The Academy panel on Federal Preemption prepared this paper on the current status of regulatory federalism and congressional preemptions of state and local powers.
It is intended to guide Congress, federal agencies, states, and local governments as they respond to increased pressures for preemption of state and local responsibilities. The Panel members drew upon their own many years of direct experience with diverse parts of the intergovernmental system, as well as a long history of prior and continuing Academy studies in this field. In addition, the Panel reviewed a 2000 report of the National Governors Association on a similar topic.; listened to diverse views from representatives of federal, state and local governments, as well as advocates for business, labor, consumer, natural resource, and environmental groups; and consulted with national experts on intergovernmental relations and preemption. The Panel also analyzed a number of articles on regulatory federalism and tracked recent court decisions on preemption. Although the Panel found substantial need for additional research on this topic, resources were not available to perform it.
The Panel asserted its belief that federal preemptions should be used as seldom as possible, and only as a last resort because of their permanence and their high potential for adversely impacting state and local governments, as well as the lost opportunities for partnering that they represent. Alternative models of response should be carefully evaluated to determine the best role for each level of government to play in governing and delivering public services. And Congress and federal agencies should appreciate and respect the need for balance between nationwide uniformity and creative diversity. The Panel also indicated its belief that a new spark is necessary to ignite a fire to drive this issue to a higher level of concern and action.
The Panel’s recommendations outline a strategy for moving forward to achieve the essential goal of building dynamic new intergovernmental partnerships that can respond effectively to the demands of the 21st Century: