 Preemption Monitor
Volume II, Issue IV
December 5, 2006
An information service of the NCSL Law & Criminal Justice Committee
Recently Enacted Federal Legislation
Recently Introduced and Live Federal Legislation
 Download Full PDF Document (13 pages--Includes Preemption Watch List: 109th Congress--Table: Issue, Bill Number, Sponsor, Explanation and Bill Status). To view PDF files, you must install Adobe Acrobat Reader.
Introduction
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 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, states can protect and preserve 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 5th 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.
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National Guard– H.R. 5122, the “National Defense Authorization Act.”
Section 511 of this bill would allow the President to federalize the National Guard of the states without the consent of the governor in case of “a serious natural or manmade disaster, accident, or catastrophe that occurs in the United States, its territories and possessions, or Puerto Rico.”
Status: Passed the House by roll call vote on May 11, 2006. Passed in the Senate by unanimous consent on June 22, 2006. Signed by the President into law on October 17, 2006. P.L. # 109-364
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Child Welfare- S. 3525, the “Child and Family Services Improvement Act of 2006.”
President Bush recently signed legislation reauthorizing $345 million in annual mandatory funding for the Safe and Stable Families Program. The new law imposes a carefully crafted cap on state child welfare administration. It also compels states to develop plans to ensure that foster children receive a monthly visit from a social worker and divides $40 million in new funding between these monthly visits and regional partnerships to combat methamphetamine and other drug abuse.
Status: Passed in the House and Senate and became law on September 28, 2006. P.L. # 109-288
- Takings-H.R. 4772, the “Private Property Rights Implementation Act of 2006”
This bill would allow individuals to bypass state administrative procedures regarding regulatory takings. Property owners would be able to opt to go to federal court immediately regarding land use and compensation traditionally handles by state and local governments and laws.
Status: This bill was passed by the house and received by the Senate on September 30, 2006
- Elections-H.R. 4844, the “Federal Election Integrity Act”
This bill would amend the Help America Vote Act of 2002 to require each individual who desires to vote in an election for Federal office to provide the appropriate election official with a government-issued photo identification, and for other purposes.
Status: Passed by the house on September 20, 2006. Received in the Senate on September 21, 2006.
- Privacy- S. 2389, the “Protecting Consumer Phone Records Act”
This bill would broadly preempt stronger state privacy laws or regulations as well as any laws imposing liability on companies for failing to protect consumer privacy.
Status: This bill was placed on the Senate legislative calendar on May 9, 2006.
- Food Safety-S. 3128, the “National Uniformity for Food Act of 2006”
This bill will preempt more than 200 state laws that deal with food safety and the public’s right-to-know about toxic chemicals. Moreover, this bill would establish a system where states would be required to petition the U.S. Food and Drug Administration (FDA) for permission to continue to enforce their own laws.
Status: This bill was heard by the Committee on Health, Education, Labor, and Pensions on July 27, 2006.
- Insurance Regulation-H.R. 5637, the “Nonadmitted and Reinsurance Reform Act of 2006”
This bill sets national standards for state collection and allocation of premium taxes on surplus line insurance. It would allow qualifying commercial entities to bypass state regulations that require companies to seek alternatives from among those authorized to do business in a particular state. The legislation bars states from imposing financial solvency requirements on reinsurers and it prohibits states from setting contractual requirements for reinsurance.
Status: This bill passed in the House and was received in the Senate on September 28, 2006
- Privacy- H.R. 4157, the “Health Information Technology Promotion Act of 2006”
This bill would preempt certain state laws relating to confidentiality of health information; preempts civil or criminal penalties for exchanging health information technology
Status: This bill passed in the House on July 27, 2006 and was placed on the Senate Legislative Calendar on September 5, 2006.
- Data Security-S. 3568, the “Data Security Act of 2006”
This bill would protect information relating to consumers, requires notice of security breaches, and for other purposes.
Status: Referred to the Committee on Banking, Housing, and Urban Affairs on 6/26/06.
With little time left in the 109th Congress, enactment of any of these issues is improbably. However, they may readily resurface in the 110th Congress.
For further information, please contact Susan Parnas Frederick or Hirsh Kravitz at 202-624-5400.
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