Executive Order 12612 --
Federalism
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:
Section 1. Definitions.
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
Sec. 2. 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 government.
(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 effort.
(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 level.
Sec. 3. 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 implications:
(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.
(b)
Federal 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).
(2)
Constitutional 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 States.
(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:
(1)
Encourage States to develop their own policies to achieve program objectives
and to work with appropriate officials in other States.
(2)
Refrain, to the maximum extent possible, from establishing uniform, national
standards for programs and, when possible, defer to the States to establish
standards.
(3)
When national standards are required, consult with appropriate officials and
organizations representing the States in developing those standards.
Sec. 4. 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.
Sec. 5. 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 met.
Sec. 6. Agency Implementation.
(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:
(1)
Contain 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;
(2)
Identify 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;
(3)
Identify 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; and
(4)
Identify the extent to which the policy would affect the States' ability to
discharge traditional State governmental functions, or other aspects of State
sovereignty.
Sec. 7. Government-wide
Federalism 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.
Sec. 8. Judicial Review.
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
Ronald
Reagan
The
White House,
[Filed with the Office
of the Federal Register,
Note: The Executive
order was released by the Office of the Press Secretary on October 28.