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Selected Technology. Novals in the 106th Congress
WIPACT ON STAGES
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Terminates the pronun. H.R. 082
broadtend Internet acces.
by allowing encryption to be used H.R. 850
Contact: Bral Master, NGA, 202/634-77H or bhester Ongu.org
NATIONAL CONFERENCE OF STATE LEGISLATURES WASHINGTON OFFICE: 444 NORTH CAPITOL STREET, NW SUITE 515
WASHINGTON, DC 20001 2021624-5400; 202/737-1069 FAX
REPRESENTATIVE JOHN DORSO
NORTH DAKOTA HOUSE OF REPRESENTATIVES
ON BEHALF OF
THE NATIONAL CONFERENCE OF STATE LEGISLATURES
SENATE GOVERNMENTAL AFFAIRS COMMITTEE
REGARDING S. 1214," THE FEDERALISM ACCOUNTABILITY
ACT OF 1999"
July 14, 1999
Mr. Chairman and members of the committee:
Good aftemoon. I am John Dorso, the Majority Leader of the North Dakota House of
Representatives. I am also the chair of the Law and Justice Committee of the National
Conference of State Legislaturcs.' I appear today on behalf of NCSL to support S. 1214, the
Federalism Accountability Act of 1999. NCSL regards the enactment of S. 1214 as one of its
highest legislative priorities. It is essential legislation because it addresses the long-neglected
problem of federal preemption of state law.
The problem is that the frequency and intrusiveness of federal preemption has increased
dramatically. As we all know, if a properly adopted federal law conflicts with a state law, then
under the Supremacy Clause, federal law trumps state law. Through most of the history of our
republic, the federal government used its preemption power sparingly. Congress and federal
agencies showed respect for the American tradition that government should be kept close to the
people and that most public policy decisions should be made locally. This is no longer the case.
The Problem Generally: An Advisory Commission on Intergovernmental Relations study of a
few years ago documented that most of the federal preemption of state law through the history of
the republic has taken place since 1970. In the 1990s, the pace of preemption has quickened, and
'The National Conference of State Legislatures represents the legislatures of all fifty states and of the American commonwealths and territories. NCSL's members are united in support of restoring balance in our constitutional system of federalism and are opposed to unnecessary federal mandates and unjustified federal proemption of sare law.
the impact of preemption is not merely trivial or incidental. As a result of preemption, states
have been barred in the 1990s from legislating in policy areas of great importance.
I call it the great power shift. The authority of America's state legislatures is shrinking. This is
bad not only for state legislatures but also for the American people, who are increasingly
deprived of effective local self-government.
Federalism respects the geographic, economic, social and political diversity of America. Local
diversity is ignored when state laws are preempted and replaced with "one-size-fits-all" national
policies. The people of Fargo, North Dakota make different policy choices than the people of
San Francisco, California. Federalism respects these differences. Federal preemption ignores
them, and often ignores them at our peril.
The diversity of states also allows states to act as Justice Bandeis suggested as "laboratories of
democracy." States compete with each other, copy each other, and leam from each others'
mistakes. It makes for a more vibrant and creative and ultimately more successful policy
making process. The problem with preemption is that it forecloses such experimentation and
Federal preemption also can make government less efficient and less responsive to members of
the public as customers. Inevitably, the government in Washington from the perspective of
Fargo seems far-away, slow to respond, and often uncomprehending of local conditions.
State government in North Dakota and most other states, by contrast, is very close and customer
friendly. It's like a small retail business. We know the customers personally. We know what
they need and what they like. We hear their complaints immediately. We also know our
products and services, and can quickly make adjustments to satisfy the customer.
The problem with preemption is that it increasingly makes it difficult or impossible to treat the
.customer right: to quickly meet the special needs of our local people with common-sense
policies based on personal experience. It's just that simple. That's why Congress needs to pass
and the president needs to sign S. 1214, so that at the very least the federal Congress, agencies,
and courts take a serious look at the preemptive impact of their actions and consider ways of
eliminating or mitigating their damaging effects on local self-government.
The Problem of Preemption by Congress: Enactment of S. 1214 is essential, I must say in all due
respect, Mr. Chairman and members of the committee, because Congress in the 1990s has been
on something of a preemption binge. This is despite the relatively good record by Congress on
other federalism issues. Congress is to be commended not only for passing the Unfunded
Mandates Reform Act but also for following through by limiting the number of new unfunded
mandates and by even rolling back some old ones. We see increasing sympathy in Congress for
so-called devolution in grant programs. We see more block grants and somewhat greater
flexibility for states in administering programs. This makes the increasing tendency to preempt
all the more perplexing. I think this Congress has considerable good will toward the states and
wants to make our federalism work better, but more attention must be given to the problem of
preemption. The recent record is not good.