| Reagan
Executive Order 12612 |
|
Clinton
Executive Order 13083 |
| 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: |
|
By
the authority vested in me as President by the
Constitution and the
laws of the United States of America, and in
order to guarantee
the division of governmental responsibilities,
embodied in the Constitution,
between the Federal
government and the States that was intended by
the Framers and application
of those
principles
by 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 United States of America,
individually or collectively, and, where
relevant, to State governments, including units
of local government and other political
subdivisions established by the States.
|
|
Section
1. Definitions. For purposes of this Order: (a)
"State" or "States" refer to
the States of the United States of America,
individually or collectively, and, where
relevant, to State governments, including units
of local government and other political
subdivisions established by the States.
(b)
"Policies that have federalism
implications" refers to Federal
regulations, proposed legislation, and other
policy statements or actions that have
substantial direct effects on the States
or
on the relationship,
or the distribution of power and responsibilities,
between the Federal
Government
and
the States.
(c)
"Agency" means any authority of the
United States that is an "agency" under
44 U.S.C. 3502(1), other than those considered to
be independent regulatory agencies, as defined in
44 U.S.C. 3502(5).
|
| 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: |
|
Sec.
2. Fundamental Federalism Principles. In
formulating and implementing policies that have
federalism implications, 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. |
|
(a)
The
structure of government established by the
Constitution is premised upon a system of checks
and balances. |
| (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.
|
|
(b)
The Constitution
created a
Federal
government of supreme,
but limited, powers.
The sovereign powers
not
granted
to
the Federal
Government
are reserved to the people
or to the States,
unless
prohibited
to the States by the Constitution.
|
| (c)
The
constitutional relationship among sovereign
governments, State and national, is formalized in
and protected by the Tenth Amendment to the
Constitution. |
|
(c)
Federalism
reflects the principle that dividing power
between the Federal Government and the States
serves to protect individual liberty. Preserving
State authority provides an essential balance to
the power of the Federal Government, while
preserving the supremacy of Federal law provides
an essential balance to the power of the States. |
| (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. |
|
(d)
The people of the States are at
liberty,
subject only to the
limitations
in the Constitution itself or in Federal
law,
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."
|
|
(e)
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. States and local
governments are often uniquely situated
to discern the sentiments of the people and to
govern accordingly. |
| |
| (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. |
|
(f)
Effective public policy is often achieved when
there is competition among the several States
in the fashioning
of different approaches to public policy issues.
The
search for enlightened public policy
is often furthered when
individual States and local
governments
are free to experiment with a variety of
approaches to public issues. Uniform,
national approaches to public policy problems can
inhibit the creation of effective solutions to
those problems.
|
| (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.
|
|
Deleted
|
| (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. |
|
(g)
Policies of the Federal
government should recognize the responsibility of
-- and should encourage opportunities for -- States,
local governments, private associations,
neighborhoods, families, and individuals
to achieve personal, social, environmental,
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.
|
|
Deleted |
| 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: |
|
Sec.
3. Federalism Policymaking Criteria. In addition
to adhering
to
the fundamental federalism principles set forth
in section 2 of
this order,
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) (31 U.S.C. 6506 note)
remains in effect for the programs and activities
to which it is applicable.
|
|
(a)
There should be strict adherence to
constitutional principles. Agencies should
closely examine the constitutional and statutory
authority supporting any Federal action that
would limit the policymaking discretion of States
and local governments,
and should carefully assess the necessity for
such action. |
| (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:
|
|
(b)
Agencies may limit the policymaking discretion of
States and local governments only after
determining that there is constitutional and
legal authority for the action. |
| (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). |
|
See
3.d
|
| (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.
|
|
Deleted
|
| (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.
|
|
(c)
With respect to Federal
statutes and regulations
administered by States
and local governments,
the Federal
government should grant States and
local governments
the maximum administrative discretion possible. Any
Federal oversight of such
State and
local
administration should
not unnecessarily intrude on State and local
discretion.
|
| (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.
|
|
Deleted
|
| See
3.b.1
|
|
(d)
It is important to recognize the distinction
between matters
of national or
multi-state
scope (which may justify Federal action) and matters
that are merely common to the States (which may
not justify Federal action because individual
States, acting individually or together, may
effectively deal with them). Matters
of national or multi-state scope that justify
Federal action may arise in a variety of
circumstances, including: (1)
When the matter to be addressed by Federal action
occurs interstate as opposed to being contained
within one State's boundaries.
(2)
When the source of the matter to be addressed
occurs in a State different from the State (or
States) where a significant amount of the harm
occurs.
(3)
When there is a need for uniform national
standards.
(4)
When decentralization increases the costs of
government thus imposing additional burdens on
the taxpayer.
(5)
When States have not adequately protected
individual rights and liberties.
(6)
When States would be reluctant to impose
necessary regulations because of fears that
regulated business activity will relocate to
other States.
(7)
When placing regulatory authority at the State or
local level would undermine regulatory goals
because high costs or demands for specialized
expertise will effectively place the regulatory
matter beyond the resources of State authorities.
(8)
When the matter relates to Federally owned or
managed property or natural resources, trust
obligations, or international obligations.
(9)
When the matter to be regulated significantly or
uniquely affects Indian tribal governments.
|
| 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.
|
|
Deleted |
| 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.
|
|
Deleted
|
| 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 (formerly set out
above) 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.
|
|
Deleted |
| |
| Sec.
7. Government-wide Federalism Coordination and
Review. (a)
In implementing Executive Order Nos. 12291
(formerly set out above) and 12498 (formerly set
out above) 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
(formerly set out above) 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.
|
|
Deleted |
| Clinton
Executive Order 12875 |
|
Clinton
Executive Order 13083 |
| Section
1. Reduction of Unfunded Mandates.
|
|
Sec.
4. Consultation. |
| (1.a.2.b)
Each agency shall develop
an effective process to permit elected officials
and other representatives of State,
local,
and tribal
governments to provide meaningful and timely
input in the development of regulatory proposals
containing significant unfunded mandates.
|
|
(a)
Each agency shall have
an effective process to permit elected officials
and other representatives of State
and local
governments to provide meaningful and timely
input in the development of regulatory policies
that have federalism implications.
|
| (1.a)
To the extent feasible
and permitted by law, no executive
department or
agency ("agency")
shall promulgate any regulation that is not
required by statute
and that creates
a mandate upon a State, local, or tribal
government,
unless: |
|
(b)
To the extent practicable
and permitted by law, no agency shall promulgate
any regulation that is not required by statute,
that has federalism implications,
and that imposes
substantial direct compliance costs on States and
local governments,
unless: |
| (1.a.1)
funds necessary to pay the direct costs incurred
by the State,
local,
or tribal
government in complying with the mandate
are provided by the Federal Government; or |
|
(1)
funds necessary to pay the direct costs incurred
by the State
or local
government in complying with the regulation
are provided by the Federal Government; or |
| (1.a.2)
the agency, prior to the formal promulgation of regulations
containing
the proposed
mandate,
provides to the Director of the Office of
Management and Budget a description of the extent
of the agency's prior consultation with
representatives of affected State,
local,
and tribal
governments, the nature of their concerns, any
written communications submitted to the agency by
such units of government,
and the agency's position supporting the need to
issue the regulation
containing
the mandate.
|
|
(2)
the agency, prior to the formal promulgation of
the regulation,
(A)
in a separately identified portion of the
preamble to the regulation as it is to be issued
in the Federal Register,
provides to the Director of the Office of
Management and Budget a description of the extent
of the agency's prior consultation with
representatives of affected States
and local
governments, a
summary of
the nature of their concerns, and the agency's
position supporting the need to issue the regulation;
and
(B)
makes available to the Director of the Office of
Management and Budget any written communications
submitted to the agency by States or local
governments.
|
| Sec.
2.
Increasing Flexibility for State and Local
Waivers. |
|
Sec.
5.
Increasing Flexibility for State and Local
Waivers. |
| (2.a)
Each agency
shall review its
waiver application process
and take appropriate steps to streamline that
process.
|
|
(a)
Agencies
shall review the
processes under which States
and local
governments apply for waivers of statutory and
regulatory requirements and
take appropriate steps to streamline those
processes.
|
| (2.b)
Each agency shall, to the extent practicable and
permitted by law, consider any application by a State,
local,
or tribal
government for a waiver of statutory or
regulatory requirements in connection with any
program administered by that agency with a
general view toward increasing opportunities for
utilizing flexible policy approaches at the State,
local, and tribal
level in cases in which the proposed waiver is
consistent with the
applicable Federal policy objectives and is
otherwise appropriate. |
|
(b)
Each agency shall, to the extent practicable and
permitted by law, consider any application by a State
or local
government for a waiver of statutory or
regulatory requirements in connection with any
program administered by that agency with a
general view toward increasing opportunities for
utilizing flexible policy approaches at the State
or local
level in cases in which the proposed waiver is
consistent with applicable Federal policy
objectives and is otherwise appropriate. |
| (2.c)
Each agency shall, to the fullest
extent practicable and permitted by law, render a
decision upon a complete application for a waiver
within 120 days of receipt of such application by
the agency. If the application for a waiver is
not granted, the agency shall provide the
applicant with timely written notice of the
decision and the reasons therefor. |
|
(c)
Each agency shall, to the extent practicable and
permitted by law, render a decision upon a
complete application for a waiver within 120 days
of receipt of such application by the agency. If
the application for a waiver is not granted, the
agency shall provide the applicant with timely
written notice of the decision and the reasons
therefor. |
| (2.d)
This section applies only to statutory or
regulatory requirements of
the programs
that are discretionary and subject to waiver by
the agency. |
|
(d)
This section applies only to statutory or
regulatory requirements that are discretionary
and subject to waiver by the agency. |
| (5.b)
Independent agencies are requested
to comply with the provisions of this order. |
|
Sec.
6.
Independent Agencies.
Independent regulatory
agencies are encouraged
to comply with the provisions of this order. |
| Reagan
Executive Order 12612 |
|
Clinton
Executive Order 13083 |
| 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 United States, its agencies,
its officers,
or any person. |
|
Sec.
7.
General Provisions. (a)
This Order is intended only to improve the
internal management of the Executive branch
and is not intended to,
and does not,
create any right or benefit, substantive or
procedural, enforceable at law or
equity
by a party against the United States, its agencies
or instrumentalities,
its officers
or employees,
or any other
person.
|
| |
|
(b)
This order shall supplement but not supersede the
requirements contained in Executive Order 12866
("Regulatory Planning and Review"),
Executive Order 12988 ("Civil Justice
Reform"), and OMB Circular A-19. (c)
Executive Order 12612 of October 26, 1987, and
Executive Order 12875 of October 26, 1993, are
revoked.
(d)
The consultation and waiver provisions in
sections 4 and 5 of this order shall complement
the Executive order entitled, "Consultation
and Coordination with Indian Tribal
Governments," being issued on this day.
(e)
This order shall be effective 90 days after the
date of this order.
|
| Ronald
Reagan. |
|
WILLIAM
J. CLINTON |
