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We at NCSL look forward to working with all the members of this committee as we move

toward mark-up. We understand that some fine tuning of the bill may be necessary. We want a good bill, and a bill that will be signed into law.

The Department of Justice has raised a number of concerns about similar House legislation (H.R. 2245). Some of DOJ's concerns may be valid; others clearly are not. Certainly, it is not our intent at NCSL in supporting S. 1214 to encourage frivolous litigation that would tie the federal agencies in knots. To the contrary, we want the burden of implementing this act to be as light as possible on the agencies, while still meeting its goals. We want agency rulemakers in a positive frame of mind, so that we can have a real dialogue on federalism issues. NCSL accepts that the question of judicial review of agency compliance with the act is one that should be examined closely. Some enforcement mechanism to ensure that agencies perform federalism assessments is required, especially in light of the GAO report. There ought to be a way to enforce the law without inviting a flood of litigation, or otherwise making the lives of agency rulemakers miserable.

On the other hand, DOJ's complaint that federalism legislation would inhibit courts from findings of "field preemption," we think, is without merit. To the contrary, this is the problem that NCSL wants corrected. Courts, or for that matter agencies, have no business finding that the "implied" intent of Congress or simply the alleged comprehensive nature of the federal regulatory scheme requires a holding that states are barred from the policy "field." Far from being objectionable, limiting or eliminating creative legal theories of "implied" or "field" preemption is a key element of this legislation. If Congress wants to totally exclude state

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legislatures from a policy field, then it should say so and be held accountable politically.

Allowing unelected judges and rulemakers to make decisions of such political import, based on a clever lawyer's theory of implication, would seem unacceptable.

Conclusion

In conclusion, Mr. Chairman, I want to thank you and the original cosponsors for introducing the proposed Federalism Accountability Act of 1999. I especially appreciate the care you have taken to get bipartisan support for this important bill. Bipartisanship is essential if it is to be signed into law. We at NCSL do not regard issues of federalism and preemption to be the property of Republicans or Democrats, nor of liberals or conservatives. Everyone has an interest in making our federalism work as the Framers intended.

NCSL asks all the members of this committee and of the Senate as a whole to co-sponsor and to support the Federalism Accountability Act of 1999. NCSL looks forward to working with all of you to resolve any remaining issues prior to markup. The important thing is for all of us to remember the goal. Preemption must be limited if we are to enjoy the advantages of federalism, which, in turn, fosters policymaking that respects America's diversity and a policymaking process that encourages innovation and responsiveness.

Thank you for this opportunity to testify. I look forward to your questions.

Good morning Mr. Chairman and members of the Committee, my name is Alex G. Fekete and I am the Mayor of Pembroke Pines, Florida. I am currently the Vice Chair of the Finance, Administration and

Intergovernmental Relations (FAIR) Steering Committee of the National League of Cities (NLC). I am pleased to be here this afternoon to testify before you with my colleagues on what we believe is groundbreaking federal legislation, "The Federalism Accountability Act of 1999" (S. 1214). This bill embraces and preserves the cherished principle of federalism and promotes a new federal-state-local partnership with respect to the implementation of certain federal programs.

I thank the Committee for having this hearing today. I would also especially like to thank the Chairman, Senator Thompson, and his colleague, Senator Levin, for working with the members of the "Big 7" state and local government organizations to craft a bill that illustrates the cooperative and bipartisan dynamic that should exist between our levels of government. At the same time, I would like to recognize Senators Voinovich, Robb, Cochran, Lincoln, Enzi, Breaux, Roth, and Bayh in appreciation for their support in co-sponsoring this legislation. We look forward to working with

the members of this Committee to achieve the true partnership envisioned in

this bill.

The National League of Cities is the oldest and largest organization representing the nation's cities and towns and their elected officials. NLC represents 135,000 mayors and council members from municipalities across the country. Over 75 percent of NLC's members are from small cities and towns with populations of less than 50,000.

Whatever their size, all cities are facing significant federal preemption threats to historic and traditional local fiscal, land use and zoning authority. Whatever their size, all cities will benefit from legislation such as S. 1214. We are grateful to you for recognizing that the issue of federal preemption of state and local laws is an important one, not just to us, but to all Americans. What brings us all here today? It is nothing less than the pervasive and imminent threat of preemption by the federal government. Let me clarify that it is not the intent of NLC to undermine the Supremacy Clause of the Constitution. In fact, I think everyone in the room today acknowledges that there are times when federal law should trump state law - when there is direct conflict between federal and state law or when it is Congress' express intent to preempt state law. During the 1960's, for example, the nation needed the federal government to move forward with civil rights