IV

105TH CONGRESS

2D SESSION H. CON. RES. 299

Expressing the sense of Congress that executive departments and agencies

must maintain the division of governmental responsibilities between the

national government and the States that was intended by the framers

of the Constitution, and must ensure that the principles of federalism

established by the framers guide the executive departments and agencies

in the formulation and implementation of policies.

IN THE HOUSE OF REPRESENTATIVES

JULY 16, 1998

Mr. COLLINS (for himself, Mr. PAUL, Mrs. CHENOWETH, Mr. ISTOOK, Mr.

SKEEN, Mr. HUTCHINSON, Mr. ENSIGN, Mr. DEAL of Georgia, Mr. NORWOOD, Mr. GOODE, Mr. POMBO, Mr. DOOLITTLE, Mr. MCINTOSH, Mr.

WAMP, Mr. BLUNT, Mr. CALLAHAN, Mr. ROHRABACHER, Mr. BOB

SCHAFFER, Mrs. LINDA SMITH of Washington, and Mr. LATOURETTE)

submitted the following concurrent resolution; which was referred to the

Committee on the Judiciary, and in addition to the Committee on Government Reform and Oversight, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions

as fall within the jurisdiction of the committee concerned

CONCURRENT RESOLUTION

Expressing the sense of Congress that executive departments

and agencies must maintain the division of governmental

responsibilities between the national government and the

States that was intended by the framers of the Constitution, and must ensure that the principles of federalism

established by the framers guide the executive departments and agencies in the formulation and implementation of policies.
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Whereas federalism is rooted in the knowledge that our political liberties are best assured by limiting the size and

scope of the national government;

Whereas the people of the States created the national government when they delegated to it those enumerated governmental powers relating to matters beyond the competence

of the individual States;

Whereas all other sovereign powers, save those expressly prohibited the States by the Constitution, are reserved to the

States or to the people as the tenth amendment to the

Constitution requires;

Whereas the people of the States are free, subject only to restrictions in the Constitution itself or in constitutionally

authorized Acts of Congress, to define the moral, political, and legal character of their lives;

Whereas in most areas of governmental concern, the States

uniquely possess the constitutional authority, resources,

and the competence to discern the sentiments of the people and to govern accordingly;

Whereas the nature of our constitutional system encourages

a healthy diversity in the public policies adopted by the

people of the several States according to their own conditions, needs, and desires;

Whereas acts of the national government—whether executive,

legislative, or judicial in nature—that exceed the enumerated powers of that government under the Constitution

violate the principle of federalism established by the

framers;

Whereas policies of the national government should recognize

the responsibility of—and should encourage opportunities

for—individuals, families, neighborhoods, local govern-
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ments, and private associations to achieve their personal,

social, and economic objectives through cooperative effort;

and

Whereas in the absence of clear constitutional or statutory

authority, the presumption of sovereignty should rest

with the individual States: Now, therefore, be it

1 Resolved by the House of Representatives (the Senate

2 concurring), That executive departments and agencies

3 should adhere, to the extent permitted by law, to the fol4 lowing criteria when formulating and implementing poli5 cies that have federalism implications:

6 (1) There should be strict adherence to con7 stitutional principles. Executive departments and

8 agencies should closely examine the constitutional

9 and statutory authority supporting any Federal ac10 tion that would limit the policymaking discretion of

11 the States, and should carefully assess the necessity

12 for such action. To the extent practicable, the States

13 should be consulted before any such action is imple14 mented.

15 (2) Federal action limiting the policymaking

16 discretion of the States should be taken only where

17 constitutional authority for the action is clear and

18 certain, and the national activity is necessitated by

19 the presence of a problem of national scope.
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1 (3) It is important to recognize the distinction

2 between problems of national scope (which may jus3 tify Federal action) and problems that are merely

4 common to the States (which will not justify Federal

5 action because individual States, acting individually

6 or together, can effectively manage such issues).

7 (4) Constitutional authority for Federal action

8 is clear and certain only when authority for the ac9 tion may be found in a specific provision of the Con10 stitution, when there is no provision in the Constitu11 tion prohibiting Federal action, and when the action

12 does not encroach upon authority reserved to the

13 States.

14 (5) With respect to national policies adminis15 tered by the States, the national government should

16 grant the States the maximum administrative discre17 tion possible. Intrusive Federal oversight of State

18 administration is neither necessary nor desirable.

19 (6) When undertaking to formulate and imple20 ment policies that have federalism implications, exec21 utive departments and agencies should—

22 (A) encourage States to develop their own

23 policies to achieve program objectives and to

24 work with appropriate officials in other States;
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1 (B) refrain, to the maximum extent pos2 sible, from establishing uniform, national stand3 ards for programs and, when possible, defer to

4 the States to establish standards; and

5 (C) when national standards are required,

6 consult with appropriate officials and organiza7 tions representing the States in developing

8 those standards.

9 (7) The following special requirements for pre10 emption of State law should be observed:

11 (A) To the extent permitted by law, execu12 tive departments and agencies should construe,

13 in regulations and otherwise, a Federal statute

14 to preempt a State law only when the statute

15 contains an express preemption provision, when

16 there is some other firm and palpable evidence

17 compelling the conclusion that the Congress in18 tended preemption of State law, or when the ex19 ercise of State authority directly conflicts with

20 the exercise of Federal authority under the

21 Federal statute.

22 (B) If a Federal statute does not preempt

23 State law, executive departments and agencies

24 should construe any authorization in the statute

25 for the issuance of regulations as authorizing
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1 preemption of State law by rulemaking only

2 when the statute expressly authorizes issuance

3 of preemptive regulations or when there is some

4 other firm and palpable evidence compelling the

5 conclusion that the Congress intended to dele6 gate to the department or agency the authority

7 to issue regulations preempting State law.

8 (C) Any regulatory preemption of State

9 law should be restricted to the minimum level

10 necessary to achieve the objectives of the stat11 ute pursuant to which the regulations are pro12 mulgated.

13 (D) When an executive department or

14 agency foresees the possibility of a conflict be15 tween State law and federally protected inter16 ests within its area of regulatory responsibility,

17 the department or agency should consult, to the

18 extent practicable, with appropriate officials

19 and organizations representing the States in an

20 effort to avoid such a conflict.

21 (E) When an executive department or

22 agency proposes to act through adjudication or

23 rulemaking to preempt State law, the depart24 ment or agency should provide all affected
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1 States notice and an opportunity for appro2 priate participation in the proceedings.

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