Protect & Preserve the Constitutional Balance of Power
1. Preamble
The United States Constitution originated as a way to unite the several sovereign States under a national umbrella. It did so by dividing power between the national government and the States. The Constitution defines the powers of the federal government. Any power that the Constitution does not grant to the federal government is reserved to the States unless it is stipulated.[1] States, therefore, enjoy authority over laws governing public health, safety, education, crime, family relationships, contracts and private property, torts, business regulations, and the conduct of elections.[2]
This balance of power between the States and the national government is known as federalism. Federalism prevents the national government from accumulating power, promotes innovation, and ensures laws are responsive to local need.[3] This principle, too, is in keeping with the founders’ preference for government closest to the people governed.
Governors believe it is vital that we preserve, promote, and defend the balance of power between the states, territories and the Commonwealth of Puerto Rico (herein referred to as “States”), the federal government, and the People.
2. Principles for State-Federal Relations
The federal government may exercise only the duties and powers enumerated by the Constitution and must not infringe upon powers reserved to the States.
To ensure the proper balance between state and federal sovereignty, governors consider the following principles when evaluating any federal action, including legislation, regulations, executive orders, or administrative guidance.
2.1 Exercise Federal Forbearance in Federal Action. Governors expect that federal action will:
- Be limited to situations in which constitutional authority for action is explicit and enumerated.
- Address only problems that are national in scope and where individual States or regional compacts prove to be inadequate to address an issue.
- Respect each State’s ability to be nimble, innovate, adapt to local conditions and solve common problems.
- Unless the national interest is at risk, federal action should not preempt state action. But if that proves to be the case, Congress must clearly state its intent to preempt state law and congressional action must always fall within the delineated confines with in the Constitution; preemption shall never be presumed; and preemption shall not displace supplemental state statutes absent a clearly articulated national interest.
2.2 Avoid Federal Preemption of State Laws and Policies. Governors recognize that federal intervention is occasionally necessary to address issues of legitimate national concern. Preemption of state laws must be the exception rather than the rule. In areas of traditional state responsibility, such as education, public health and safety, family law, elections, insurance regulation, contract and private property, torts, criminal justice, preservation of the dual banking system, business regulations, state securities regulation, and the management of state personnel programs, preemption is highly discouraged.[4]
2.2.1 Consistent and high standards must be preserved. State laws may be preempted only by an Act of Congress.[5] Congress should preempt state laws only to the extent necessary to achieve a clearly stated national objective and, when doing so, federal legislation should:
- accommodate state actions taken before its enactment, where possible;
- permit States that have developed stricter standards to continue to enforce them;
- permit States that have developed similar standards to continue to adhere to them; and
- permit States to enforce any national standards enacted.
2.2.2 Congress should respect state revenue systems. The authority of States to develop and manage their own revenue systems is a basic tenet of state sovereignty and our federalist system. Federal intrusion violates state sovereignty and disrupts state budgets.
The federal government must not take action that impacts state revenues without constitutional and statutory authority.
2.2.3 The judicial branch should respect state authority. Governors encourage federal courts to adhere to the Tenth Amendment and the reach of Congress’s Commerce Clause authority.
In addition, court-ordered remedies should respect state authority by limiting the time and scope of injunctive relief to only what is necessary to restore constitutional rights. Federal courts should begin with a presumption that state laws are valid.
2.3 Oppose Unfunded Federal Mandates. The federal government should avoid imposing unfunded mandates on States.
The federal government increasingly relies on States to carry out policy initiatives without providing necessary funding to pay for these programs. State governments cannot function as equal partners in our federal system if the federal government requires States to devote their limited resources toward complying with unfunded federal mandates.
2.4 Designing Federal-State Programs. To provide for innovation, efficiency and cross-program coordination, federal-state programs should meet the following principles:
- States must be actively involved in developing policy and administrative procedures.
- Federal agencies must consult with States and the NGA prior to promulgating rules affecting state authority. Failing to do so shall weigh heavily on the NGA’s evaluation of the proposal.
- The federal government and Congress must respect the authority of States to determine administrative and financial responsibilities in accordance with state constitutions and statutes. Federal legislation shall not encroach on this authority.
- Legislation should appropriate sufficient funds to meet identified program objectives.
- Federal assistance funds should flow through States according to state laws and procedures.
- States should be given flexibility to transfer a limited amount of funds from one grant program to another, or to administer related grants in a coordinated manner.
- Federal funds should provide maximum state flexibility without specific set-asides.
- States should be given broad flexibility in establishing federally mandated advisory groups, including combining groups in related programs.
- Federal government monitoring should be outcome oriented.
- Federal reporting requirements imposed on the States should be minimized.
- The federal government may not dictate state or local government organization.
- Absent emergency conditions, States should have ample time to implement new, major intergovernmental regulations or significant changes to existing federal-state programs.
2.5 Treat States as Equal Partners. At its founding, the Constitution created a federal government of limited, enumerated powers, reserving all powers not delegated to the federal government to the states or the people. This intentional division of authority reflects the principle of federalism and recognizes states as sovereign partners within our constitutional system.
States retain the right to decline participation in federal programs without retaliation.[6] Conditions on federal funding must be expressed in statute, ascertainable and unambiguous, germane to the purpose of the program, and proportionate in scale.[7] The federal government may not condition federal funding on adoption of unrelated policies or partisan political alignment.
Relatedly, the federal government may not require States to enforce federal laws or its policy goals.[8] Federal law enforcement officials should work cooperatively with state and local law enforcement.
The Governors are the Commanders-in-Chief of their respective National Guards. The President should first seek the consent of a State’s Governor before federalizing or deploying a State’s National Guard and do so only when regular federal resources are insufficient. Additionally, absent rare and extraordinary circumstances, the President should not deploy or transition a State’s National Guard from one state to another without the consent of both the sending and receiving states’ Governors.
2.6 Emerging Intergovernmental Conflicts. In future areas of potential intergovernmental conflict, the States will reasonably expect that federal action adhere to the constitutional balance of power principles articulated herein. Emerging areas of potential intergovernmental concern include – but are not limited to – state primacy over elections, artificial intelligence, digital privacy and social media regulation, emergency management and recovery, environmental standards, federal land management, immigration, infrastructure, use of a state’s National Guard, and other areas where the federal government is inadequately or ineffectively addressing a matter of national interest from the point of view of the States.
3. Defending Federalism
Governors have an obligation to protect their States’ sovereignty and defend principles of federalism.
Governors defend federalism, in appropriate circumstances, by publicly criticizing federal government overreach, bringing legal challenges to federal action, and declining to use state resources to enforce federal law or further federal policy objectives, among other things.[9]
States lack authority to nullify federal laws, and Governors should scrupulously avoid suggesting otherwise.
4. Conclusion
Governors are committed to a vibrant, strong, and constitutional partnership with the federal government, which is necessary to preserve freedom and the rule of law.
To ensure constitutional balance of power in America’s federalist system and to place these principles squarely in the context of modern governing realities, this document shall be subject to review at regular intervals to be determined by the Executive Committee.
Upon adoption by the Executive Committee these principles shall become permanent policy and remain in effect until they are amended or revoked by vote of the NGA Executive Committee.
Adopted Annual Meeting 1993; revised Winter Meeting 1994, Annual Meeting 1994, Annual Meeting 1995, Winter Meeting 1996, Winter Meeting 1997, Annual Meeting 2005, Winter Meeting 2012, Summer Meeting 2015, and September 2026.
[1] See, e.g., United States v. Lopez, 514 U.S. 549, 552 (1995); The Federalist No. 45, pp. 292-293 (C. Rossiter ed. 1961).
[2] Jacobson v. Massachusetts, 197 U.S. 11, 24-25 (1905) (defining police power as the States’ power to enact laws to “protect the public health and the public safety” within their own territory and noting that States “did not surrender [this power] when becoming a member of the Union under the Constitution); Lopez, 514 U.S. at 564 (recognizing States’ traditional powers to regulate family law, criminal law enforcement, education). See also Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 535-36 (2012) (same); Moore v. Harper, 600 U.S. 1, 9 (2023) (same for conduct of elections).
[3] See Gregory v. Ashcroft, 501 U.S. 452, 458 (1991).
[4] Wyeth v. Levine, 555 U.S. 555, 565 (2009) (“In all pre-emption cases, and particularly in those in which Congress has legislated in a field which the States have traditionally occupied, we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.”) (cleaned up).
[5] See Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996) (“[T]he purpose of Congress is the ultimate touchstone in every pre-emption case.”).
[6] Sebelius, 567 U.S. at 577-78.
[7] Id. at 580-81 (2012); South Dakota v. Dole, 483 U.S. 203, 208-09 (1987).
[8] Printz v. United States, 521 U.S. 898, 917 (1997).
[9] Massachusetts v. Mellon, 262 U.S. 447, 482 (1923).
