Preemption, 24693-24694 [E9-12250]

Download as PDF Federal Register / Vol. 74, No. 98 / Friday, May 22, 2009 / Presidential Documents 24693 Presidential Documents Memorandum of May 20, 2009 Preemption Memorandum for the Heads of Executive Departments and Agencies From our Nation’s founding, the American constitutional order has been a Federal system, ensuring a strong role for both the national Government and the States. The Federal Government’s role in promoting the general welfare and guarding individual liberties is critical, but State law and national law often operate concurrently to provide independent safeguards for the public. Throughout our history, State and local governments have frequently protected health, safety, and the environment more aggressively than has the national Government. An understanding of the important role of State governments in our Federal system is reflected in longstanding practices by executive departments and agencies, which have shown respect for the traditional prerogatives of the States. In recent years, however, notwithstanding Executive Order 13132 of August 4, 1999 (Federalism), executive departments and agencies have sometimes announced that their regulations preempt State law, including State common law, without explicit preemption by the Congress or an otherwise sufficient basis under applicable legal principles. The purpose of this memorandum is to state the general policy of my Administration that preemption of State law by executive departments and agencies should be undertaken only with full consideration of the legitimate prerogatives of the States and with a sufficient legal basis for preemption. Executive departments and agencies should be mindful that in our Federal system, the citizens of the several States have distinctive circumstances and values, and that in many instances it is appropriate for them to apply to themselves rules and principles that reflect these circumstances and values. As Justice Brandeis explained more than 70 years ago, ‘‘[i]t is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.’’ To ensure that executive departments and agencies include statements of preemption in regulations only when such statements have a sufficient legal basis: 1. Heads of departments and agencies should not include in regulatory preambles statements that the department or agency intends to preempt State law through the regulation except where preemption provisions are also included in the codified regulation. sroberts on PROD1PC70 with PROPOSALS 2. Heads of departments and agencies should not include preemption provisions in codified regulations except where such provisions would be justified under legal principles governing preemption, including the principles outlined in Executive Order 13132. 3. Heads of departments and agencies should review regulations issued within the past 10 years that contain statements in regulatory preambles or codified provisions intended by the department or agency to preempt State law, in order to decide whether such statements or provisions are justified under applicable legal principles governing preemption. Where the head of a department or agency determines that a regulatory statement of preemption or codified regulatory provision cannot be so justified, the VerDate Nov<24>2008 17:54 May 21, 2009 Jkt 217001 PO 00000 Frm 00001 Fmt 4790 Sfmt 4790 E:\FR\FM\22MYO0.SGM 22MYO0 24694 Federal Register / Vol. 74, No. 98 / Friday, May 22, 2009 / Presidential Documents head of that department or agency should initiate appropriate action, which may include amendment of the relevant regulation. Executive departments and agencies shall carry out the provisions of this memorandum to the extent permitted by law and consistent with their statutory authorities. Heads of departments and agencies should consult as necessary with the Attorney General and the Office of Management and Budget’s Office of Information and Regulatory Affairs to determine how the requirements of this memorandum apply to particular situations. This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. The Director of the Office of Management and Budget is authorized and directed to publish this memorandum in the Federal Register. THE WHITE HOUSE, Washington, May 20, 2009 [FR Doc. E9–12250 Filed 5–21–09; 11:15 am] VerDate Nov<24>2008 12:48 May 21, 2009 Jkt 217001 PO 00000 Frm 00002 Fmt 4790 Sfmt 4790 E:\FR\FM\22MYO0.SGM 22MYO0 OB#1.EPS</GPH> sroberts on PROD1PC70 with PROPOSALS Billing code 3110–01–P

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[Federal Register Volume 74, Number 98 (Friday, May 22, 2009)]
[Presidential Documents]
[Pages 24693-24694]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-12250]




                        Presidential Documents 



Federal Register / Vol. 74, No. 98 / Friday, May 22, 2009 / 
Presidential Documents

[[Page 24693]]


                Memorandum of May 20, 2009

                
 Preemption

                Memorandum for the Heads of Executive Departments and 
                Agencies

                From our Nation's founding, the American constitutional 
                order has been a Federal system, ensuring a strong role 
                for both the national Government and the States. The 
                Federal Government's role in promoting the general 
                welfare and guarding individual liberties is critical, 
                but State law and national law often operate 
                concurrently to provide independent safeguards for the 
                public. Throughout our history, State and local 
                governments have frequently protected health, safety, 
                and the environment more aggressively than has the 
                national Government.

                An understanding of the important role of State 
                governments in our Federal system is reflected in 
                longstanding practices by executive departments and 
                agencies, which have shown respect for the traditional 
                prerogatives of the States. In recent years, however, 
                notwithstanding Executive Order 13132 of August 4, 1999 
                (Federalism), executive departments and agencies have 
                sometimes announced that their regulations preempt 
                State law, including State common law, without explicit 
                preemption by the Congress or an otherwise sufficient 
                basis under applicable legal principles.

                The purpose of this memorandum is to state the general 
                policy of my Administration that preemption of State 
                law by executive departments and agencies should be 
                undertaken only with full consideration of the 
                legitimate prerogatives of the States and with a 
                sufficient legal basis for preemption. Executive 
                departments and agencies should be mindful that in our 
                Federal system, the citizens of the several States have 
                distinctive circumstances and values, and that in many 
                instances it is appropriate for them to apply to 
                themselves rules and principles that reflect these 
                circumstances and values. As Justice Brandeis explained 
                more than 70 years ago, ``[i]t is one of the happy 
                incidents of the federal system that a single 
                courageous state may, if its citizens choose, serve as 
                a laboratory; and try novel social and economic 
                experiments without risk to the rest of the country.''

                To ensure that executive departments and agencies 
                include statements of preemption in regulations only 
                when such statements have a sufficient legal basis:

                    1. Heads of departments and agencies should not 
                include in regulatory preambles statements that the 
                department or agency intends to preempt State law 
                through the regulation except where preemption 
                provisions are also included in the codified 
                regulation.
                    2. Heads of departments and agencies should not 
                include preemption provisions in codified regulations 
                except where such provisions would be justified under 
                legal principles governing preemption, including the 
                principles outlined in Executive Order 13132.
                    3. Heads of departments and agencies should review 
                regulations issued within the past 10 years that 
                contain statements in regulatory preambles or codified 
                provisions intended by the department or agency to 
                preempt State law, in order to decide whether such 
                statements or provisions are justified under applicable 
                legal principles governing preemption. Where the head 
                of a department or agency determines that a regulatory 
                statement of preemption or codified regulatory 
                provision cannot be so justified, the

[[Page 24694]]

                head of that department or agency should initiate 
                appropriate action, which may include amendment of the 
                relevant regulation.

                Executive departments and agencies shall carry out the 
                provisions of this memorandum to the extent permitted 
                by law and consistent with their statutory authorities. 
                Heads of departments and agencies should consult as 
                necessary with the Attorney General and the Office of 
                Management and Budget's Office of Information and 
                Regulatory Affairs to determine how the requirements of 
                this memorandum apply to particular situations.

                This memorandum is not intended to, and does not, 
                create any right or benefit, substantive or procedural, 
                enforceable at law or in equity by any party against 
                the United States, its departments, agencies, or 
                entities, its officers, employees, or agents, or any 
                other person.

                The Director of the Office of Management and Budget is 
                authorized and directed to publish this memorandum in 
                the Federal Register.
                
                
                    (Presidential Sig.)

                THE WHITE HOUSE,

                    Washington, May 20, 2009

[FR Doc. E9-12250
Filed 5-21-09; 11:15 am]
Billing code 3110-01-P