PREEMPTION MONITOR
An information service of the NCSL Law & Criminal Justice Committee

Volume VI, Issue I
April 7, 2010
 

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. NCSL’s cornerstone policy on federalism states that federal legislation should be based on broad principles, not upon specific mandates that commonly lead to a one-size-fits-all approach. NCSL’s federalism policy promotes good governance at both the state and federal levels and can be found on NCSL’s website at http://www.ncsl.org/Default.aspx?TabID=773&tabs=855,27,671#Federalism.

The volume of federal legislation that preempts state authority has not subsided in the new Administration. 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, insurance regulation, and the environment. Although preemption is hard to quantify because it does not always impose a cost to states, it can be harmful because it can eliminate state innovation and creativity. 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.


Preemption Victories

 

NCSL SUCCEEDS IN KNOCKING DOWN FEDERAL COST SHIFT. States will likely save $100 to $200 million annually with action taken by the U.S. Department of Health and Human Services (HHS) this week in response to concerns raised by NCSL. HHS officials announced on Jan. 12, 2010 that they were withdrawing a program instruction that prohibited states without waivers from receiving reimbursements from the federal government for kinship care placements. The HHS action rescinds a Dec. 24, 2008 departmental program instruction that forced states to remove children from kinship caregivers and return them to foster care before becoming eligible for reimbursements under the Fostering Connections to Success Act. HHS further promised to development a new program instruction expanding state eligibility for kinship care reimbursements. NCSL collaborated with governors, county officials and state welfare commissioners in successfully reversing the program instruction. 

ELECTION PREEMPTION AVERTED. State laws restricting political and other “robocalls” remain fully intact after a recent meeting of the Federal Election Commission. Backers of an advisory opinion seeking preemption of these state laws dropped their effort in light of a likely unfavorable vote by the six-member commission.  


Supreme Court Cases and Other Legal Challenges

 

COURT DECISION LIFTS SPENDING RESTRICTIONS. Several state laws, federal statutes and rules, and a smorgasbord of court precedents were jettisoned in the U.S. Supreme Court’s recent 5-4 decision in Citizens United v. Federal Election Commission (U.S. No. 08-205, Jan. 21, 2010). The majority opinion effectively lifts limits on direct corporate and union campaign spending limits. The majority and dissenting opinions are available at http://www.supremecourtus.gov/opinions/09pdf/08-205.pdf

DOES THE SECOND AMENDMENT RIGHT TO BEAR ARMS APPLY TO STATES? The Supreme Court case of McDonald v. City of Chicago will determine whether the Second Amendment right to keep and bear arms is incorporated against the States by the Fourteenth Amendment’s Due Process or Privileges or Immunities Clause. The petitioners seek to overturn a local handgun ban, and other aspects of state gun registration regulations as unconstitutional. They argue that the Second Amendment should be applied against state and local governments through the selective incorporation process. In addition, the petitioners are asking the court to overturn the 1873 Slaughter-House Cases. These cases determined that the 14th Amendment's Privileges or Immunities Clause did not apply the Bill of Rights to the actions of states. If overturned, the entire Bill of Rights would be applied against the states. 

The City of Chicago argues that the Court should reaffirm that the Second Amendment does not bind state and local governments. Bill of Rights provisions are incorporated into the Due Process Clause “only if they are implicit in the concept of ordered liberty.” They view firearms as designed to injure or kill and Chicago may therefore decide that a handgun ban and other regulations are the most effective means for reducing violence. The City of Chicago also supports the ruling of the Court in the Slaughter-House Cases.   Finally, the City of Chicago argues that the second amendment right to bear arms only pertains to the establishment to a federal militia, rather than to an individual’s right to self-defense.

STATES CHALLENGE NEW HEALTHCARE REFORM LAW. Fourteen states have filed lawsuits against the new healthcare reform law, the Patient Protection and Affordable Care Act (the “Act”) almost immediately after it became law. Thirteen states (FL, SC, NE, TX, UT, LA, AL, MI, CO, PA, WA, ID, SD) joined in one suit with Virginia filing its own suit in U.S. District Court. The larger lawsuit alleges that the Act violates the 10th Amendment to the U.S. Constitution and Article I sections 2 and 9 because it infringes upon state sovereignty by converting the Medicaid program (which the suit alleges was voluntary prior to enactment of the Act) into a mandatory top-down program under which states have no discretion and no choice but to participate.  These states also allege that the Act forces states to expand their current Medicaid programs and mandates that all citizens and legal residents of the U.S. have qualifying healthcare coverage or pay a tax. Virginia’s lawsuit is similarly premised, but adds that the Act also violates a recently-enacted state statute which makes the purchase of health insurance coverage voluntary in the Commonwealth.


Recently Introduced, Pending, and Passed Legislation
 


CHILD NUTRITION 

The Healthy, Hunger-Free Kids Act of 2010. On March 17, 2010, Senator Blanche Lincoln of Arkansas, Chairman of the Senate Agriculture, Nutrition and Forestry, introduced her “mark” of legislation reauthorizing federal child nutrition programs through 2015.   The Secretary of Agriculture will update National School Lunch and School Breakfast nutrition standards and regulations to comply with recommendations made by the Food and Nutrition Board of the National Research Council of the National Academy of Sciences within 18 months of the implementation of the act. The Secretary will then set a date for all school food authorities participating in School Lunch and School Breakfast to be in compliance. The Secretary is granted authority to require that local food services comply with nutritional requirements through reasonable audits and supervisory assistance reviews every three years or in a time frame prescribed by the Secretary. 

The bill establishes a performance-based increase in the federal reimbursement rate for school lunches (six cents per meal) that would help states meet the new meal standards for healthier school meals. States would receive this funding for each meal served that is certified by the state to be in compliance.   Funding is provided for activities related to training, technical assistance and oversight activities, up to $50 million for states, and $3 million for federal administrative costs.

The bill requires the federal-state agreement for program participation to clarify the expectation that federal funds provided to operate the child nutrition programs be fully utilized for that purpose and that such funds should be excluded from state budget restrictions or limitations, including hiring freezes, work furloughs, and travel restrictions.

Sponsor: Lincoln (D-AR)

Status: Reported out of the Senate Committee on Agriculture, Nutrition and Forestry

 

HEALTH  

Prevent All Cigarette Trafficking Act of 2009 or PACT Act. S. 1147 Preempts state, local, and tribal laws regulating the delivery of cigarettes or smokeless tobacco to consumers that impose obligations on common carriers or delivery services that are duplicative of, or inconsistent with, the new obligations imposed under the Jenkins Act as amended.=

Sponsor: Kohl (D-WI)

Status: 3/31/2010 Became Public Law No: 111-154 


Family Smoking Prevention and Control Act. H.R. 1256 preempts state laws governing tobacco products that differ from or are in addition to the federal regulations authorized by the bill concerning product standards, premarket review, adulteration, misbranding, labeling, registration, manufacturing standards, or modified-risk tobacco products. The preemption does not apply to state requirements governing the sale, distribution, possession, information reporting to the state, exposure to, access to, the advertising of, or use of tobacco products by individuals of any age, or relating to fire safety standards.

Sponsor: Waxman (D-CA)

Status: 6/22/2009 Became Public Law No: 111-031

 

FINANCIAL SERVICES 

FINANCIAL SERVICES REGULATORY REFORM NOW IN SENATE’S COURT. In mid-December 2009, the House cleared its comprehensive “Wall Street Reform and Consumer Protection Act of 2009” on a 223-202 vote. This concluded months of negotiations among members and the administration and left states with a mixed bag of results. Primarily, states will be permitted to impose consumer protection requirements on national banks that are stricter and stronger than those proposed federally. However, the Office of the Comptroller of the Currency would determine whether these stricter or stronger standards would “materially affect bank operations.” States additionally were given two non-voting seats on a new “systemic risk” council. The legislation, H.R. 4173, also puts the federal government in the position of gathering insurance-related data, a provision NCSL opposed since it could easily lead to the preemption of state authority in insurance regulation. The Senate didn’t start committee deliberations on financial services reform until late fall, leaving its fate to the uncertainty of the 2010 calendar and agenda.

Sponsor: Frank (D-MA)

Status: 01/20/2010   Referred to Senate Committee on Banking, Housing, and Urban Affairs

 

ENVIRONMENT 

CLIMATE CHANGE/ GREENHOUSE GAS CONTROLS. On the horizon is draft tri-partisan legislation cosponsored by Kerry (D-MA), Graham (R-SC), Lieberman (I-CT) which would reign in EPA’s authority to regulate greenhouse gases under the Clean Air Act and which will preempt state laws and regulations on climate control. Because this draft is currently confidential, the extent of the state preemptions contained in this bill were unknown at the time The Preemption Monitor went to print. EPA is also advancing a set of regulations to address greenhouse gas emissions as well. The impact of these regulations on state activity is currently being reviewed.

 


Preemption Watch List


Issue

Bill Number

Sponsor

Description

Bill Status

Criminal Justice

S. 714

Webb (D-VA)

 

This bill seeks to establish the National Criminal Justice commission and stipulate the organization, membership, and responsibilities or such a commission. As drafted, the bill does not provide opportunities for meaningful input from state or local elected officials other than Governors. Several provisions of S. 714 propose preemptions of state laws, governing prison administration, and state corrections policy.

01/21/2010   Senate Committee on the Judiciary amendment(s) adopted.

Criminal Justice

S. 1261

Akaka (D-HI)

A half dozen U.S. senators introduced legislation on June 15, 2009 that would repeal the REAL ID law and replace it with a state-federal regime that mirrors numerous recommendations NCSL and governors have sought for years. S. 1261, the "Providing for Additional Security in States Identification Act" (PASS ID), would require states to issue compliant licenses one year after the promulgation of regulations by the U.S. Department of Homeland Security. Identity verification by states through federal agencies would be free rather than fee-based. Information sharing mandates among individual state motor vehicle bases would be eliminated, and states would be relieved of numerous other requirements. The PASS ID Act would ensure that state privacy laws stricter than federal standards not be preempted. This bill was reported from Senate Committee on Homeland Security and Governmental Affairs without a written report.

12/09/2009   Report filed from Senate Committee on Homeland Security and Governmental Affairs.

Criminal Justice

H.R. 560/ S. 251

Brady (R-TX)/ Hutchinson(R-TX)

“State Prisons Communications Act of 2009.” Amends Section 333 of the Communications Act o 1943 (47 U.S.C. 333) and adds a waiver provision, allowing the installation of jamming devices in a prison (or other correctional facility) for 10 years. The director of the Federal Bureau of Prisons or the Governor must petition the Federal Communications Commission (FCC) for this waiver or its renewal after 10 years. The FCC will not charge a fee for this petition. The FCC must provide copies of received petitions to commercial mobile service providers in the relevant area and maintain a public database record of received petitions. Once a waiver is granted to a particular prison facility, it is not transferable to any other facility.

 

01/15/2009   Referred to House Committee on Energy and Commerce/ 10/06/2009   Received in the House, after passage in the Senate

 

Elections

H.R. 1604

Davis (D-CA)

This is a bill to amend the Help America Vote Act of 2002 to allow eligible voters to vote by mail in Federal elections. In short, this language mandates that every state allow no-excuse vote by mail options for every eligible voter. Currently, 28 states allow no-excuse absentee voting by mail. The remainder of states have different processes that have been passed through the appropriate state legislative process. H.R. 281 would preempt state absentee voting laws in at least 22 states and the District of Columbia and force states to unravel one component of their election process that is not necessarily broken, dysfunctional, or an impediment to absentee voting. These states will be forced to overhaul their standards, protocols and policies in a very short period of time and with no appropriated federal dollars in place. A markup was held on June 10, 2009. One amendment was passed which requires signature verification for absentee voting.

 

07/16/2009   Report filed from House Committee on House Administration 

Elections

 

H.R. 1719

Lofgren (D-CA)

This bill amends the National Voter Registration Act of 1993 and the Help America Vote Act of 2002 to promote the use of the Internet by state and local election officials in carrying out voter registration activities. It would require states to establish and maintain online voter registration forms, online assistance, online completion and submission of forms, and ensure online acceptance of forms be available on a state public website. This bill also stipulates the time applicants have to submit online voter registration forms (not later than 15 days or the period provided by state law, before the election).

3/25/2009 Referred to the House Committee on House Administration.

Elections

P.L. 111-84

Skelton (D-MO)

On October 28, 2009, President Barack Obama signed H.R. 2647 (P.L. 111-84, a defense authorization bill that includes mandatory voter registration and absentee ballot provisions states must follow regarding U.S. military and overseas voter registration and how states to handle mail and electronic requests for voter registration and absentee ballots, ensure voter privacy, and establish procedures for transmission of voting materials to military and overseas voters. “Hardship waivers” are available to states from the director of the Federal Voting Assistance Program where a state’s primary election date prohibits the state from complying with the bill. Waivers can also be sought when a state’s constitution prohibits compliance of when a state has experienced a delay in generating ballots due to a legal contest.

 

10/28/2009   Became Public Law No. 111-84

Financial Services

S.569

Levin (D-MI)

Legislation aimed at detection and prevention of money laundering and related misconduct would preempt the ability of the states to regulate the corporate formation of business within their jurisdictions. The legislation, sponsored by Michigan Senator Carl Levin, Iowa Senator Charles Grassley, and Missouri Senator Claire McCaskill, would preempt state corporate governance authority. It would withhold federal homeland security funding from any state not amending its corporate laws to compel detailed, publicly disclosed personal information of all beneficial owners of a non-public corporation or limited liability company. NCSL expressed its concerns regarding S. 569 in a November 4, 2009 letter signed by Rhode Island Representative Brian Patrick Kennedy, chair of NCSL’s Communications, Financial Services and Interstate Commerce Committee. One hearing has been held on S. 569, the bill’s chief sponsors are urging a full committee vote and companion legislation has yet to surface in the House.

11/5/2009 Senate Committee on Homeland Security and Government Affairs Committee Hearing held.

 

Financial Services

H.R. 3126

Frank (D-MA)

State consumer protection and financial services laws would apply to national banks and federally chartered financial institutions under an amendment (North Carolina Representative Mel Watt and Kansas Representative Dennis Moore) added on October 20th to H.R.3126. H.R. 3126 creates a federal consumer protection agency. The provision would reverse a two decade long string of preemption of state consumer financial protections led by the Office of the Comptroller of the Currency (OCC).

States also retained their ability to regulate three lines of insurance through an NCSL-led effort to exclude insurance regulation among the powers of a new federal consumer protection agency. Wisconsin Representative Gwen Moore promoted the amendment accomplishing this deletion. NCSL tendered a letter to key House members on October 19, 2009 essentially supporting Representative Moore’s efforts and raising concerns for other insurance-related legislation. Georgia Senator Don Balfour, NCSL President, and Rhode Island Representative Brian Kennedy, chair of NCSL’s communications, Financial Services, and Interstate Commerce Committee, signed the October 19 letter. H.R. emerged from the House Financial Institutions Committee on October 22, 2009 on a 39-26 party-line vote.

 

12/09/2009   Report filed from House Committee on Energy and Commerce

Health

H.R. 3596/S. 1681

Conyers (D-MI)/Leahy (D-VT)

 On Feb. 24, 2010, the U.S. House of Representatives overwhelmingly supported legislation repealing the six-decades old McCarren-Ferguson health insurance anti-trust exemption. The legislation, H.R. 4626, would compel health insurance entities to comply with both federal and state antitrust regulations. These provisions are similar to those in the House-passed health care reform bill, but are excluded from the Senate-passed health care package and were not included in President Obama’s 11-page health reform proposal.

11/02/2009   Report filed from House Committee on the Judiciary/ 10/14/2009   Senate Committee on the Judiciary hearing held

Insurance

H.R. 2609

Kanjorski (D-PA)

The House Financial Institutions Committee has delayed further consideration of legislation preempting state regulation of insurance. H.R. 2609 (Pennsylvania Representative Paul Kanjorski) would empower a new office within U.S. Treasury Department to monitor all aspects of the insurance industry. The Department’s bureaucracy would make preemption of state law determinations and study state insurance regulatory structures to determine if they meet or fail the meet federal regulatory principles. NCSL opposes this legislation. H.R. 2609 and other regulatory reform initiatives are on hold until December 2009. A substitute currently being considered by the House Financial Institutions Committee would determine what state insurance laws and regulations are inconsistent with international treaties and agreements, and study state insurance regulatory structures to determine if they meet or fail to meet federal regulatory principles. The compromises achieved with NCSL and other state groups in prior on legislation that was never enacted are missing from the current bill.

10/20/2009 Scheduled for Markup. 10/27/2009 Not heard in House Committee on Financial Services.