Public Papers - 1990
Memorandum on Federalism
Memorandum for the Heads of Executive Departments and Agencies
Subject: Federalism Executive Order
I wish to take this opportunity to reaffirm an important Executive order, issued when I served as Vice President, and call for your personal commitment in ensuring your department's or agency's compliance with its provisions. This order, which is entitled ``Federalism'' (No. 12612, October 26, 1987), establishes fundamental principles and criteria to guide you in developing and implementing policies that have substantial direct effects on States and local governments. Let me note a few of the order's more important provisions:
In most areas of governmental concern, the States uniquely possess the constitutional authority, the resources, and the competence to discern the sentiments of the people and to govern accordingly.
The nature of our constitutional system encourages a healthy diversity in the public policies adopted by the people of the several States according to their own conditions, needs, and desires. In the search for enlightened public policy, individual States and communities are free to experiment with a variety of approaches to public issues.
Federal action limiting the policymaking discretion of the States should be taken only where constitutional authority is clear and certain and the national activity is necessitated by a problem of national scope.
With respect to national policies administered by the States, the national Government should grant the States the maximum administrative discretion possible.
When undertaking to formulate and implement policies that have Federalism implications, Federal executive departments and agencies should (1) encourage States to develop their own policies to achieve program objectives and to work with appropriate officials in other States; (2) refrain, to the maximum extent possible, from establishing uniform national standards for programs and, when possible, defer to the States to establish standards; and (3) when national standards are required, consult with appropriate officials and organizations representing the States in developing those standards.
The Executive order has special requirements dealing with preemption and with legislative proposals. It also requires that, when a proposed policy has sufficient Federalism implications, the agency must prepare a Federalism Assessment. This assessment is intended to provide the agency and the Administration with an evaluation of the extent to which the policy imposes additional costs or burdens on States and local governments. You are to consider the Federalism Assessment before adopting and implementing the policy.
The order also requires that you designate an official to be responsible for ensuring your agency's implementation of the order. Please ensure that your agency has provided the name of the designated official to the Director of the Office of Management and Budget.
I want to stress that the principles of this order are central to my Administration. I ask that each of you personally review the provisions of Executive Order No. 12612 and assure that the mechanisms necessary to ensure their implementation are in place.