Anything left to legislate about.

• Author: Waren, William T.
• Position: State legislators take steps to preserve power preempted by Congress

State lawmakers are concerned that their authority is steadily shrinking, preempted by Congress in many policy areas. Now, bills are pending to address the problem.

Call it the great power shift. The authority of America's state legislatures is shrinking. Congress and the administration are continually and steadily preempting state law, taking away the policy jurisdiction of state legislatures.

Under the Supremacy Clause of the Constitution, if a properly adopted federal law or regulation conflicts with state law, then federal trumps state. The problem is that the frequency and pace of federal preemption of state law has picked up dramatically, particularly since the mid-1990s. If the trend continues, state legislatures will find it increasingly difficult to play their traditional role.

"As a result of accumulating preemptive acts by the national government, our federal system is not working as the Framers intended," says North Carolina Representative Daniel T. Blue Jr., NCSL's immediate past president.

"Federalism respects the geographic, economic, social and political diversity of America. Local diversity is ignored when state laws are preempted and replaced with 'onesize-fits-all' national policies," Blue says.

PREEMPTION BINGE

In the 1990s, Congress has been on a preemption binge, enacting or seriously considering preemptive legislation in many important policy areas.

Civil Justice: For over 15 years, Congress has considered various proposals to set national standards for product liability lawsuits in state court, thus broadly preempting an area of traditional state authority, the tort law.

Congress has passed in recent years several more-limited preemptions of state tort law, including a law last year that provides liability protection for suppliers of raw materials for medical devices. A similar preemptive measure adopted by the 105th Congress channels class action suits related to securities fraud into federal court.

In 1999, Congress again intruded into the state civil justice system. Legislation that has passed both houses and that the president has agreed to sign will limit lawsuits in state court resulting from the so-called "Y2K" or year 2000 computer glitch.

Land Use Planning: The Citizen's Access to Justice Act passed by the House in 1997 would have preempted state laws and made it much easier for property owners to pursue in federal court Fifth Amendment "takings" claims against state and local governments. In 1998, a companion bill fell just a few votes short of the 60 needed in the Senate to cut off a filibuster. Similar bills are pending this year.

If passed, these so-called property rights bills would turn the federal court system into a centralized zoning board of appeals. Federal judges would be asked to make large numbers of decisions...