Federal preemption

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In the law of the United States, federal preemption is the invalidation of a U.S. state law that conflicts with federal law.

Contents

Constitutional basis

According to the Supremacy Clause (Article VI, clause 2) of the United States Constitution,

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the Supreme law of the land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

As the Supreme Court stated in Altria Group v. Good , 555 U.S. 70 (2008), a federal law that conflicts with a state law will overtake, or "preempt", that state law:

Consistent with that command, we have long recognized that state laws that conflict with federal law are "without effect". Maryland v. Louisiana , 451 U. S. 725, 746 (1981)

Although many concurrent powers are subject to federal preemption, some are usually not, such as the power to tax private citizens. [1]

Intent of Congress presumed to be deference to states

In Altria Group v. Good, the Court wrote:

When the text of a pre-emption clause is susceptible of more than one plausible reading, courts ordinarily "accept the reading that disfavors pre-emption. Bates v. Dow Agrosciences LLC , 544 U.S. 431, 449 (2005).

In Wyeth v. Levine (2009), the Court emphasized what it called the "two cornerstones" of pre-emption jurisprudence:

First, "the purpose of Congress is the ultimate touchstone in every pre-emption case". Medtronic, Inc. v. Lohr , 518 U. S. 470, 485 (1996) (internal quotation marks omitted); see Retail Clerks v. Schermerhorn, 375 U. S. 96, 103 (1963). [Medtronic: "[O]ur analysis of the scope of the statute's pre-emption is guided by our oft-repeated comment, initially made in Retail Clerks v. Schermerhorn, 375 U.S. 96, 103, ... (1963), that 'the purpose of Congress is the ultimate touch-stone' in every pre-emption case."] Second, "[i]n 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 we 'start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress'." Lohr, 518 U. S., at 485 (quoting Rice v. Santa Fe Elevator Corp. , 331 U. S. 218, 230 (1947) ).

See also Reilly, 533 U. S., at 541–542 (citation omitted):

Because "federal law is said to bar state action in [a] fiel[d] of traditional state regulation", namely, advertising, we "wor[k] on the assumption that the historic police powers of the States [a]re not to be superseded by the Federal Act unless that [is] the clear and manifest purpose of Congress.

Federal agency administration guiding principles

(Mandatory authority for independent agencies created by executive order and Cabinet departments; not binding on judicially-created tribunals; congressionally-created independent regulatory agencies are encouraged to comply)

Executive Order 13132 of August 4, 1999 – See 64 Fed. Reg. 43, 255 – August 10, 1999, Sec. 4. Special Requirements for Preemption.

Agencies, in taking action that preempts State law, shall act in strict accordance with governing law.

(a) Agencies shall construe, in regulations and otherwise, a Federal statute to preempt State law only where the statute contains an express preemption provision or there is some other clear evidence that the Congress intended preemption of State law, or where the exercise of State authority conflicts with the exercise of Federal authority under the Federal statute.

(b) Where a Federal statute does not preempt State law (as addressed in subsection (a) of this section), agencies shall construe any authorization in the statute for the issuance of regulations as authorizing preemption of State law by rulemaking only when the exercise of State authority directly conflicts with the exercise of Federal authority under the Federal statute or there is clear evidence to conclude that the Congress intended the agency to have the authority to preempt State law.

(c) Any regulatory preemption of State law shall be restricted to the minimum level necessary to achieve the objectives of the statute pursuant to which the regulations are promulgated.

(d) When an agency foresees the possibility of a conflict between State law and Federally protected interests within its area of regulatory responsibility, the agency shall consult, to the extent practicable, with appropriate State and local officials in an effort to avoid such a conflict.

(e) When an agency proposes to act through adjudication or rulemaking to preempt State law, the agency shall provide all affected State and local officials notice and an opportunity for appropriate participation in the proceedings.

Evidence of Congressional intent to preempt

In Altria Group v. Good , the Court reiterates that "Congress may indicate pre-emptive intent" in two ways: "through a statute's express language or through its structure and purpose. See Jones v. Rath Packing Co. , 430 U. S. 519, 525 (1977)".

Express preemption

Express preemption occurs only when a federal statute explicitly confirms Congress's intention to preempt state law. English v. General Elec. Co., 496 U.S. 72 (1990). "If a federal law contains an express pre-emption clause, it does not immediately end the inquiry because the question of the substance and scope of Congress' displacement of state law still remains." Altria Group v. Good. However, legislative preemption of federal common law does not implicate the same federalism concerns that require clear expressions of congressional intent before state law may be preempted. [2]

Implied preemption

Implied preemption can occur in two ways: field preemption or conflict preemption. Massachusetts Ass'n of HMOs v. Ruthardt , 194 F.3d 176, 179 (1st Cir. 1999).

Conflict preemption

Under the Supremacy Clause, any state law that conflicts with a federal law is preempted. [3] Conflict arises when it is impossible to comply with both the state and federal regulations, or when the state law interposes [(to) put up (between)] an obstacle to the achievement of Congress's discernible objectives. [4]

Actual conflict
A conflict exists if a party cannot comply with both state law and federal law (for example, if state law forbids something that federal law requires). [5]
Obstacle
In addition, even in the absence of a direct conflict between state and federal law, a conflict exists if the state law is an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. [6] In Sperry v. Florida, 373 U.S. 379 (1963), the U.S. Supreme Court determined that a patent agent who was not a licensed attorney and was authorized to practice before the U.S. Patent Office pursuant to a federal statute could not be barred by Florida from continuing to practice as a patent agent in Florida, where the Florida Supreme Court determined that he was guilty of the unauthorized practice of law. The U.S. Supreme Court affirmed the constitutionality of the law authorizing the Patent Office to regulate patent agents, finding it within the scope of what was necessary and proper for Congress to exercise its authority under the Patent Clause and therefore did not violate the Tenth Amendment. [7]
Minimum safety standard vs. uniform safety standard
Often there may be a question of frustration of congressional purpose or the state law standing as an obstacle to congressional intent. This will raise a question of whether congressional or administrative intent in passing the law was uniformity or minimum national safety standards. Congressional intent may be to allow States to pass laws that will "establish greater safety than the minimum safety achieved by a federal regulation intended to provide a floor". [8]
Alternatively, the purpose of a federal law could be to set a uniform national standard. This was the case in Geier v. American Honda Motor Co., where the National Traffic and Motor Vehicle Safety Act of 1966 required auto manufacturers to equip a certain number of their 1987 vehicles with passive restraints. [9] The question before the Supreme Court was whether the Act pre-empted state common-law tort claims saying that the auto manufacturer, although in compliance with the Act, "should nonetheless have equipped a 1987 automobile with airbags". The court indicated that, despite a savings clause, the statute "reflects a desire to subject the industry to a single, uniform set of federal safety standards. Its pre-emption of all state standards, even those that might stand in harmony with federal law, suggests an intent to avoid conflict, uncertainty, cost, and occasional risk to safety itself that too many different safety–standard cooks might otherwise create." [10]

Field preemption

Even without a conflict between federal and state law or an express provision for preemption, the courts will infer an intention to preempt state law if the federal regulatory scheme is so pervasive as to "occupy the field" in that area of the law, i.e. to warrant an inference that Congress did not intend the states to supplement it. Gade v. National Solid Wastes Mgmt. Ass'n , 505 U.S. 88, 98 (1992). See also Rice v. Santa Fe Elevator Corp. For example, the courts have held that the National Labor Relations Act (NLRA) preempts state laws directed at conduct actually or arguably prohibited or protected by the NLRA or conduct Congress intended to leave unregulated. San Diego Bldg. Trades Council v. Garmon , 359 U.S. 236, 244 (1959); Machinists v. Wisconsin Emp. Rel. Commission , 427 U.S. 132, 140–48 (1976).

Preemption in bankruptcy courts

The Bankruptcy Code, which is codified as title 11 of the United States Code, is the uniform federal law that governs all bankruptcy cases.

There are several purposes behind the enactment of the law in its current form. The most important is a fresh start for the honest but unfortunate debtor and equality of distribution to creditors. Since state law governs most contracts, which usually form the basis for debt, there is much overlap between state laws and bankruptcy.

That overlap is ripe for preemption wherever state law interferes with either the debtor's fresh start or a creditor's right to equal distribution such as in the following examples:

Distinction from commandeering

Congress may enact federal law that supersedes, or preempts, state law, which makes it invalid. Under the Tenth Amendment, Congress may not make a law that forces a state government to take some action that it would not have otherwise taken. [12] The distinction between commandeering and preemption was at issue in Murphy v. NCAA , a case in which New Jersey repealed laws criminalizing sports betting while a federal law prevented states providing that states may not "sponsor, operate, advertise, promote, license, or authorize by law or compact" sports gambling. [13] [14] [15] The court rejected the respondents' argument that the anti-authorization provision was a valid preemption of state law under the Supremacy Clause of the U.S. Constitution. [16] The Supremacy Clause, the court pointed out, "is not an independent grant of legislative power to Congress" but "[i]nstead, it simply provides a rule of decision." [17] For a federal provision to validly preempt state law, "it must represent the exercise of a power conferred on Congress by the Constitution[,] pointing to the Supremacy Clause will not do", [18] and "since the Constitution confers upon Congress the power to regulate individuals, not States, [the] provision at issue must be best read as one that regulates private actors." [19]

The court then outlined the three types of preemption, illustrated with cases. In Mutual Pharmaceutical Co. v. Bartlett , an example of conflict preemption, federal law enacted under Congress' Commerce Clause authority prohibited generic drug manufacturers from changing the composition or labeling of drugs approved by the Federal Drug Administration, thus state tort law could not force a generic drug manufacturer to add additional information to the FDA-approved label or hold it liable for not doing so. [20] Express preemption "operates in essentially the same way, but this is often obscured by the language used by Congress in framing preemption provisions." [21] The court illustrated express preemption with Morales v. Trans World Airlines concerning a provision of the Airline Deregulation Act that used language that seemed directed to the states and similar to the issue in Murphy:

[T]o ensure that the States would not undo federal deregulation with regulation of their own, the Act provided that 'no State or political subdivision thereof...shall enact or enforce any law, rule, regulation, standard, or other provision having the force and effect of law relating to rates, routes, or services of any [covered] air carrier.' This language might appear to operate directly on the States, but it is a mistake to be confused by the way in which a preemption provision is phrased. As we recently explained, we do not require Congress to employ a particular linguistic formulation when preempting state law. And if we look beyond the phrasing employed in the Airline Deregulation Act’s preemption provision, it is clear that this provision operates just like any other federal law with preemptive effect. It confers on private entities (i.e., covered carriers) a federal right to engage in certain conduct subject only to certain (federal) constraints." [22]

The court then explained that field preemption, the third type of preemption, occurs when federal regulation of a "'field' of regulation [is] so comprehensive[] that it has left no room for supplementary state legislation." [23] The court noted that even it used the same sort of abbreviated description as Congress has done in express preemption, such as involved in Morales, in a 2015 case where the court described field preemption: "Congress has forbidden the State to take action in the field that the federal statute pre-empts." [24] However, "in substance, field preemption does not involve congressional commands to the States", but "like all other forms of preemption, it concerns a clash between a constitutional exercise of Congress’s legislative power and conflicting state law." [25] The court then explained why preemption was not applicable to the PASPA provision prohibiting states from authorizing sports betting:

In sum, regardless of the language sometimes used by Congress and this Court, every form of preemption is based on a federal law that regulates the conduct of private actors, not the States. Once this is understood, it is clear that the PASPA provision prohibiting state authorization of sports gambling is not a preemption provision because there is no way in which this provision can be understood as a regulation of private actors. It certainly does not confer any federal rights on private actors interested in conducting sports gambling operations. (It does not give them a federal right to engage in sports gambling.) Nor does it impose any federal restrictions on private actors. If a private citizen or company started a sports gambling operation, either with or without state authorization, §3702(1) would not be violated and would not provide any ground for a civil action by the Attorney General or any other party. Thus, there is simply no way to understand the provision prohibiting state authorization as anything other than a direct command to the States. And that is exactly what the anticommandeering rule does not allow. [26]

See also

Related Research Articles

Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132 (1963), was a 1963 decision of the United States Supreme Court in which the Court declined to invalidate a California law that imposed minimum fat content standards on avocados sold in the state, including those imported from other states. The law prohibited the sale of avocados that did not contain at least 8% oil by weight. Florida, a major avocado producer, employed, for wholesale marketing purposes, a federal standard unrelated to oil content. Most Florida avocados that were marketable at home failed to meet the California standard, because they were a different variety from those sold in California, with a lower fat content. Accordingly, Florida avocado growers brought this suit, arguing (unsuccessfully) that the California law (1) was preempted by federal law, (2) violated equal protection, and (3) unduly burdened and interfered with their right to engage in interstate commerce. The case is widely used in law school casebooks on constitutional law and federal jurisdiction as illustrative of preemption issues.

California Federal S. & L. Assn. v. Guerra, 479 U.S. 272 (1987), is a US labor law case of the United States Supreme Court about whether a state may require employers to provide greater pregnancy benefits than required by federal law, as well as the ability to require pregnancy benefits to women without similar benefits to men. The court held that The California Fair Employment and Housing Act §12945(b)(2), which requires employers to provide leave and reinstatement to employees disabled by pregnancy, is consistent with federal law.

FDA preemption is the legal theory in the United States that products licensed or otherwise approved for use by the Food and Drug Administration (FDA) are exempt from various state efforts to preclude their use. It has been raised as a counter to both direct efforts to ban such products, and as a defense against tort claims regarding such products. The doctrine hinges on the assertion of Congressional intent to designate FDA as the national clearinghouse for determinations of the safety of pharmaceutical products, and the Supremacy Clause of the Constitution of the United States placing federal law over state law.

Altria Group v. Good, 555 U.S. 70 (2008), was a United States Supreme Court case in which the Court held that a state law prohibiting deceptive tobacco advertising was not preempted by a federal law regulating cigarette advertising.

Wyeth v. Levine, 555 U.S. 555 (2009), is a United States Supreme Court case holding that Federal regulatory approval of a medication does not shield the manufacturer from liability under state law.

Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141 (1989), is a decision of the United States Supreme Court holding a state anti-plug molding law preempted because it partially duplicated and therefore interfered with the balance Congress had struck by federal patent law. The decision reaffirmed the Supreme Court's earlier decision in Sears, Roebuck & Co. v. Stiffel Co. (1964), which held a state unfair competition law preempted on the same ground.

In Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Commission, 461 U.S. 190 (1983), the United States Supreme Court held that a state statute regulating economic aspects of nuclear generating plants was not preempted by the federal Atomic Energy Act of 1954. The case provides a framework that has guided other cases involving preemption of federal authority.

Hines v. Davidowitz, 312 U.S. 52 (1941), is a case applying the law of conflict preemption. The United States Supreme Court held that a Pennsylvania state system of alien registration was superseded by a federal system because it was an "obstacle to the accomplishment" of its goals.

English v. General Electric, 496 U.S. 72 (1990), was a United States Supreme Court case in which the Court held that state-law claim for intentional infliction of emotional distress is not pre-empted by the Energy Reorganization Act of 1974.

Rice v. Norman Williams Co., 458 U.S. 654 (1982), was a decision of the U.S. Supreme Court involving the preemption of state law by the Sherman Act. The Supreme Court held, in a 9–0 decision, that the Sherman Act did not invalidate a California law prohibiting the importing of spirits not authorized by the brand owner.

United States v. Locke, 529 U.S. 89 (2000), was a United States Supreme Court case in which the Court unanimously held that certain state regulations regarding oil tankers and oil barges are preempted under the Supremacy Clause of the United States Constitution in deference to the extensive body of federal regulations affecting these classes of vessels.

Gade v. National Solid Wastes Management Association, 505 U.S. 88 (1992), is a United States labor law case of the United States Supreme Court. The Court determined that federal Occupational Safety and Health Administration regulations preempted various Illinois provisions for licensing workers who handled hazardous waste materials.

The Supremacy Clause of the Constitution of the United States establishes that the Constitution, federal laws made pursuant to it, and treaties made under its authority, constitute the "supreme Law of the Land", and thus take priority over any conflicting state laws. It provides that state courts are bound by, and state constitutions subordinate to, the supreme law. However, federal statutes and treaties must be within the parameters of the Constitution; that is, they must be pursuant to the federal government's enumerated powers, and not violate other constitutional limits on federal power, such as the Bill of Rights—of particular interest is the Tenth Amendment to the United States Constitution, which states that the federal government has only those powers that are delegated to it by the Constitution.

Williamson v. Mazda Motor of America, Inc., 562 U.S. 323 (2011), was a decision by the Supreme Court of the United States, in which the Court unanimously held that Federal Motor Vehicle Safety Standard 208, promulgated by the National Highway Traffic Safety Administration, does not federally preempt state tort lawsuits against auto manufacturers from injuries caused by a defective lack of certain types of seat belts.

POM Wonderful LLC v. Coca-Cola Co., 573 U.S. 102 (2014), was a United States Supreme Court case that held that a statutory private right of action under the Lanham Act is not precluded by regulatory provisions of the Food, Drug, and Cosmetic Act.

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<i>Chamber of Commerce v. Brown</i> 2008 United States Supreme Court case

Chamber of Commerce v. Brown, 554 U.S. 60 (2008), is a United States labor law case, concerning the scope of federal preemption against state law for labor rights.

Murphy v. National Collegiate Athletic Association, No. 16-476, 584 U.S. 453 (2018) [138 S. Ct. 1461], was a United States Supreme Court case involving the Tenth Amendment to the United States Constitution. The issue was whether the U.S. federal government has the right to control state lawmaking. The State of New Jersey, represented here by Governor Philip D. Murphy, sought to have the Professional and Amateur Sports Protection Act (PASPA) overturned, allowing state-sponsored sports betting. The case, formerly titled Christie v. National Collegiate Athletic Association until Governor Chris Christie left office, was combined with NJ Thoroughbred Horsemen v. NCAA No. 16-477.

Nixon v. Missouri Municipal League, 541 U.S. 125 (2004), is a U.S. Supreme Court case decided on March 24, 2004. The case concerned the Federal Communications Commission’s ability to preempt state law under § 253(a) of the Telecommunications Act of 1996.

Gregory v. Ashcroft, 501 U.S. 452 (1991) was a U.S. Supreme Court case. It concerned a provision in the Missouri state constitution that required state judges to retire at the age of 70, and the court was asked to consider whether it conflicted with the 1967 federal Age Discrimination in Employment Act (ADEA) and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The provision was upheld, with the case being one of several Supreme Court decisions supporting the principle that "ambiguous language will not be interpreted to intrude on areas of traditional state authority or important state governmental functions".

References

  1. ↑ Zimmerman, Joseph. The Initiative, Second Edition: Citizen Lawmaking, p. 78 (SUNY Press, 2014).
  2. ↑ City of Milwaukee v. Illinois, 451 U.S. 304 (1981).
  3. ↑ Gibbons v. Ogden , 22 U.S. 1 (1824).
  4. ↑ Gade v. National Solid Wastes Mgmt. Ass'n , 505 U.S. 88, 98 (1992).
  5. ↑ Florida Lime & Avocado Growers, Inc. v. Paul , 373 U.S. 132, 142–43 (1963).
  6. ↑ Crosby v. National Foreign Trade Council , 530 U.S. 363, 372–73 (2000).
  7. ↑ Sperry v. Florida, 373 U.S. 379 (1963)
  8. ↑ Geier v. American Honda Motor Co. , 529 U.S. 861, 870, 120 S. Ct. 1913, 146 L. Ed. 2d 914 (2000).
  9. ↑ Geier, 529 U.S. at 864–865
  10. ↑ Geier, 529 U.S. at 871
  11. ↑ "Google Scholar". scholar.google.com. Retrieved April 30, 2018.
  12. ↑ Conant v. Walters , 309F.3d629 (9th Cir.October 29, 2002).
  13. ↑ de Vogue, Ariane (December 4, 2017). "Chris Christie goes to the Supreme Court on sports betting". CNN. Archived from the original on December 4, 2017. Retrieved December 4, 2017.
  14. ↑ Stern, Mark Joseph (December 4, 2017). "Chris Christie's Big Gamble: The Supreme Court appears poised to let every state authorize sports betting". Slate. Archived from the original on December 9, 2017.
  15. ↑ Schwartz, Davis (March 21, 2013). "High Federalism: Marijuana Legalization and the Limits of Federal Power to Regulate States". Cardozo Law Review. 35 (567). SSRN   2237618.
  16. ↑ Murphy, slip op. at 21–24
  17. ↑ Murphy, slip op. at 21
  18. ↑ Murphy, slip op. at 21
  19. ↑ Murphy, slip op. at 21 (internal citation and quotation marks removed)
  20. ↑ Murphy, slip op. at 22 (citing Mutual Pharmaceutical Co. v. Bartlett, 570 U.S. 472 (2013)).
  21. ↑ Murphy, slip op. at 21
  22. ↑ Murphy, slip op. at 22–23 (quoting 49 U. S. C. App. §1305(a)(1) (1988 ed.))(internal citations and some internal quotation marks removed)
  23. ↑ Murphy, slip op. at 23 (internal punctuation altered)
  24. ↑ Murphy, slip op. at 23 (quoting Oneok, Inc. v. Learjet, Inc., slip op. at 2 (2015))
  25. ↑ Murphy, slip op. at 23
  26. ↑ Murphy, slip op. at 23–24
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