Presidential Documents

Federal Register / Vol. 74, No. 98 / Friday, May 22, 2009 / Presidential Documents 24693 

Memorandum of May 20, 2009 

Preemption 

Memorandum for the Heads of Executive Departments and Agencies 

From our Nation’s founding, the American constitutional order has been 

a Federal system, ensuring a strong role for both the national Government 

and the States. The Federal Government’s role in promoting the general 

welfare and guarding individual liberties is critical, but State law and national 

law often operate concurrently to provide independent safeguards for the 

public. Throughout our history, State and local governments have frequently 

protected health, safety, and the environment more aggressively than has 

the national Government. 

An understanding of the important role of State governments in our Federal 

system is reflected in longstanding practices by executive departments and 

agencies, which have shown respect for the traditional prerogatives of the 

States. In recent years, however, notwithstanding Executive Order 13132 

of August 4, 1999 (Federalism), executive departments and agencies have 

sometimes announced that their regulations preempt State law, including 

State common law, without explicit preemption by the Congress or an otherwise sufficient basis under applicable legal principles. 

The purpose of this memorandum is to state the general policy of my 

Administration that preemption of State law by executive departments and 

agencies should be undertaken only with full consideration of the legitimate 

prerogatives of the States and with a sufficient legal basis for preemption. 

Executive departments and agencies should be mindful that in our Federal 

system, the citizens of the several States have distinctive circumstances 

and values, and that in many instances it is appropriate for them to apply 

to themselves rules and principles that reflect these circumstances and values. 

As Justice Brandeis explained more than 70 years ago, ‘‘[i]t is one of the 

happy incidents of the federal system that a single courageous state may, 

if its citizens choose, serve as a laboratory; and try novel social and economic 

experiments without risk to the rest of the country.’’ 

To ensure that executive departments and agencies include statements of 

preemption in regulations only when such statements have a sufficient legal 

basis: 

1. Heads of departments and agencies should not include in regulatory 

preambles statements that the department or agency intends to preempt 

State law through the regulation except where preemption provisions are 

also included in the codified regulation. 

2. Heads of departments and agencies should not include preemption 

provisions in codified regulations except where such provisions would be 

justified under legal principles governing preemption, including the principles outlined in Executive Order 13132. 

3. Heads of departments and agencies should review regulations issued 

within the past 10 years that contain statements in regulatory preambles 

or codified provisions intended by the department or agency to preempt 

State law, in order to decide whether such statements or provisions are 

justified under applicable legal principles governing preemption. Where the 

head of a department or agency determines that a regulatory statement 

of preemption or codified regulatory provision cannot be so justified, the 


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24694 Federal Register / Vol. 74, No. 98 / Friday, May 22, 2009 / Presidential Documents 

head of that department or agency should initiate appropriate action, which 

may include amendment of the relevant regulation. 

Executive departments and agencies shall carry out the provisions of this 

memorandum to the extent permitted by law and consistent with their 

statutory authorities. Heads of departments and agencies should consult 

as necessary with the Attorney General and the Office of Management and 

Budget’s Office of Information and Regulatory Affairs to determine how 

the requirements of this memorandum apply to particular situations. 

This memorandum is not intended to, and does not, create any right or 

benefit, substantive or procedural, enforceable at law or in equity by any 

party against the United States, its departments, agencies, or entities, its 

officers, employees, or agents, or any other person. 

The Director of the Office of Management and Budget is authorized and 

directed to publish this memorandum in the Federal Register. 

THE WHITE HOUSE, 

Washington, May 20, 2009 

[FR Doc. E9–12250 

Filed 5–21–09; 11:15 am] 

Billing code 3110–01–P 


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