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are, what the national purposes are. My point is this legislation would void all that.

Mr. Moss. Let me give just another example, Mr. ChairmanChairman THOMPSON. I will tell you what. Give it to Senator Voinovich because I have taken too much time.

Mr. Moss. As have I, and I appreciate your indulgence.
Chairman THOMPSON. We will have time.

Senator VOINOVICH. I would just like to say that I appreciate the thorough evaluation that you have given of the legislation, and I for one will take it into consideration. And if we think that any of your points are well taken, we will try to incorporate them into the legislation.

I happen to be one that feels that the more clarity we have in this area, the better off we are all going to be. I think the more consultation that we have with each other, the better off we are going to be. And that is really the kind of environment that we are trying to create through this legislation.

Chairman THOMPSON. Thank you very much. Senator Levin.
Senator LEVIN. Thank you, Mr. Chairman.

I was intrigued by your last statement about the value of implied preemption. Just a few minutes before that, you said it is desirable that Congress be as clear as possible as to whether or not it intends to preempt. Those are inconsistent statements.

Mr. Moss. I don't believe so, Senator Levin. For example, one could imagine a circumstance in which Congress thinks as carefully as any group of human beings could possibly consider an issue. They think about every angle on it, and they draft a Federal law to address a problem. Twenty years later, the States for the first time start adopting some new form of regulation in the area that poses an obstacle to the Federal statute. No one in Congress at the time could have been expected to have foreseen this development. The development interferes with achieving Congress' purpose. And under this statute, it is unclear whether the Federal statute would be allowed to achieve its goal. And maybe in those circumstances Congress would then have to go back and re-evaluate the issue.

So I don't think that it is always going to be the case that the rule that says that Congress always must be expressed or there must be a direct conflict will always best achieve congressional in

tent.

Senator LEVIN. Well, I think you just put your finger on what the answer is, that if something crops up where the Congress now sees it is important to preempt, it can just simply adopt a preemption provision as an amendment to that law that was passed 20 years ago. But to use that as an example of why implied preemption somehow or other is desirable, when you yourself say as a general matter it is important to not do anything by implication, it is important that we express one way or the other, it seems to me in general are inconsistent statements.

Mr. Moss. Well, I respectfully disagree with that, and one reason I think I disagree is that these categories are not as neat as we would like to think of them. And, in fact, conflict preemption is a form of implied preemption. The two major categories are express preemption where Congress says we are preempting X, Y, and Z, and there is implied, which includes conflict preemption, field pre

emption, obstacle preemption. And Justice Black very eloquently in a case decided, I believe, in 1941 named Hines said that it is extremely difficult to figure out which of these categories something fits into, but in the end the goal is to figure out what Congress intended.

I think that the courts by and large are very respectful of that. They have rules and presumptions against finding preemption where it interferes with an area of traditional State regulation. And if there are areas in which Congress-where the courts have been finding preemption and Congress didn't intend it, I think that is something that obviously needs to be considered in the first instance to figure out whether there are particular areas that need to be fixed.

Senator LEVIN. I think Congress is in a lot better position to determine whether it intends to preempt States than courts are through rules of construction which are incredibly complicated trying to divine what that congressional intent is. It is far better, it seems to me, to know what the congressional intent is, or in the event that it is unknowable or unknown or unspecified, than for Congress to say which way it wants this to go. Do we want to preempt in the absence of an express preemption or a conflict or not? And if we say the presumption is that we do not want to preempt the States from acting, unless we expressly state so or unless there is a direct conflict, it seems to me that is a lot clearer guidance to a court than these rules that have been created over time, and it ought to be welcomed-I would think it would be welcomed by a court.

I will leave that there, but your analogy as to how at times the absence of any clarity in law and the courts trying to figure out Congressional intent has led to a good decision reminds me a bit of saying, well, President Roosevelt during the 1930's was able to either ignore or evade the Neutrality Act, or whatever it was called, through our Lend-Lease Program; therefore, it is great for Presidents to evade our laws just because we have a good circumstance there. I am all for it. Looking back in history, I am glad the President-I hope I would have been at the time engaged in the Lend-Lease Program; therefore, I am glad the President evades our laws. But that can't be our general principle because I can come up with an example of where it was good that a President did evade our laws.

So I don't think your-going back to the Marshall case is a particularly good one. Just because you can pull out an example where there was silence and, therefore, a very creative, wonderful Supreme Court Justice was able to reach a great decision is not, it seems to me, a very good argument for a policy of silence being something which leads to good results.

Mr. Moss. If I can just say one thing quickly, Senator. It was not my intent to suggest that the court should reach out and just come up with good results in cases contrary to what Congress intended but, rather, that I am not convinced, based on my reading of the cases, that a rule that says there must be an express preemption provision is in the long run going to better capture congressional intent. And in my looking at the cases, I see enormous debate and

unclear to me that the courts are getting closer to congressional intent with those than they are in the implied preemption, where they are quite deferential.

Senator LEVIN. You are saying that you don't think a court is given more guidance by an express statement of preemption than it is by silence. That is what you are saying to me. And it seems to me that has palpably just got to be wrong. That goes directly counter to what you earlier said, which is we should express our position on preemption. Do you want us to do it or not?

Now, if you want us to do it-and I do, I think most of us dothen you have to take that position even though it may be not totally conclusive and even though there may be questions, as the Chairman pointed out, that remain for a court to try to figure out. You can't have it both ways. You either want us to express our intent or you don't. Which do you?

Mr. Moss. I think it is preferable for Congress to express their intent, and

Senator LEVIN. Even though there may be some open issues for

a court.

Mr. Moss. Sure. Yes.

Senator LEVIN. I think that is a better position, but it is inconsistent, I am afraid, with a few other directions that you have taken or tried to take this morning.

Mr. Moss. Well, respectfully, Senator, I don't think

Senator LEVIN. You don't have to be that respectful. You can just disagree period. [Laughter.]

Mr. Moss. I think there is a difference when one is dealing with a type of framework legislation like this where in 1999 Congress passes a rule like this that presumably will be on the books for many decades to come and future Congresses will be guided by it, compared to a circumstance where Congress sits down in a particular context and says what is it exactly we want to do here and let's say as clearly as we can what we want to do here, which I think is a very good thing.

Senator LEVIN. Another area I want to go into with you is also an area which the Chairman got into, and that is the failure of apparently three administrations in a row here now to prepare federalism assessments. We had an Executive Order back in 1987 of President Reagan. Now we are going into the seventh year of the Clinton administration. According to the Acting Director of OIRA, that Executive Order basically has never been followed, apparently, through three administrations, if I read this correctly. We know from a test in the last 2 years it has never been followed. Apparently, it wasn't even followed during the administration in which it was issued.

That, it seems to me, presents an awfully good argument for us to incorporate into law the requirement rather than using it as, apparently, I think you do as a reason for why we shouldn't do it because it has never been followed.

Isn't the fact that that Executive Order has been ignored administration after administration reason for why we should act, why we should put its requirements in law, including the federalism assessment, rather than using that as I think it has been used by the administration as a reason not to act?

Mr. Moss. Let me

Senator LEVIN. I think I should go to Mr. Spotila. I am sorry. I agree. You are looking over to your right and I will look over to your left.

Mr. SPOTILA. I thought maybe I was going to escape that one.
Senator LEVIN. No.

Mr. SPOTILA. Senator, as I said, right before you came in, I am firmly convinced that Executive Orders should be complied with. They must be complied with, as must laws, with or without judicial review. I don't have direct experience on OMB's relationship with Executive Order 12612, but I have been advised, as you have alluded to, that it appears that for three administrations this was not enforced by OMB. It is unclear whether GAO has captured precisely the amount of agency compliance with the Executive Order, but there seems to be a general sense that there wasn't much compliance, if any.

I think that the efforts in this administration began with Executive Order 12875 on consultation and then the effort to come up with a new Executive Order that would deal with preemption as well as consultation and unfunded mandates last year. That effort recognizes that there is a need for guidance to the agencies and that with clear guidance then we would be in a position to compel the agencies to do what is appropriate.

Having said that, if the Congress determines that it would add value to legislate in this area, then I don't think we object to that concept. It becomes a matter of how to do it and whether we can avoid unintended consequences.

Senator LEVIN. Putting aside the judicial review question just for a minute, do you support, does the administration support a requirement that there be a federalism assessment in law?

Mr. SPOTILA. I think the administration believes that it is not necessary for it to be in law, that it can be dealt with through an Executive Order. I believe that is the administration position. That does not necessarily mean that the administration would not-that the President would not sign such a bill, but it does mean that they feel that an Executive Order can be shaped in an effective way to deal with this issue.

Senator LEVIN. Thank you. If history is any guide here, the Executive Order which has been on the books for 12 years has been ignored, which is one of the problems with Executive Orders, by the way. We face this all the time. I am looking at a former chief executive here, so I am a little bit worried about saying that here. But we find too often that the administrative agencies simply ignore what is in the Executive Order, and they get away with it because it is not in statute. So we face this in a number of areas where we have to put in statute something in order to make sure it gets done. And I think it is very clear from the history of this that this is one such example.

I think maybe I have gone over time, but those are all the questions I have. Thank you, Mr. Chairman.

Chairman THOMPSON. Along those lines, we are right in the middle now, apparently, of your negotiating with State and local gov

has been up in the air for some time now, hasn't it? Aren't you in the process of negotiating one?

Mr. SPOTILA. The administration is in the process, yes. I have not personally been involved yet in that, but

Chairman THOMPSON. Who is handling that? Is Ms. Katzen still handling that?

Mr. SPOTILA. She has some involvement in it, yes. She has the advantage of having worked on this issue for some time now and has been one of the people involved.

Chairman THOMPSON. I know she has, and we have got some questions for her, too, when she comes up for confirmation.

Mr. SPOTILA. I know that there is a significant effort to try to reach an understanding, and I think people

Chairman THOMPSON. Well, the administration tried to repeal or supersede the Executive Order we have been talking about with a new Executive Order, which caused great concern among a lot of the people affected on this federalism issue, and without consulting with State and local representatives, even though the Executive Order would require consultation with State and local representatives. So they weren't even in the process, they weren't even complying with the Executive Order that they were trying to get done. I mean, how much more evidence do we need for the need to legislate in this area? I don't know what is going to come out of that, but I will guarantee you one thing: If because of everything else that is going on some reluctant acknowledgment is made in some Executive Order about federalism, with this history it doesn't mean a whole lot to me in terms of this legislation.

I am more than willing to work with you on the judicial review. I don't want to bog this thing down. I must say that the elements that have to be complied with by the agencies are of a little different category than in some of the things that we deal with here. We might could use the Regulatory Improvement Act as a model for judicial review. But the requirements here have to do more with assessments and descriptions and analysis under this federalism bill. If it really doesn't go directly to the merits of the rule that is being promulgated, it just has to do with an analysis of the federalism impact and the extent to which you have consulted.

Frankly, if you do want it all, I don't see much grounds for challenging that since it doesn't go to the efficacy of the rule itself. Do you see what I mean? I am not sure how all that cuts, but it does seem like this is a different kind of category of rules, and it shouldn't present a major-or requirements, I should say, in promulgating the rule, and shouldn't present a major problem for us in figuring out some way to require an agency to make a good-faith effort-I mean, not to be able to say, yes, we consulted with everybody when, in fact, they didn't. I mean, there has got to be some remedy for that if something like that happened.

Mr. SPOTILA. Well, we believe that we ought to be able to work with you on this and work something out. As I said in my testimony and as I will repeat again, we share many of the same objectives here, and I think it is a matter of how to work together to get this right.

Chairman THOMPSON. Well, I appreciate that.

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