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. NOR-
WOOD, 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 Gov-
ernment Reform and Oversight, for a period to be subsequently deter-
mined 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 Constitu-
tion, and must ensure that the principles of federalism
established by the framers guide the executive depart-
ments and agencies in the formulation and implementa-
tion of policies.
•HCON 299 IH
Whereas federalism is rooted in the knowledge that our politi-
cal liberties are best assured by limiting the size and
scope of the national government;
Whereas the people of the States created the national govern-
ment when they delegated to it those enumerated govern-
mental powers relating to matters beyond the competence
of the individual States;
Whereas all other sovereign powers, save those expressly pro-
hibited 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 re-
strictions in the Constitution itself or in constitutionally
authorized Acts of Congress, to define the moral, politi-
cal, 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 peo-
ple 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 condi-
tions, needs, and desires;
Whereas acts of the national government—whether executive,
legislative, or judicial in nature—that exceed the enumer-
ated 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-
•HCON 299 IH
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
Resolved by the House of Representatives (the Senate
concurring), That executive departments and agencies
should adhere, to the extent permitted by law, to the fol-
lowing criteria when formulating and implementing poli-
cies that have federalism implications:
(1) There should be strict adherence to con-
stitutional principles. Executive departments and
agencies should closely examine the constitutional
and statutory authority supporting any Federal ac-
tion that would limit the policymaking discretion of
the States, and should carefully assess the necessity
for such action. To the extent practicable, the States
should be consulted before any such action is imple-
mented.
(2) Federal action limiting the policymaking
discretion of the States should be taken only where
constitutional authority for the action is clear and
certain, and the national activity is necessitated by
the presence of a problem of national scope.
•HCON 299 IH
(3) It is important to recognize the distinction
between problems of national scope (which may jus-
tify Federal action) and problems that are merely
common to the States (which will not justify Federal
action because individual States, acting individually
or together, can effectively manage such issues).
(4) Constitutional authority for Federal action
is clear and certain only when authority for the ac-
tion may be found in a specific provision of the Con-
stitution, when there is no provision in the Constitu-
tion prohibiting Federal action, and when the action
does not encroach upon authority reserved to the
States.
(5) With respect to national policies adminis-
tered by the States, the national government should
grant the States the maximum administrative discre-
tion possible. Intrusive Federal oversight of State
administration is neither necessary nor desirable.
(6) When undertaking to formulate and imple-
ment policies that have federalism implications, exec-
utive departments and agencies should—
(A) encourage States to develop their own
policies to achieve program objectives and to
work with appropriate officials in other States;
•HCON 299 IH
(B) refrain, to the maximum extent pos-
sible, from establishing uniform, national stand-
ards for programs and, when possible, defer to
the States to establish standards; and
(C) when national standards are required,
consult with appropriate officials and organiza-
tions representing the States in developing
those standards.
(7) The following special requirements for pre-
emption of State law should be observed:
(A) To the extent permitted by law, execu-
tive departments and agencies should construe,
in regulations and otherwise, a Federal statute
to preempt a State law only when the statute
contains an express preemption provision, when
there is some other firm and palpable evidence
compelling the conclusion that the Congress in-
tended preemption of State law, or when the ex-
ercise of State authority directly conflicts with
the exercise of Federal authority under the
Federal statute.
(B) If a Federal statute does not preempt
State law, executive departments and agencies
should construe any authorization in the statute
for the issuance of regulations as authorizing
•HCON 299 IH
preemption of State law by rulemaking only
when the statute expressly authorizes issuance
of preemptive regulations or when there is some
other firm and palpable evidence compelling the
conclusion that the Congress intended to dele-
gate to the department or agency the authority
to issue regulations preempting State law.
(C) Any regulatory preemption of State
law should be restricted to the minimum level
necessary to achieve the objectives of the stat-
ute pursuant to which the regulations are pro-
mulgated.
(D) When an executive department or
agency foresees the possibility of a conflict be-
tween State law and federally protected inter-
ests within its area of regulatory responsibility,
the department or agency should consult, to the
extent practicable, with appropriate officials
and organizations representing the States in an
effort to avoid such a conflict.
(E) When an executive department or
agency proposes to act through adjudication or
rulemaking to preempt State law, the depart-
ment or agency should provide all affected