Federalism

This executive order establishes internal executive branch guidance to limit federal overreach and protect state authority under federalism principles. It requires agencies to assess policies for federalism implications, restricts preemption of state law, and mandates consultation with states before imposing national standards.

52 FR 41685

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Impact dates

Date TBD
Agency heads designate federalism implementation official
Date TBD
Federalism Assessments integrated into OMB submission process

Key directives

Agency heads shall designate an official responsible for ensuring implementation of this Order
Designated officials shall determine which proposed policies warrant a Federalism Assessment
Federalism Assessments must accompany OMB submissions under EO 12291 or OMB Circular A-19
Assessments must certify compliance with Sections 2-5, identify inconsistencies, state cost burdens, and sovereignty effects
OMB shall ensure agency policies are consistent with Sections 2-5 in implementing EO 12291, EO 12498, and Circular A-19
Agencies shall construe federal statutes to preempt state law only with express preemption provision or firm evidence of congressional intent
Agencies shall not submit legislation that directly regulates states' essential functions, attaches unrelated grant conditions, or preempts state law without clear national purpose
Agencies shall provide states notice and opportunity for participation in preemption proceedings

Who is ordered

Timeline

Immediate

designation of agency federalism implementation officials
integration of federalism assessments into existing OMB review processes

Near term (90d)

preparation of Federalism Assessments for policies with sufficient federalism implications
agency identification of officials responsible for implementation

Long term

structural shift in regulatory preemption practices
ongoing constraint on legislative proposals affecting states
persistent requirement for federalism review in rulemaking

Risks & tensions

No explicit calendar deadlines or day-counts specified in text—implementation timing is agency-determined
Judicial review waiver (Section 8) limits enforceability; states cannot sue to enforce
Conflicts with subsequent administrations' policies possible; EO 13132 (1999) later modified some federalism guidance
Tension between 'maximum administrative discretion' for states and national-scope problems requiring federal action
Preemption restrictions may complicate uniform national regulatory regimes in areas like environment or consumer protection