Preemptions in Federal Legislation in the 111th and Previous Congresses

June 21, 2011

This supplement to CBO’s series of publications reporting on federal mandates, as defined by the Unfunded Mandates Reform Act of 1995, focuses on preemptions, a type of mandate that would limit the authority of state, local, or tribal governments to apply and enforce their own laws. The report discusses the nature of federal preemptions and identifies preemptive language in legislation considered by the 111th Congress; it also outlines the policy areas most affected by those proposed federal requirements and presents data about other preemptions CBO has identified since 2001.

The Unfunded Mandates Reform Act of 1995 (UMRA) requires CBO to review bills approved by Congressional committees and identify federal mandates that the legislation would impose on state, local, or tribal governments. UMRA generally defines such intergovernmental mandates as enforceable duties; CBO interprets that definition as encompassing both positive (required) and negative (prohibited) duties. Some of those intergovernmental mandates take the form of preemptions—typically negative duties that prohibit state, local, or tribal governments from taking some action or that otherwise limit the authority of those governments to apply and enforce their own laws.

UMRA authorizes the use of certain legislative procedures that are designed to make it more difficult for the Congress to pass bills containing intergovernmental mandates without also providing funding to cover the mandates’ costs. In most cases, however, such hurdles are not brought into play because many mandates—even those that might significantly affect the ability of state, local, or tribal governments to exercise their authority in particular areas—would not impose duties that result in significant additional spending or loss of revenues. Such is the case with most preemptions.

During the 111th Congress (2009 and 2010), CBO issued 134 formal mandate statements that identified intergovernmental mandates. Of those, 43 percent identified preemptions—a proportion smaller than that identified in other recent Congresses, when half or more of the mandate statements that CBO issued noted preemptions. However, more preemptions were enacted during the 111th Congress than during other Congresses of the past 10 years. None of those preemptions, in CBO’s estimation, will impose costs exceeding the threshold that UMRA establishes for intergovernmental mandates. That inflation-adjusted marker, which when exceeded permits Members of Congress to invoke rules that may keep legislation from advancing, was $69 million in 2009 and $70 million in 2010.