Federalism

This executive order establishes principles and procedures requiring federal agencies to respect state authority and consult with state and local officials when developing policies with federalism implications. It mandates strict limits on federal preemption of state law, requires cost-sharing for unfunded mandates, streamlines waiver processes, and revokes several prior federalism executive orders.

Federal Register Open PDF 64 FR 43255

Impact dates

Date TBD
Agency decision on complete waiver application
Jan 31, 2000
OMB Director and Assistant to President for Intergovernmental Affairs confer with state/local officials on implementation
Nov 2, 1999
EO becomes effective (90 days after signing)
Nov 2, 1999
Agency heads designate federalism official and submit consultation process description to OMB

Key directives

Agencies must consult with state/local officials before actions limiting state policymaking discretion
Federal statutes construed to preempt state law only with express preemption provision or clear congressional intent
Regulatory preemption restricted to minimum level necessary
Agencies prohibited from submitting legislation that directly regulates states in ways inconsistent with federalism principles
Unfunded mandates with substantial direct compliance costs prohibited unless federal funds provided
Federalism summary impact statements required in Federal Register preambles for certain regulations
Waiver applications must be decided within 120 days of receipt
Agency certifications required for OMB transmission of regulations and legislation with federalism implications

Who is ordered

Timeline

Immediate

Revocation of EOs 12612, 12875, 13083, and 13095
Effective date set 90 days after signing

Near term (90d)

Agency heads must designate federalism implementation official and submit consultation process description to OMB
OMB Director and White House Intergovernmental Affairs Assistant must confer with state/local officials on implementation

Long term

Ongoing federalism impact statements required for regulations with substantial state/local costs or preemption
Agencies must render waiver decisions within 120 days
Continuous accountability certifications for OMB review

Risks & tensions

Section 6(b) unfunded mandate prohibition has 'to the extent practicable and permitted by law' loophole that may limit enforceability
Preemption restrictions in Section 4 may conflict with agency statutory mandates where Congress has granted broad regulatory authority
Judicial Review clause (Section 11) explicitly denies private enforceability, making compliance dependent on internal executive branch accountability
Waiver 120-day deadline lacks consequence for non-compliance specified in text
Revocation of EO 13083 (which itself had been suspended) may create uncertainty about continuity of prior federalism interpretations