Preemptions in Federal Legislation in the 111th Congress

June 21, 2011

As required by the Unfunded Mandates Reform Act of 1995 (UMRA), CBO reviews nearly all legislation approved by authorizing committees of the Congress to identify mandates that the legislation would impose on state, local, or tribal governmentsknown as intergovernmental mandatesor on the private sector. In March 2011, CBO released its annual report on UMRA, which summarizes mandates that appeared in legislation considered by the Congress during 2010 and in public laws enacted in that year.

UMRA generally defines 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, which 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. Today CBO released a report about preemptions considered and enacted in the 111th Congress (that is, in 2009 and 2010).

Todays 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 proposed preemptions during that Congress and identifies preemptions that became law. In addition, the report presents data about preemptions that CBO has identified since 2001, when it published a report about preemptions it had identified in legislation proposed during the 106th Congress.

During the 111th Congress, CBO issued 134 formal mandate statements that identified intergovernmental mandates. Of those, 57 (or 43 percent) identified preemptionsa proportion smaller than that identified in other recent Congresses, when half or more of the mandate statements that CBO issued noted preemptions.

More preemptions--25 in total--were enacted during the 111th Congress than during other Congresses of the past 10 years, despite the smaller proportion of mandate statements identifying preemptions. Their subject matter varied widely, including such issues as health insurance, consumer protection, legal rights of action, licensing, concealed weapons, foreign judgments, and safety standards for motor vehicles.

UMRA authorizes the use of 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 their costs. The law sets an inflation-adjusted marker, which when exceeded permits Members of Congress to invoke rules that may keep legislation from advancing; for intergovernmental mandates, that threshold was $69 million in 2009 and $70 million in 2010. Such hurdles are not brought into play in the case of most preemptions, however, because they usually do not impose costs on state, local, or tribal governments. In CBOs estimation, none of the 25 preemptions enacted in the 111th Congress will impose costs exceeding the threshold set in UMRA for intergovernmental mandates.

This study was prepared by Jnell Blanco of CBOs Budget Analysis Division.