Presidential Executive Order 13132 (Bill Clinton, 1999)

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Executive Order 13132: Federalism is a presidential executive order issued by President Bill Clinton (D) in 1999 that aims to limit the issuance of administrative regulations with associated federalism implications. The order defines federalism implications as "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." The order also aims to support the policies of the Unfunded Mandates Reform Act, a federal law signed by Clinton in 1995 that established policies aimed at minimizing the imposition of unfunded mandates from the federal government on businesses and state, local, and tribal governments. E.O. 13132 revoked President Ronald Reagan's (R) 1987 executive order on federalism, E.O. 12612, while preserving the majority of Reagan's language.^[1]^[2]

Background[edit]

See also: Federalism and Unfunded Mandates Reform Act

Local government and business entities expressed growing dissatisfaction during the 1970s and 1980s with the increase in unfunded federal mandates, or statutory requirements, imposed on local governments and the private sector during the period, according to the Congressional Research Service.^[3] A 2016 Forbes report identified a total of 241 mandates or preemptions imposed on state and local governments between 1955 and 1995, 45 percent of which were enacted between 1985 and 1995. These mandates imposed new standards, requirements, and regulations for landfills, wastewater treatment, drinking water, stormwater, and compliance with the Americans with Disabilities Act, among other provisions. Local government and business advocates at the time called for new policies to curb the financial costs and resulting inefficiencies of complying with unfunded mandates associated with new federal laws and agency regulations.^[3]^[4]

President Bill Clinton (D) signed the Unfunded Mandates Reform Act (UMRA) into law in 1995. The legislation aimed to minimize the imposition of unfunded federal mandates on businesses and state, local, and tribal governments as well as improve communication and collaboration between the federal government and local government and business groups. ^[3]^[5]

E.O. 13132[edit]

In May 1998, Clinton took further action toward addressing the relationship between the federal government, state governments, and local entities by issuing E.O. 13083, titled "Federalism." The Clinton administration had not consulted with state and local officials during the development of the order.^[6] Members of Congress, interest groups, and affected parties criticized the order on the grounds that it increased the federal government's ability to establish national policies, broadened its scope of regulation, and increased federal authority over state interests. Opponents further argued that the order was a flawed and unnecessary departure from President Ronald Reagan's (R) 1987 executive order on federalism, E.O. 12612, and de-emphasized state sovereignty. In the face of significant backlash, Clinton suspended the order before its effective date.^[6]

After a year of consultation with state and local entities, Clinton went on to issue Executive Order 13132, also titled "Federalism," on August 4, 1999. The order aimed to emphasize federalism principles in the context of administrative rulemaking and further support the policies of the UMRA. Though E.O. 13132 revoked Reagan's E.O. 12612, it preserved the majority of Reagan's language. The order restated constitutional federalism principles and aimed to limit the issuance of agency regulations with federalism implications. In a departure from the Reagan order, E.O. 13132 included a provision allowing states to obtain waivers from certain federal regulations if state-level actions achieve the desired policy outcomes. E.O. 13132 also removed the Reagan order's language that called on agencies to limit the size and scope of the federal government and refrain from establishing national standards. Clinton's order further modified Reagan's preemption provision by providing for federal preemption "where ... there is some other clear evidence that the Congress intended preemption of State law” rather than the Reagan order's requirement of a clear, statutory preemption provision or "some other firm and palpable evidence compelling the conclusion that the Congress intended preemption of State law."^[3]^[5]^[7]^[6]

Jennie Holman Blake, a former clerk with the Utah Supreme Court, made the following observations regarding the similarities between Clinton's E.O. 13132 and Reagan's E.O. 12612 in a 2000 article for the Brigham Young University Law Review: "The 1999 Order returns to most of the language found in the Reagan Order concerning fundamental principles of federalism, focusing on the competence of the states to meet the needs of the people, and disfavoring national policies. While it makes some changes from the Reagan Order, the overwhelming majority of the 1999 Order is a strict return to President Reagan’s principles."^[6]

E.O. 13132 revoked the following executive orders:

E.O.12612: Federalism (Reagan, 1987). Reagan issued E.O. 12612 in 1987 to implement principles and criteria for executive agencies to adhere to when crafting and promulgating regulations with federalism implications.^[5]^[8]
E.O. 12875: Enhancing the Intergovernmental Partnership (Clinton, 1993). E.O. 12875 required federal agencies to create processes allowing for state and local officials to provide feedback regarding regulatory proposals containing significant unfunded mandates.^[5]
E.O. 13083: Federalism (Clinton, 1998). Clinton suspended E.O. 13083 before it took effect in response to concerns from the National Governors’ Association and affected parties that the order increased the federal government's ability to establish national policies.^[5]
E.O. 13095: Suspension of Executive Order 13083 (Clinton, 1998). E.O. 13095 suspended the implementation of E.O. 13083.^[5]

Provisions[edit]

Clinton's E.O. 13132 directs agencies to consider the federalism implications of proposed rules. The order puts forth policymaking criteria for agencies to follow aimed at limiting regulations that preempt state laws or carry substantial associated compliance costs for state and local governments. If a proposed rule has federalism implications, an agency must prepare a federalism summary impact statement that details concerns from state and local governments, the agency's rationale for issuing the rule, and an explanation of how the agency plans to address state and local concerns.^[7]^[9]

Federalism implications[edit]

See also: Federalism

The order defines federalism implications as "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."^[2]

Federalism principles[edit]

E.O. 13132 puts forth the following federalism principles to guide agencies when developing and promulgating regulations:^[2]

Policy issues that are not national in scope should be addressed at the local level.
All powers not delegated to the federal government by the American people are reserved for the states.
The Tenth Amendment protects the relationship between the federal government and state governments.
Citizens are free to live their lives in an individual manner, subject only to constitutional restrictions.
States are laboratories of democracy.
States are encouraged to experiment with a variety of public policies to address the unique needs of their citizens.
Actions by the national government that exceed its authority violate federalism.
National policies should encourage cooperation between individuals and local entities
The policymaking actions of the national government should be deferential to state governments.^[2]

Federalism policymaking criteria[edit]

The order established the following policymaking criteria for agencies to adhere to when considering regulatory actions with federalism implications:^[2]

Agency actions must adhere to constitutional principles.
National actions that preempt state authority "shall be taken only where there is constitutional and statutory authority for the action and the national activity is appropriate in light of the presence of a problem of national significance." In the event of any uncertainty, agencies must work with state and local governments to identify alternative solutions.
States should be given maximum discretion when administering federal statutes and regulations.
When crafting policies with federalism implications, agencies should endeavor to cooperate with states governments and allow states to establish their own standards when possible.^[2]

Preemption requirements[edit]

See also: Preemption conflicts between state and local governments

E.O. 13132 requires that agencies only approve regulations that preempt state law when the underlying statute allows for preemption. If the underlying statute does not expressly allow for preemption, agencies may only craft preemptive regulations if there is evidence that Congress intended for the agency to have preemption authority. Agencies must consult with state and local officials in order to minimize regulatory preemption. Agencies are also prohibited from proposing legislation that would preempt state laws or attach conditions to federal grants unrelated to the purpose of the grant.^[2]

Other provisions[edit]

Under the order, each agency must maintain a federalism official charged with overseeing the implementation of the order. Agencies must also include a federalism summary impact statement in the Federal Register alongside any rules with federalism implications. The statements are required to include "a description of the extent of the agency’s prior consultation with State and local officials, a summary of the nature of their concerns and the agency’s position supporting the need to issue the regulation, and a statement of the extent to which the concerns of State and local officials have been met; and ... makes available to the Director of the Office of Management and Budget any written communications submitted to the agency by State and local officials." Agencies are also required to streamline the processes for states to apply for waivers from statutory or regulatory mandates and are encouraged to develop flexible policy solutions.^[2]

External links[edit]

Footnotes[edit]

[epa-1] Environmental Protection Agency, "Summary of Executive Order 13132 - Federalism," accessed April 6, 2018

[order-2] 2.0 ^2.1 ^2.2 ^2.3 ^2.4 ^2.5 ^2.6 ^2.7 U.S. Government Publishing Office, "Executive Order 13132 of August 4, 1999—Federalism," August 4, 1999

[cra-3] 3.0 ^3.1 ^3.2 ^3.3 Congressional Research Service, "Unfunded Mandates Reform Act: History, Impact, and Issues," January 5, 2018

[forbes-4] Forbes, "Unfunded Mandates On The States Rising Again," July 28, 2016

[gao-5] 5.0 ^5.1 ^5.2 ^5.3 ^5.4 ^5.5 U.S. Government Accountability Office, "Implementation of Executive Order 12612 in the Rulemaking Process," accessed April 6, 2018

[jennie-6] 6.0 ^6.1 ^6.2 ^6.3 Brigham Young University Law Review, "Presidential Power Grab or Pure State Might? A Modern Debate Over Executive Interpretations on Federalism," March 1, 2000

[ceg-7] 7.0 ^7.1 Center for Effective Government, "Executive Order 13132," accessed April 6, 2018

[8] Center for Effective Government, "Executive Order 12612, Federalism," accessed April 6, 2018

[fed-9] The Federalist Society, "Executive Order on Preemption," accessed April 6, 2018

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