March 28, 2005
State Legislators Begin Push to Preserve State Sovereignty
Federal preemption a growing impediment to innovation
WASHINGTON, D.C. - State lawmakers across the country are growing increasingly concerned over the federal government's attempts to usurp the sovereignty of state governments.
In response to this growing usurpation of powers, the National Conference of State Legislatures today launched a new publication to call attention to pending federal legislation and Supreme Court cases as well as recently enacted federal legislation that encroaches on state authority. Preemption Monitor is designed to complement another NCSL publication, Mandate Monitor, which tracks costs incurred by states to implement federally mandated programs.
"Federal legislative, regulatory and judicial efforts to preempt state laws have far-reaching effects on the ability of state legislators to meet the needs of their constituents," said New York Senator Michael Balboni, chair of NCSL's Standing Committee on Law and Criminal Justice. "These preemptions stifle state creativity and innovation and impose uniformity when uniformity is not necessarily the most effective solution to an issue."
The inaugural issue of Preemption Monitor highlights several key pieces of legislation currently being considered in the 109th Congress.
Driver's Licenses
- The REAL ID Act of 2005 represents an enormous preemption of state public policy. This bill would dismantle the driver's license provisions of the Intelligence Reform Act passed by Congress last December and force states to become the enforcers of federal immigration policy by verifying a driver's license applicant's lawful presence in the country. The bill, which passed the House of Representatives in February, also mandates rigid, prescriptive federal standards for state-issued driver's licenses and who may apply for them.
"The REAL ID Act threatens to handcuff state officials with untested and costly mandates that compel states to enforce federal immigration policy rather than advance the paramount objective of making state-issued identity documents more secure and verifiable," Preemption Monitor says.
Medical Malpractice Reform
- Several measures, including the HEALTH Act of 2005, the Healthy America Act of 2005, the Healthy Mothers and Healthy Babies Access to Care Act of 2005 and the Pregnancy and Trauma Care Access Protection Act of 2005, seek to overturn the recent work of many state legislatures by imposing uniform damage caps attorney fees and statutes of limitation for medical malpractice lawsuits.
Nearly every state has addressed the issue of malpractice reform in the last several years. Mississippi, Maryland and Georgia have enacted comprehensive reform within the past several months. Currently, 39 states have legislation pending to enact changes to their medical malpractice laws.
The U.S. Supreme Court is also considering several cases that would overrule state law.
Property Rights
- Lingle v. Chevron USA, Inc. is a property rights case that involves a challenge to a Hawaii statute that limits the amount of rent an oil company can charge to a gas retailer. This Hawaii legislature passed this statute in order to regulate the amount consumers paid for gasoline. The case raises the issue of whether it is appropriate for a court to second-guess the wisdom of a state policy decision.
- Kelo v. City of New London focuses on the right of a state or local government to claim imminent domain over private property for the purpose of economic development.
Recently enacted federal legislation is beginning to have adverse effects on state coffers.
Medicare
- The Medicare Prescription Drug and Modernization Act of 2003 and The Prescription Drug and Medicare Improvement Act of 2003 preempt state taxes on premiums for prescription drug coverage resulting in revenue losses to states that would grow from $60 million in 2006 to $90 million in 2010.
Education
- "The dramatic overhaul of the nation’s elementary and secondary education system that took place during the past three decades was initiated and guided by state legislatures," Preemption Monitor states. "[The No Child Left Behind Act]'s impact on the states was to undermine and preempt state laws that had gone further than the federal provisions. The result is a federal law of dubious constitutionality that creates one-size-fits-all accountability system that affects all students and brings the federal government into the day-to-day operations of public education."
A complete copy of Preemption Monitor and its companion publication, Mandate Monitor, can be downloaded by following the links in the right column under "More Resources."
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.
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