Preemption

This memorandum establishes a policy restricting executive agencies from preempting state law through regulations unless there is explicit congressional authorization or sufficient legal basis. It directs agency heads to review regulations from the past 10 years containing preemption provisions and amend those that cannot be legally justified.

Federal Register Open PDF 74 FR 24693

Impact dates

Date TBD
Review regulations issued within past 10 years containing preemption statements or provisions

Key directives

Agency heads shall not include preemption statements in regulatory preambles without corresponding codified preemption provisions
Agency heads shall not include preemption provisions in codified regulations absent sufficient legal basis under preemption principles
Agency heads shall review regulations issued within past 10 years containing preemption statements or provisions
Agency heads shall initiate appropriate action including amendment where preemption cannot be justified

Who is ordered

Timeline

Immediate

Policy statement takes effect
Agencies prohibited from new preemption statements in regulatory preambles without corresponding codified provisions

Near term (90d)

Agencies begin review of regulations from past 10 years containing preemption provisions

Long term

Potential amendment of existing regulations where preemption cannot be justified
Shift in federal-state regulatory balance

Risks & tensions

Tension between uniform national standards and state experimentation ('laboratories of democracy')
Potential regulatory uncertainty for industries operating across state lines
Review of 10-year regulatory backlog creates significant administrative burden
Vague standard of 'sufficient legal basis' may lead to inconsistent agency interpretation
Memorandum explicitly disclaims enforceable rights, limiting judicial recourse