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Preemption Monitor

Volume II, Issue 1
January 23, 2006

An information service of the NCSL Law & Criminal Justice Committee

Introduction

The volume of federal legislation that preempts state authority continues to mount.  Pressure is mounting for Congress and the White House to support federal usurpation of state authority in a variety of areas such as immigration reform, criminal law, tort reform, driver’s license security, and the environment.  Judicial challenges to the exercise of state authority have made their way up to the U.S. Supreme Court.  Federal preemptions adopted through regulation such as the recent FDA prescription drug labeling rule and the NHTSA roof crush rule, legislative enactments, or adverse judicial determinations have far-reaching consequences.  They impose liabilities on states.  They curtail state creativity and state authority, and they often seek uniformity when uniformity is not necessarily the most effective means for resolving issues.  This Monitor  provides an update and analysis of pending and recently finalized federal preemption proposals.  It discusses how these proposals might affect the states.

Despite sometimes daunting odds, it is possible for states to defeat efforts to attack traditional and historic state authority.  In recent years, NCSL worked hard to defeat federal bills that: (1) sought to require state legislators to file duplicative and onerous campaign finance reports with the IRS; (2) would have circumvented state administrative and court processes in 5^th Amendment Takings cases; and (3) would have forced state and local police to enforce federal civil immigration laws.  However, these issues continue to resurface in congressional legislation. States have also recently witnessed passage of several major pieces of federal preemptive legislation that erode traditional state authority.  These include the No Child Left Behind Act, the Help America Vote Act, the Class Action Fairness Act, and the REAL ID Act.

The Preemption Monitor reviews recently enacted federal legislation that preempts state authority, describes pending legislation that would preempt state authority if enacted, and examines U.S. Supreme Court cases that have implications for state authority.  It also tracks the status of federal preemption activities in Congress, the executive branch, the Supreme Court and the international arena.

Recently Enacted Federal Legislation

This provision was added as a rider to the Conference Committee report of H.R. 2863, the FY2006 Defense Appropriations bill.  It prohibits any lawsuit, under federal law or any applicable state law, from being filed against a vaccine manufacturer, distributor or administrator for any claim arising or resulting from the use of the vaccine or drug in question.  Any petitioner making a claim of willful misconduct by a drug manufacturer may only file a complaint with the Secretary of Health and Human Services, thus being further barred from the state and/or federal court system.  Courts are restricted to review of the Secretary’s action, and may not ever consider the nature of the willful misconduct complaint.

Status:  The Conference Report was accepted by the U.S. House with a vote of 308-106 on December 19, 2005, and by the U.S. Senate with a vote of 93-0 on December 21, 2005.  The bill was signed by President Bush on December 30, 2005 and became Public Law 109-148.  

Recently Introduced Federal Legislation

• Immigration Reform – H.R. 4437, H.R. 4313, S. 1438, S. 1033

H.R. 4437 focuses exclusively on border and interior law enforcement, and states would be forced to take on the costs of enforcing federal immigration law through the affirming of federal authorization of state enforcement of federal civil immigration laws.  It withholds federal money from any state or local government that enacts any policy prohibiting law enforcement personnel from inquiring into any individual's immigration status.  The bill also contains no funding for the State Criminal Alien Assistance Program (SCAAP), the main reimbursement source states have for incarcerating criminal aliens.  The House dismissed amendments that would have added President Bush's proposed guest worker program to the underlying bill.  H.R. 4313 incorporates the same “inherent authority” provisions as H.R. 4437 to force state and local law enforcement to monitor federal immigration law.  It also mandates the use of REAL ID standards in worker identification and a host of other stringent restrictions on immigrants.

S. 1438 resembles the 2004 CLEAR Act legislation in that it confers “inherent authority” on state and local law enforcement to enforce federal immigration law.  It also requires detailed information relating to unauthorized immigrants in custody to be passed from state and local law enforcement to the Department of Homeland Security.  S. 1033 requires the Department of Homeland Security to create a strategy for border security by involving federal, state, local and tribal authorities.  Both bills do include variations of guest worker programs, and include some funding for SCAAP.

Status: H.R. 4437 passed the U.S. House, 239-182 on December 16, 2005 and advanced to the Senate Judiciary Committee.  H.R. 4313 was referred to four separate committees on November 14, 2005.   Both Senate bills were referred to Senate Committee on Judiciary and provisions are under consideration for a comprehensive immigration proposal from this committee.  Anticipated Chair’s Mark in February 2006.

• Sex Offender Registration – HR 3132, H.R. 4472, the “Children's Safety and Violent Crime Reduction Act of 2005.”

H.R. 3132 and H.R. 4472 are virtually identical in their requirements on states to create statewide sex offender registry databases according to federal standards to be established by the Attorney General.  They also require a plethora of information to be collected and monitored by the state, including DNA samples, and reported to the Attorney General.  Any state that does not comply within the designated time period will have its registry program taken over by the Department of Justice and will lose 10 percent of the Byrne Grant and/or LLEBG funding for the applicable fiscal year.

The Senate version of the legislation, S. 1086, is kinder to states.  It makes a number of the preemptive provisions optional to the states and applicable only if they participate in a federal grant program.

Status:  H.R. 3132 passed the U.S. House, 371-52 on September 14, 2005 and referred to the Senate Committee on Judiciary.  H.R. 4472 introduced December 8, 2005 and referred to U.S. House Committees on Judiciary and Ways & Means.  This issue has been named as a Congressional priority of the Senate and House Judiciary Committees, and will go to the floor in 2006.

• Food Safety – H.R. 4167, “To amend the Federal Food, Drug, and Cosmetic Act to provide for uniform food safety warning notification requirements, and for other purposes.”

This bill would eliminate all applicable current state laws, and prevent states from establishing any laws in the future relating to “any notification requirement for a food that provides for a warning concerning the safety of the food, or any component of package of the food.”  Any state laws relating to consumer notification, warnings, or safety requirements on food would have to be identical to any federal regulations created as a result of this bill.

Status:  Passed out of U.S. House Committee on Energy & Commerce on December 15, 2005 with a 30-18 vote.  Anticipated for debate on the House floor in February 2006.

• Utilities and Energy – H.R. 3893, the “Gasoline for America’s Security Act of 2005.”

This bill would override state and local government zoning authority and eliminate citizen decision making authority in the sites and permits for oil refineries and other utilities.  This responsibility would be transferred to the Secretary of Energy, the President of the United States, and the federal District Court of Appeals in Washington DC.  It would also discourage state and local governments from advocating on the behalf of their residents by establishing a “loser-pays” standard.  Specifically, the bill would force states and localities to pay the attorney's fees of the industry if a city loses; but if the state or local government wins the case, the industry is not required to pay the expense of the litigation.

Status:  Passed the U.S. House, 212-210 on October 7, 2005 and referred to the Senate Committee on Energy & Natural Resources.

• Environment – S 1110, the “Engine Coolant and Antifreeze Bittering Agent Act of 2005.”

This bill would waive all forms of liability for the industries involved in producing and selling antifreeze and coolants that contain the bittering agent denatonium benzoate (“DB”) even if the use of this agent causes groundwater contamination, personal injury, property damage, or even death.  This unprecedented liability waiver would apply even if children or pets are injured or killed by the DB additive, jeopardizing the very people and animals the bill purports to protect.

Status:  Reported out of the U.S. Senate Committee on Commerce, Science and Transportation on November 17, 2005.

• Property taxes on natural gas pipelines – H.R. 1369, “To prevent certain discriminatory taxation of natural gas pipeline property.”

This bill would restrict state authority to impose property taxes on natural gas pipelines at a different rate and prevent states or other local taxing authorities from assessing pipeline property at a higher ratio to market value than other commercial and industrial property in the same taxing jurisdiction.  Jurisdiction of pipeline tax cases would be shifted from state to federal courts.

Status:  Referred to U.S. House Committee on Judiciary, Subcommittee on Commercial & Administrative Law, March 17, 2005. Hearings held in October 2005.

Recently Proposed Regulations by Federal Agencies

Preemption Watch List

Issue	Bill Number	Sponsor	Explanation	Bill Status
Campaign Finance – Section 527 Organizations	S. 271, S. 1053, HR 513, HR 1316	Sen. John McCain (R-AZ), Sen. Russ Feingold (D-WI), Rep. Chris Shays, (R-CT), Rep. Mike Pence (R-IN)	Defines what constitutes a Section 527 organization and requires these organizations to file with the Federal Election Commission. The Senate bill was amended in committee and now contains language that removes state candidates and officeholders from the restrictive provisions of the bill.	S. 271 replaced by S. 1053, and placed on Senate Floor Calendar, May 17, 2005. HR 1316 voted out of Committee, June 22, 2005. HR 513 voted out of Committee, July 22, 2005 and received supplemental report, Sept. 22, 2005.
Civil Justice – Charitable Nonprofits	S. 1125	Sen. Rick Santorum (R-PA)	Preempts state tort law by shielding businesses that provide equipment or facilities for use by charitable nonprofit organizations from state civil liability. Also shields physicians and other licensed health care providers from civil liability under state laws if they are providing charitable services. A number of states have enacted provisions of this type within the broader context of medical liability reform.	Referred to Senate Judiciary Committee, May 25, 2005.
Civil Justice – Frivolous Lawsuits	HR 420	Rep. Lamar Smith (R-TX)	Preempts state civil procedure laws by requiring states to be subject to Rule 11 of the Federal Rules of Civil Procedure in purely state legal proceedings. Requires state judges to apply the sanctions provisions of Rule 11 when a determination was made that a state civil lawsuit was frivolous and affected interstate commerce.	Passed House with vote of 228-184, Oct. 27, 2005. Referred to Senate Judiciary Committee.
Criminal Justice – Athlete Drug Tests	HR 3084	Rep. Cliff Stearns (R-FL)	Preempts numerous state privacy laws by requiring public disclosure of the name of any athlete having a positive drug test that results in suspension.	Voted out of Committee, July 28, 2005 and placed on House Calendar.
Criminal Justice – Capital Punishment	HR 379	Rep. Chaka Fattah (D-PA)	Preempts state capital punishment laws by enacting a mandatory minimum 10-year death penalty moratorium in any state which had sentenced a person to death, and that person had been determined by subsequent judicial process to be innocent. Establishes federally-monitored procedures with which a state must comply to reinstate its death penalty.	Referred to House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security, March 2, 2005.
Driver’s Licenses and Identification	HR 418 – “REAL ID” Act	Rep. James Sensenbrenner (R-WI)	Imposes rigid, prescriptive federal mandates for state-issued driver’s licenses. Requires states to verify lawful presence before issuing a driver’s license, establishes security standards for state offices where driver’s licenses and related documents are produced and stored, regulates personnel training and security clearances, sets federal data storage requirements, and prohibits financial assistance to a state unless it joins an interstate compact.	Passed the House and the Senate attached to Military Appropriations. Became P.L. 109-13, May 11, 2005.
Elections – HAVA	HR 3094	Rep. Steny Hoyer (D-MD)	Amends the Help America Vote Act (HAVA) and establishes uniform standards for the counting of provisional ballots cast at incorrect polling places. HAVA currently permits the states to create their own laws regarding the counting of provisional ballots, but that provision would be preempted. Also establishes security standards for voting systems used in federal elections and requires states to make election laws “public” by publishing them in hard copy and on the internet by January 1 of any election year.	Referred to House Committee on House Administration, June 28, 2005.
Elections – State Election Administration Officials	HR 834, S. 391	Rep. Ted Strickland (R-OH), Sen. Frank Lautenberg (D-NJ)	Imposes restrictions on the political activities of chief state election administration officials for state elections involving federal officers and preempts longstanding state public policy in this area. A chief state election administration official would not be allowed to take an “active part” in the political management of a political campaign with respect to any election for federal office over which such official has supervisory authority.	Referred to House Committee on House Administration and to Senate Rules Committee, February 15-16, 2005.
Eminent Domain Restrictions	H.AMDT 427 to HR 3058, HR 3083, HR 3087, HR 3135, HR 3315, HR 3405, HR 4088, HR 4128, S. 1313, S. 1704, S. 1883	Rep. Scott Garrett (R-NJ), Rep. Denny Rehberg (R-MT), Rep. Phil Gingrey (R-GA), Rep. James Sensenbrenner (R-WI), Rep. Maxine Waters (D-CA), Rep. Henry Bonilla (R-TX), Rep. Frank Pallone (D-NJ), Sen. John Cornyn (R-TX), Sen. Byron Dorgan (D-ND), Sen. Orrin Hatch (R-UT)	All of these bills are in reaction to the Kelo v. New London Supreme Court decision, and seek to preempt and limit the fundamental function of state and local authority in the use of eminent domain power by removing “economic development” from the “public use” definition. Many of the bills would also withhold federal funding from a number of sources, such as community development block grants, from states and communities that would use eminent domain authority to take property from private persons for commercial or economic development. HR 3058 Amendment 427 prohibited funds appropriated in that bill from being used by states or localities for eminent domain projects. It was attached as a rider to an appropriations bill, which means the statute is in effect for only one year. NCSL will continue to track this issue to ensure it does not reappear in future appropriations bills or other legislation.	HR 3405 voted out of Committee, Oct. 31, 2005. HR 4128 passed House with vote of 376-38, Nov. 3, 2005 and referred to Senate Judiciary Committee. H.AMDT 427 to HR 3058 adopted 231-189 in House, retained in Conference report. Became P.L. 109-115, Nov. 30, 2005.
Energy	HR 6 – “Energy Policy Act (EPAct) of 2005”	Rep. Joe Barton (R-TX), Sen. Pete Dominici (R-NM)	Included a number of provisions which shift authority from the states to the federal government.  Two major provisions relate to the siting of electricity transmission lines and liquefied natural gas (LNG) terminals.  The Federal Energy Regulatory Commission (FERC) is authorized to preempt states and issue permits for the construction of interstate transmission power lines in DOE-designated “national interest electric transmission corridors” if the state fails to approve (or unacceptably places conditions on) a permit application within 1 year after submittal.  FERC is also granted the “exclusive authority to approve or deny applications for the siting, expansion or operation” of LNG terminal onshore or in state waters.  The bill also includes changes to numerous permitting timelines, establishes new federal standards for certain appliances, caps the number of boutique fuels used nationally and modifies provisions implementing the Leaking Underground Storage Tank (LUST) program.	Became P.L. 109-58, August 8, 2005.
Environment – Clean Air Act, Superfund and Safe Drinking Water Act	HR 1815, S. 1042	Rep. Duncan Hunter (R-CA), Sen. John Warner (R-VA)	RRPI exempts the Department of Defense (DoD) from compliance with select provisions of the federal Clean Air Act, the Comprehensive Environmental Response and Liability Act (Superfund) and the Resource Recovery and Conservation Act (Solid Waste).  The exemptions preempt state laws and regulations that complement and supplement the three federal environmental laws.  Proposes to move all cases brought under the Clean Air Act, Superfund and the Safe Drinking Water Act from state courts to federal courts.	This was a provision originally inserted into the DoD reauthorization bill. It was removed prior to passage, and was not added to the DoD appropriations bill.
Health – Insurance Providers	HR 2355, S. 1015	Rep. John Shadegg (R-AZ), Sen. Jim DeMint (R-SC)	Promulgated on the premise that the application of numerous and significant variations in state law impedes commerce in individual health coverage by impacting the ability of insurers to offer affordable individual health insurance coverage. Amends Public Health Service Act to provide that the laws of a health insurer’s primary state of licensure apply to individual health insurance coverage offered by that issuer both in the primary state and in any secondary state. Establishes base federal standards for states to meet for an insurer to designate them as primary states, including risk-based capital formulas to determine insurers’ fiscal solvency and the enactment of legislation or regulations to establish independent review process.	HR 2355 voted out of Committee, July 20, 2005. S. 1015 referred to Senate Committee on Health, Education, Labor, and Pensions, May 12, 2005.
Health – Methamphetamine	S. 103	Sen. Jim Talent (R-MO)	Preempts state laws regulating the sale of pseudoephedrine, the main ingredient of methamphetamine, by requiring that all substances containing pseudoephedrine be sold behind the pharmacy counter. Purchasers must produce a photo ID showing date of birth and sign a written log or receipt, and no person shall acquire more than 9 grams of pseudoephedrine within any 30-day period. 40 states currently have laws regulating the sale of pseudoephedrine; however, fewer than 10 states regulate in the manner prescribed by the federal bill.	This bill was attached to the PATRIOT Act Reauthorization (HR 3199) conference report, Dec. 2005. The conference committee was dissolved but the status of the Conference Report remains in question. Further action is expected.
Health – Patient Safety	S. 544	Sen. James Jeffords (I-VT)	Preempts state freedom of information laws (FOIAs) or any other state laws that govern civil or administrative procedures requiring the disclosure of information provided by a health care provider to a certified patient safety organization.	Became P.L. 109-41, July 29, 2005.
Health – Small Business Association Health Plans	HR 525, S. 406	Rep. Sam Johnson (R-TX), Sen. Olympia Snowe (R-ME)	Seeks to “streamline” regulations for small businesses that pool their money together to buy health insurance through groups called association health plans (AHPs). Preempts state laws providing critical protections to consumers and fails to replace them with adequate federal protections.	HR 525 passed House with vote of 263-165, July 26, 2005. Referred to Senate Committee on Health, Education, Labor, and Pensions. S. 406 referred to Senate Committee on Health, Education, Labor, and Pensions, Feb. 16, 2005.
Housing Finance	HR 1461	Rep. Richard Baker (R-LA)	Establishes a single regulator, the Federal Housing Finance Agency (FHFA), for government-sponsored enterprises (GSEs) involved in the home mortgage market. GSEs are privately owned, congressionally chartered financial institutions created to enhance the availability of credit in the economy, such as Fannie Mae, Freddie Mac, and Federal Home Loan Banks. Preempts state laws by allowing FHFA to act outside state law in some circumstances, and preempts state statutes of limitation and contract law. Preemptions would primarily occur in the event that FHFA serves as the receiver or conservator of a regulated entity.	Passed House with vote of 331-90, Oct. 26, 2005. Referred to Senate Committee on Banking, Housing and Urban Affairs.
Immigration Enforcement	H.AMDT 163 to HR 1817	Rep. Charlie Norwood (R-GA)	Makes states responsible for enforcing federal civil immigration laws by “clarifying” that such authority rests with the states. Attached to the FY2006 authorization for the Department of Homeland Security.	H.AMDT 163 adopted 242-182, bill passed House with vote of 424-4, May 18, 2005. Referred to Senate Committee on Homeland Security and Governmental Affairs.
Information and Data Security – Notification Requirements	HR 1069, S. 115, S. 751, S. 768, S. 1326, S. 1332, S. 1408	Rep. Melissa Bean (D-IL), Sen. Dianne Feinstein (D-CA), Sen. Charles Schumer (D-NY), Sen. Jeff Sessions (R-AL), Sen. Arlen Specter (R-PA), Sen. Gordon Smith (R-OR)	These bills address how and when the federal government, businesses, and in some cases states must notify individuals when there has been a data security breach which has resulted in, or in which there is a significant risk of harm to individuals. All of these bills define what personal information is “protected,” e.g. social security numbers, drivers license numbers, bank account or other account information, etc. All of these bills either expressly preempt state notification laws entirely or preempt state laws to the extent that they are inconsistent with federal law.	S. 1326 reported out of Senate Judiciary Committee, Oct. 20, 2005. S. 1408 reported out of Senate Commerce Committee, Dec. 8, 2005. All other bills remain in committee.
Insurance Regulation	“SMART Act,” Not yet introduced.	N/A	Establishes federal requirements and minimum standards for insurance regulatory reform. States would have to adopt federal provisions or face preemptions and sanctions. They would be required to enact model laws developed by the National Association of Insurance Commissioners (NAIC), or essentially accept the model laws if state action was deemed inconsistent with them by a federal insurance panel. Deregulates property-casualty rates for most insurance lines, primarily automobile, homeowner’s and worker’s compensation insurance.	Not yet introduced, draft bill circulated in late 2004 with continued discussions in 2005.
Technology – Spyware	HR 29, HR 744, S. 687, S. 1004	Rep. Mary Bono (R-CA), Rep. Bob Goodlatte (R-VA), Sen. Conrad Burns (R-MT), Sen. George Allen (R-VA)	HR 29 contains an intergovernmental mandate identified under UMRA preempting state law in areas ranging from the regulating and implementation of penalties against outside users from using protected computers in a deceptive manner to the use of authorized information collection programs, and the use of web-accessed computer software displaying online advertising.  S. 687 prohibits states from enacting statutes limiting or restricting the use of software that collects information about the user of a computer, the user’s use of the computer, the user’s browsing behavior, or cause advertisements to be delivered to the user. SPY BLOCK also supersedes state law regarding notification of software installation.  HR 744 contains an intergovernmental mandate identified under UMRA prohibiting a state from creating civil penalties that specifically reference federal statute regarding computer fraud. S. 1004 preempts state law relating to installation of software through deceptive acts in favor of FTC authority.	HR 29 passed House with vote of 393-4, May 23, 2005. Referred to Senate Commerce Committee. HR 744 passed House with vote of 395-1, May 23, 2005. Referred to Senate Judiciary Committee. S. 687 reported out of Senate Commerce Committee, Nov. 17, 2005. S. 1004 remains in Senate Commerce Committee.
Telecommunications	S. 1294, S. 1350	Sen. Frank Lautenberg (D-NJ), Sen. Arlen Specter (R-PA)	S. 1294 preempts state laws that regulate a public provider of broadband services, and prohibits a public provider of broadband services from refusing advanced telecommunications capability or any service utilizing such capability within its capacity to any person or any private or public entity. S. 1350 seeks to protect the privacy of mobile phone users by prohibiting the inclusion and dissemination of wireless telephone number information to wireless directory assistance service databases, provided the consumer opts out of such inclusion. Preempts state laws that impose requirements on providers of commercial mobile services, or any direct or indirect affiliate or agent of such providers that are inconsistent with federal requirements.	Both bills referred to Senate Commerce Committee, June 2005.
Tort Reform – Gun Manufacturer Liability	S. 397, HR 800	Sen. Larry Craig (R-ID), Rep. Cliff Stearns (R-FL)	Preempts state tort law by banning civil lawsuits against gun manufacturers when guns are not used for legitimate self-defense, recreation, or sporting purposes. Prohibits qualified civil liability actions in state courts against firearm or ammunition manufacturers, distributors, dealers, or importers when their products are unlawfully or criminally used.	HR 800 voted out of House Judiciary Committee, June 14, 2005. S. 397 became P.L. 109-92, Oct. 26, 2005.
Tort Reform – “Obesity” Liability	HR 554	Rep. Ric Keller (R-FL)	Preempts state tort law by banning qualified civil lawsuits in state courts against food manufacturers, marketers, distributors, advertisers, sellers and trade associations for injury claims relating to weight gain or health conditions.  Also eliminates any lawsuits already filed from proceeding.	Passed House with vote of 306-120, Oct. 19, 2005. Placed on Senate calendar without referral to committee.
Tort Reform – Medical Malpractice	HR 5, HR 534, HR 2657, HR 3154, HR 3378, S. 354	Rep. Phil Gingrey (R-GA), Rep. Chris Cox (R-CA), Rep. Brian Baird (D-WA), Rep. Barbara Cubin (R-WY), Sen. John Ensign (R-NV)	All proposed bills preempt state laws regulating medical malpractice civil lawsuits within state courts, specifically in the areas of noneconomic and punitive damages caps, attorneys fees, statutes of limitations, joint and several liability, collateral source rules, and periodic payments. HR 5 also exempts drug or medical device manufacturers and distributors from civil liability if a specific product has received Food and Drug Administration clearance.	HR 5 passed House with vote of 230-194, July 28, 2005. Referred to Senate Judiciary Committee. All other bills remain in committee.

For further information, please contact Susan Parnas Frederick or Trina Caudle at 202-624-5400.