Preemption Monitor Home Page

Preemption Monitor

Volume III, Issue 3

November 28, 2007
An information service of the NCSL Law & Criminal Justice Committee

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Introduction

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.

The volume of federal legislation that preempts state authority has increased. Pressure continues to mount for Congress and the White House to support federal usurpation of state authority in a variety of areas such as criminal law, tort reform, driver’s license security and the environment. 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 the states, curtailing state creativity and state authority. Often, federal preemptions 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, as well as discussions on how these proposals might affect the states. NCSL’s policy states that federal legislation should be based on broad principles, not upon specific mandates that commonly lead to a one-size-fits-all approach. Such a policy intends to preserve state flexibility, because it recognizes that what works in one state is not necessarily practical or effective in others. This federalism policy promotes good governance at both the state and federal levels.

In recent years, NCSL worked relentlessly 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 Congress. States have also recently witnessed the passage of several major pieces of federal preemptive legislation that erode traditional state authority, including the No Child Left Behind Act, the Help America Vote Act, the Class Action Fairness Act, and the REAL ID Act.

The Legislation on the following page is limited to recently introduced and live legislation. Because of the start of a new session, the previous legislation that was on our watch list is no longer active. However, we anticipate that many of the issues will arise in the form of new legislation and we thus expect our list to grow exponentially in the coming months.

Recently Introduced and Live Legislation

CRIMINAL JUSTICE - H.R. 2640, “The National Instant Criminal Background Check System Improvement Amendments Act of 2007.”

This is a bill to improve the National Instant Criminal Background Check System (NICS) by speeding up the processing of background checks and by making criminal records more accessible by NICS. This bill would have a profound effect on the states, requiring the states to provide estimates of the number of records it transmits to the NICS and mandating states to make electronically available to the Attorney General records relating to persons it disqualified from possessing a firearm, convicted of misdemeanor crimes of domestic violence or adjudicated as mentally defective or committed to mental institutions. This law would require states to update, correct, modify or remove obsolete records in the NICS. Furthermore, the act provides for discretionary and mandatory penalties for states that fail to provide the information required by this act. In the first few years, if a state provides less than 60 percent of required records, other Federal funds may be withheld. Later, if the State provides less than 90 percent of required records, even more federal funds are withheld. Although a uniform and better system for conducting criminal background checks is needed, this act would micromanage an issue which has traditionally been an area of state regulation.

Sponsor: McCarthy (D-NY)

Status: 6/14/07. Passed House. Referred to Senate Committee. Received in Senate, read twice and referred to Committee on Judiciary. Endorsed by the Brady Campaign to Prevent Gun Violence, as well as the National Rifle Association, family members of Virginia Tech victims and survivors recently campaigned for companion legislation in the Senate with Sen. Charles Schumer (D-NY) mid-October 2007.

IDENTIFICATION - H.R. 2419/S. 2302, “Farm, Nutrition and Bioenergy Act of 2007.”

An amendment by Senator Judd Gregg (R-NH) would preempt any state from issuing a driver’s license or other identificaton document to an unauthorized immigrant. Senator Norm Coleman (R-MN) would preempt any state action that would result in a driver’s license or photo identification card being issued to an unauthorized immigrant. Eight states have laws allowing the granting of licenses to unauthorized immigrants, usually for public safety and insurance purposes.

Sponsors: Gregg (R-NH), Coleman (R-MN)

Status: 11/16/07. Considered on the Senate floor.

INTERNET - S. 1853. “Community Broadband Act of 2007.”

This law would preempt state laws or pending legislation restricting or prohibiting municipalities from effering high-speed Internet service to residents over public networks. The federal law would prohibit any public provider from deploying broadband services and aalso prohibits cities from discriminating against competing public providers.

Sponsors: Lautenberg (D-NJ)

Status: 10/30/07. Committee on Commerce, Science, and Transportation. Ordered to be reported with amendments favorably.

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Recently Enacted and Proposed Agency Regulations

The Federal Communications Commission order (MB Docket No. 07-51).

The FCC approved this order, preempting state laws that permit “exclusive contracts” for provisions of video services within individual facilities, such as hotels, offices, apartments and nursing homes.

Status: 10/18/07. NCSL opposed this action as an “unwarranted preemption of state authority” in a letter signed by Maryland Senator Delores Kelley, chair of NCSL’s Communications, Financial Services and Interstate Commerce Committee. The letter can be found here: http://www.ncsl.org/standcomm/sccomfc/Communication101807LTR.htm.

Department of Justice National Guidelines for Sex Offender Registration and Notification.

The Sex Offender Registration and Notification Act (SORNA) requires the Indian tribes to comply with the national registration requirements, extends the classes of sex offenders and offenses for which registration is required, requires that sex offenders in the covered classes register and keep their registration current in the jurisdictions in which they reside, work or go to school and requires additional national standards for periodic in-person appearances by registrants to verify and update registration information. In addition, the act adopts reforms affecting the required duration of registration. The said changes preempt each jurisdictions’ current laws they have in place and thus dictate the manner in which they maintain their registration and notification systems. NCSL states for the record that the proposed guidelines, coupled with the underlying law they seek to clarify, promote a burdensome, preemptive scheme for the states with absolutely no federal funding provided for their implementation. Although each jurisdiction shall maintain their own jurisdiction-wide sex offender registries, the registries must conform to the above title. By requiring states to implement minimum federal standards in order to comply with the requirements of the act, the federal government is imposing on a matter which is traditionally regulated by the states. As individual jurisdictions, states have a multitude of differing standards and regulations in place governing the process by which the offenders are required to register and a federally funded study is needed to determine the extent by which each jurisdiction has complied with the act. Title I of Public Law 109-248 would require states to adjust their current system in order to comply.

Status: July 2007. NCSL provided comments.

Environmental Protection Agency’s proposed regulation for the National Pollutant Discharge Elimination System (NPDES) Permit Incentive Fee for Clean Water Act Section 106 Grants.

The rule as drafted proposes to set aside a portion of the federal funds, Section 106 grants, to establish an incentive program which will be accessible by few if any states. As drafted the rule would divert funding above FY 2006 levels to a set-aside account available only to states where more than 75% of their program costs are funded through permit fees. To receive the maximum incentive, states would need to fund 100% of their program costs through permit fees.

Status: Commenting Phase

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Preemption Watch List

Issue

Bill No.

Sponsor

Explanation

Bill Status

Education

H.R. 2669

P.L. 110-084

Miller (D-CA)

“The College Cost Reduction and Access Act of 2007.” A provision in this act would penalize states for not maintaining higher education funding levels at or above a rolling five-year average until the state legislature “corrects” the situation. States are welcome to beg the U.S. Secretary of Education for a waiver from their misdirected fiscal decision making.

9/27/2007. Became P.L. 110-084.

Elections

H.R. 811

Holt (D-NJ)

“Voter Confidence and Increased Accessibility Act.” The bill seeks to amend HAVA with respect to: (1) paper-ballot verification requirement and electronic voting machines; (2) mandatory paper record audit capacity; and, (3) accessibility and ballot verification of results for individuals with disabilities. This legislation is before the House Administration Committee, and preempts laws in at least 40 states. The legislation requires states to purchase new or retrofit old voting systems to provide a paper trail that conforms to federal standards; however, the technology and voting system software called for in the bill do not yet exist. Additionally, the bill contains an authorization of appropriation of $1 billion which is insufficient to cover the costs of such a massive endeavor. The legislation also requires random, hand-count audit procedures which have not been piloted and are not based on any current state system. H.R. 811 contains a compliance deadline of January 1, 2008, not providing enough time for implementation, nor enough confidence in the procedures’ effectiveness in time for the next election. H.R. 811 seeks to micromanage election administration, undermining the ability of states to hold elections appropriate for their constituents. Furthermore, the bill proposes unfunded mandates for states to carry out a rash plan, not based on sufficient research or quality testing.

5/16/2007. Placed on the Union Calendar. Scheduled for a floor vote twice and cancelled twice in Sept. 2007.

Environment

H.R. 569

Pascrell (D-NJ)

Amendment to H.R. 569, “Water Quality Investment Act.” Amendment by Representative Rohrabacher (R-CA) which would prohibit the EPA from making a grant to a state, municipality or municipal entity unless the EPA has been provided satisfactory assurance that state, municipality or municipal entity will require all persons, including contractors and subcontractors, that are carrying out grant-funded activities to participate in the Employment Eligibility Verification Pilot Program and comply with its terms and conditions.

3/8/2007: The bill passed in the House 367 – 58 Referred to Senate committee on Environment and Public Works.

Environment

S. 357

Feinstein (D-CA)

Ten-in-Ten Fuel Economy Act. A bill which would increase fuel economy standards for passenger automobiles and light, medium, and heavy trucks starting in 2011, and would require the Department of Transportation (DOT) and the Environmental Protection Agency (EPA) to promulgate rules and regulations to implement the increased standards. However, S. 357 would preempt state and local authority to implement their own consumer information laws or regulations on the fuel efficiency impact of vehicle tires; that preemption constitutes an intergovernmental mandate as defined in the Unfunded Mandates Reform Act (UMRA).

5/8/2007: Senate committee/subcommittee actions. Status: Committee on Commerce, Science, and Transportation. Ordered to be reported with an amendment in the nature of a substitute favorably.

Health

S. 1082

Kennedy (D-MA)

S. 1082, “The Prescription Drug User Free Act of 2007,” as part of The Food and Drug Administration Revitalization Act.

Language was stripped from all 10 drafts of the PDUFA legislation which, if included, would have provided a safeguard against FDA preemption of state laws and undone the FDA Prescription Drug Labeling Rule preamble preemption which noted that the rule preempted all state law requirements pertaining to a drug company’s obligation to warn the public of a drug’s potential side-effects without regard to whether the drug company intentionally withheld information or negligently failed to continually monitor, test, and analyze data regarding the safety, efficacy, and prescribing practices of the drugs.

5/9/07: Passed in the Senate and Held at Desk

Health

H.R. 493/S. 358,

Slaughter (D-NY), Snowe (R-ME)

H.R. 493, S. 358, Genetic Information Nondiscrimination Act of 2007. H.R. 493 and S. 358 would preempt current state laws in place by prohibiting discrimination on the basis of genetic information with respect to health insurance and employment. Federal health insurance legislation that establishes mandated benefits or uniform standards, should establish a floor, not a ceiling. The federal government should continue to give deference to state, local and tribal governments regarding the regulation of state, local and tribal government employee health plans. H.R. 493/S. 358 would amend the Employee Retirement Income Security Act of 1974 (ERISA) and the Public Health Service Act to expand the prohibition against discrimination by group health plans and health insurance issuers in the group and individual markets on the basis of genetic information or services to prohibit: (1) enrollment and premium discrimination based on information about a request for or receipt of genetic services; and (2) requiring genetic testing. Sets forth penalties for violations.

4/30/2007: Read the second time. Placed on Senate Legislative Calendar under General Orders. Calendar No. 125.

Health

S. 558

Domenici (R-NM)

S. 558, Mental Health Parity Act of 2007. This bill would provide parity between health insurance coverage of mental health benefits and benefits for medical and surgical services. The bill amends the Employee Retirement Income Security Act (ERISA) and the Public Health Service Act to require a group health plan that provides both medical and surgical benefits and mental health benefits to ensure that: (1) the financial requirements applicable to such mental health benefits are no more restrictive than those of substantially all medical and surgical benefits covered by the plan, including deductibles and co-payments; and (2) the treatment limitations applicable to such mental health benefits are no more restrictive than those applied to substantially all medical and surgical benefits covered by the plan, including limits on the frequency of treatments or similar limits on the scope or duration of treatment. Prohibits the plan from establishing separate cost sharing requirements that are applicable only with respect to mental health benefits.

9/18/07: Passed Senate with amendment unanimous consent.

10/17/07: Referred to House Subcommittee on Health, Employment, Labor and Pensions

Health

S. 910

Kennedy (D-MA)

S. 910, The Healthy Families Act. Mandates that states provide for paid sick leave to ensure that Americans can address their own health needs and the health needs of their families. The bill would require certain employers, who employ 15 or more employees for each working day during 20 or more workweeks a year, to provide a minimum paid sick leave and employment benefits of: (1) seven days annually for those who work at least 30 hours per week; and (2) a prorated annual amount for those who work less than 30 but at least 20 hours a week, or less than 1,500 but at least 1,000 hours per year. Allows employees to use such leave to meet their own medical needs or to care for the medical needs of certain family members.

3/15/2007: Referred to Senate committee. Status: Read twice and referred to the Committee on Health, Education, Labor, and Pensions.

Health

H.R. 1424

Kennedy-RI (D)

H.R. 1424, Paul Wellstone Mental Health and Addiction Equity Act of 2007. H.R. 1424 amends section 712 of the Employee Retirement Income Security Act of 1974, section 2705 of the Public Health Service Act, and section 9812 of the Internal Revenue Code of 1986 to require equity in the provision of mental health and substance-related disorder benefits under group health plans, thereby preempting current state laws.

10/16/07: Passed Committee on Ways and Means 32 – 13

Health

S. 625/H.R. 1108

Kennedy (D-MA), Waxman (D-CA)

S. 625, H.R. 1108, Family Smoking Prevention and Tobacco Control Act. This bill would preempt current state laws by implementing language in an attempt to protect the public health by providing the Food and Drug Administration with certain authority to regulate tobacco products. Amends the Federal Food, Drug, and Cosmetic Act to provide for the regulation of tobacco products by the Secretary of Health and Human Services through the Food and Drug Administration, including through disclosure, annual registration, inspection, recordkeeping, and user fee requirements.

8/1/07: Committee on Health, Education, Labor, and Pensions. Ordered to be reported with an amendment.

Insurance

S. 618/HR 1081

Leahy (D-VT), DeFazio (D-OR)

S. 618, HR 1081, A Bill To Further Competition in the Insurance Industry. S. 618 and HR 1081 would repeal certain sections of the McCarran-Ferguson Act enacted in 1945 which gave states the sole authority to regulate the business of insurance. The legislation would repeal the antitrust provisions of the McCarran-Ferguson Act. In doing so, Congress would end the exclusive role of the states as the regulator of insurance. States would have to share regulatory authority with the Department of Justice and the Federal Trade Commission. Eventually, this bifurcated regulatory system would likely lead to just a federal regulator of insurance.

3/7/07: Committee on the Judiciary. Hearings held

Defense

S. 1547/H.R. 1585

Levin (D-MI)

S. 154, H.R. 1585, Department of Defense FY2008 Appropriations Bill

Provisions in both House and Senate Department of Defense authorization bills would return power to deploy the National Guard to states. Last year, Congress preempted state authority and granted the president exclusive power to call out the guard for various “major disasters” without state consent. Last year, NCSL opposed this “blatant and dangerous” threat to public stating that “...the historic domestic mission of the National Guard in emergency management under state authority must be strengthened rather than co-opted by federal decree.”

10/1/07: Passed the Senate 92 – 3.

Public Safety

H.R. 980

Kildee (D-MI)

H.R. 980, Public Safety Employer/Employee Cooperation Act of 2007. HR 980 establishes minimum organized-labor rights for firefighters, police officers and other public safety officials, including the rights to form and join a union and to bargain collectively over hours, wages and work conditions. It also would provide for the enforcement of contracts through the state government. This bill would give the Federal Labor Relations Authority 180 days to determine whether states meet the minimum standards. In deciding that public safety workings should have the right to join unions, this usurps a role traditionally granted to the states.

7/17/07: Passed in the House. 7/20/07: Placed on the Senate Calendar No. 275.

Environment

Draft Discussion

Boucher (D-VA)

The transportation sector addressing greenhouse gas emissions to move toward an economy-wide greenhouse gas control program. This legislation would pre-empt California and 11 other states from implementing laws requiring automakers to reduce greenhouse gas emissions across their fleets. The bill would prohibit the Environmental Protection Agency from granting the states waivers to put their climate change rules into effect.

6/6/07: Draft stage.

Environment

The U.S. Department of Homeland Security (DHS) issued interim final rules establishing federal standards for chemical facility security. http://www.dhs.gov/xlibrary/assets/IP_ChemicalFacilitySecurity.pdf

Department of Homeland Security

Chemical Security Regulations. Security regulations for chemical facilities, implementing the statutory authority granted in the Homeland Security Appropriations Act, 2007 (P.L. 109-295, Section 550). The interim final rule clarifies the Department’s position on preemption of state laws in light of the comments submitted by members of Congress, NCSL and other interested parties. States may still regulate their “high risk” chemical facilities as long as their laws not frustrate the intent of the federal regulations. The Department reiterates that the regulations do not apply to chemical facilities that are not deemed to be “high risk” facilities. The Department notes that it does not intend to preempt existing state health, safety and environmental regulations, though case specific determinations will be made as necessary. The interim rules support preemption of any state law that “conflicts with, hinders, poses an obstacle to or frustrates the purposes of this regulation.” However, this explicitly reaffirms the Department’s belief in its authority to preempt state law where the law frustrates the purpose of the federal regulations under existing precedent.

Both the House and Senate versions of the FY 2007 supplemental appropriations bills, contain NCSL-supported provisions protecting state authority to enforce stricter and stronger chemical facility security standards. These provisions were added in the House by Texas Representative Sheila Jackson-Lee and in the Senate by New Jersery Senator Frank Lautenberg.