Imagens das páginas


Now, I am not suggesting that the authors agree with my assessment of the DOJ regulation, nor

do I necessarily endorse all of their criticism of state de-institutionalization policies. No doubt

all of us agree that comm

munity mental health services must be improved and the dignity and

rights of the mentally must be respected. Indeed, that was the noble and lofty goal of the DOJ

regulation. The problem that state legislators face is how to do it. How do we make these

community programs work? It's easier said than done. My personal view is that it requires more

careful legislation and avoidance of litigation, which can harden the parties into rigid positions

and create an incentive for states to make policy primarily with an eye toward avoiding lawsuits

and costly consent decrees and only secondarily with an eye toward providing the best service

for the mentally ill.

Even if you disagree with me and regard the Olmstead decision as a great triumph for the rights

of the mentally ill, surely you can see the advantages of extensive consultation between state

elected officials and federal agency officials prior to the promulgation of regulations similar to

the DOJ rule on "integrating" services for the mentally ill. State legislators are the ones facing

the very difficult task of making community mental health services work better than they have in

the past. The last thing we want is more homeless and helpless mentally ill roaming America's

city streets.

I frankly doubt that DOJ rulemakers had a sufficiently detailed understanding of how the rule

impacted mental health law, policy, and politics in 50 states. It is almost certain they did not

understand that, given political and policy dynamics in state capitals, the result might be a


deterioration of state services for the mentally ill. This is why state elected officials must be


Let me give another example. The U.S. Department of the Interior has proposed revisions of

regulations governing the secretary's authority to accept title to land to be held in trust for the

benefit of Indian tribes and individual Indians. Under the proposed revisions, when an

application involves lands located inside the boundaries of a reservation, the secretary will apply

a process and a standard reflecting a presumption in favor of acquisition of trust title to such


NCSL believes that such a change in the "land-to-trust" regulations could have a major impact on

state and local government tax revenues and regulatory authority. The problem is that the

Department in issuing the proposed revision did not comply with Executive Orders 12612 or


13083 on federalism, even while acknowledging that "the local tax base may be affected." The

refusal to comply with these executive orders is based on a totally unsupported statement that

mbecause the loss of revenue is minimal", the effects on state and local government are

"insignificant" within the meaning of E.O. 13083.

NCSL understands that there is significant opposition to the proposed revisions of the "land-to

trust" regulation from both Indian tribes and state governments. NCSL further believes that

states and tribes have in the past and will in the future work on a cooperative basis to resolve

revenue and regulatory issues arising in this context. The first step, however, is for the

Department of the Interior to comply with federalism executive orders. All parties need to know


how much land is potentially affected, how much state and local tax revenue could be lost, and

what the impact would be on state-tribal regulatory issues.

This "land-to-trust" issue, also, highlights the need for passage of $. 1214 and the need for some

kind of enforcement mechanism to ensure that agencies fulfill their obligation to perform

federalism assessments.

Time after time, agencies either fail to mention federalism executive orders or decline to perform

federalism assessments based on unsupported boilerplate stating that the federalism impact will

be "insignificant." It's time, Mr. Chairman and members of the committee, for agencies to stop

sweeping federalism issues under the rug, by ignoring cost-shifts to states and by ignoring the

preemption of state law inherent in proposed regulations.

Agency ignorance of the federalism and political implications of their actions, however, should

come as no surprise. My two examples are not exceptions to the general pattern of agency

behavior. As you know, having seen the recent GAO repon, agencies have ignored with only a

handful of exceptions their obligations under Executive Order 12612 to prepare federalism

assessments for final rules. It is such a startling statistic: a quantitative measure of the agencies'

lack of concern about the impact of federal rules on state and local governments. As you know,

out of 11,414 final rules issued by nonindependent agencies between April 1, 1996 and

December 31, 1998, exactly 5 contained a federalism assessment.


The Problem of Preemption by Courts: The branch of the federal government about which the

states are least likely to complain, when it comes to sensitivity to federalism issues, clearly is the

judiciary and the U.S. Supreme Court in particular. With the intellectual leadership of Chief

Justice William Rehnquist and Justice Sandra Day O'Connor, who incidentally is a former .

majority leader of the Arizona Senate, the Court in the 1990s has given new life to long-dormant

doctrines of states' rights, especially doctrines of state sovereign immunity. Not surprisingly,

this Court has shown a sound understanding of preemption issues. In case after case, the

Rehnquist Court has read federal statutes strictly in order to avoid unnecessary preemption of

state law. Often, the Court will refuse to preempt absent a "clear statement" of congressional

intent or an unavoidable conflict.

Nonetheless, litigants continue to offer, especially to lower courts, creative theories that the state

laws, which inconvenience them, have somehow or another been preempted by implication of a

federal statute. As Representative Dan Blue of North Car

na, NCSL's Pro


this committee earlier this year, "implied preemption" is the heart of the problem.

Surprisingly few preemption cases tum on the explicit language of a federal statute and its

formal legislative history. Nor do these cases, as frequently as one might imagine, having read

the straightforward terms of the Supremacy Clause, tum on a theory of actual conflict: an

allegation that it is physically impossible for an individual or corporation to comply with both

federal and state law. Rather, as a 1991 report on preemption prepared by the Appellate Judge's

Conference notes, "Supremacy clause cases typically call on the courts to discem or infer


The Solution

The "Federalism Accountability Act of 1999," S. 1214, should limit unnecessary preemption by

all three branches of the federal government. The bill would establish procedural rules for

Congress to shine a spotlight on preemptive bills. Reports would be required on the scope of

cach preemptive measure. And every two years, a report would be made to Congress on the

cumulative effect of federal preemption. A rule of construction, to guide the courts, would seek

to discourage the many findings of implied preemption that are so often raised in litigation, even

though there is no direct conflict between federal and state law and even though Congress has

not clearly stated in statutory or report language its intent to preempt state law. Federal

administrative agencies would be required to notify and consult with state and local elected

officials before issuing preemptive regulations. Agencies also would be required to prepare

federalism impact assessments for proposed, interim final, and final rules.

The requirements on the federal govemment in S. 1214 are relatively modest. There is nothing

radical about this bill. Nonetheless, similar modest procedural changes in the Unfunded

Mandate Refom Act have been helpful in limiting federal mandates or cost-shifts to states and

localities. The hope and expectation is that S. 1214, if enacted, will in the same way help limit

federal preemption of state and local law.

« AnteriorContinuar »