Congressional Preemption of State Laws and Regulations

United States House of Representatives
Committee on Government Reform - Minority Staff
Special Investigations Division
June 2006

Executive Summary

Republican leaders in Congress and President Bush have long claimed to respect the role of states as laboratories of democracy. These claims were an important element of the midterm elections in 1994 that led to Republican control of Congress. And they were an important part of George W. Bush's presidential campaign in 2000. After the 2000 election, President Bush pledged to support the nation's governors and affirmed his view that the role of the federal government is "not to impose its will on states and local communities."

At the request of Rep. Henry A. Waxman, this report evaluates the legislative record of the Republican-controlled Congress and President Bush on a key aspect of state authority: federal preemption of state and local laws. The report is based on a comprehensive list assembled by the Special Investigations Division of the preemptive legislation passed by the House and Senate over the last five years.

The report documents that there exists a wide gulf between the pro-states rhetoric of Republican leaders and the actual legislative record. Rather than ceding power to the states, the Republican-controlled Congress and President Bush have repeatedly preempted state authority and centralized policy-making in Washington.

Key Findings

Over the past five years, the House and the Senate have voted 57 times to preempt state laws and regulations. These votes have resulted in 27 laws, signed by the President, that preempt state authority. Some of this legislation contains multiple distinct preemptive provisions. Over the last five years, the House and the Senate have passed 73 separate preemptive provisions, and 39 of these have become law.

An examination of this legislation reveals that Congress and the President have routinely backed federal legislation that usurps traditional state powers. The reach of the preemptive legislation is broad and its intrusiveness is deep. Literally hundreds of state laws have been or would be overridden.

The House and Senate have passed legislation that would preempt states from regulating sources of air pollution, setting health insurance standards, and protecting consumers from contaminated food. Areas of traditional state prerogatives, such as local land use decisions and the issuance of drivers' licenses, have been federalized, and states have been blocked from protecting their citizens from emerging threats, such as unsolicited "spam" email. Last year, Congress passed - and the President flew through the night to sign - legislation to override the judgment of a state court in an individual family's private end-of-life decision.

Most of the preemptive federal legislation passed by the House and the Senate over the last five years falls into four general categories:

• Usurping State Choices on Social Policies. The House and Senate have voted ten times to preempt states in the area of social policy. Congress has enacted laws that override state decisions regarding abortion, gun control, and school prayer. The House has passed legislation that would displace state laws regarding parental notification for teens seeking abortions. In the case of Terri Schiavo, Congress passed legislation and issued subpoenas to overturn the judgment of state courts and prevent the removal of Ms. Schiavo's feeding tubes.
  
  
• Preventing States from Protecting Health, Safety, and the Environment. The House and the Senate have voted 15 times to override state health, safety, and environmental laws. Congress has enacted laws that bar states from regulating emissions from lawnmowers, requiring the use of clean-burning gasoline, or controlling the siting of electricity transmission lines and liquefied natural gas terminals. The House has passed legislation that would preempt state food safety laws and block states from requiring health insurers to offer basic services such as mammography screening and maternity care. In these areas, the traditional approach of enacting a federal "floor," which establishes minimum federal standards but allows states to adopt more stringent requirements, has been reversed in favor of the creation of a federal "ceiling."
  
  
• Overriding State Consumer Protection Laws. The House and the Senate have voted ten times to abrogate state consumer protection laws. One law passed by Congress preempts strong anti-spam laws in several states, while another law limits state authority to enact identity theft and financial privacy laws.
  
  
• Seizing Power from State Courts. The House and the Senate have voted 27 times to strip state courts of traditional areas of jurisdiction. Congress has enacted laws that transfer class action cases to the federal courts and provide liability immunity to vaccine manufacturers, gun manufacturers and dealers, rental car agencies, manufacturers of homeland security products, and private airport screeners. The House has passed bills that would extend liability protections to hospitals and physicians, fast-food restaurants, and manufacturers of dietary supplements.

Extensive though it is, the preemptive federal legislation described in this report underestimates the full extent of recent legislative efforts to override state laws. The enumeration of preemptive bills in the report does not include preemptive legislation that is brought to the floor of the House or the Senate by Republican leaders, but defeated, such as the proposed constitutional amendment to ban gay marriages that the Senate Majority Leader brought to the floor in July 2004 and has rescheduled for floor consideration in June 2006. It also does not count preemptive legislation reported by committees of jurisdiction but not yet considered on the House or Senate floor.

Read the full report: 380K Congressional Preemption of State Laws and Regulations