"To the contrary,
the Constitution divides
authority between federal and state governments for the protection
of individuals. State sovereignty is not just an end in itself:
"Rather, federalism secures to citizens the liberties that derive
from the diffusion of sovereign power."
Coleman v. Thompson,
501 U.S. 722, 759 (1991)
(BLACKMUN, J., dissenting). "Just as the separation and independence
of the coordinate branches of the Federal Government serve to prevent
the accumulation of excessive power in any one branch, a healthy
balance of power between the States and the Federal Government will
reduce the risk of tyranny and abuse from either front." Gregory
v. [505 U.S. 144, 182] Ashcroft,
501 U.S., at 458 . See The Federalist No. 51, p. 323. (C. Rossiter
Where Congress exceeds
its authority relative to the States, therefore, the departure from
the constitutional plan cannot be ratified by the "consent" of state
officials. An analogy to the separation of powers among the branches
of the Federal Government clarifies this point. The Constitution's
division of power among the three branches is violated where one
branch invades the territory of another, whether or not the encroached-upon
branch approves the encroachment. In Buckley v. Valeo,
424 U.S. 1, 118 -137 (1976), for instance, the Court held that
Congress had infringed the President's appointment power, despite
the fact that the President himself had manifested his consent to
the statute that caused the infringement by signing it into law.
See National League of Cities v. Usery,
426 U.S., at 842 , n. 12. In INS v. Chadha,
462 U.S. 919, 944 -959 (1983), we held that the legislative
veto violated the constitutional requirement that legislation be
presented to the President, despite Presidents' approval of hundreds
of statutes containing a legislative veto provision. See id., at
944-945. The constitutional authority of Congress cannot be expanded
by the "consent" of the governmental unit whose domain is thereby
narrowed, whether that unit is the Executive Branch or the States.
State officials thus
cannot consent to the enlargement of the powers of Congress beyond
those enumerated in the Constitution. Indeed, the facts of this
case raise the possibility that powerful incentives might lead both
federal and state officials to view departures from the federal
structure to be in their personal interests. Most citizens
recognize the need for radioactive waste disposal sites, but few
want sites near their homes. As a result, while it would be well
within the authority of either federal or state officials to choose
where the disposal sites will be, it is likely to be in the political
interest of each individual official to avoid being held accountable
to the voters for the choice of location. If [505 U.S. 144, 183]
a federal official is faced with the alternatives of choosing a
location or directing the States to do it, the official may well
prefer the latter, as a means of shifting responsibility for the
eventual decision. If a state official is faced with the same set
of alternatives - choosing a location or having Congress direct
the choice of a location - the state official may also prefer the
latter, as it may permit the avoidance of personal responsibility.
The interests of public officials thus may not coincide with the
Constitution's intergovernmental allocation of authority. Where
state officials purport to submit to the direction of Congress in
this manner, federalism is hardly being advanced. "
[New York v. United States,
505 U.S. 144 (1992)]
Pacemaker Diagnostic Clinic
of America Inc. v. Instromedix Inc., 725 F.2d 537 (9th Cir. 02/16/1984)
The provisions of Executive Order 12612 of Oct. 26, 1987, appear
at 52 FR 41685, 3 CFR, 1987 Comp., p. 252, unless otherwise noted.
By the authority
vested in me as President by the Constitution and laws of the United
States of America, and in order to restore the division of governmental
responsibilities between the national government and the States
that was intended by the Framers of the Constitution and to ensure
that the principles of federalism established by the Framers guide
the Executive departments and agencies in the formulation and implementation
of policies, it is hereby ordered as follows:
For purposes of this Order:
(a) "Policies that have federalism implications" refers to regulations,
legislative comments or proposed legislation, and other policy statements
or actions that have substantial direct effects on the States, on
the relationship between the national government and the States,
or on the distribution of power and responsibilities among the various
levels of government.
(b) "State" or "States" refer to the States of the United States
of America, individually or collectively, and, where relevant, to
State governments, including units of local government and other
political subdivisions established by the States.
Fundamental Federalism Principles.
In formulating and implementing policies that have federalism
implications, Executive departments and agencies shall be guided
by the following fundamental federalism principles:
(a) Federalism is rooted in the knowledge that our political liberties
are best assured by limiting the size and scope of the national
(b) The people of the States created the national government when
they delegated to it those enumerated governmental powers relating
to matters beyond the competence of the individual States. All other
sovereign powers, save those expressly prohibited the States by
the Constitution, are reserved to the States or to the people.
(c) The constitutional relationship among sovereign governments,
State and national, is formalized in and protected by the Tenth
Amendment to the Constitution.
(d) The people of the States are free, subject only to restrictions
in the Constitution itself or in constitutionally authorized Acts
of Congress, to define the moral, political, and legal character
of their lives.
(e) In most areas of governmental concern, the States uniquely possess
the constitutional authority, the resources, and the competence
to discern the sentiments of the people and to govern accordingly.
In Thomas Jefferson's words, the States are "the most competent
administrations for our domestic concerns and the surest bulwarks
against antirepublican tendencies."
(f) The nature of our constitutional system encourages a healthy
diversity in the public policies adopted by the people of the several
States according to their own conditions, needs, and desires. In
the search for enlightened public policy, individual States and
communities are free to experiment with a variety of approaches
to public issues.
(g) Acts of the national government--whether legislative, executive,
or judicial in nature--that exceed the enumerated powers of that
government under the Constitution violate the principle of federalism
established by the Framers.
(h) Policies of the national government should recognize the responsibility
of--and should encourage opportunities for--individuals, families,
neighborhoods, local governments, and private associations to achieve
their personal, social, and economic objectives through cooperative
(i) In the absence of clear constitutional or statutory authority,
the presumption of sovereignty should rest with the individual States.
Uncertainties regarding the legitimate authority of the national
government should be resolved against regulation at the national
Federalism Policymaking Criteria.
In addition to the fundamental federalism principles
set forth in section 2, Executive departments and agencies shall
adhere, to the extent permitted by law, to the following criteria
when formulating and implementing policies that have federalism
(a) There should
be strict adherence to constitutional principles. Executive departments
and agencies should closely examine the constitutional and statutory
authority supporting any Federal action that would limit the policymaking
discretion of the States, and should carefully assess the necessity
for such action. To the extent practicable, the States should be
consulted before any such action is implemented. Executive Order
No. 12372 ("Intergovernmental Review of Federal Programs") remains
in effect for the programs and activities to which it is applicable.
action limiting the policymaking discretion of the States should
be taken only where constitutional authority for the action is clear
and certain and the national activity is necessitated by the presence
of a problem of national scope. For the purposes of this Order:
(1) It is important
to recognize the distinction between problems of national scope
(which may justify Federal action) and problems that are merely
common to the States (which will not justify Federal action because
individual States, acting individually or together, can effectively
deal with them).
authority for Federal action is clear and certain only when authority
for the action may be found in a specific provision of the Constitution,
there is no provision in the Constitution prohibiting Federal action,
and the action does not encroach upon authority reserved to the
(c) With respect
to national policies administered by the States, the national government
should grant the States the maximum administrative discretion possible.
Intrusive, Federal oversight of State administration is neither
necessary nor desirable.
(d) When undertaking
to formulate and implement policies that have federalism implications,
Executive departments and agencies shall:
States to develop their own policies to achieve program objectives
and to work with appropriate officials in other States.
to the maximum extent possible, from establishing uniform, national
standards for programs and, when possible, defer to the States to
(3) When national
standards are required, consult with appropriate officials and organizations
representing the States in developing those standards.
Special Requirements for
Preemption. (a) To the extent permitted by law, Executive
departments and agencies shall construe, in regulations and otherwise,
a Federal statute to preempt State law only when the statute contains
an express preemption provision or there is some other firm and
palpable evidence compelling the conclusion that the Congress intended
preemption of State law, or when the exercise of State authority
directly conflicts with the exercise of Federal authority under
the Federal statute.
(b) Where a Federal statute does not preempt State law (as addressed
in subsection (a) of this section), Executive departments and agencies
shall construe any authorization in the statute for the issuance
of regulations as authorizing preemption of State law by rule-making
only when the statute expressly authorizes issuance of preemptive
regulations or there is some other firm and palpable evidence compelling
the conclusion that the Congress intended to delegate to the department
or agency the authority to issue regulations preempting State law.
(c) Any regulatory preemption of State law shall be restricted to
the minimum level necessary to achieve the objectives of the statute
pursuant to which the regulations are promulgated.
(d) As soon as an Executive department or agency foresees the possibility
of a conflict between State law and Federally protected interests
within its area of regulatory responsibility, the department or
agency shall consult, to the extent practicable, with appropriate
officials and organizations representing the States in an effort
to avoid such a conflict.
(e) When an Executive department or agency proposes to act through
adjudication or rule-making to preempt State law, the department
or agency shall provide all affected States notice and an opportunity
for appropriate participation in the proceedings.
Special Requirements for
Legislative Proposals. Executive departments and agencies
shall not submit to the Congress legislation that would:
(a) Directly regulate the States in ways that would interfere with
functions essential to the States' separate and independent existence
or operate to directly displace the States' freedom to structure
integral operations in areas of traditional governmental functions;
(b) Attach to Federal grants conditions that are not directly related
to the purpose of the grant; or
(c) Preempt State law, unless preemption is consistent with the
fundamental federalism principles set forth in section 2, and unless
a clearly legitimate national purpose, consistent with the federalism
policymaking criteria set forth in section 3, cannot otherwise be
(a) The head of each Executive department and agency
shall designate an official to be responsible for ensuring the implementation
of this Order.
(b) In addition
to whatever other actions the designated official may take to ensure
implementation of this Order, the designated official shall determine
which proposed policies have sufficient federalism implications
to warrant the preparation of a Federalism Assessment. With respect
to each such policy for which an affirmative determination is made,
a Federalism Assessment, as described in subsection (c) of this
section, shall be prepared. The department or agency head shall
consider any such Assessment in all decisions involved in promulgating
and implementing the policy.
(c) Each Federalism
Assessment shall accompany any submission concerning the policy
that is made to the Office of Management and Budget pursuant to
Executive Order No. 12291 or OMB Circular No. A-19, and shall:
the designated official's certification that the policy has been
assessed in light of the principles, criteria, and requirements
stated in sections 2 through 5 of this Order;
any provision or element of the policy that is inconsistent with
the principles, criteria, and requirements stated in sections 2
through 5 of this Order;
the extent to which the policy imposes additional costs or burdens
on the States, including the likely source of funding for the States
and the ability of the States to fulfill the purposes of the policy;
the extent to which the policy would affect the States' ability
to discharge traditional State governmental functions, or other
aspects of State sovereignty.
Coordination and Review. (a) In implementing Executive
Order Nos. 12291 and 12498 and OMB Circular No. A-19, the Office
of Management and Budget, to the extent permitted by law and consistent
with the provisions of those authorities, shall take action to ensure
that the policies of the Executive departments and agencies are
consistent with the principles, criteria, and requirements stated
in sections 2 through 5 of this Order.
(b) In submissions to the Office of Management and Budget pursuant
to Executive Order No. 12291 and OMB Circular No. A-19, Executive
departments and agencies shall identify proposed regulatory and
statutory provisions that have significant federalism implications
and shall address any substantial federalism concerns. Where the
departments or agencies deem it appropriate, substantial federalism
concerns should also be addressed in notices of proposed rule-making
and messages transmitting legislative proposals to the Congress.
This Order is intended only to improve the internal management
of the Executive branch, and is not intended to create any right
or benefit, substantive or procedural, enforceable at law by a party
against the United States, its agencies, its officers, or any person.