 417. 

Consumer Product Safety Commission Improvements 

Act of 1976, 90 Stat. 503. 

Medical Device Amendments of 1976, 90 Stat. 539. 

Veterans Housing Amendments Act of 1976, 

90 Stat. 720. (usury) 

Federal Railroad Safety Authorization Act of 1976, 

90 Stat. 817. 

Packers and Stockyards Act Amendments (1976), 

90 Stat. 1249. 

Tax Reform Act of 1976, Section 2121,90 Stat. 1520. 

Toxic Substances Control Act of 1976, 90 Stat. 2003. 

Resource Conservation and Recovery Act of 1976, 

90 Stat. 2795. 

United States Grain Standards Act of 1976, 

90 Stat. 2867. 

Surface Mining Control and Reclamation Act of 197, 

91 Stat. 445. 

Clean Air Act Amendments of 1977, 91 Stat. 685. 

fir Debt Collection Practices Act (1977), 91 Stat. 874. 

Marine Protection, Research, and Sanctuaries Act 

Amendments of 1977,91 Stat. 1255. 

Federal Mine Safety and Health Act of 19?7, 

91 Stat. 1290. 

Age Discrimination in Employment Act Amendments 

of 1978,92 Stat. 189. 

Petroleum Marketing Practices Act of 1978, 

92 Stat. 322. 

Outer Continental Shelf Lands Act Amendments 

of 1978, 92 Stat. 629. (liability limits and information 

disclosure) 

Federal Pcsticide Act of 1978,92 Stat. 819. 

Port and Tanker Safety Act of 1978, 92 Stat. 1471. 

Airline Deregulation Act of 1978, 92 Stat. 1705. 

Interstate Horseracing Act of 1978, 92 Stat. 1811. 

Pregnancy Discrimination Act of 1978,92 Stat. 2076. 

Federal Railroad Safety Authorization Act of 1978, 

92 Stat. 2459. 

Uranium Mill Tailings Radiation Control Act of 1978, 

92 Stat. 3021. 

Quiet Communities Act of 1978,92 Stat. 3079. 

Public Utility Regulatory Policies Act of 1978, 

92 Stat. 3117. 

National Energy Conservation Policy Act of 1978, 

92 Stat. 3206. 

48 U.S. Advisory Commission on Intergovernmental Relations 
C 

C 

B/R 

C 

B 

H 

B 

B 

Purpose 

T 

B 

C 

H 

C/T 

C 

C 

H 

0 

C 

C 

C 

H 

H 

NR 

H 

B 

C/T 

C 

0 

NR 

R 

0 

T 

Powerplant and Industrial Fuel Use Act of 1978, 

92 Stat. 3289. 

Natural Gas Policy Act of 1978,92 Stat. 3350. 

Financial Institutions Regulatory and Interest Rate 

Control Act of 1978, 92 Stat. 3641. [Includes the 

Depository Institution Management Interlocks Act 

of 1978, Title 11, 92 Stat. 3672; Right to Financial 

Privacy Act of 1978, Title XI, 92 Stat. 3697; and 

Electronic Fund Transfer Act of 1978, Title XX, 

92 Stat. 37281 

Emergency Energy Conservation Act of 1979, 

93 Stat. 749. 

Business and Agricultural Loans-Interest Limitations 

Act (1979), 93 Stat. 789. 

Pipeline Safety Act of 1979, 93 Stat. 989. 

Housing and Community Development Amendments 

of 1979, 93 Stat. 1101. 

Automatic Transfer Accounts Act of 1979, 

93 Stat. l234. 

1980-1 989 

Statute 

Aviation Safety and Noise Abatement Act of 1979 

(enacted in 1980), 94 Stat. 50. 

Depository Institutions Deregulation and Monetary 

Control Act of 1980, 94 Stat. 132. [Includes the 

Depository Institutions Deregulation Act of 1980, 

Title 11, 94 Stat. 1421 

Energy Security Act of 1980, 94 Stat. 611. 

Nuclear Regulatory Commission Reauthorization Act 

of 1980, 94 Stat. 780. 

Motor Carrier Act of 1980, 94 Stat. 793. 

Soft Drink Interbrand Competition Act of 1980, 

94 Stat. 939. 

Ocean Thermal Energy Conversion Act of 1980, 

94 Stat. 974. 

Infant Formula Act of 1980,94 Stat. 1190. 

Maritime Torts, Statute of Limitations (1980), 

94 Stat. 1525. 

Condominium and Cooperative Conversion Protection 

and Abuse Relief Act of 1980,94 Stat. 1672. 

[Housing and Community Development Act of 1980, 

Title VI, 94 Stat. 16141 

Staggers Rail Act of 1980, 94 Stat. 1895. 

Household Goods Transportation Act of 1980, 

94 Stat. 2011. 

Used Oil Recycling Act of 1980, 94 Stat. 2055. 

Swine Health Protection Act of 1980, 94 Stat. 2229. 

Alaska National Interest Lands Conservation Act 

of 1980, 94 Stat. 2371. 

Comprehensive Environmental Response, 

Compensation, and Liability Act of 1980, 94 Stat. 2767. 

Cash Discount Act of 1981,95 Stat. 144. 

Northeast Rail Service Act of 1981,95 Stat. 643. 

[Omnibus Budget Reconciliation Act of 1981, 

Title XI(E), 95 Stat. 3571 

Product Liability Risk Retention Act of 1981, 

95 Stat. 949. 

Veteran’s Health Care, Training, and Small Business 

Loan Act of 1981, 95 Stat. 1047. 

(recovery for cost of care) 

Lacey Act Amendments of 1981,95 Stat. 1073. 

Voting Rights Act Amendments of 1982,96 Stat. 131. 

Peer Review Improvement Act of 1982,96 Stat. 381. 

[Tax Equity and Fiscal Responsibility Act of 1982, 

Title I(C), 96 Stat. 3241 (liability) 

Airport and Ainvay Improvement Act of 1982, 

96 Stat. 671. [Tax Quity and Fiscal Responsibility Act 

C 

C 

B 

H 

C 

0 

C 

C 

B/C 

C 

C 

B 

NR 

0 

C 

C 

H 

C 

NR 

H 

C 

NR 

C 

H 

H 

B 

B 

C 

H 

C 

R 

B/C/H 

0 

C 

of 1982, Title V, 96 Stat. 3241 

Lanham Trademark Act Amendment (1982), 

96 Stat. 1316. 

Bus Regulatory Reform Act of 1982,96 Stat. 1102. 

Garn-St. Germain Depository Institutions Act of 1982 

96 Stat. 1469. 

Nuclear Waste Policy Act of 1982 96 Stat. 2201. 

Migrant and Seasonal Agricultural Worker Protection 

Act, 96 Stat. 2583. 

Social Security Amendments of 1983, Section 339, 

97 Stat. 65. (release of information on prisoners) 

Commercial Fishing Industry Vessel Act of 1984, 

98 Stat. 445. [Public Law 98-364, Title W, 98 Stat. 4401 

Retirement Equity Act of 1984, 98 Stat. 1426. 

Housing and Urban-Rural Recovery Act of 1983, 

97 Stat. 1155. [Supplemental Appropriations Act 

of 1984, Title IV, 97 Stat. 11531 

Drug Price Competition and Patent Term Restoration 

Act of 1984, Title 111, 98 Stat. 1585. (textile and wool 

products labeling) 

Longshore and Harbor Workers’ Compensation Act 

Amendments of 1984,98 Stat. 1639. 

Secondary Mortgage Market Enhancement Act of 1984, 

98 Stat. 1689. 

Eastern Pacific Tuna Licensing Act of 1984, 

98 Stat. 1715. 

National Cooperative Research Act of 1984, 

98 Stat. 1815. (liability limitations and attorney’s fees) 

Motor Vehicle Theft Law Enforcement Act of 1984, 

98 Stat. 2754. 

Cable Communications Policy Act of 1984, 

98 Stat. 2779. 

Motor Carrier Safety Act of 1984,98 Stat. 2832 

[Public Law 98-554, Title 11, 98 Stat. 28291 

Commercial Space Launch Act of 1984,98 Stat. 3055. 

Atlantic Striped Bass Conservation Act of 1984, 

98 Stat. 3187. 

Hazardous and Solid Waste Amendments of 1984, 

98 Stat. 3221. 

Semiconductor Chip Protection Act of 1984, 

98 Stat. 3347. [Public Law 98-620, Title 111, 

98 Stat. 33351 

Pacific Salmon Treaty Act of 1985, 99 Stat. 7. 

Food Security Act of 1985, Section 1324,99 Stat. 1354. 

(clear title) 

Low-Level Radioactive Waste Policy Amendments Act 

of 1985,99 Stat. 1842. 

Comprehensive Smokeless Tobacco Health Education 

Act of 1986, 100 Stat. 30. 

Consolidated Omnibus Budget Reconciliation Act 

of 1985, Section 18008, 100 Stat. 82. (debentures) 

Student Financial Assistance Amendments of 1985, 

100 Stat. 339. [Consolidated Omnibus Budget 

Reconciliation Act of 1985, Title XVI, 100 Stat. 821 

(statute of limitations on student loan collections) 

Firearms Owners’ Protection Act of 1986, 

100 Stat. 449. 

Safe Drinking Water Act Amendments of 1986, 

100 Stat. 642. 

Daylight Savings Time Extension Act of 1986, 

100 Stat. 764. 

Air Carriers Access Act of 1986, 100 Stat. 1080. 

(handicapped access) 

Superfund Amendments and Reauthorization Act 

of 1986, 100 Stat. 1613. [Includes the Emergency 

Planning and Community-Right-to Know Act of 1986, 

Title 111, 100 Stat. 17281 

Electronic Communications Privacy Act of 1986, 

100 Stat. 1848. 

Surface Freight Forwarder Deregulation Act of 1986, 

100 Stat. 2993. 

U.S. Advisory Commission on Intergovernmental Relations 49 
C 

H 

R 

CIR 

0 

0 

H 

C 

B 

C 

H 

B 

0 

H 

NR 

T 

H 

R 

C 

C 

C/H 

R 

H 

H 

H 

H 

H 

B 

H 

C 

H 

H 

Risk Retention Amendments of 1986, 100 Stat. 3170. 

Commercial Motor Vehicle Safety Act of 1986, 

100 Stat. 3207-170. [Anti-Drug Abuse Act of 1986, 

Title XII, 100 Stat. 3207.1 

Age Discrimination in Employment Amendments 

of 1986, 100 Stat. 3342. 

Immigration Reform and Control Act of 1986, 

100 Stat. 3359. 

National Childhood Vaccine Injury Act of 1986, 

100 Stat. 3755. [Public Law 99-660, Title 111, 

100 Stat. 37431 (compensation for injuries) 

Health Care Quality Improvement Act of 1986, 

100 Stat. 3784. [Public Law 99-660, Title IV, 

100 Stat. 37431 (liability limits) 

Water Quality Act of 1987, 101 Stat. 7. 

National Appliance Energy Conservation Act of 1987, 

101 Stat. 103. 

Expedited Funds Availability Act of 1987, 

101 Stat. 635. [Competitive Equality Banking Act 

of 1987, Title VI, 101 Stat. 5521 

Poultry Producers Financial Protection Act of 1987, 

101 Stat. 917. 

Marine Plastic Pollution Research and Control Act 

of 1987, 101 Stat. 1460. [United States-Japan Fisheries 

Agreement Approml Act of 1987, Title 11, 

101 Stat. 14591 

Agricultural Credit Act of 1987, 101 Stat. 1568. 

Alaska Native Claims Settlement Act Amendments 

of 1987, 101 Stat. 1788. 

Prescription Drug Marketing Act of 1987, 102 Stat. 95. 

Abandoned Shipwreck Act of 1987,102 Stat. 432. 

Veterans’ Benefits and Services Act of 1988, 

Section 332, 102 Stat. 487. 

Rail Safety Improvement Act of 1988, 102 Stat. 624. 

Employee Polygraph Protection Act of 1988, 

102 Stat. 646. 

National Appliance Energy Conservation Amendments 

of 1988, 102 Stat. 671. 

Worker Adjustment and Retraining Notification Act 

of 1988, 102 Stat. 890. 

Commercial Fishing Industry Vessel Safety Act of 1988, 

102 Stat. 1585. 

Fair Housing Amendments Act of 1988, 102 Stat. 1619. 

Federal Insecticide, Fungicide, and Rodenticide Act 

Amendments of 1988, 102 Stat. 2654. 

Degradable Plastic Ring Carriers Act of 1988, 

102 Stat. 2779. 

Public Law 100-561, 102 Stat. 2805. 

[Includes Pipeline Safety Reauthorization Act of 1988, 

Title I, 102 Stat. 2805 and Hazardous Liquid Pipeline 

Safety Act Amendments of 1988, Title 11, 

102 Stat. 28091 

Lead Contamination Control Act of 1988, 

102 Stat. 2884. 

Clinical Laboratory Improvement Amendments 

of 1988, 102 Stat. 2903. 

Fair Credit and Charge Card Disclosure Act of 1988, 

102 Stat. 2960. 

Federal Energy Management Improvement Act 

of 1988, Section qg), 102 Stat. 3185. 

(relates to realistic looking toy guns) 

Satellite Home Viewer Act of 1988, 102 Stat. 3949. 

[Public Law 100-667, Title 11, 102 Stat. 39351 

Public Law 100-688, 102 Stat. 4139 [Includes Ocean 

Dumping Ban Act of 1988, Title I, 102 Stat. 4139; 

and United States Public Vessel Medical Waste 

Anti-Dumping Act of 1988, Title 111, 102 Stat. 41521 

Alcoholic Beverage Labeling Act of 1988, 

102 Stat. 4517. [Anti-Drug Abuse Act of 1988, 

Title VIII, 102 Stat. 41811 

Truck and Bus Safety and Regulatory Reform Act 

of 1988, 102 Stat. 4527. [Anti-Drug Abuse Act of 1988, 

Title IX, Subtitle B, 102 Stat. 41811 

Home Quity Loan Consumer Protection Act of 1988, 

102 Stat. 4725. 

and Enforcement Act of 1989, 103 Stat. 183. 

C 

B 

B Financial Institutions Reform, Recovery, 

1990-1 991 

Purpose Statute 

T 

R 

C 

C 

C 

C 

T 

H 

H 

H 

C 

H 

C 

H 

B 

C 

0 

C 

R 

C 

H 

CflB 

C 

Thrift Savings Plan Technical Amendments Act 

of 1990, 104 Stat. 319. (taxation) 

Americans with Disabilities Act (1990), 104 Stat. 327. 

Television Decoder Circuitry Act of 1990, 104 Stat. %l. 

Telephone Operator Consumer Services Improvement 

Act of 1990, 104 Stat. 986. 

Sanitary Food Transportation Act of 1990, 

104 Stat. 1213. 

Omnibus Budget Reconciliation Act of 1990, 

Sec. 4353, 104 Stat. 1388. (medigap insurance) 

Aviation Safety and Capacity Expansion Act of 1990, 

104 Stat. 1388-353. [Omnibus Budget Reconciliation 

Act of 1990, Title IX@), 104 Stat. 13881 

Airport Noise and Capacity Act of 1990, 

104 Stat. 1388-378. [Omnibus Budget Reconciliation 

Act of 1990, Title IX@), 104 Stat. 1388.1 

Nutrition Labeling and Education Act of 1990, 

104 Stat. 2353. 

Clean Air Act Amendments of 1990, 104 Stat. 2399. 

Fastener Quality Act (1990), 104 Stat. 2943. 

Aviation Security Improvement Act of 1990, 

104 Stat. 3066. 

Consumer Product Safety Improvement Act of 1990, 

104 Stat. 3110. 

Hazardous Materials Transportation Uniform Safety 

Act of 1990, 104 Stat. 3244. 

Low-Income Housing Preservation and Resident 

Homeownership Act of 1990, 104 Stat. 4249. 

[Cranston-Gonzalez National Affordable Housing Act, 

Title VI, 104 Stat. 40791 

Visual Artists Rights Act of 1990, 104 Stat. 5128. 

(Judicial Improvements Act of 1990, Title VI, 

104 Stat. 50891 

Defense Production Act Extension and Amendments 

of 1991, 105 Stat. 487. 

(defense to breach of contract suits) 

Omnibus Transportation Employee Testing Act of 1991, 

105 Stat. 952. [Department of Transportation 

and Related Agencies Appropriations Act of 1992, 

Title V, 105 Stat. 9171 

Civil Rights Act of 1991, 105 Stat. 1071. 

Civil Space Employee Testing Act of 1991, 

105 Stat. 1616 [National Aeronautics and Space 

Administration Authorization Act for Fiscal Year 1!ZQ 

Section 21, 105 Stat. 16051 

National Highway Traffic Safety Administration 

Authorization Act of 1991, 105 Stat. 2081. 

[Intermodal Surface Transportation Efficiency Act 

of 1991, Title II@), 105 Stat. 19141 

Motor Carrier Act of 1991, 105 Stat. 2140. 

[Intermodal Surface Transportation Efficiency Act 

of 1991, Title IV, 105 Stat. 19141 

Federal Deposit Insurance Corporation Improvement 

Act of 1991, 105 Stat. 2236. [Includes Truth in Saving 

Act, Title II(F), 105 Stat. 23341 

Telephone Consumer Protection Act of 1991, 

105 Stat. 2394. 

50 U.S. Advisory Commission on Intergovernmental Relations 
Preemption Relief Statutes 

Purpose Statute 

C 

H 

C 

C 

C 

T 

C 

C 

0 

C 

C 

T 

C 

C 

C 

NR 

C 

C 

B 

C 

An Act for the Establishment and Support of 

Lighthouses, Beacons, Buoys, and Public Piers (1789), 

1 Stat. 53. (regulation of pilots) 

An Act Respecting Quarantine and Health Laws 

(1799), 1 Stat. 619. 

Original Packages Act of 1890 (Wilson Act), 

26 Stat. 313. (intoxicating beverages) 

Oleomargarine Act of 1902, 32 Stat. 193. 

Webb-Kenyon Act of 1913, 37 Stat. 699. 

(intoxicating beverages) 

National Bank Tax Act (1923), 42 Stat. 1499. 

Nursery Stock Quarantine Act of 1926 

(Plant Quarantine Act Amendment of 1926), 

44 Stat. 250. 

Convict-Made Goods Act (1928), 45 Stat. 1084. 

Judicial Code Amendments of 1934, 48 Stat. 775. 

(federal court jurisdiction over suits regarding orders 

of state administrative boards) 

Liquor Law Repeal and Enforcement Act of 1935, 

49 Stat. 872. 

Antitrust Law Amendments of 1937, 50 Stat. 693. 

[District of Columbia Revenue Act of 1937, Title VIII, 

50 Stat. 6731 (minimum resale prices) 

Tax Injunction Act of 1937, 50 Stat. 738. 

(federal court jurisdiction over suits regarding 

state taxes) 

54 Stat. 686 (1940). (prize fight films) 

Insurance Regulation Act of 1945 

(McCarran-Ferguson Act), 59 Stat. 33. 

Federal Trade Commission Act Amendment of 1952 

(McGuire Act), 66 Stat. 631. (state fair trade laws) 

Submerged Lands Act of 1953, 67 Stat. 29. 

Natural Gas Act Amendment of 1954, 68 Stat. 36. 

Atomic Energy Act of 1959, 73 Stat. 688. 

(byproduct, source, and special nuclear materials) 

Investment Advisors Act of 1940 Amendment, 

74 Stat. 885. 

Talmadge-Aiken Act of 1965 76 Stat. 663. 

T 

C 

C 

C 

H 

H 

H 

NR 

C 

0 

C 

C 

R 

T 

(enforcement authority delegated to states) 

Public Law 91-156 (1969), 83 Stat. 434. (banks) 

Uniform Time Act of 1966 Amendment (1972), 

86 Stat. 116. 

Motor Vehicle Information and Cost Savings Act 

Amendments of 1976, 90 Stat. 981. 

(gives state Attorney General power to sue) 

Federal Aviation Act of 1958-Amendments, 

91 Stat. 1278. (gives California and Florida carriers 

additional ticketing powers) 

Safe Drinking Water Act Amendments of 1977, 

91 Stat. 1393. (regulatory relief regarding 

underground injection control programs) 

Federal Water Pollution Control Act (Clean Water Act 

of 1977), 91 Stat. 1566. (water allocation) 

Solid Waste Disposal Act Amendments of 1980, 

94 Stat. 2334. (allows states to set more stringent 

standards) 

Marine Mammal Protection Act Amendments of 198l, 

95 Stat. 979. (allows delegation of responsibility to state) 

Motor Vehicle Safety and Cost Saving Authorization 

Act of 1982 96 Stat. 1619. (clarifies authority 

regarding state standards that are identical 

to federal ones) 

Comprehensive Crime Control Act of 1984, 

98 Stat. 1976. [Continuing Appropriations Act of 1985, 

Title 11, Section 2201, 98 Stat. 18371 

(labor organization activities) 

Local Government Antitrust Act of 1984, 

98 Stat. 2750. (official conduct of local governments) 

Fair Labor Standards Amendments of 1985, 

99 Stat. 787. (compensation time for state 

and local government employees) 

Age Discrimination in Employment Amendments 

of 1986, 100 Stat. 3342. (application to fire fighters 

and law enforcement officials) 

Aviation Safety and Capacity Expansion Act of 1990, 

104 Stat. 1388-353. [Omnibus Budget Reconciliation 

Act of 1990, Title IX(B), 104 Stat. 13881 

(passenger facility charges) 

U.S. Advisory Commission on Intergovernmental Relations 51 
52 U.S. Advisory Commission on Intergovernmental Relations 
Appendix B. INVENTORY OF PREEMPTION STATUTES, BY PURPOSE 

Banking and Finance 

Federal Reserve Act of 1913, 38 Stat. 251. 

Ship Mortgage Act of 1920, 41 Stat. 1000. [Merchant Marine 

Act of 1920, Section 30, 41 Stat. 9881 

Banking Act of 1927, 44 Stat. 1224. 

Federal Home Loan Bank Act of 1932, 47 Stat. 725. 

48 Stat. 1. [Includes Bank Conservation Act of 1933, Title 11, 

Home Owners' Loan Act of 1933, 48 Stat. 128. 

Banking Act of 1933, 48 Stat. 162. 

Securities Exchange Act of 1934,48 Stat. 881. 

National Housing Act of 1934, 48 Stat. 1246. 

Farm Credit Act of 1935,49 Stat. 313. 

Securities Exchange Act Amendments of 1938,52 Stat. 1070. 

54 Stat. 789 [Includes Investment Company Act of 1940, Title 

I, 54 Stat. 789; and Investment Advisers Act of 1940, Title 

11, 54 Stat. 471 

48 Stat. 21 

Defense Production Act of 1950,64 Stat. 798. 

Federal Deposit Insurance Act Amendments of 1950, 

Federal Credit Union Act of 1959, 73 Stat. 628. 

Banking Interest Rates Act of 1966, 80 Stat. 823. 

Public Law 90-203 (1967), 81 Stat. 608. (lotteries) 

Consumer Credit Protection Act of 1968 uruth in Lending 

Bank Protection Act of 1968, 82 Stat. 294. 

Credit Control Act of 1969, 83 Stat. 376. [Public Law 91-151, 

Title II,83 Stat. 3711 

Public Law 91-508, 84 Stat. 1114 [Includes Bank Secrecy Act of 

1970, Titles 1-11, 84 Stat. 1114; Credit Card Act of 1970, Title 

V, 84 Stat. 1126; and Fair Credit Reporting Act of 1970, Title 

VI, 84 Stat. 11281 

64 Stat. 873. 

Act), 82 Stat. 146. 

Securities Investor Protection Act of 1970, 84 Stat. 1636. 

Bank Holding Company Act Amendments of 1970, 84 Stat. 1760. 

Farm Credit Act of 1971, 85 Stat. 583. 

Fair Credit Billing Act of 1974, 88 Stat. 1511. [Public Law 

93-495, Title III,88 Stat. 1500J 

Home Mortgage Disclosure Act of 1975, 89 Stat. 1125. [Public 

Law 94-200, Part 111, 89 Stat. 11241 

Railroad Revitalization and Regulatory Reform Act of 1976 (4 

R Act), 90 Stat. 31. 

Consumer Leasing Act of 1976, 90 Stat. 257. 

Veterans Housing Amendments Act of 1976, '30 Stat. 720. (usury> 

Fair Debt Collection Practices Act of 1977, 91 Stat. 874. 

National Energy Conservation Policy Act of 1978, 92 Stat. 3206. 

Financial Institutions Regulatory and Interest Rate Control 

Act of 1978, 92 Stat. 3641. [Includes the Depository 

Institution Management Interlocks Act of 1978, Title 11,92 

Stat. 3672; Right to Financial Privacy Act of 1978, Title XI, 

92 Stat. 3697; and Electronic Fund Transfer Act of 1978, 

Title XX, 92 Stat. 37281 

(1979), 93 Stat. 789. 

93 Stat. 1101. 

Business and Agricultural Loans-Interest Limitations Act 

Housing and Community Development Amendments of 1979, 

Automatic Transfer Accounts Act of 1979, 93 Stat. 1234. 

Depository Institutions Deregulation and Monetary Control 

Act of 1980, 94 Stat. 132. [Includes the Depository 

Institutions Deregulation Act of 1980, Title 11, 94 Stat. 1421 

Cash Discount Act of 1981,95 Stat. 144. 

GamSt. Germain Depository Institutions Act of 1982,96 Stat. 

1469. 

Housing and Urban-Rural Recovery Act of 1983, 97 Stat. 1155. 

[Supplemental Appropriations Act of 1984, Title lV, 97 Stat. 

11531 

Secondary Mortgage Market Enhancement Act of 1984,98 

Stat. 1689. 

Consolidated Omnibus Budget Reconciliation Act of 1985, 

Section 18008, 100 Stat. 82. (debentures) 

Student Financial Assistance Amendments of 1985, 100 Stat. 

339. [Consolidated Omnibus Budget Reconciliation Act of 

1985, Title XVI, 100 Stat. 821 (statute of limitations on 

student loan collections) 

Superfund Amendments and Reauthorization Act of 1986,100 

Stat. 16U. [Includes the Emergency Planning and Community 

Right-teKnow Act of 1986, Title 111, 100 Stat. 17281 

Expedited Funds Availability Act of 1987, 101 Stat. 635. 

[Competitive Equality Banking Act of 1987, Title VI, 101 

Stat. 5521 

Agricultural Credit Act of 1987, 101 Stat. 1568. 

Fair Credit and Charge Card Disclosure Act of 1988, 102 Stat. 

Home Equity Loan Consumer Protection Act of 1988, 102 

Financial Institutions Reform, Recovery, and Enforcement 

Low-Income Housing Preservation and Resident 

2960. 

Stat. 4725. 

Act of 1989, 103 Stat. 183. 

Homeownership Act of 1990, 104 Stat. 4249. [CranstonGonzalez National Affordable Housing Act, Title VI, 104 

Stat. 40791 

Federal Deposit Insurance Corporation Improvement Act of 

1991, 105 Stat. 2236. [Includes Truth in Savings Act, Title 

II(F), 105 Stat. 23341 

U.S. Advisory Commission on Intergovernmental Relations 53 
Civil Rights 

Coolie Trade Prohibition Act of 1862, 12 Stat. 340. 

Civil Rights Act of 1866, 14 Stat. 27. 

Peonage Abolition Act of 1867, 14 Stat. 546. 

Civil Rights Act of 1870, 16 Stat. 140. 

Civil Rights Act Amendments of 1871, 16 Stat. 433. 

Ku Klux Klan Act of 1871, 17 Stat. 13. 

Civil Rights Act of 1875, 18 Stat. 336. 

Civil Rights Act of 1957,71 Stat. 634. 

Civil Rights Act of 1960,74 Stat. 86. 

Equal Pay Act of 1963, 77 Stat. 56. 

Civil Rights Act of 1964,78 Stat. 241 

Voting Rights Act of 1965, 79 Stat. 437. 

Age Discrimination in Employment Act of 1967,81 Stat. 602. 

Fair Housing Act of 1968, 82 Stat. 81. [Civil Rights Act of 

Civil Obedience Act of 1968,82 Stat. 90. [Civil Rights Act of 

Voting Rights Act Amendments of 1970, 84 Stat. 314. 

Equal Employment Opportunity Act of 1972,86 Stat. 103. 

Age Discrimination in Employment Act Amendments of 1974, 

88 Stat. 74. [Fair Labor Standards Amendments of 1974, 

Section 28,88 Stat. 551 

Equal Educational Opportunities Act of 1974, 88 Stat. 514. 

[Education Amendments of 1974, Title 11, 88 Stat. 484.1 

Equal Credit Opportunity Act of 1974, 88 Stat. 1521. [Public 

Law 93-495, Title V, 88 Stat. 15001 

Voting Rights Act of 1965-Amendments (1975), 89 Stat. 400. 

Equal Credit Opportunity Act Amendments of 1976, 90 Stat. 251. 

Age Discrimination in Employment Act Amendments of 1978, 

Pregnancy Discrimination Act of 1978,92 Stat. 2076. 

Financial Institutions Regulatory and Interest Rate Control 

1968, Title VIII, 82 Stat. 731 

1968, Title X, 82 Stat. 731 

92 Stat. 189. 

Act of 1978,92 Stat. 3641. [Includes the Depository 

Institution Management Interlocks Act of 1978, Title 11,92 

Stat. 3672; Right to Financial Privacy Act of 1978, Title XI, 

92 Stat. 3697; and Electronic Fund Transfer Act of 1978, 

Title XX, 92 Stat. 37281 

Voting Rights Act Amendments of 1982, 96 Stat. 131. 

Air Carriers Access Act of 1986, 100 Stat. 1080. (handicapped 

Age Discrimination in Employment Amendments of 1986, 100 

Immigration Reform and Control Act of 1986, 100 Stat. 3359. 

Employee Polygraph Protection Act of 1988, 102 Stat. 646. 

Fair Housing Amendments Act of 1988, 102 Stat. 1619. 

Americans with Disabilities Act (1990), 104 Stat. 327. 

Civil Rights Act of 1991, 105 Stat. 1071. 

access) 

Stat. 3342. 

Commerce, Energy, labor, and Transportation 

Patent Act of 1790, 1 Stat. 109. 

Copyright Act of 1790, 1 Stat. 124. 

Bankruptcy Act of 1800, 2 Stat. 19. (repealed by Act of 

December 19, 1803,2 Stat. 248) 

An Act to Regulate the Collection of Duties on Imports and 

Tonnage of 1799 (priority of sureties), Section 65, 1 Stat. 627. 

An Act Relating to Passenger Ships and Vessels (1819), 3 Stat. 

488. 

Bankruptcy Act of 1841,s Stat. 440. 

Commercial Communication Act of 1866, 14 Stat. 66. 

An Act Relating to Pilots and Pilot Regulation (18661 14 Stat 93. 

Bankruptcy Act of 1867, 14 Stat. 517. 

Animal Industry Act of 1884,23 Stat. 31. 

The Act to Regulate Commerce of 1887 (Interstate Commerce 

The Act of July 2, 1890 (Sherman Antitrust Act), 26 Stat. 209. 

Limited Liability Act of 1893, 27 Stat. 445. 

An Act to Establish a Uniform System of Bankruptcy of 1898, 

River and Harbor Act of 1899, 30 Stat. 1151. [Appropriation 

An Act to Establish a National Bureau of Standards (1901), 31 

Dairy and Food Products Labeling Act of 1902, 32 Stat. 632. 

An Act to Further Regulate Commerce with Foreign Nations, 

and Among the States of 1903 (Elkins Act), 32 Stat. 847. 

Federal Employer’s Liability Act of 1906, 34 Stat. 232. 

Interstate Commerce Act Amendments of 1906,34 Stat. 584. 

Hours of Service on Railroads Act of 1907 (Esch Act), 34 Stat. 

Federal Employer’s Liability Act Amendments of 1908, 35 

Commerce Court Act of 1910,36 Stat. 539. 

Standard Barrel Act of 1912 (apple barrels), 37 Stat. 250. 

An Act to Regulate the Importation of Nursery Stock (Nursery 

Stock or Plant Quarantine Act of 1912), 37 Stat. 317. 

Valuation Act of 1913, 37 Stat. 701. 

The Act of September 26, 1914 (Federal Trade Commission 

The Act of October 15, 1914 (Clayton Antitrust Act), 38 Stat. 

Standard Barrel Act of 1915 (fruits, vegetables), 38 Stat. 1186. 

U.S. Cotton Futures Act of 1916, 39 Stat. 476. [Department of 

Agriculture Appropriations Act of 1917, Part A, 39 Stat. 4461 

U.S. Grain Standards Act of 1916,39 Stat. 482. [Department of 

Agriculture Appropriations Act of 1917, Part B, 39 Stat 4461 

Standard Barrel Act of 1916 (lime barrels), 39 Stat. 530. 

Pomerene Bill of Lading Act of 1916, 39 Stat. 538. 

Standard Baskets Act of 1916,39 Stat. 673. 

An Act to Prevent Interstate Commerce in the Products of 

Child Labor of 1916, 39 Stat. 675. 

An Act to Establish an Eight-Hour Day for Employees of 

Carriers Engaged in Interstate and Foreign Commerce 

(Adamson Act of 1916) 39 Stat. 721. 

Act of 1887), 24 Stat. 379. 

30 Stat. 544. 

for Rivers and Harbors, Sections 9-20, 30 Stat. 1121.1 

Stat. 1449. 

1415. 

Stat. 65. 

Act), 38 Stat. 717. 

730. 

Standard Time Act of 1918 (Calder Act), 40 Stat. 450. 

An Act to Promote Export Trade, and for Other Purposes of 

Transportation Act of 1920, 41 Stat. 456. [Includes the 

Federal Water Power Act of 1920,41 Stat. 1063. 

Packers and Stockyards Act of 1921,42 Stat. 159. 

Agricultural Producers Association Act of 1922,42 Stat. 388. 

Grain Futures Act of 1922, 42 Stat. 998. 

US. Cotton Standards Act of 1923, 42 Stat. 1517. 

United States Arbitration Act of 1925, 43 Stat. 883. 

Railway Labor Act of 1926,44 Stat. 577. 

Longshoremen’s and Harbor Workers’ Compensation Act of 

45 Stat. 685. (standard measures) 

Agricultural Marketing Act of 1929, 46 Stat. 11. 

1918 (Webb-Pomerene Act), 40 Stat. 516. 

Interstate Commerce Act of 1920, Title IV, 41 Stat. 4741 

1927, 44 Stat. 1424. 

54 U.S. Advisory Cominission on Intergovernmental Relations 
Perishable Agricultural Commodities Act of 1930,46 Stat. 531. 

Bankruptcy Act of 1933,47 Stat. 1467. 

Agricultural Adjustment Act of 1933, 48 Stat. 31. 

National Industrial Recovery Act of 1933, 48 Stat. 195. 

Emergency RajJroad Transportatjon Act of 1933, 48 Stat. 211. 

Bankruptcy Act of 1934,48 Stat. 798. 

Communications Act of 1934, 48 Stat. 1064. 

Producers of Aquatic products Antitrust Act (1934) 48 Stat. 1213. 

National Firearms Act of 1934, 48 Stat. 1236. 

Tobacco Inspection Act of 1935,49 Stat. 731. 

National Labor Relations Act of 1935, 49 Stat. 449. 

Motor Carrier Act of 1935,49 Stat. 543. 

Public Utility Holding Company Act of 193S,49 Stat. 803. 

Antitrust Act Amendments of 1936 (Robinson-Patman 

Agricultural Marketing Agreement Act of 1937,50 Stat. 246. 

Federal Trade Commission Act Amendments of 1938,52 Stat. 

Natural Gas Act of 1938, 52 Stat. 821. 

Bankruptcy Act Amendments of 1938 (Chandler Act), 52 Stat. 

Civil Aeronautics Act of 1938,52 Stat. 973. 

Fair Labor Standards Act of 1938,52 Stat. 1060. 

Federal Firearms Act of 1938, 52 Stat. 1250 

Trust Indenture Act of 1939,53 Stat. 1149. 

Transportation Act of 1940,54 Stat. 898. 

Wool Products Labeling Act of 1939,54 Stat. 1128. 

Emergency Price Control Act of 1942, 56 Stat. 23. 

Second War Powers Act of 1942,56 Stat. 176. 

Trademark Act of 1946 (Lanharn Act), 60 Stat. 427. 

Atomic Energy Act of 1946,60 Stat. 755. 

Portal-to-Portal Act of 1947, 61 Stat. 84. (employer’s 

obligations) 

Labor-Management Relations Act of 1947 vaft Hartley Act), 

61 Stat. 136. 

An Act to Amend the Interstate Commerce Act with Respect 

to Certain Agreements between Carriers of 1948 (Interstate 

Commerce Act of 1948), 62 Stat. 472. 

[Public Utility Act of 1935, Title I, 49 Stat. 8031 

Antidiscrimination Act), 49 Stat. 1526. 

111. 

840. 

Defense Production Act of 1950,64 Stat. 798. 

Fur Products Labeling Act of 1951,65 Stat. 175. 

Communications Act Amendments of 1952,66 Stat. 711. 

Outer Continental Shelf Lands Act of 1953,67 Stat. 462. 

Atomic Energy Act of 1954,68 Stat. 919. 

Federal Plant Pest Act of 1957, 71 Stat. 31. 

Automobile Information Disclosure Act of 1958,72 Stat. 325. 

Federal Aviation Act of 1958, 72 Stat. 731. 

Textile Fiber Products Identification Act of 1958,72 Stat. 1717. 

Labor-Management Reporting and Disclosure Act of 1959,73 

Great Lakes Pilotage Act of 1960, 74 Stat. 259. 

Communications Act Amendments of 1960,74 Stat. 889. 

Farm Labor Contractor Registration Act of 1963,78 Stat. 920. 

Food and Agriculture Act of 1965,79 Stat. 1187. 

Uniform Time Act of 1966, 80 Stat. 107. 

Fair Packaging and Labeling Act of 1966,80 Stat. 1296. 

Agricultural Fair Practices Act of 1968,82 Stat. 93. 

Stat. 519. 

Interstate Land Sales Full Disclosure Act of 1968, 82 Stat. 590. 

[Housing and Urban Development Act of 1968, Title m, 

82 Stat. 4761 

United States Grain Standards Act of 1968,82 Stat. 761. 

Newspaper Preservation Act of 1970,84 Stat. 466. 

RazY Pmnger Semk Acl of197’ Secbon 306,84 Stat, 132% 

Plant Variety Protection Act of 1970, 84 Stat. 1542. 

Ports and Watenvays Safety Act of 1972, 86 Stat. 424. 

Motor Vehicle Information and Cost Savings Act of 1972,86 

Longshoremen’s and Harbor Workers’ Compensation Act 

Emergency Petroleum Allocation Act of 1973, 87 Stat. 627. 

Health Maintenance Organization Act of 1973, Section 1311, 

Fair Labor Standards Amendments of 1974,88 Stat. 55. 

Employee Retirement Income Security Act of 1974,88 Stat. 829. 

Veterans’ Reemployment Rights Act Amendments of 1974,88 

Stat. 947. 

Amendments of 1972,86 Stat. 1251. 

87 Stat. 914. 

Stat. 1594. [Vietnam Era Veterans’ Readjustment 

Assistance Act of 1974, Section 404,88 Stat. 15781 

Real Estate Settlement Procedures Act of 1974,88 Stat. 1724. 

Deepwater Port Act of 1974,88 Stat. 2126. 

Federal Noxious Weed Act of 1974,88 Stat. 2148. 

Magnuson-Moss Warranty-Federal Trade Commission 

Consumer Goods Pricing Act of 1975,89 Stat. 801. 

Energy Policy and Conservation Act of 1975,89 Stat. 871. 

Real Estate Settlement Procedures Act Amendments of 1975, 

Railroad Revitalization and Regulatory Reform Act of 1976 (4 

Federal Railroad Safety Authorization Act of 1976,90 Stat. 817. 

Packers and Stockyards Act Amendments of 1976,90 Stat. l249. 

United States Grain Standards Act of 1976, 90 Stat. 2867. 

Petroleum Marketing Practices Act of 1978,92 Stat. 322. 

Outer Continental Shelf Lands Act Amendments of 1978,92 

Stat. 629. (liability limits and information disclosure) 

Airline Deregulation Act of 1978,92 Stat. 1705. 

Interstate Horseracing Act of 1978,92 Stat. 1811. 

Public Utility Regulatory Policies Act of 1978,92 Stat. 3117. 

National Energy Conservation Policy Act of 1978, 92 Stat. 3%. 

Powerplant and Industrial Fuel Use Act of 1978,92 Stat. 3289. 

Natural Gas Policy Act of 1978,92 Stat. 3350. 

Emergency Energy Conservation Act of 1979,93 Stat. 749. 

Energy Security Act of 1980,94 Stat. 611. 

Motor Carrier Act of 1980, 94 Stat. 793. 

Soft Drink Interbrand Competition Act of 1980,94 Stat. 939. 

Ocean Thermal Energy Conversion Act of 1980,94 Stat. 974. 

Condominium and Cooperative Conversion Protection and 

Abuse Relief Act of 1980,94 Stat. 1672. [Housing and 

Community Development Act of 1980, Title VI, 94 Stat. 16141 

Improvement Act of 1975,88 Stat. 2183. 

89 Stat. 1157. 

R Act), 90 Stat. 31. 

Staggers Rail Act of 1980, 94 Stat. 1895. 

Household Goods Transportation Act of 1980,94 Stat. 2011. 

Northeast Rail Service Act of 1981,95 Stat. 643. [Omnibus 

Product Liability Risk Retention Act of 1981,9S Stat. 949. 

Bus Regulatory Reform Act of 1982,96 Stat. 1102. 

Lanham Trademark Act Amendment of 1982,96 Stat. 1316. 

Migrant and Seasonal Agricultural Worker Protection Act, 96 

Budget Reconciliation Act of 1981, Title XI(E), 95 Stat. 357 

Stat. 2583. 

U.S. Advisory Commission on Intergovernmental Relations 55 
Housing and Urban-Rural Recovery Act of 1983,97 Stat. 1155. 

[Supplemental Appropriations Act of 1984, Title W, 97 Stat. 

11531 

Commercial Fishing Industry Vessel Act of 1984,98 Stat. 445. 

[Public Law 98-364, Title IV, 98 Stat. 4401 

Retirement Equity Act of 1984,98 Stat. 1426. 

Drug Price Competition and Patent Term Restoration Act of 

1984, Title 111, 98 Stat. 1585. (textile and wool products 

labeling) 

Amendments of 1984,98 Stat. 1639. 

2754. 

Longshore and Harbor Workers’ Compensation Act 

Motor Vehicle Theft Law Enforcement Act of 1984,98 Stat. 

Cable Communications Policy Act of 1984,98 Stat. 2779. 

Commercial Space Launch Act of 1984,98 Stat. 3055. 

Semiconductor Chip Protection Act of 1984,98 Stat. 3347. 

Food Security Act of 1985, Section 1324, 99 Stat. 1354. (clear title) 

Firearms Owners’ Protection Act of 1986, 100 Stat. 449. 

Daylight Savings Time Extension Act of 1986, 100 Stat. 764. 

Superfund Amendments and Reauthorization Act of 1986, 100 

Stat. 1613. [Includes the Emergency Planning and 

Community Right-@Know Act of 1986, Title 111, 100 Stat. 

Surface Freight Folwarder Deregulation Act of 1986, 100 Stat. 

Risk Retention Amendments of 1986, 100 Stat. 3170. 

Immigration Reform and Control Act of 1986, 100 Stat. 3359. 

National Appliance Energy Conservation Act of 1987, 101 

Poultry Producers Financial Protection Act of 1987, 101 Stat. 917. 

National Appliance Energy Conservation Amendments of 

1988, 102 Stat. 671. 

Worker Adjustment and Retraining Notification Act of 1988, 

102 Stat. 890. 

Commercial Fishing Industry Vessel Safety Act of 1988, 102 

Stat. 1585. 

Satellite Home Viewer Act of 1988, 102 Stat. 3949. [Public Law 

100-667, Title 11, 102 Stat. 39351 

Truck and Bus Safety and Regulatory Reform Act of 1988, 102 

Stat. 4527. [Anti-Drug Abuse Act of 1988, Title IX, Subtitle 

B, 102 Stat. 41811 

[Public Law 98-620, Title 111, 98 Stat. 33351 

1724 

2993. 

Stat. 103. 

Television Decoder Circuitry Act of 1990, 104 Stat. 961. 

Telephone Operator Consumer Services Improvement Act of 

Sanitary Food Transportation Act of 1990, 104 Stat. 1213. 

Omnibus Budget Reconciliation Act of 1990, Sec. 4353, 104 

Fastener Quality Act of 1990, 104 Stat. 2943. 

Consumer Product Safety Improvement Act of lW0, 104 Stat. 

3110. 

Visual Artists Rights Act of 1990, 104 Stat. 5128. [Judicial 

Improvements Act of 1990, Title VI, 104 Stat. 50891 

Omnibus Transportation Employee Testing Act of 1991, 105 

Stat. 952. [Department of Transportation and Related 

Agencies Appropriations Act of 1992, Title V, 105 Stat. 9171 

Civil Space Employee Testing Act of 1991, 105 Stat. 1616 

[National Aeronautics and Space Administration 

Authorization Act for Fiscal Year 1992, Section 21, 105 Stat. 

16051 

Motor Carrier Act of 1991, 105 Stat. 2140. [Intermodal Surface 

ransportation Efficiency Act of 1991, Title N, 105 Stat. 19141 

Telephone Consumer Protection Act of 1991, 105 Stat. 2394. 

1990, 104 Stat. 986. 

Stat. 1388. (medigap insurance) 

Health, Safety, and Environmental Protection 

Act of February 28, 1871 (Dangerous Cargo Act), 16 Stat. 440. 

Cattle Inspection Act of 1891, 26 Stat. 1089. 

Safety Appliance Act of 1893, 27 Stat. 531. 

Refuse Act of 1899,30 Stat. 1152. [Appropriation for Rivers 

and Harbors, Section 13,30 Stat. 11211 

Safety Appliance Act of 1903, 32 Stat. 943. 

Food and Drug Act of 1906 (Pure Food Act), 34 Stat. 768. 

Cattle Contagious Diseases Act of 1903, 32 Stat. 791. 

Cattle Contagious Diseases Act of 1905,33 Stat. 1264. 

Federal Meat Inspection Act of 1907,34 Stat. 1260. 

[Department df Agriculture Appropriations Act of 1938, 34 

Stat. 12561 

Safety Appliance Act of 1910, 36 Stat. 298. 

The Insecticide Act of 1910, 36 Stat. 331. 

Boiler Inspection Act of 1911,36 Stat. 913. 

41 Stat. 1444. (transportation of explosives) 

Filled Milk Act of 1923, 42 Stat. 1486. 

Federal Caustic Poison Act of 1927, 44 Stat. 1406. 

Regulation of Steam Vessels Act (1936), 49 Stat. 1889. 

Federal Food, Drug, and Cosmetic Act of 1938,52 Stat. 1040. 

Dangerous Cargo Act of 1940,54 Stat. 1023. 

Public Health Service Act of 1944, 58 Stat. 682. 

Federal Insecticide, Fungicide, and Rodenticide Act of 1947, 

Flammable Fabrics Act of 1953,67 Stat. 111. 

Pesticide Chemical Residue Act of 1954 (the Miller 

An Act to Regulate Certain Devices on Household Refrigerators 

Poultry Products Inspection Act of 1957,71 Stat. 441. 

Federal Aviation Act of 1958,72 Stat. 731. 

Food Additives Amendment of 1958, 72 Stat. 1784. 

Federal Hazardous Substances Labeling Act of 1960 

61 Stat. 163. 

amendment), 68 Stat. 511. 

(1956), 70 Star. 953. 

(subsequently retitled the Federal Hazardous Substances 

Act), 74 Stat. 372. 

Color Additive Amendments Act of 1960, 74 Stat. 397. 

An Act to Provide that Hydraulic Brake Fluid Sold or Shipped in 

Commerce for Use in Motor Vehicles Meet Certain 

Specifications (1962), 76 Stat. 437. 

Drug Amendments of 1962,76 Stat. 780. 

An Act to Provide that Seat Belts Sold or Shipped in Commerce 

for Use in Motor Vehicles Shall Meet Certain Safety 

Standards (1963), 77 Stat. 361. 

Drug Abuse Control Amendments of 1965,79 Stat. 226. 

Federal Cigarette Labeling and Advertising Act of 1965, 79 

Water Quality Act of 1965, 79 Stat. 903. 

Motor Vehicle Air Pollution Control Act of 1965, 79 Stat. 992. 

National Traffic and Motor Vehicle Safety Act of 1966, 80 Stat. 

Federal Metal and Nonmetallic Mine Safety Act of 1966,80 

Child Protection Act of 1966,80 Stat. 1303. 

Air Quality Act of 1967 (Clean Air Act), 81 Stat. 485. 

Clinical Laboratories Improvement Act of 1967,81 Stat. 536. 

Stat. 282. 

[Public Law 89-272, Title I, 79 Stat. 9921 

718. 

Stat. 772. 

[Partnership for Health Amendments of 1967, Section 5,81 

Stat. 5331 

Flammable Fabrics Act of 1967,81 Stat. 568. 

Wholesome Meat Act of 1967, 81 Stat. 584. 

56 U.S. Advisory Commission on Intergovernmental Relations 
Animal Drug Amendments Act of 1968,82 Stat. 342. 

Federal Aviation Act Amendments of 1968,82 Stat. 395. 

Natural Gas Pipeline Safety Act of 1968,82 Stat. 720. 

Wholesome Poultry Products Act of 1968,82 Stat. 791. 

Radiation Control for Health and Safety Act of 1968, 82 Stat. 

Gun Control Act of 1968, 82 Stat. 1213. 

Federal Coal Mine Health and Safety Act of 1969,83 Stat. 742. 

[Includes the Black Lung Benefits Act of 1972, Title IV, 83 

Stat. 7921 

(relates to aircraft noise) 

1173. 

Public Health Cigarette Smoking Act of 1969, 84 Stat. 87. 

Water Quality Improvement Act of 1970,84 Stat. 91. [Public 

Organized Crime Control Act of 1970, Title XI, 84 Stat. 922. 

Federal Railroad Safety Act of 1970,84 Stat. 971. [Federal 

Law 91-224, Title I, 84 Stat. 911 

(explosives) 

Railroad Safety and Hazardous Materials Control Act of 

1970, Title 11, 84 Stat. 9711 

Occupational Safety and Health Act of 1970,84 Stat. 1590. 

Egg Products Inspection Act of 1970,84 Stat. 1620. 

Poison Prevention Packaging Act of 1970, 84 Stat. 1670. 

Clean Air Amendments of 1970,84 Stat. 1676. 

Federal Boat Safety Act of 1971,85 Stat. 213. 

Federal Water Pollution Control Act Amendments of 1972, 86 

Federal Environmental Pesticide Control Act of 1972,86 Stat. 

Consumer Product Safety Act of 1972,86 Stat. 1207. 

Noise Control Act of 1972,86 Stat. 1234. 

Lead-Based Paint Poisoning Prevention Act Amendments of 

1973,87 Stat. 565. 

National Mobile Home Construction and Safety Standards Act 

of 1974 (National Manufactured Housing Construction and 

Safety Standards Act of 1974), 88 Stat. 700. [Housing and 

Community Development Act of 1974, Title VI, 88 Stat. 6331 

Motor Vehicle and Schoolbus Safety Amendments of 1974,88 

Stat. 1470. 

Safe Drinking Water Act of 1974,88 Stat. 1660. 

Transportation Safety Act of 1974,88 Stat. 2156. [Includes the 

Hazardous Materials Transportation Act of 1974, Title I, 88 

Stat. 21561 

National Health Planning and Resources Development Act of 

1974,88 Stat. 2225. 

Consumer Product Safety Commission Improvements Act of 

1976,90 Stat. 503. 

Medical Device Amendments of 1976,90 Stat. 539. 

Toxic Substances Control Act of 1976, 90 Stat. 2003. 

Resource Conservation and Recovery Act of 1976,90 Stat. 27951. 

Surface Mining Control and Reclamation Act of 1977,91 Stat. 

Clean Air Act Amendments of 1977,91 Stat. 685. 

Federal Mine Safety and Health Act of 1977,91 Stat. 1290. 

Federal Pesticide Act of 1978,92 Stat. 819. 

Port and Tanker Safety Act of 1978,92 Stat. 1471. 

Federal Railroad Safety Authorization Act of 1978,92 Stat. 2459. 

Uranium Mill Tailings Radiation Control Act of 1978,92 Stat. 

Quiet Communities Act of 1978,92 Stat. 3079. 

Pipeline Safety Act of 1979, 93 Stat. 989. 

Stat. 8161. 

973. 

445. 

3021. 

Nuclear Regulatory Commission Reauthorization Act of 1980, 

Infant Formula Act of 1980, 94 Stat. 1190. 

Used Oil Recycling Act of 1980,94 Stat. 2055. 

Swine Health Protection Act of 1980, 94 Stat. 2229. 

Comprehensive Environmental Response, Compensation, and 

Nuclear Waste Policy Act of 1982,96 Stat. 2201. 

Motor Carrier Safety Act of 1984,98 Stat. 2832. [Public Law 

Hazardous and Solid Waste Amendments of 1984,98 Stat. 3221. 

Low-Level Radioactive Waste Policy Amendments Act of 1985, 

Comprehensive Smokeless Tobacco Health Education Act of 

Safe Drinking Water Act Amendments of 1986, 100 Stat. 642. 

Superfund Amendments and Reauthorization Act of 1986, 100 

94 Stat. 780. 

Liability Act of 1980,94 Stat. 2767. 

98-554, Title 11, 98 Stat. 28291 

99 Stat. 1842. 

1986, 100 Stat. 30. 

Stat. 1613. [Includes the Emergency Planning and Community 

Right-@Know Act of 1986, Title 111, 100 Stat. 17281 

Commercial Motor Vehicle Safety Act of 1986, 100 Stat. 3207- 

170. [Anti-Drug Abuse Act of 1986, Title XII, 100 Stat. 32071 

Water Quality Act of 1987, 101 Stat. 7. 

Marine Plastic Pollution Research and Control Act of 1987, 

101 Stat. 1460. [United States-Japan Fisheries Agreement 

Approval Act of 1987, Title 11, 101 Stat. 14591 

Prescription Drug Marketing Act of 1987, 102 Stat. 95. 

Rail Safety Improvement Act of 1988, 102 Stat. 624. 

Commercial Fishing Industry Vessel Safety Act of 1988, 102 

Federal Insecticide, Fungicide, and Rodenticide Act 

Degradable Plastic Ring Carriers Act of 1988, 102 Stat. 2779. 

Public Law 100-561, 102 Stat. 2805. [Includes Pipeline Safety 

Reauthorization Act of 1988, Title I, 102 Stat. 2805 and 

Hazardous Liquid Pipeline Safety Act Amendments of 

1988, Title 11, 102 Stat. 28091 

Lead Contamination Control Act of 1988, 102 Stat. 2884. 

Clinical Laboratory Improvement Amendments of 1988, 102 

Stat. 2903. 

Federal Energy Management Improvement Act of 1988, 

Section 4(g), 102 Stat. 3185. (realistic looking toy guns) 

Public Law 100-688, 102 Stat. 4139 [Includes Ocean Dumping 

Ban Act of 1988, Title I, 102 Stat. 4139; and United States 

Public Vessel Medical Waste Anti-Dumping Act of 1988, 

Title 111, 102 Stat. 41521 

Alcoholic Beverage Labeling Act of 1988, 102 Stat. 4517. 

[Anti-Drug Abuse Act of 1988, Title VIII, 102 Stat. 41811 

Airport Noise and Capacity Act of 1990, 104 Stat. 1388-378. 

[Omnibus Budget Reconciliation Act of 1990, Title IX(D), 

104 Stat. 13883 

Nutrition Labeling and Education Act of 1990, 104 Stat. 2353. 

Clean Air Act Amendments of 1990, 104 Stat. 2399. 

Aviation Security Improvement Act of 1990, 104 Stat. 3066. 

Hazardous Materials Transportation Uniform Safety Act of 1990, 

National Highway Traffic Safety Administration Authorization 

Stat. 1585. 

Amendments of 1988, 102 Stat. 2654. 

104 Stat. 3244. 

Act of 1991, 105 Stat. 2081. [Intermodal Surface Transportation 

Efticiency Act of 1991, Title I@), 105 Stat. 19141 

Natural Resources, Animal Welfare, Fish 

and Wildlife Conservation 

Livestock Transportation Act of 1873, 17 Stat. 584. 

Endangered Species Act of 1900 (Lacey Act), 31 Stat. 187. 

U.S. Advisory Commission on Intergovernmental Relations 57 
Live Stock Transportation Act of 1906 (Cruelty to Animals 

Act, 28 Hour Law, or Food and Rest Law), 34 Stat. 607. 

Migratory Bird Treaty Act of 1918, 40 Stat. 755. 

Bald Eagle Protection Act of 1940, 54 Stat. 250. 

Sockeye Salmon Fishery Act of 1947, 61 Stat. 511. 

Whaling Convention Act of 1949,64 Stat. 421. 

Northwest Atlantic Fisheries Act of 1950,64 Stat. 1067. 

North Pacific Fisheries Act of 1954, 68 Stat. 698. 

Wild and Scenic Rivers Act of 1968, 82 Stat. 906. 

Public Law 89-544 (1966), 80 Stat. 350. (animal welfare) 

Fur Seal Act of 1966,80 Stat. 1091. 

Horse Protection Act of 1970, 84 Stat. 1404. 

Animal Welfare Act of 1970, 84 Stat. 1560. 

Marine Mammal Protection Act of 1972, 86 Stat. 1027. 

Marine Protection, Research, and Sanctuaries Act of 1972,86 

Stat. 1052. 

Endangered Species Act of 1973,87 Stat. 884. 

Atlantic Tunas Convention Act of 1975, 89 Stat. 385. 

Fishery Conservation and Management Act of 1976 

(subsequently retitled Magnuson Fishery Conservation and 

Management Act of 1976), 90 Stat. 331. 

Animal Welfare Act Amendments of 1976, 90 Stat. 417. 

Marine Protection, Research, and Sanctuaries Act 

Alaska National Interest Lands Conservation Act of 1980,94 

Lacey Act Amendments of 1981,95 Stat. 1073. 

Eastern Pacific Tuna Licensing Act of 1984, 98 Stat. 1715. 

Atlantic Striped Bass Conservation Act of 1984, 98 Stat. 3187. 

Pacific Salmon Treaty Act of 1985, 99 Stat. 7. 

Abandoned Shipwreck Act of 1987, 102 Stat. 432. 

Amendments of 1977,91 Stat. 1255. 

Stat. 2371. 

Other 

National Defense Act of 1916, 39 Stat. 166. 

Alien Registration Act of 1940 (Smith Act), 54 Stat. 670. 

Communist Control Act of 1954,68 Stat. 775. 

Atomic Energy Damages Act of 1957 (Price-Anderson Act), 71 

Stat. 576. (liability) 

Comprehensive Drug Abuse Prevention and Control Act of 1970, 

Federal Election Campaign Act of 1971, 86 Stat. 3. 

Trans-Alaska Pipeline Authorization Act of 1973, 87 Stat. 584. 

[Public Law 93-153, Title 11, 87 Stat. 5761 (preempts liability 

laws) 

Federal Election Campaign Act Amendments of 1974,88 Stat. 

1263. 

84 Stat. 1236. (forfeiture) 

Outer Continental Shelf Lands Act Amendments of 1978,92 

Stat. 629. (liability limits and information disclosure) 

Maritime Torts, Statute of Limitations (1980), 94 Stat. 1525. 

Veterans’ Health Care, Training, and Small Business Loan Act 

of 1981,95 Stat. 1047. (recovery for cost of care) 

Peer Review Improvement Act of 1982,96 Stat. 381. [Tax 

Equity and Fiscal Responsibility Act of 1982, Title I(C), 96 

Stat. 3241 (liability) 

Social Security Amendments of 1983, Section 339, 97 Stat. 65. 

(release of information on prisoners) 

National Cooperative Research Act of 1984,98 Stat. 1815. 

(liability limitations and attorney’s fees) 

Electronic Communications Privacy Act of 1986, 100 Stat. 1848. 

National Childhood Vaccine Injury Act of 1986, 100 Stat. 3755. 

[Public Law 99-660, Title 111, 100 Stat. 37431 (compensation 

for injuries) 

Health Care Quality Improvement Act of 1986, 100 Stat. 3784. 

[Public Law 99-660, Title IV, 100 Stat. 37431 (liability limits) 

Alaska Native Claims Settlement Act Amendments of 1987, 

101 Stat. 1788. 

Defense Production Act Extension and Amendments of 1991, 

105 Stat. 487. (defense to breach of contract suits) 

Taxation 

An Act to Provide a National Currency (National Bank Act of 

1864), 13 Stat. 99. 

An Act in Relation to Tax Shares in National Banks (1868), 15 

Civil Rights Act of 1870, 16 Stat. 140. 

Federal Home Loan Bank Act of 1932,47 Stat. 725. 

Home Owners’ Loan Act of 1933,48 Stat. 128. 

Federal Credit Union Act of 1959,73 Stat. 628. 

Public Law 86-272 (1959), 73 Stat. 555. 

Public Law 91-569 (1970), 84 Stat. 1499. (employees income tax 

Farm Credit Act of 1971, 85 Stat. 583. 

Airport Development Acceleration Act of 1973,87 Stat. 88. 

State Taxation of Depositories Act of 1973, 87 Stat. 347. 

Railroad Revitalization and Regulatory Reform Act of 1976 (4 

Tax Reform Act of 1976, Section 2121,90 Stat. 1520. 

Aviation Safety and Noise Abatement Act of 1979,94 Stat. 50. 

Motor Carrier Act of 1980,94 Stat. 793. 

Northeast Rail Service Act of 1981,95 Stat. 643. [Omnibus 

Airport and Airway Improvement Act of 1982,96 Stat. 671. 

Stat. 34. 

withholding) 

(prohibits passenger facility charges) 

[Public Law 93-100, Sec. 7, 87 Stat. 3421 

R Act), 90 Stat. 31. 

(enacted in 1980) 

Budget Reconciliation Act of 1981, Title XI(E), 95 Stat. 3571 

[Tax Equity and Fiscal Responsibility Act of 1982, Title V, 

96 Stat. 3241 

Veterans’ Benefits and Services Act of 1988, Section 332, 102 

Stat. 487. 

Thrift Savings Plan Technical Amendments Act of 1990, 104 

Stat. 319. (taxation) 

Aviation Safety and Capacity Expansion Act of 1990, 104 Stat. 

1388-353. [Omnibus Budget Reconciliation Act of 1990, 

Title IX(B), 104 Stat. 13881 

Motor Carrier Act of 1991, 105 Stat. 2140. [Intermodal Surface 

Transportation Efficiency Act of 1991, Title N, 105 Stat. 19141 

58 U.S. Advisory Commission on Intergovernmental Relations 
PREEMPTION RELIEF STATUTES 

Motor Vehicle Safety and Cost Savings Authorization Act of 

1982,96 Stat. 1619. (clarifies authority regarding state 

standards that are identical to federal ones) 

Local Government Antitrust Act of 1984,98 Stat. 2750. 

(official conduct of local governments) 

Fair Labor Standards Amendments of 1985,99 Stat. 787. 

(compensation time for state and local government 

employees) 

Banking and Finance 

Investment Advisors Act of 1940 Amendment (1960), 74 Stat. 

885. 

Civil Rights 

Age Discrimination in Employment Amendments of 1986, 100 

Stat. 3342. (application to fire fighters and law enforcement 

officials) 

Commerce, Energy, Labor, and Transportation 

An Act for the Establishment and Support of Lighthouses, 

Beacons, Buoys, and Public Piers (1789), 1 Stat. 53. 

(regulation of pilots) 

Original Packages Act of 1890 (Wilson Act), 26 Stat. 313. 

(intoxicating beverages) 

Oleomargarine Act of 1902,32 Stat. 193. 

Webb-Kenyon Act of 1913, 37 Stat. 699. (intoxicating beverages) 

Nursery Stock Quarantine Act of 1926 (Plant Quarantine Act 

Convict-Made Goods Act of 1928,45 Stat. 1084. 

Liquor Law Repeal and Enforcement Act of 1935,49 Stat. 872. 

Antitrust Law Amendments of 1937, 50 Stat. 693. [District of 

Columbia Revenue Act of 1937, Title VIII, 50 Stat. 6731 

(minimum resale prices) 

Amendment of 1926), 44 Stat. 250. 

54 Stat. 686 (1940). (prize fight films) 

Insurance Regulation Act of 1945 (McCarran-Ferguson Act), 

Federal Trade Commission Act Amendment of 1952 (McGuire 

Natural Gas Act Amendment of 1954, 68 Stat. 36. 

Atomic Energy Act of 1959,73 Stat. 688. (byproduct, source, 

Talmadge-Aiken Act of 1962,76 Stat. 663. (enforcement 

Uniform Time Act of 1966 Amendment (1972), 86 Stat. 116. 

Motor Vehicle Information and Cost Savings Act 

Amendments of 1976, 90 Stat. 981. @ves state Attorney 

General power to sue) 

Federal Aviation Act of 1958--Amendments, 91 Stat. 1278. 

(gives California and Florida carriers additional ticketing 

59 Stat. 33. 

Act), 66 Stat. 631. (state fair trade laws) 

and special nuclear materials) 

authority delegated to states) 

Pow@ 

Health, Safety, and Environmental Protection 

An Act Respecting Quarantine and Health Laws (1789), 1 

Stat. 619. 

Safe Drinking Water Act Amendments of 1977,91 Stat. 1393. 

(regulatory relief regarding underground injection control 

programs) 

Federal Water Pollution Control Act (Clean Water Act of 1977), 

91 Stat. 1566. (water allocation) 

Solid Waste Disposal Act Amendments of 1980, 94 Stat. 2334. 

(allows states to set more stringent standards) 

Natural Resources, Animal Welfare, Fish 

and Wildlife Conservation 

Submerged Lands Act of 1953,67 Stat. 29. 

Marine Mammal Protection Act Amendments of 1981,95 Stat. 

979. (allows delegation of responsibility to state) 

Other 

Judicial Code Amendments of 1934, 48 Stat. 775. (federal court 

jurisdiction over suits regarding orders of state 

administrative boards) 

[Continuing Appropriations Act of 1985, Title 11, Section 

2201.98 Stat. 18371 (labor organization activities) 

Comprehensive Crime Control Act of 1984, 98 Stat. 1976. 

Taxation 

National Bank Tax Act of 1923,42 Stat. 1499. 

Tax Injunction Act of 1937,SO Stat. 738. (federal court 

jurisdiction over suits regarding state taxes) 

Public Law 91-156 (1969), 83 Stat. 434. (banks) 

Aviation Safety and Capacity Expansion Act of 1990, 104 Stat. 

1388-353. [Omnibus Budget Reconciliation Act of 1990, 

Title IX(B), 104 Stat. 13881 (passenger facility charges) 

U.S. Advisory Commission on Intergovernmental Relations 59 
60 U.S. Advisory Commission on Intergovernmental Relations 
Appendix C. SAMPLE PREEMPTION SURVEY QUESTIONNAIRES 

Congressional Uses of 

Preemption to Structure 

Federal-State Relations 

For the following questions, please circle the number of the response that best corresponds to your assessment of 

the situation. 

1. In general, is there too much, just about enough, or too little federal preemption of state activity in the federal 

system today? 

1. Too much 2. About enough 3. Too little 4. Don’t know 

2. Does the Congress delegate authority to make preemption decisions to federal administrative agencies too often, 

often enough, or not often enough? 

1. Too often 2. Often cmougli 3. Not oftm cwoii~;h I. Don’t know 

3. Do the federal courts too often infer preemption where the Congress did not specifically preempt state action? 

1. Yes, frequently 2. Yes, sometimes 3. No 4. Don’t know 

4. Does the federal government preempt state action more or less than necessary to achieve its policy objectives? 

1. More than 2. Less than 

necessary necessary 

3. About as much 

as necessary 

4. Don’t know 

Listed below are 15 kinds of federal preemption mechanisms. Although the desirability of using a particular 

mechanism may depend upon circumstances, we would like to have your assessment of the general desirability of 

each mechanism. Below each mechanism is arating scale rangingfrom 1 to 5, with 1 being most desirable and 5 being 

least desirable. Please circle the number of the scale that best corresponds to your assessment of the general 

desirability of the mechanism. 

5. In preempting responsibility for a function, the Congress occasionally authorizes a federal administrative 

agency to issue rulings on whether implementation of a state law or rule is precluded by federal preemption. 

Examples of this mechanism are the Transportation Safety Act of 1974 and the U.S. Voting Rights Act of 1965 

(V.. Under the VRA, for example, a covered unit may seek the approval of the U.S. Attorney General for a 

change in the unit’s electoral system. (Please circle one number.) 

(MOST DESIRABLE) 1 2 3 4 5 (LEAST DESIRABLE) 

COMMENT (if any): 

U.S. Advisory Commission on Intergovernmental Relations 61 
2 

6. In preempting responsibility for a function, the Congress may authorize a federal court to issue a declaratory 

judgment that a proposed state or local action has not been preempted by a federal law. Under the Voting Rights 

Act, for example, a covered governmental unit may seek a declaratory judgment in the United States District 

Court for the District of Columbia that a proposed change in the unit’s electoral system will not violate the 

Voting Rights Act. 

(MOST DESIRABLE) 1 2 3 4 5 (LEAST DESIRABLE) 

COMMENT (if any): 

7. Since 1965, the Congress has enacted laws or authorized federal administrative agencies to issue rules and 

regulations establishing minimum national standards in a field. States may continue to exercise primary 

responsibility for the partially preempted regulatory function so long as state standards are at least as high as the 

national standards, and those standards are enforced by the state. The Water Quality Act of 1965 and the Air 

Quality Act of 1967 (now the Clean Air Act) are examples. 

(MOST DESIRABLE) 1 2 3 4 5 (LEAST DESIRABLE) 

COMMENT (if any): 

8. The Congress, in exercising its unt1arst;intling of its delegated powors, iniiy i nc:lutlo iI swtion in a law stipulating 

that a state law on the same subject is valid unless there is a direct and positive conflict between the state law and 

the federal law. In a case of conflict, the federal courts will hold under the Supremacy Clause of the U.S. 

Constitution that the federal law prevails. 

(MOST DESIRABLE) 1 2 3 4 5 (LEAST DESIRABLE) 

COMMENT (if any): 

9. In preempting responsibility for a function, the Congress may permit states to act where no federal standard is in 

effect and also to submit a plan to a federal administrative agency to assume responsibility for a regulatory 

function. For example, the Occupational Safety and Health Act of 1970 stipulated that “nothing in this act shall 

prevent any state agency or court from asserting jurisdiction under state law over any occupational safety or 

health issue with respect to which no standard is in effect under section 6.” The act also allows a state to submit a 

plan to the Secretary of Labor to assume responsibility for the regulatory function so long as the state accepts 

the condition that state and local government employees be given protection equivalent to the protection given 

to private employees. 

(MOST DESIRABLE) 1 2 3 4 5 (LEAST DESIRABLE) 

COMMENT (if any): 

62 U.S. Advisory Coinmission on Intergoverninental Relations 
3 

10. In preempting responsibility for a function, the Congress may authorize transfers of responsibility for certain 

regulatory functions between states and a federal administrative department. For example, the Wholesome 

Meat Act and the Poultry Products Inspection Act grant the Secretary of Agriculture the authority to inspect 

meat and poultry, and to transfer to a state responsibility for meat and poultry inspection, provided that the 

state has enacted laws requiring such inspection and reinspection consistent with federal standards. States are 

also authorized to transfer responsibility to the U.S. Department of Agriculture for the inspection of meat 

and/or poultry products confined to intrastate commerce. 

(MOST DESIRABLE) 1 2 3 4 5 (LEAST DESIRABLE) 

COMMENT (if any): 

11. In legislating economic deregulation of an industry, the Congress may forbid states and their political 

subdivisions from enacting economic regulations of the industry. The Airline Deregulation Act of 1978 is an 

example. 

(MOST DESIRABLE) 1 2 3 4 5 (1,EAST DESIRABLE) 

COMMENT (if any): 

12. In enactinga total preemption statute, the Congress may require state and local enforcement of the statute. For 

example, the Safe Drinking Water Act Amendments of 1986 ban the use of lead pipes, solder, and flux in any 

public water system. The amendments direct states to enforce the prohibition “through State or local plumbing 

codes, or such other means of enforcement as the State may determine to be appropriate.” 

(MOST DESIRABLE) 1 2 3 4 5 (LEAST DESIRABLE) 

COMMENT (if any): 

13. In exercising a power of preemption, the Congress may exempt or partially exempt states and their political 

subdivisions from the provisions of a regulatory statute. For example, in the National Trafic and Motor Vehicle 

Safety Act of 1966, the Congress totally preempted responsibility for establishing motor vehicle safety 

standards. However, the act makes an exception for motor vehicles operated by a state or local government. 

These governmentsmayestablish “a safetyrequirement applicable to motor vehicles ... procured for [their] own 

use if such requirement imposes a higher standard of performance than that required to comply with the 

otherwise applicable federal standard.” 

(MOST DESIRABLE) 1 2 3 4 5 (LEAST DESIRABLE) 

COMMENT (if any): 

U.S. Advisory Commission on Intergovernmental Relations 63 
4 

14. In preempting responsibility for a function, the Congress may nevertheless authorize a federal official or 

agency to “turn back” limited regulatory responsibility to states so long as they meet certain minimum 

requirements. Examples of such authorization include the United States Grain Standards Act, the 

Hazardous and Solid Waste Amendments of 1984, the Surface Mining Control and Reclamation Act of 

1977, the Federal Railroad Safety Act of 1970, and the Atomic Energy Act of 19.59. 

(MOST DESIRABLE) 1 2 3 4 5 (LEAST DESIRABLE) 

COMMENT (if any): 

15. In exercising a power of prwinp[ioi~, llw Voiilyrcws may m;wt ;I law iiltill(lilI iiil: I Iiril <I;ilv lcgislatures enact a 

state statute complying with the provisions of thc federal statute. Tho k’qrial Employment Opportunity Act of 

1972 and the Fair Labor Standards Act of the 1938 as amended are examples. Failure of a state to comply with 

the law may result in both civil and criminal penalties. 

(MOST DESIRABLE) 1 2 3 4 5 (LEAST DESIRABLE) 

COMMENT (if any): 

16. The Congress may assign responsibility for certain functions to the states. In making an assignment of 

functional responsibility, the Congress may encourage the formation of interstate compacts to achieve the 

purposes of the federal law. An example is the Low Level Radioactive Policy Act of 1980. 

(MOST DESIRABLE) 1 2 3 4 5 (LEAST DESIRABLE) 

COMMENT (if any): 

17. Acting on the basis of the commerce power, the Congress may preempt a function but also authorize the 

governor of a state to petition the secretary of a federal department to remove the preemption. The Department 

of Transportation and Related Agencies Appropriation Act of 1986 is an example. 

(MOST DESIRABLE) 1 2 3 4 5 (LEAST DESIRABLE) 

COMMENT (if any): 

18. The Congress may stipulate that an action of a federal department or agency head, undertaken on the basis of a 

preemption statute, may be vetoed by a state governor and/or state legislature. The veto may be final, or it may 

be subject to an override by the Congress. For example, the Nuclear Waste Policy Act of 1982 authorizes the 

Secretary of Energy to select a site for the construction of a high-level radioactive waste facility. The site may be 

vetoed by either the governor or the legislature, but the veto may be overridden by the Congress. 

(MOST DESIRABLE) 1 2 3 4 5 (LEAST DESIRABLE) 

COMMENT (if any): 

64 U.S. Advisory Commission on Intergovernmental Relations 
5 

19. In exercising a preemption power, the Congress may enact a statute containing provisions that apply to a given 

state or political subdivision only if one or more conditions specified in the law are present within the state or 

political subdivision. For examplr, the 1l.S. Voting Rights Act of 796.5 applied automatically to a state or local 

government if (1) the U.S. Aiiorncy Clvncml h;id drterminetl that ;ic; ol‘ Novc~iiilii~i~ 1, 1964, a test or device had 

been employed to abridgc vol IIII; i~;lils Iiiciiiw ol‘i-ace or c-olor ;iiitl (:!I IIiil I )iividiii* ol’l Iio U.S. Bureau of the 

Census had determined that less than 50 percent of voting-age persons w(w i*egi\lcrcvl to vote on November 1, 

1964, or that less than 50 percent of the persons of voting age voted in the 1964 presidential election. 

(MOST DESIRABLE) 1 2 3 4 5 (LEAST DESIRABLE) 

COMMENT (if any): 

For the following questions, please circle the number of the response that best corresponds to your assessment of 

the situation. Whenever possible, we would greatly appreciate your providing explanations that will help us to add 

body and substance to our understanding of issues and problems. 

20. Has partial or total preemption helped to solve any problems (such as air or water pollution) in your state that 

largely originated in another state? 

1. Yes, several times 

IF YES, PLEASE EXPLAIN: 

2. Yes, once or twice 3. No 4. Don’t Know 

21. Is there a need to clarify federal and state responsibilities and liabilities in federal preemption statutes: for 

example, by including a “Code of Restrictions” in each preemption statute describing specifically what state and 

local governments cannot do? 

1. Yes 2. No 

IF YES, PLEASE EXPLAIN: 

3. Don’t Know 

22. Has partial or total preemption ever prevented your state from pursuing policies your state prefers? 

1. Yes, several times 

IF YES, PLEASE EXPLAIN: 

2. Yes, once or twice 3. No 4. Don’t know 

23. Do federal agencies override state decisions on a case-by-case basis? 

1. Almost always 2. Sorni!tiinc!s 3. Rarely 4. Not. iiI iiII 5. Don’t know 

IF YES, PLEASE EXPLAIN: 

U.S. Advisory Commission on Intergovernmental Relations 65 
6 

24. Should federal preemption statutes contain a “sunset” provision requiring the Congress to consider whether 

statutory changes are needed? 

1. Yes, a 15-year sunset provision 

3. Yes, a 5-year sunset provision 

25. Additional Comments (use reverse side, if needed) 

2. Yes, a 10-year sunset provision 

4. No 5. Don’t know 

Name: Telephone: ( 1 

Title: 

Address: 

Address: 

City, State & ZIP 

You may may not quote me by name in your report. 

66 U.S. Advisory Commission on Intergovernmental Relations 
Advisory Commission on 

Intergovernmental Relations 

Congressional Uses of Preemption to 

Structure Federal-State Relations in 

Agriculture 

For the following questions, please circle the number of the response that best corresponds to your assessment of 

the situation. 

1. In general, is there too much, just about enough, or too little federal preemption of state 

regulation in the field of agriculture? 

1. Too much 2. About enough 3. Too little 4. Don’t know 

2. Does the Congress delegate authority to make preemption decisions in the field of agriculture to 

federal administrative agencies too often, often enough, or not often enough? 

1. Too often 2. Often enough 3. Not often 4. Don’t know enough 

3. Do the federal courts too often infer preemption where the Congress did not specifically preempt 

state action in the field of agriculture? 

1. Frequently 2. Sometimes 3. Never 4. Don’t know 

4. Does the federal government preempt state action more or less than necessary to achieve its 

agricultural policy objectives? 

1. More than necessary 2. Less than necessary 3About as much 4. Don’t know 

Listed on the following page are federal laws that totally or partially preempt state activity in the field of agriculture. 

Please respond by placing a check or number as appropriate in the spaces provided next to each law and under the 

questions. If a question item does not apply to a particular law, please leave the space blank. 

U.S. Advisory Commission on Intergovernmental Relations 67 
2 

Please check each law under 

which your state has voluntarily 

turned over regulatory responsi- bility to a federal agency. 

A. 

a 

C. 

D. 

E 

6. 

A. 

K 

C. 

D. 

E 

7. 

A 

a 

C. 

D. 

E 

8. 

A. 

a 

C. 

Egg Produck IirrrpectiOn Act of 1970. 

Food and Agriculture Act of 1966 

WheatAcreageAUotmentn)~ 

Horse Protection Act of 1970 

("Sored" Honer). 

Pourtry Product8 Inspection Act of 1968. 

SurfaceMiningControllUbd 

Redovrrcrtion - Act of 1977. 

Please use numbers "0" (none at 

all) through "5" (a great deal) to 

rate the amount of discretionary 

authority that federal regional 

offices in your areapossess with 

regard to each law below. 

Egg Produck IMpection Act of 1970. 

FoodandAgricultureActo 1965 

Hone Protection Act of 1970 

(uSored" Horn). 

PouUry Product8 Inrpection Act of 1968. 

Sur/crce Mining Control and 

Reckurrcrtion Act of 1977. 

WheatAcreage~ l 

Please check each law under 

which federal agenciesoverride 

state decisions on a "case-by- case" basis. 

Egg Product8 Impection Act of 1970. 

Food and Agriculture Act of 1966 

(WhecrtAcreageAUotmentn). 

Hone Protection Act of 1970 

("Sored" Horres). 

Pourtry Produck Inspection Act of 1968. 

Surface Mining Control and 

Reclamation Act of 1977. 

Egg product8 Inspection Act Of 1970. 

Food and Agriculture Act of 1W 

(Wheat Acreage Allotments). 

Horse Protection Act of 1970 

("Sored" Horses). 

Please check each law that 

should in your view, be amend- ed to authorize a federal agency 

to issue administrative rulings 

on whether a contemplated state 

action is prohibited. 

D. Poultry Product8 Inspection Act of 1968. 

E Surtii Mining Control and 

Reclamation Act of 1977. 

68 U.S. Advisory Commission on Intergovernmental Relations 

Please use numbers "0" (very dissatisfied) through "5" (very 

satisfied) to indicate you state's 

level of satisfaction with those 

laws under which your state has 

not assumed primacy. 

Please use numbers "0" (none at 

all) through "5" (a great deal) to 

rate the amount of discretionary 

authority the federal regional 

office in your area should be 

gnuLted with regard to each law. 

Please check each law that 

should, in your view, contain a "sunset" provision requiringthe 

Congress to consider whether 

statutory changes are needed. 

Please check those laws that 

have helped to solve a problem 

in your state that was caused by another state, or that your state 

might not have been able to 

solve without preemption. 
3 

Please check those laws under Please check those laws under 

which your state has decided not which your state has voluntarily 

to assume "primacy." returned "primacy" to a federal 

agency. 

A Egg Produck Impection Act of 1970. 

R Food CurdAgricultureAct of 1966 

CWheatAcreageAUotmente). 

C. Horse Protection Act of 1970 

("Sored" Horres). 

D. Poultry Products Inspection Act of 1968. 

E Surface Mining Control and 

Reclamation Act of 1977. 

10. F&xk?mLk= Pleasecheckthoselawsthatare Please check those laws for 

in need of a clarification of whichitwouldbeusefultohave 

federal and state responsibilities. a "code of restrictions'' stipulating proscribed state and local 

government actions. 

A Egg Pr&ck Inspection Act of 1970. 

R FoodandAgricultureActofl966 

(Wheat Acreage Allotments). 

C. Horse Protection Act of 1970 

("Sored" Honer). 

D. Poultry Products Inspection Act of 1968. 

E Surface Mining Control and 

Reckulrcrtion Act of 1977. 

11. Using a scale of "0" (none at all) through "6" (a great deal), please indicate for each law below the 

degree of discretionary authority that should be granted to your state. 

A Egg Produck Inspection Act of 1970. 0 1 2 3 4 6 

B. FoodandAgrtmrltureActoflgsd 

(WireatAcreageAUotmentr). 

C. Hone Protection Act of 1970 

("Sored" Horres). 

0 1 2 3 4 6 

0 1 2 3 4 6 

D. Poultry Products Inspection Act of 1968. 0 1 2 3 4 6 

E Surfcrce Mining Control and 

Reclamatao n Act of 1977. 0 1 2 3 4 6 

12. Have overlapping responsibilities on the part of federal agencies administering federal 

preemption statutes caused problems in your state? 

Yes No - 

Comments: 

1s. Please indicate the agency which has been most cooperative and most understanding of your 

state's problems. 

Agency: 

Comments: 

U.S. Advisory Commission on Intergovernmental Relations 69 
4 

14. Please indicate the agency which has been the least cooperative and least understanding of your 

state% problems. 

Agency: 

Comments: 

15. Additional Comments (use reverse side, if needed) 

Name: Telephone: 1 

Tile: 

Address: 

City, State & ZIP 

You may may not quote me by name in your report. 

70 U.S. Advisory Commission on Intergovernmental Relations 
Appendix D. REGIONAL TABULATIONS OF QUESTIONNAIRE RESPONSES 

Table D-1 

State Officials’ Perceptions of Amount of Federal Preemption, by Region, 1988 

Region 

Northeast 

North Central 

South 

West 

Total 

Percent* 

Northeast 

North Central 

South 

West 

Total 

Percent* 

Northeast 

North Central 

South 

West 

Total 

Percent* 

Northeast 

North Central 

South 

West 

Total 

Percent * 

~~~ ~~ 

In general, is there too much, just about enough, or too little federal preemption of state activity? 

Too About Too Don’t 

Much Enough Little Know 

Governors 

2 1 0 0 

3 2 0 1 

4 1 0 0 

6 2 0 0 

15 6 0 1 

60 24 0 4 

Conimrrnitv Affairs Denartments 

3 1 0 0 

4 2 0 0 

4 3 0 1 

5 2 0 0 

16 8 0 1 

64 32 0 4 

State Envimrinierital Protection Denartments 

2 1 1 0 

6 2 0 0 

7 4 1 1 

6 4 0 0 

21 11 2 1 

60 31 6 3 

State Natrrml Resorrtces Devartinents 

0 0 0 0 

0 3 0 0 

3 5 0 0 

8 1 0 1 

11 9 0 1 

52 43 0 5 

Too About Too Don’t 

Much Enough Little Know 

Attonievs Gene ral 

4 1 0 1 

1 0 0 1 

4 3 0 1 

6 1 0 0 

15 5 0 3 

65 22 0 13 

State Aaricriltrire Denartments 

2 6 0 1 

5 2 0 1 

3 7 0 1 

4 2 0 0 

14 17 0 3 

41 50 0 9 

State Labor Relations. Health. and Safetv DenartnieiitS 

4 2 0 0 

2 5 0 1 

3 5 0 0 

6 1 0 1 

15 13 0 2 

48 42 0 6 

State 7kaiiwortation and Arblic Works Devartnients 

4 3 0 0 

5 1 0 3 

0 2 0 0 

3 2 0 1 

12 8 0 4 

50 33 0 17 

*Percentages are based on the total number of questionnaires returned. See Table 3-2 for totals. 

U.S. Advisory Commission on Intergovernmental Relations 71 
Table 0-2 

State Officials’ Perceptions of Extent of Federal Preemption, by Region, 1988 

Northeast 

North Central 

South 

West 

Total 

Percent* 

Northeast 

North Central 

South 

West 

Total 

Percent* 

Northeast 

North Central 

South 

West 

Total 

Percent* 

Northeast 

North Central 

South 

West 

Total 

Percent* 

Does the federal government preempt state actions more than necessary to achieve its objectives? 

About as 

More Than Less Than Much as More Than Less Than Much as 

Necessary Necessary Necessary Don’t Know Necessary Necessary Necessary Don’t Know 

About as 

Govenion Attomew General 

1 0 1 1 4 0 0 2 

4 0 2 1 1 0 0 1 

4 0 1 0 3 0 3 2 

6 0 2 0 6 0 0 1 

15 0 6 1 14 0 3 6 

60 0 24 4 61 0 13 26 

Conrnirinih Affairs Denartrirents State Aaricriltiire Denartnieiits 

3 0 1 0 2 0 4 2 

2 0 4 0 4 1 2 2 

4 0 2 2 3 1 3 1 

5 0 2 0 3 0 3 0 

14 0 9 2 12 2 12 5 

56 0 36 8 35 6 35 15 

State Eiiviroririierital Proteclioii Denartmerits State Labor Relations. Health. and Safe& Denartinent$ 

2 1 1 0 4 0 2 0 

4 1 1 1 2 0 5 0 

8 1 4 1 3 1 5 0 

6 0 4 0 5 0 2 2 

20 3 10 2 14 1 14 2 

51 9 29 6 45 3 45 6 

State Natural Resources Denartnients State Transnortation aiid Public CVbiks Denartriients 

0 0 0 0 4 0 1 2 

1 1 0 1 5 0 2 2 

4 0 2 2 0 1 2 0 

8 1 0 1 3 0 1 1 

13 2 2 4 12 1 6 5 

62 10 10 19 50 4 25 21 

*Percentages are based on the total number of questionnaires returned. See Table 3-2 for totals. 

72 U.S. Advisory Commission on Intergovernmental Relations 
Table 0-3 

State Officials’ Perceptions of Effects of Federal Preemption, by Region, 1988 

Northeast 

North Central 

South 

West 

Total 

Percent* 

Northeast 

North Central 

South 

West 

Total 

Percent* 

Has Preemption Helped To Solve Problems Originating In Another State? 

Yes, Several Times Yes, Once Or %ice No 

Governors 0 

Attorneys General 0 

Community Affairs Departments 0 

Attorneys General 0 

Community Affairs Departments 0 

Governors 1 

Attorneys General 1 

Community Affairs Departments 0 

Attorneys General 1 

Community Affairs Departments 0 

Governors 2 

Attorneys General 2 

Community Affairs Departments 0 

Governors 8% 

Attorneys General 9% 

Community Affairs Departments 0% 

Governors 1 

Governors 0 

1 

0 

1 

2 

0 

0 

1 

0 

1 

1 

0 

2 

1 

3 

1 

1 

0 

2 

3 

4 

3 

2 

3 

4 

5 7 

0 10 

4 10 

20% 

0% 

16% 

Has Preemption Prevented Your State From Pursuing Policies It Prefers? 

Governors 0 

Attorneys General 2 

Community Affairs Departments 1 

Governors 3 

Attorneys General 1 

Community Affairs Departments 3 

Governors 4 

Attorneys General 5 

Community Affairs Departments 4 

Governors 3 

Attorneys General 4 

Community Affairs Departments 1 

Governors 10 

Attorneys General 12 

Community Affairs Departments 9 

Governors 40% 

Attorneys General 53% 

Community Affairs Departments 36% 

28% 

46% 

40% 

1 0 

2 0 

2 0 

1 

0 

1 

0 

0 

0 

1 1 

2 1 

0 0 

2 0 

3 0 

4 0 

5 

7 

7 

20% 

30% 

28% 

~~ ~ 

*Percentages are based on the total number of questionnaires returned. See Tables 3-2 and 3-5 for totals. 

1 

1 

0 

4% 

4% 

0% 

~~ 

Don’t Know 

0 

3 

0 

2 

2 

0 

0 

2 

0 

4 

2 

1 

6 

9 

1 

24% 

39% 

4% 

0 

1 

1 

1 

1 

1 

0 

0 

3 

2 

0 

2 

3 

2 

7 

12% 

9% 

28% 

U.S. Advisory Commission on Intergovernmental Relations 73 
Table 0-4 

State Officials’ Perceptions of Delegation of Federal Preemption to Administrators, by Region, 1988 

Northeast 

North Central 

South 

West 

Total 

Percent: 

Northeast 

North Central 

South 

West 

Total 

Percent* 

Northeast 

North Central 

South 

West 

Total 

Percent’ 

Northeast 

North Central 

South 

West 

Total 

Percent* 

Does the Congress delegate authority to make preemption decisions 

to federal administrative agencies too often, often enough, or not often enough? 

Too Often Not Often Don’t Too Often Not Often Don’t 

Often Enough Enough Know Often Enough Enough Know 

Goveniors Attoniew General 

0 1 0 1 5 0 0 1 

2 3 1 1 1 0 0 1 

3 2 0 0 5 2 0 1 

4 2 0 2 4 3 0 0 

9 8 1 4 15 5 0 3 

36 32 4 16 65 22 0 13 

Commrr riitv Affairs Den artnients State Anriciiltiire Denartnients 

2 1 0 1 2 4 0 3 

1 5 0 0 5 3 0 1 

3 4 0 1 3 4 1 2 

4 2 0 0 2 3 1 0 

10 12 0 2 12 14 2 6 

40 48 0 8 35 41 6 18 

State Eiivimniner~tal Protection Denarlnierits State Labor Relations. Health. arid Safetv Denartnients 

2 1 1 0 0 3 1 1 

2 3 1 0 2 3 0 2 

6 5 1 3 5 3 1 0 

3 4 1 2 3 2 2 3 

37 37 12 14 32 35 13 20 

13 13 4 5 10 11 4 6 

State Natural Resoirrces Denartments State Tranmortatr on and Public works Denartnients 

0 0 0 0 4 1 0 1 

0 2 0 0 5 1 0 3 

5 2 0 2 0 3 0 0 

4 4 0 2 3 2 0 1 

9 8 0 4 12 7 0 5 

43 38 0 19 50 29 0 21 

*Percentages are based on the total number of questionnaires returned. See Table 3-3 for totals. 

74 U.S. Advisory Commission on Intergovernmental Relations 
Table D-5 

State Officials’ Perceptions of Court Inference of Federal Preemption, by Region, 1988 

Do the federal courts too often infer preemption where Congress did not specifically preempt state action? 

Northeast 

North Central 

South 

West 

Total 

Percent. 

Northeast 

North Central 

South 

West 

Total 

Percent. 

Northeast 

North Central 

South 

West 

Total 

Percent* 

Northeast 

North Central 

South 

West 

Total 

Percent. 

Frequently Sometimes No Don’t Know 

Governors 

0 2 0 0 

0 3 2 2 

1 2 1 1 

1 4 0 3 

2 11 3 6 

8 

8 44 12 24 

0 1 1 1 

0 3 0 3 

1 3 3 1 

3 3 0 1 

4 10 4 6 

16 40 16 24 

mEnviroamente1 Protection DeDarlments 

0 2 1 1 

0 3 1 4 

1 6 0 6 

0 6 1 3 

1 17 3 14 

3 49 9 40 

State Natrrral Resorrrces Deoarlments 

0 0 0 0 

0 1 1 2 

2 2 1 2 

2 5 0 3 

4 8 2 7 

19 38 10 33 

Frequently Sometimes No Don’t Know 

Attonievs Gerieral 

2 3 0 1 

1 0 1 0 

3 3 0 2 

2 3 2 0 

8 9 3 3 

35 39 13 13 

State APricrrItrrre Denartnients 

0 2 1 4 

0 4 1 4 

1 2 1 6 

2 2 0 2 

3 10 3 16 

9 29 9 47 

State Labor Relations. Health. arid Safetv DenartnientS 

1 4 1 0 

1 2 0 4 

2 2 0 5 

2 4 0 3 

6 12 1 12 

19 39 3 39 

state Trarisoorlatr bn and Public works Deoarlnients 

0 3 0 4 

2 2 0 3 

0 1 0 3 

1 1 0 4 

3 7 0 14 

13 29 0 58 

*Percentages are based on the total number of questionnaires returned. See Table 3-3 for totals. 

U.S. Advisory Commission on Intergovernmental Relations 75 
Table 0-6 

State Oficials’ Perceptions of Desirability of Delegated Authority for Federal Preemption, by Region, 1988 

Northeast 

North Central 

South 

West 

Total 

Percent* 

Congress occasionally authorizes an administrative agency to issue preemptive rulings. 

.Most Desirable Least Desirable4 

-1- -2- -3- -4- -5- 

Governors 0 1 1 0 0 

Attorneys General 1 0 1 1 1 

Community Affairs Departments 0 2 1 1 0 

Governors 0 0 5 1 0 

Attorneys General 0 0 1 0 0 

Community Affairs Departments 0 2 2 0 1 

Governors 0 0 2 2 1 

Attorneys General 0 0 1 1 1 

Community Affairs Departments 3 0 2 1 2 

Governors 0 0 4 3 1 

Attorneys General 0 2 1 3 0 

Community Affairs Departments 0 1 2 1 3 

Governors 0 1 12 6 2 

Attorneys General 1 2 4 5 2 

Community Affairs Departments 3 5 7 3 6 

Governors 0% 4% 48% 24% 8% 

Attorneys General 4% 9% 17% 22% 9% 

Community Affairs Departments 12% 20% 28% 12% 24% 

Congress may authorize a federal court to issue a declaratory judgment that a proposed action is not preempted. 

Northeast 

North Central 

South 

West 

Total 

Percent* 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

1 

2 

1 

0 

0 

3 

0 

3 

4 

0 

2 

2 

1 

7 

10 

4% 

30% 

40% 

0 

1 

2 

3 

1 

2 

3 

3 

2 

5 

1 

1 

11 

6 

7 

44% 

26% 

28% 

1 

1 

1 

0 

0 

1 

4 

1 

0 

2 

3 

1 

7 

5 

3 

28% 

22% 

12% 

*Percentages are based on the total number of questionnaires returned. See Table 3-3 for totals. 

0 

1 

0 

1 

1 

0 

0 

1 

0 

2 

1 

1 

3 

4 

1 

12% 

17% 

4% 

0 

0 

0 

0 

0 

0 

0 

0 

1 

0 

0 

2 

0 

0 

3 

0% 

0% 

12% 

76 U.S. Advisory Commission on Intergovernmental Relations 
Table 0-7 

State Officials’ Perceptions of Latitude for State Action, by Region, 1988 

Northeast 

North Central 

South 

West 

Total 

Percent+ 

Northeast 

North Central 

South 

West 

Total 

Percent+ 

Northeast 

North Central 

South 

West 

Total 

Percent+ 

States may regulate if their standards are as high as federal standards. 

.Most Desirable 

-1- -2- -3- 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

1 

3 

1 

2 

0 

1 

0 

2 

5 

1 

4 

2 

4 

9 

9 

16% 

39% 

36% 

1 

2 

2 

2 

2 

3 

4 

5 

3 

4 

2 

4 

11 

11 

12 

48% 

48% 

48% 

0 

1 

0 

1 

0 

1 

2 

0 

1 

3 

1 

0 

6 

2 

2 

24% 

9% 

8% 

State law is valid unless there is a direct and positive conflict with a federal law. 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

1 

2 

2 

2 

0 

4 

2 

3 

6 

3 

3 

4 

8 

8 

16 

32% 

35% 

64% 

1 

2 

1 

2 

1 

1 

3 

4 

0 

5 

3 

1 

11 

10 

3 

44% 

43% 

12% 

0 

2 

1 

2 

1 

1 

1 

0 

0 

1 

0 

1 

4 

3 

3 

16% 

13% 

12% 

Congress may permit states to act where no federal standard is in effect. 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

1 

2 

2 

2 

0 

2 

4 

2 

5 

2 

3 

1 

9 

7 

10 

36% 

30% 

40% 

1 

3 

2 

3 

2 

3 

1 

3 

1 

4 

1 

4 

9 

9 

10 

36% 

39% 

40% 

0 

1 

0 

0 

0 

0 

1 

3 

1 

2 

1 

2 

3 

5 

3 

12% 

22% 

12% 

Least Desirable4 

-4- 

0 

0 

1 

0 

0 

1 

0 

1 

0 

1 

0 

0 

1 

1 

2 

4% 

4% 

8% 

0 

0 

0 

0 

0 

0 

0 

1 

0 

0 

1 

0 

0 

2 

0 

0% 

9% 

0% 

0 

0 

0 

1 

0 

1 

0 

0 

0 

0 

0 

0 

1 

0 

1 

4% 

0% 

4% 

-5- 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

1 

0 

0 

0 

0% 

0% 

0% 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

1 

0 

0 

1 

0% 

0% 

4% 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

1 

0 

0 

1 

0 

0% 

4% 

0% 

U.S. Advisory Commission on Intergovernmental Relations 77 
Table 0-7 (cont.) 

State Officials' Perceptions of Latitude for State Action, by Region, 1988 

Northeast 

North Central 

South 

West 

Total 

Percent" 

Northeast 

North Central 

South 

West 

Total 

Percent* 

Northeast 

North Central 

South 

West 

Total 

Percent* 

Congress may authorize states to transfer inspection authority to a federal agency. 

.Most Desirable Least Desirable4 

-1- -2- -3- -4- -5- 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

2 

1 

1 

0 

0 

3 

3 

4 

4 

1 

2 

2 

6 

7 

10 

24% 

30% 

40% 

0 

2 

2 

3 

2 

0 

2 

1 

4 

1 

1 

4 

6 

6 

10 

24% 

26% 

40% 

0 

3 

1 

2 

0 

3 

2 

1 

1 

5 

1 

0 

9 

5 

5 

36% 

22% 

20% 

Congress may exempt states from provisions of a regulatory statute. 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

1 

1 

0 

0 

0 

1 

2 

3 

2 

3 

0 

1 

6 

4 

4 

24% 

17% 

16% 

0 

0 

2 

3 

1 

2 

0 

1 

3 

2 

3 

3 

5 

5 

10 

20% 

22% 

40% 

1 

1 

1 

1 

2 

1 

5 

2 

2 

1 

4 

3 

8 

9 

7 

32% 

39% 

28% 

Congress may authorize a limited regulatory turn back by a federal agency to states. 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

0 

1 

0 

1 

0 

3 

1 

0 

3 

1 

1 

2 

3 

2 

8 

12% 

9% 

32% 

2 

1 

1 

4 

1 

3 

4 

4 

5 

6 

4 

4 

16 

10 

13 

64% 

43 % 

52% 

0 

3 

1 

0 

1 

0 

2 

1 

0 

1 

2 

1 

3 

7 

2 

12% 

30% 

8% 

0 

0 

0 

0 

0 

0 

0 

1 

0 

0 

1 

0 

0 

2 

0 

0% 

9% 

0% 

0 

3 

1 

0 

0 

2 

0 

2 

0 

1 

0 

0 

1 

5 

3 

4% 

22% 

12% 

0 

1 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

1 

0 

0% 

4% 

0% 

0 

0 

0 

0 

0 

0 

0 

1 

0 

0 

0 

0 

0 

1 

0 

0% 

4% 

0% 

0 

1 

0 

1 

0 

0 

0 

0 

1 

0 

0 

0 

1 

1 

1 

4% 

4% 

4% 

0 

0 

1 

0 

0 

0 

0 

1 

0 

0 

0 

0 

0 

1 

1 

0% 

4% 

4% 

78 U.S. Advisory Commission on Intergovernmental Relations 
Table 0-7 (cont.) 

State Oficials’ Perceptions of Latitude for State Action, by Region, 1988 

Northeast 

North Central 

South 

West 

Total 

Percent* 

Congress may authorize a governor to petition a federal department to remove the preemption. 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

.Most Desirable 

- 1- -2- 

0 0 

1 1 

0 0 

0 3 

0 1 

4 1 

1 4 

0 3 

3 3 

1 4 

0 1 

2 2 

2 11 

1 6 

9 6 

8% 44% 

4% 26% 

36% 24% 

-3- 

1 

2 

3 

1 

1 

0 

2 

1 

1 

2 

2 

2 

6 

6 

6 

24% 

26% 

24% 

Least Desirable4 

-4- -5- 

1 0 

1 1 

1 0 

1 0 

0 0 

1 0 

0 0 

1 1 

1 0 

0 0 

1 0 

0 1 

2 0 

3 2 

3 1 

8% 0% 

13% 9% 

12% 4% 

Congress may authorize a governor or state legislature to veto a federal administrative decision subject to an override by ConNortheast 

North Central 

South 

West 

Total 

Percent. 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

gress. 

0 

1 

0 

0 

0 

2 

2 

4 

6 

4 

1 

3 

6 

6 

11 

24% 

26% 

44% 

1 

2 

2 

3 

2 

3 

0 

3 

0 

2 

2 

3 

6 

9 

8 

24% 

39% 

32% 

0 

1 

0 

1 

0 

1 

1 

0 

1 

1 

1 

0 

3 

2 

2 

12% 

9% 

8% 

1 

0 

0 

0 

0 

0 

2 

1 

0 

1 

1 

0 

4 

2 

0 

16% 

9% 

0% 

0 

1 

2 

0 

0 

0 

1 

0 

0 

0 

0 

1 

1 

1 

3 

4% 

4% 

12% 

*Percentages are based on the total number of questionnaires returned. See Table 3-4 for totals. 

U.S. Advisory Commission on Intergovernmental Relations 79 
Table 0-8 

State Officials’ Perceptions of Restrictions on State Action, by Region, 1988 

Northeast 

North Central 

South 

West 

Total 

Percent* 

Northeast 

North Central 

South 

West 

Total 

Percent* 

Northeast 

North Central 

South 

West 

Total 

Percent* 

Congress may forbid states to enact economic regulations of an industry. 

Governors 

Attornerys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

.Most Desirable 

-1- -2- 

0 2 

1 0 

0 1 

0 1 

0 0 

1 0 

2 1 

2 0 

2 3 

0 2 

0 1 

0 2 

8% 24% 

13% 4% 

12% 24% 

Congress may require states to enforce a federal statute. 

-3- 

0 

3 

3 

2 

0 

2 

0 

2 

1 

1 

1 

2 

3 

6 

8 

12% 

26% 

32% 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

ACIR State Counterpart 

1 

1 

0 

0 

0 

0 

0 

0 

4 

1 

0 

0 

2 

1 

4 

8% 

4% 

16% 

0 

0 

2 

1 

0 

2 

0 

1 

0 

2 

1 

2 

3 

2 

6 

12% 

9% 

24% 

1 

0 

0 

2 

1 

1 

3 

3 

5 

1 

3 

1 

7 

7 

7 

28% 

30% 

28% 

Least Desirable4 

-4- -5- 

0 0 

2 0 

0 0 

2 0 

2 0 

3 0 

32% 12% 

48% 9% 

28% 0% 

Congress may require states to enact a law complying with provisions of a federal law. 

0 

2 

1 

2 

0 

1 

4 

1 

0 

3 

2 

1 

9 

5 

3 

36% 

22% 

12% 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

0 

1 

1 

0 

0 

1 

0 

0 

3 

0 

0 

1 

0 

1 

6 

0% 

4% 

24% 

0 

0 

0 

0 

0 

0 

0 

0 

0 

1 

0 

0 

1 

0 

0 

4% 

0% 

0% 

0 

0 

0 

1 

0 

1 

1 

1 

2 

2 

0 

3 

4 

1 

6 

16% 

4% 

24% 

3 3 

4 1 

2 0 

1 

1 

1 

2 

1 

1 

2 

5 

1 

2 

3 

0 

7 

10 

3 

28% 

43 % 

12% 

0 

3 

0 

0 

1 

0 

0 

1 

0 

1 

1 

3 

1 

6 

3 

4% 

26% 

12% 

1 

3 

2 

3 

0 

3 

3 

2 

2 

3 

4 

3 

10 

9 

10 

40% 

39% 

40% 

80 U.S. Advisory Commission on Intergovernmental Relations 
Table 0-8 (cont.) 

State OMicials’ Perceptions of Restrictions on State Action, by Region, 1988 

Northeast 

North Central 

South 

West 

Total 

Percent* 

Congress may assign responsibility for a function to the states. 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

.Most Desirable 

-1- -2- 

1 0 

0 0 

0 3 

1 3 

1 0 

2 2 

0 3 

4 2 

5 1 

2 4 

3 0 

1 1 

4 10 

8 2 

8 7 

16% 40% 

35% 9% 

32% 28% 

-3- 

1 

5 

0 

2 

1 

0 

3 

1 

1 

2 

3 

2 

8 

10 

3 

32% 

43% 

12% 

Least Desirable4 

-4- -5- 

0 0 

0 1 

1 0 

2 0 

0 0 

1 1 

0 0 

1 0 

1 0 

0 0 

1 0 

2 1 

2 0 

2 1 

5 2 

8% 0% 

9% 4% 

20% 8% 

Congress may enact a national suspensive law that becomes effective within a state if specified conditions prevail. 

Northeast 

North Central 

South 

West 

Total 

Percent* 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

0 

1 

1 

1 

0 

2 

0 

0 

3 

1 

0 

0 

2 

1 

6 

8% 

4% 

24% 

2 

1 

1 

1 

1 

3 

2 

3 

0 

1 

5 

2 

6 

10 

6 

24% 

43% 

24% 

0 

1 

2 

3 

1 

1 

1 

2 

2 

2 

2 

2 

6 

6 

7 

24% 

26% 

28% 

0 

0 

0 

0 

0 

0 

0 

1 

1 

2 

0 

1 

2 

1 

2 

8% 

4% 

8% 

*Percentages are based on the total number of questionnaires returned. See Table 3-5 for totals. 

0 

0 

0 

0 

0 

0 

0 

2 

2 

0 

0 

2 

0 

2 

4 

0% 

9% 

16% 

U.S. Advisory Commission on Intergovernmental Relations 81 
Table D-9 

State Officials’ Perceptions of Potential Improvements in Federal Preemption Laws, by Region, 1988 

Northeast 

North Central 

South 

West 

Total 

Percent* 

Northeast 

North Central 

South 

West 

Total 

Percent* 

Is there a need for a “Code of Restrictions” for each federal preemption statute? 

Yes No 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

Governors 

Attorneys General 

Community Affairs Departments 

2 

6 

2 

3 

2 

4 

3 

6 

3 

3 

3 

3 

11 

17 

12 

44% 

74% 

48% 

0 

0 

1 

2 

1 

1 

1 

0 

1 

2 

1 

2 

5 

2 

5 

20% 

9% 

20% 

Should preemption statutes contain a “sunset” provision? 

Governors 

Attorneys General 

Community Affairs Departments 

ACIR State Counterpart 

Governors 

Attorneys General 

Community Affairs Departments 

ACIR State Counterpart 

Governors 

Attorneys General 

Community Affairs Departments 

ACIR State Counterpart 

Governors 

Attorneys General 

Community Affairs Departments 

ACIR State Counterpart 

Governors 

Attorneys General 

Community Affairs Departments 

ACIR State Counterpart 

Governors 

Attorneys General 

Community Affairs Departments 

ACIR State Counterpart 

Yes, 

15 Years 

0 

0 

0 

1 

0 

1 

0 

1 

1 

0 

0 

0 

1 

1 

2 

4% 

4% 

8% 

Yes, 

10 Years 

1 

2 

3 

0 

1 

1 

3 

4 

2 

4 

1 

2 

8 

8 

8 

32% 

35% 

32% 

Yes, 

5 Years 

0 

1 

1 

3 

0 

4 

3 

3 

5 

3 

4 

5 

9 

8 

15 

36% 

35% 

60% 

*Percentages are based on the total number of questionnaires returned. See Table 3-6 for totals. 

No 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

1 

0 

0 

1 

0 

0% 

4% 

0% 

Don’t Know 

0 

0 

1 

0 

0 

0 

1 

1 

4 

2 

2 

2 

3 

3 

7 

12% 

13% 

28% 

Don’t Know 

0 

1 

0 

1 

1 

0 

0 

0 

0 

0 

2 

0 

1 

4 

0 

4% 

18% 

0% 

82 U.S. Advisory Commission on Intergovernmental Relations