The House Committee on Government Reform shelved a scheduled markup on Thursday after failing to round up enough votes to pass out legislation that seeks to curtail federal preemption of state and local laws through a number of sweeping -- and potentially dangerous -- legislative strokes. Not only did the public interest community weigh in with strong opposition to the bill (H.R. 2245), but so too did the U.S. Chamber of Commerce. In a letter to committee members, the Chamber stated, "H.R. 2245 would dramatically change the law dealing with federal preemption in ways that would make it much more difficult to craft and enact meaningful legislation that addresses national problems." Meanwhile, the Senate Governmental Affairs Committee reported its version of the federalism bill (S. 1214) to the floor on Tuesday, though after considerably toning down its most problematic aspects. Most significant, an amendment by Sen. Fred Thompson (R-TN) (which was strengthened with a second degree amendment by Sen. Carl Levin (D-MI)) would restrict lawsuits over the bill's provisions, which require, among other things, that agencies analyze federal preemption issues as part of their rulemakings. Not only would business be prohibited from bringing suits under the bill -- only state and local officials, as well as their representative organizations, such as the National Governors' Association, would have standing -- courts would be barred from looking at the contents of agency "federalism assessments," and could look only at whether it was done at all. This is especially important since so many of the bill's requirements are very broad and extremely vague, and thus would have left agencies wide open for court challenges. For instance, the bill requires that agencies determine "the extent of" federal preemption of state and local laws. This broad requirement could be interpreted to require that agencies be expected to pick through the details of every state and local law that might be preempted, which would be unimaginably time-consuming. An amendment from Joseph Lieberman (D-CT) was also accepted during markup, stripping the bill's most objectionable provision, which stated that any ambiguity in any federal statute be construed by the courts in favor of the states. This sweeping provision would have severely undermined federal assurances, creating the risk that unintentional ambiguities in federal statutes -- dealing with issues from environmental protection to worker health to food safety -- would be exploited in the courts to frustrate the will of Congress. Another important amendment by Thompson fixed a problem that would have given state and local officials virtual veto authority over the way agencies choose to measure their own performance under the Government Performance and Results Act. Under the amendment's language, agencies only need to "consult" with state and local officials while setting their performance measures. Still, even with the improvements made during markup, problems remain. S. 1214's requirements could still prove burdensome to agencies, and would lead to an increase in lawsuits, even though the threat of judicial review has been somewhat mitigated. Moreover, the bill would undermine and muddle current court doctrine on preemption. Where Congress or an agency intends to preempt state or local law, the bill requires that there be a specific statement of preemption within the legislation or rule. Where no such statement has been included, state and local laws would have presumed authority. While it is always desirable for Congress to be clear in expressing its intent, this formulation ignores the fact that courts already have well-developed principles for dealing with preemption cases -- which give a great deal of deference to state and local governments -- and could have the effect of encouraging litigation to test the new parameters laid out in the bill. In related news, President Clinton issued a new executive order on federalism on Wednesday (8/4) that replaces a largely unenforced federalism executive order from the Reagan Administration. The order calls on agencies to consider federalism impacts and to consult with state and local officials as part of their rulemakings. Unlike the federalism legislation, however, the executive order is not subject to judicial review. The E.O. can be retrieved from the White House web page.