Posted on June 25, 2009 by Daniel O'Rielly

Preemption by Federal Agencies to be Limited

Last month, the White House released a Memorandum for the Heads of Executive Departments and Agencies regarding federal preemption, with specific instructions about how and when federal agencies may assert preemption of state laws through agency regulations.  The memo states a general policy that "preemption of State law by executive departments and agencies should be undertaken only with consideration of full prerogatives of the States and with a sufficient legal basis for preemption."

More specifically, the memo provides: (1) heads of federal departments and agencies should not include preemption provisions in regulatory preambles, unless preemption is also a provision in the codified regulations; (2) preemption provisions should only be included in codified regulations if justified under "legal principles governing preemption," including Executive Order 13132 (1999); and (3) heads of federal departments and agencies must undergo a review of regulations issued in the last 10 years to ensure compliance with these preemption principles, and amend any regulations not in compliance.

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