• Mission & Governance
• Member Services
• How to Get Involved
• Standing Committees
• NCSL Foundation

• Issue Areas: A-Z
• State-Federal Relations
• NCSL Standing Committees
• News from D.C. and the States

• About State Legislatures
• Elections, Campaigns & Redistricting
• NCSL's StateConnect Directory
• Web Sites

• Online Guide to NCSL Services
• Staff Sections and Networks
• Meetings & Professional Development
• Staff Directories

• Meetings Calendar
• Online Registration
• Meetings Home Page
• Legislative Summit

• Bookstore
• State Legislatures Magazine
• NCSL's StateConnect Directory

Mr. Chairman, members of the Subcommittee. I am Representative Dan Blue, a member of the North Carolina House of Representatives. I appear before you today on behalf of the National Conference of State Legislatures (NCSL). A mere four days ago, I was honored to be elected President of NCSL.

I want to thank you Mr. Chairman for offering NCSL an opportunity to participate in this hearing. The National Conference of State Legislatures represents the state legislatures of the 50 states and the nation's commonwealths and territories. Since its inception, NCSL has been outspoken about the need to maintain and strengthen our federal system of government. State legislators are dedicated to our constitutional system of federalism, strengthening intergovernmental relations, avoiding unfunded mandates and inappropriate grant conditions, encouraging program and administrative flexibility and opposing unjustified preemption of state law.

The cornerstone of NCSL's long-held basic policy on federalism states that: "to revitalize federalism, the three branches of the national government should carefully examine and refrain from enacting proposals that would limit the ability of state legislatures to exercise discretion over basic and traditional functions of state government." It is from this foundation that I wish to address the major topic of this hearing---President Clinton's Executive Order 13083 and federalism generally. I intend to present several recommendations that we believe would enhance the federal regulatory and lawmaking processes and would stimulate greater consultation with state and local government officials on matters of mutual concern.

I - EXECUTIVE ORDER 13083 - THE PROCESS. E.O. 13083 was signed on May 14, 1998. It was developed unilaterally, without consultation with elected state and local government associations or representatives of their associations. It provoked a uniform response from the Big 7, the umbrella body of organizations representing state and local government officials. We have said many times over the past weeks that we are "mystified" and "perplexed" by our exclusion from the process leading up to the promulgation of E.O. 13083. We remain so. To their credit, administration representatives have offered to extend the effective date for implementation of E.O. 13083 for an additional 90 days. This is a good first step. Nonetheless, this offer, standing alone, does not satisfy the three major ingredients of a new policy on "Federalism and Intergovernmental Relations" passed by NCSL last week at its 24th annual meeting. In no uncertain terms, it is the position of NCSL and the position expressed in a letter from the Big 7 dated July 17, 1998, that:

1. Executive Order 13083 must be revoked;
2. its two predecessors, E.O. 12875 (1993, President Clinton) and 12612 (1987, President Reagan) must be reinstated; and;
3. consultations with elected state and local government officials and representatives of their organizations must be initiated to assess whether there is any need to modify E.O. 12875 and 12612.

The process followed by the Clinton administration in developing what became Executive Orders 12875 (Enhancing the Intergovernmental Partnership) and 12866 (Regulatory Reform) was exemplary. It was based on a similar process employed by the Reagan administration and its working group on federalism. There are plenty of good examples of how consultations should occur with elected state and local officials. While the "ball has been dropped on Executive Order 13083," this is atypical of the way NCSL and state legislators have been dealt with by this administration.

Bear in mind that the process used by the current administration in late 1992 through the fall of 1993 ultimately produced: (a) Executive Order 12875, which expedited the waiver process and was the precursor to enactment of the Unfunded Mandates Reform Act (UMRA); (b) Executive Order 12866, which modernized and enhanced the regulatory cost and benefit analysis guidelines for executive agencies; and (c) the retention of Executive Order 12612, despite the fact that the original effort focused exclusively on reworking that document. To say the least, it was successful and met our expectations.

Furthermore, out of these consultations conducted in 1992 and 1993 with the Clinton administration came the framework for regulatory consultations on implementing welfare reform, children's health, Medicaid programmatic and administrative reforms, safe drinking water amendments and others over the past 24 months. Using the same model of collaboration, we can, together, assess whether there is any need to modify and update executive orders and other documents related to federalism and intergovernmental relations.

II - EXECUTIVE ORDER 13083 - THE SUBSTANCE. Every one of us testifying before you today has closely studied the new executive order and its predecessors. The new executive order incorporates major changes in the process by which federal policymakers interact with state and local elected officials and their associations. It also incorporates major changes in the conditions for preempting state law and authorizing federal action intruding on state authority.

For example, the new executive order offers a list of nine reasons to federal regulators and policymakers to take action overriding state authority. These range from state fears regarding business relocations and state incapacity to make regulatory resources available to compliance with international obligations. Deleted are what used to be separate sections on preemption and, unfunded mandates as well as specific references to the Tenth Amendment. For another example, the new executive order concludes that states OFTEN are uniquely situated to discern the sentiments of the people and to govern accordingly. By comparison, E.O. 12612 affirms that states UNIQUELY possess the constitutional authority, the resources and the competence to discern the sentiments of the people and to govern accordingly.

The administration, in meetings with Big 7 executive directors and in responses to communications from members of Congress, indicates that the drafting of the new Executive Order was prompted by a combination of recent Supreme Court decisions, enactment of UMRA and a need to fortify and continue the expedited waiver process. Not having been at the table and, therefore, without any other framework for responding, it seems that the new executive order is much more than an update. However, the best way to get at the rationale that went into the preparation of Executive Order 13083 is through effective consultation with the administration.

It is very important that we move expeditiously and collaboratively to address this matter.

III - FEDERALISM - IMMEDIATE OPPORTUNITIES IN 1998. Congress also has a role in improving intergovernmental relations. There are three pieces of legislation now pending before the Congress, two of which would enhance our intergovernmental partnership and a third which NCSL believes would be a step backward.

Regarding the former, language providing for the technical corrections to UMRA was inserted in H.R. 3534, legislation which has passed the House of Representatives. A similar provision is included in the Senate's companion legislation, S. 389. NCSL wholeheartedly endorses this technical correction. We remain very appreciative to this subcommittee and to many members of Congress who have provided the leadership in curbing unfunded mandates.

I realize that the issue of regulatory reform has drawn much attention during both the 104th and 105th Congresses. As you enter the final weeks of the 105th Congress, it appears that the only legislation enjoying potential bipartisan support that could lead to enactment is S. 981. This legislation would enhance the cost-benefit analysis process of pending and existing regulations and codify President Clinton's E.O. 12866. As written, it contains judicial review provisions. It may not include more far reaching reforms that many of you have advocated, but it would be a significant step forward.

The FY1999 House budget resolution, H.Con Res 284, suggests that significant cuts in Medicaid, children's health and income security programs, namely TANF and the Social Services Block Grant, be imposed. For a variety of reasons, all spelled out in attachment 3, reductions in these programs would undermine aggressive efforts, made possible by enactment of federal legislation, to reform welfare and ensure health coverage for children. These reductions would fracture agreements made among federal, state and local officials. They represent a step backward for federalism and intergovernmental relations.

IV - FEDERALISM - DEVOLUTION. Mr. Chairman, over the past four years, notable progress has been made in many issue areas with the restoration of authority to states and the bolstering of federalism. The list is quite impressive: Welfare Reform, the Unfunded Mandates Reform Act, the state Children's Health Insurance Program (CHIP) and long-sought Medicaid reforms of the 1997 balanced budget agreement, the Safe Drinking Water Act Amendments and, most recently, the TEA-21 legislation. All of these have met most of the many tests NCSL applies regarding flexibility, intergovernmental relations, sorting out of responsibilities, mandates and preemption. It has been our objective to sustain these successes during the rule-making processes. With a couple of notable exceptions, the UMRA has tempered the flood of unfunded federal mandates. States are now undertaking the implementation of the children's health program enacted last year. And, we are now entering the third challenging year of welfare reform subsequent to the federal legislation enacted in 1996.

But, there are troubling and disillusioning events occurring that could erode the balance and restoration of authority exemplified above. I speak to major efforts to preempt states regarding health insurance regulation, product liability, medical malpractice, juvenile justice, land use planning, financial services and electric utility restructuring. Federal preemption of state law is a major problem, one that is getting worse not better, despite progress in other areas of intergovernmental relations. The attached article from NCSL's magazine, State Legislatures, summarizes what we conclude is the competing trends of devolution and counter-devolution.

In all the years I have been in the state legislature and active in NCSL, I continue to be impressed with the overwhelming bipartisan accord we enjoy regarding preservation of state authority. Virtually every issue on the counter-devolution list above has been addressed by most, if not all, state legislatures. It is not at all clear that federal intervention is required. And, while we recognize there may be some instances when national legislation and/or standards are essential even though they would compromise state authority, procedural safeguards must be put in place to ensure that such drastic steps are necessary. In other words, preemption is something we take very seriously.

It is not our intention to ensnarl the federal legislative or regulatory processes. Rather, we believe it would be beneficial to have a preemption point of order to enhance the understanding of the consequences of preempting state and local government authority and to fortify the stature of the Tenth Amendment. Congress and federal agencies must be better informed about which state laws they are preempting and should much more explicit about the limits on the preemptive effect of federal action. Above all else, the federal government must be held accountable to the public for actions that preempt state law.

V- FEDERALISM - CONSULTATIONS. Much of the early part of my testimony touched on the consultation process with the executive branch regarding federalism executive orders. Let me suggest that future consultations between the House Government Reform and Oversight Committee and the Senate Governmental Affairs Committee with state and local officials and representatives of their associations on general issues regarding federalism could prove beneficial. It is my experience that we tend to come before you when there is a crisis, such as with E.O. 13083, or a singular piece of pending legislation, such as with UMRA. Just as it is serving in the North Carolina House of Representatives, it is difficult getting a grasp of the big federalism picture in Congress when you are laboring on a myriad of seemingly unrelated issues. I believe it would be worthwhile for us to explore together a potential framework for further discussions.

NCSL has used a similar "consultation" process through a State-Local Government Task Force. I don't pretend that we have remedied all disputes between state officials and their local counterparts. But, we have uncovered ways to sensitize ourselves to each other's concerns and to develop strategies for making public policy and delivering services from which all benefit.

Thank you for offering this opportunity to me to testify before you today. I welcome your questions on the testimony I have provided today.

State Federal Relations

Visitor counts for this page.