Uniform Law Commission Federalism and State Law Committee Meeting
Four Points Sheraton
Washington, D.C.
March 12, 2010
Minutes
Attendees
Uniform Law Commission: Bob Stein, Mike Houghton, Ray Pepe, Tom Hemmendinger, John Kellam, Harriet Lansing, Ryan Leonard, Connie Ring, Fred Stamp, Paula Tackett, Michael Wilkins, Barry Hawkins, John Sebert, Eric Fish
Georgetown University Law Center: David Stewart
International City/County Management Association: Elizabeth Keller
National Assoc. of Attorneys General: Blair Tinkle, Jim McPherson
National Association of Counties: Ed Ferguson
National Association of Secretaries of State: Leslie Reynolds
National Center for State Courts and Conference of Chief Justices: Gregory Mize
National Conference of State Legislatures: Susan Frederick
National Governors Association: David Quam, David Parkhurst
National League of Cities: Lars Etzkorn
Nelson Mullins Public Strategies: Jennifer Pharaoh, Chris Cushing
Introductory Comments and Discussion
Introductory Comments from the Uniform Law Commission
Chairman Pepe lead a review of the minutes from the October 2009 meeting and stressed the importance of focusing the day’s discussion on what is both practical and doable within the general scope of the draft Principles of Federalism.
ULC President Stein welcomed the representatives of the representatives of the groups that were in attendance. President Stein also discussed the importance of the Principles of Federalism and the dissemination options available, such as distribution of the principles in a manner similar to an American Law Institute Restatement that could be cited by courts and legislatures. He added that a planned symposium should focus on the academic and practical and educate the participants on the historical federal relationship between the states and federal government and the importance of this relationship in the federalist system.
Introductory Comments from National League of Cities
Comments from representatives of the NLC focused on the historical relationship between the NLC and the federal government. The NLC is often in a defensive posture, reviewing legislation and acting to prevent preemption and unfunded mandates. The Executive Order issued by President Obama was an encouraging sign that cooperation between local and federal actors will improve.
Introductory Comments from the National Association of Secretaries of State
In the past ten years, NASS has worked closely with the Federal government on issues related to election reform and registration of business corporations. NASS had little presence in Washington, DC prior to work on these issues. However, these projects have increased the DC presence of NASS and bought forth cooperation with other groups, including the NCSL.
Introductory Comments from the National Association of Counties
The representatives from NACo stated that much of the organization’s involvement with federalism issues relates to the administration of elections. However, NACo has become more proactive in promoting general policies that allow for local flexibility and innovation. The organization has started a program called ‘Restore the Partnership’ to review issues of federalism is seeking to have the former Advisory Committee on Intergovernmental Relations re-established.
Introductory Comments from the International City/County Management Association
ICMA has produced a white paper on federal/local intergovernmental relations that focuses on engagement with the Federal government at the time polices are developed instead of strategies of reaction once the policies are completed. The organization has also signed onto other papers and statements that call for the renewed partnership between federal and local actors. ICMA is concerned about the feasibility of these relationships in the absence of the Advisory Committee on Intergovernmental Relations.
Introductory Comments from David Stewart, Georgetown Law
David discussed his interest in the federalism project as it relates to his previous work for the United States Department of State and the implementation of international private law treaties.
Update from National Association of Attorneys General
NAAG is in the process of reviewing state laws regulating internet tobacco sales and investigating whether federal regulation is necessary to minimize the number scofflaws flourishing under current state laws. Due to differences in state law, many sellers and buyers are evading taxes levied on tobacco products. Federal regulation may be the only effective mechanism for enforcement.
Update from National Governors Association
The National Governors Association has been heavily involved with the current health care legislation, specifically on federalism issues. Provisions of the federal legislation will dictate which state agencies have the power to accept and disperse federal funds. This creates procedural and practical conflicts with many state constitutions.
Update from the National Conference of State Legislatures
The National Conference of State Legislatures has also been heavily involved with the health care legislation, election reform, and criminal justice issues.
Update from National Center for State Courts and the Conference of Chief Justices
The ABA Task Force on Federal Preemption of State Tort Law completed a consensus statement of principles of federalism as applied to laws governing claims for damages in civil litigation during its Winter 2010 Meeting. The principles will be presented to the ABA House of Delegates at its Summer 2010 meeting. Although the principles were not approved for dissemination as of March 12, 2010, it was reported that the focus will be on the need for federal legislation to more clearly and explicitly delineate the extent to which state tort laws are preempted by federal law. It was also reported that the Conference of Chief Justices adopted a resolution urging Congress to be mindful of federalism principles.
Discussion of Federalism Principles Draft
A March 3, 2020, preliminary draft Statement of Federalism Principles prepared by a subcommittee was distributed prior to the meeting for review. There appeared to be a consensus that the draft presented an impartial and high-level evaluation of the role of federal versus state legislation which wisely avoids taking positons of some currently controversial issues, and that further efforts should be made to expand and refine the principles. It was suggested that the enumeration of policy recommendations currently found at the end of the document be enumerated in the beginning of the document as a list, with the more detailed commentary to follow each major set of recommendations. The committee believed examples where each principle has been either respected or infringed upon in the past, as well as commentary on such events, will help foster understanding of the specific issues involved.
Further comments regarding the Statement of Federalism Principles were requested to be submitted to the John Sebert, the Executive Director of the ULC by April 1, 2020, and a commitment was made to circulate a revised document by June 1, 2010 that will be presented to the full membership of the ULC at its Annual Meeting in July 2010 Following the Fall 2010 Symposium, as discussed below, it was agreed that the Statement of Federalism Principles should be further expanded and modified based upon comments and recommendations received and made subject to more detailed section-by-section review.
Discussion of Symposium Proposal
At this time, it appears that George Washington University School of Law will be hosting the symposium.
The committee discussed plans for a symposium on Federalism in the Fall of 2010. The committee ruled out hosting the symposium in January 2011 or before Congress adjourns for the November elections because of the amount of expected activity at those times. Conversation also focused on what group should be the target of the program.
Some participants thought that a day long program would be too long for any Congressional staff to attend. Some suggested having two events — one a symposium with more of an academic focus and the other a presentation for Congressional members and staff.
In discussing who to target as potential speakers at the symposium, there was consensus that the discussion would benefit from Congressional or Administration leaders with experience at both the state and federal levels. Suggested names included Senators Frank Keating (OK), Tom Carper (DE), Mark Warner (VA), Secretary Kathleen Sebelius (former Governor of Kansas, now HHS Secretary), Secretary Janet Napolitano (former Governor of Arizona, now Homeland Security Secretary) and Former Governor and Senator Richard Thornburgh (PA). Key Congressional staff also would be invited to speak. Invitations to participate are also to be distributed to the individuals involved with the ABA Principles of Federalism project. These individuals include Peter Bennett, William Funk, Geoff Hazard, Elizabeth Warren, Bob Peck, and Ed Sherman. Other possible speakers were identified at the October 2009 meeting. Fred Stamp will speak to fellow judges with experience with issues of federalism and identify speakers that can bring a judicial perspective to the program.
Congressional CLE Training Regarding Federalism
It was agreed that the Committee should develop a CLE program for members of Congress and particularly for staff members to be periodically presented in in a Congressional hearing room with an approximate duration of two hours and featuring lunch. In order for a room to be reserved, a member of Congress would have to request the room. An application to accredit the program for CLE would also be filed to increase the program’s attractiveness to members of staff. A subcommittee consisting of Ryan Leonard, Paula Tackett, and David Quam will begin planning the educational event to be held on Capitol Hill.
Update on ACIR Legislation
A resolution filed by Rep. Connolly reestablishing the Advisory Committee on Intergovernmental Relation (ACIR) is currently before the House Oversight Committee and assigned to a subcommittee. No hearings have been held. Participants noted that the original ACIR became doomed when the Federal government agencies limited their involvement. When the ACIR was in existence, it was able to research areas of developing federal/state jurisdictional overlap and provided the framework for dialogue between federal and state actors. The ACIR was the repository for credible data on tax and appropriation issues. The committee noted that the absence of the dialogue has contributed to many of the problems faced today.
The ACIR legislation will be continually tracked and developments will be shared with the Committee.
Action Items
1. A new draft of the Federalism Principles will be circulated by June 2010
2. Symposium at George Washington will be planned for October – early December 2010
3. Subcommittee will work on staff and legislator CLE focused program to be held on Capitol Hill
Next Meeting
The Committee agreed it will be useful to meet in Fall 2010 prior to the symposium.
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