In the law of the United States, federal preemption is the invalidation of a U.S. state law that conflicts with federal law.
The law of the United States comprises many levels of codified and uncodified forms of law, the supreme of which is the United States Constitution, the foundation of the federal government of the United States. The Constitution sets out the boundaries of federal law, which consists of Acts of Congress, treaties ratified by the Senate, regulations promulgated by the executive branch, and case law originating from the federal judiciary. The United States Code is the official compilation and codification of general and permanent federal statutory law.
In the United States, a state is a constituent political entity, of which there are currently 50. Bound together in a political union, each state holds governmental jurisdiction over a separate and defined geographic territory and shares its sovereignty with the federal government. Due to this shared sovereignty, Americans are citizens both of the federal republic and of the state in which they reside. State citizenship and residency are flexible, and no government approval is required to move between states, except for persons restricted by certain types of court orders.
The federal government of the United States is the national government of the United States, a federal republic in North America, composed of 50 states, a federal district, five major self-governing territories and several island possessions. The federal government is composed of three distinct branches: legislative, executive and judicial, whose powers are vested by the U.S. Constitution in the Congress, the president and the federal courts, respectively. The powers and duties of these branches are further defined by acts of Congress, including the creation of executive departments and courts inferior to the Supreme Court.
According to the Supremacy Clause (Article VI, clause 2) of the United States Constitution,
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 are supreme only if they do not contravene the 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 trump, 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.
Concurrent powers are powers of a federal system of government shared by both the federal government and each constituent political unit. These powers may be exercised simultaneously within the same territory, in relation to the same body of citizens, and regarding the same subject-matter. Concurrent powers are contrasted with reserved powers and with exclusive federal powers.
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).
Bates v. Dow Agrosciences LLC, 544 U.S. 431 (2005), was a case in which the Supreme Court of the United States held that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) did not preempt state law claims, brought by a group of Texas farmers, alleging that one of Dow's pesticides damaged their peanut crop.
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.
(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.
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 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
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).
Under the Supremacy Clause, any state law that conflicts with a federal law is preempted.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.
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).
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. Most important is a fresh start for the honest but unfortunate debtor and equality of distribution to creditors. Since state law governs most contracts, and contracts usually form the basis for debt, there is a lot of overlap between state laws and bankruptcy.
This overlap is ripe for preemption wherever state law interferes with either the debtor's fresh start or a creditor's right to equal distribution.
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.The distinction between commandeering and preemption was 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. 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. 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." 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", 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."
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 or hold liable a generic drug manufacturer for adding additional information to the FDA-approved label.Express preemption "operates in essentially the same way, but this is often obscured by the language used by Congress in framing preemption provisions." 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."
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."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." 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." 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.
Article IV, Section 1 of the United States Constitution, the Full Faith and Credit Clause, addresses the duties that states within the United States have to respect the "public acts, records, and judicial proceedings of every other state." According to the Supreme Court, there is a difference between the credit owed to laws as compared to the credit owed to judgments. Judgments are generally entitled to greater respect than laws, in other states. At present, it is widely agreed that this Clause of the Constitution has a minimal impact on a court's choice of law decision provided that no state’s sovereignty is infringed, although this Clause of the Constitution was once interpreted to have greater impact.
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.
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.
To determine whether the Sherman Antitrust Act preempts a state law, courts will engage in a two-step analysis, as set forth by the Supreme Court in Rice v. Norman Williams Co..
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 US 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.
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. ___ (2014), was 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.
Ingersoll-Rand Co. v. McClendon, 498 U.S. 133 (1990), is a US labor law case, concerning the scope of labor rights in the United States.
Machinists v. Wisconsin Employment Rel. Comm'n, 427 U.S. 132 (1976), is a US labor law case, concerning the scope of federal preemption against state law for labor rights.
Chamber of Commerce v. Brown, 554 U.S. 60 (2008), is a US labor law case, concerning the scope of federal preemption against state law for labor rights.
Building & Construction Trades Council v. Associated Builders & Contractors of Massachusetts/Rhode Island, Inc., 507 U.S. 218 (1993), is a US 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. ___ (2018), 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 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.