Obama Releases Memo Upholding States' Authority

President tells agency heads to avoid making rules that preempt state law

May 27, 2009

WASHINGTON -- In an effort re-affirming the administration’s commitment to a strong state-federal partnership, President Barack Obama released guidelines for federal agencies that recognize the role of state laws in the federalist system and discourage future agency preemptions of state laws without a sound legal basis to do so.

The president’s directive says that agencies must respect state laws and only preempt after state prerogatives have been fully examined and where there is authority for preemption in federal law. The memorandum also calls for a review and repeal of any rules or policies issued within the last decade that could usurp state law.  

The National Conference of State Legislatures applauds President Obama for his affirmation of the state-federal partnership. This memorandum is a victory for state officials concerned about the erosion of state authority through administrative rule-making. 

“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,” President Obama wrote in the memo. “Throughout our history, State and local governments have frequently protected health, safety, and the environment more aggressively than has the national Government.”

NCSL has long advocated for federal agency adherence to Executive Order 13132, which requires agencies to consult with state elected officials or their national associations before making new rules and regulations.  Additionally, NCSL has pushed for reprieve from federal regulations that preempt state laws without congressional action and has urged agencies for greater consultation in the rulemaking process to avoid unintended consequences of federal rules enacted in the absence of state input. In recent years, NCSL worked hard to defeat federal bills, regulations or court cases that would have preempted state laws. 

“This memo shows the president has heard the concerns of states and recognizes the role we play in our system of federalism," said Joe Hackney, speaker of the North Carolina House and president of NCSL. "In the past few years, federal rules and regulations preempting state authority have increased and they have far-reaching consequences. They impose liabilities on states. They curtail creativity and state authority, and they often seek a uniformity that is not the best solution."

Some recent instances of federal preemptions adopted through regulation include the FDA prescription drug labeling rule and the NHTSA roof crush rule. 

“Despite sometimes daunting odds, it is possible for states to defeat efforts to attack traditional and historic state authority,” said William T. Pound, NCSL executive director. “This effort from the Obama administration to curtail preemption of state law signifies a positive change from the White House about the value and importance of states in the larger system of federalism.”

NCSL is a bipartisan organization that serves the legislators and staffs of the states, commonwealths and territories. It provides research, technical assistance and opportunities for policymakers to exchange ideas on the most pressing state issues and is an effective and respected advocate for the interests of the states in the American federal system.