22 May 2009

[Federal Register: May 22, 2009 (Volume 74, Number 98)]
[Presidential Documents]               
[Page 24693-24694]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22my09-119]                         



                        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