Preemption

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• Preemption
• April 5, 2006

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Restrictions on State Action

• Federal Constitution
• Art. I, 10
• No state shall enter into any treaty, alliance,
  or con-federation grant letters of marque and
  reprisal etc.
• 14th Amendment
• No State shall make or enforce any law which
  shall abridge the privileges or immunities of
  citizens etc.

Notice These provisions are self-executing
they do not require any implementing legis-lation
by congress. States are forbidden to act in
these ways even when congress is silent
Preclusion
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Restrictions on State Action

• Federal Constitution
• Art. VI, 2
• 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, anything in
  the constitution or laws of any State to the
  contrary notwithstanding.

Notice Supremacy of laws of the US is not
self-executing it comes into play only when
congress passes legislation, or other branch of
federal government creates law
Preemption
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Restrictions on State Action

• Federal Constitution
• Art. VI, 2
• 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, anything in
  the constitution or laws of any State to the
  contrary notwithstanding.

• State Law is Preempted when
• It is contrary to federal law, and
• The federal law is valid

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When is state law contrary?

• Two forms of preemption
• Express preemption
• Federal law explicitly prohibits states from
  acting
• Any state law on the subject would be contrary
  to fed. law
• Note Federal law may explicitly permit states to
  act
• Implied preemption
• Federal law is silent on whether states can act,
  but
• The context is such that it is impossible for
  both state and federal law to act simultaneously
  one has to yield
• State law frustrates (conflicts with) congress
  purpose
• Federal law is so comprehensive as to leave no
  room for supplemental state regulation (any state
  involvement would be contrary to federal
  regulation)

Conflict preemption
Field preemption
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Preemption - Overview

• Does fed law explicitly describe preemption?
• Yes Express Non-Preemption supplemental
• Ex 15 USC 78bb  Effect on existing Securities
  laws
• Except as provided in section (f), the rights
  and remedies provided by this title shall be in
  addition to any and all other rights and remedies
  that may exist at law or equity
• Yes Express Preemption (1) exclusive
• 23 USCS 127 Vehicle weight--Interstate System
• No State may enact or enforce any law denying
  reasonable access to motor vehicles subject to
  this title to and from the Interstate Highway
  System to terminals and facilities for food,
  fuel, repairs, and rest.

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Preemption - Overview

• Does fed law explicitly describe preemption?
• Yes Express Preemption (2) no inconsistency
• 15 USC 1203(a) Flammable Fabrics
• no State or political subdivision of a State
  may establish or continue in effect a
  flammability standard or other regulation for
  such fabric unless the State or political
  subdivision standard or other regulation is
  identical to the Federal standard or other
  regulation
• Yes Express Non/Preemption (3) minimums
• 15 USC 1203(b) any State or political
  subdivision of a State may establish and continue
  in effect a flamma-bility standard for its own
  use that provides a higher degree of protection
  from fire

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Preemption - Overview

• Express preemption
• Whenever congress expressly preempts state law,
  you must determine the preemptive scope
• Ex preemption for flammable fabrics may cover
  only fire safety standards, not labor or
  environmental standards regarding manufacture of
  such fabrics
• If congress has not expressly preempted, Consider
  Implied Preemption

congressional intent is the touch-stone of
implied preemption
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Preemption - Overview

• Theories of implied preemption
• Conflict through physical impossibility
• Federal law cars must have 3rd brake light
• State law cars cannot have 3rd brake light
• Conflict through frustration of purpose
• Federal law cant sell unsafe dietary
  supplements
• State law cant sell dietary supplements
• Occupation of the field
• Federal law comprehensive nuclear safety
  standards
• State law nuclear energy is unsafe no power
  plants

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Gade v. Solid Waste Mgmt (1992)

• Issue
• Is IL hazardous waste law preempted by OSHA
• Occupational Safety and Health Act (OSHA)
• Is it within Congress commerce (or other) power?
• Does OSHA expressly preempt state law?
• Does OSHA expressly permit state law?
• Yes. State worker compensation laws
• Yes. State occupational safety laws where no
  federal standard applies
• Yes. Approved state plans

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Gade v. Solid Waste Mgmt (1992)

• If not expressly preempted or permitted, is the
  state law impliedly preempted?
• Occupation of the field?
• Unlikely, since congress expressly permits state
  law if no federal standard is in place
• Field preemption occurs when congress does not
  want supplemental state regulation
• Conflict/physical impossibility?
• Can employer comply with both IL law and OSHA?
• Conflict/frustration of purpose?
• Do supplemental state safety requirements stand
  as an obstacle to the accomplishment of cong.
  purpose?

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Gade v. Solid Waste Mgmt (1992)

• How is Congress purpose determined?
• Legislative history record (committee reports)
• Structure of the federal statutory scheme
• OSHAs structure
• State can take over occupational health/safety
• If state scheme doesnt burden interstate
  commerce
• State can regulate where fed law is silent
• Negative pregnant state cant regulate otherwise
• I.e., Congress wanted employers to be subject
  only to a single set of health/safety standards
• Supplemental state legislation may impede commerce

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Gade v. Solid Waste Mgmt (1992)

• Criticism of OConnors Implied Preemption
• Court necessarily guesses in Implied cases
• OConnor imposes risk of error on workers, not
  firms
• Esp. when preempting supplemental state laws
• Assumes congress has fully balanced the benefits
  of worker safety against the costs to business a
  balance that states cannot be permitted to upset
• Presumption
• Historic police powers of the states are not to
  be lightly set aside, unless that was the clear
  and manifest purpose of congress
• Clear here? 4-1-4 vote (5 against implied
  preemption)

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Gade v. Solid Waste Mgmt (1992)

• Are dual impact state laws preempted?
• A state law that has a dual purpose
• E.g., protection of property and worker safety
• If congress has only legislated in one of the
  areas
• State laws can be preempted either because of
• A forbidden purpose or
• Its effect on a federally-regulated matter
• The IL law subjects employers to duplicate
  regulatory schemes, no matter the purpose

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Presumptions

• Against preemption
• Historic police powers of the states are not to
  be superceded by federal law unless that is the
  clear and manifest purpose of congress.

• In favor of preemption
• Less clarity (re. intent of congress) is required
  in areas traditionally under federal power
• E.g., immigration foreign trade labor
  environment
• Both Cases
• Congress purpose is the ultimate touchstone

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Preemption of Consistent State Law

• US v. Locke (2000)
• WA oil spill regs preempted by federal law
• Presumption of non-preemption inapplicable in
  area with significant federal presence
• Field preemption not negated by unique local
  needs
• Supplemental state regs are just as preempted
• Where congress intends single national standard
• Even identical state laws are preempted
• Adjudication of state claims -gt state common law
• Federal claims -gt federal common law
• While statutes may be the same, rules may diverge
• Congress may also want exclusive federal jdx.

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Preemption Market Participants

• MPD is an exception to the DCC
• States (qua traders) may discriminate/burden IC
• MPD is not an exception to the PI clause
• Explicit (vs. inferred) preclusion of state
  action
• MPD is not an exception to preemption
• State proprietary activity can interfere with
  congress intent just as state sovereign action
• Note Private parties are subject to federal law
  (not so for DCC), so State qua trader confers no
  immunity
• Note Congress may intend not to regulate states
  directly, in which case, state participation is
  not preempted, even where state regulation is

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Crosby v Natl FT Council (2000)

• Mass. Law forbidding state agencies from doing
  business with Burma preempted
• State regulation is clearly preempted
• Foreign affairs/trade prime example of field
  preempt
• State purchasing also covered by fed scheme
• Especially because nation must speak w/ single
  voice
• Compare no MPD from foreign commerce clause
• Note how states rights conservatives are
  favorably disposed to preempt (implied) state
  laws regulating businesses.
• Consistent federalism?

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Implied Preemption - Conflicts

• Florida Lime Avocado v. Paul (1963)
• Competing (conflicting?) regulations
• Dept. of Agriculture regs define avocado
  maturity without reference to oil content
• California regulations prohibit sale lt 8 oil
  content
• Is compliance with both state and federal laws
  physically impossible?

Federal standard
California standard
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Implied Preemption - Conflicts

• Florida Lime Avocado v. Paul (1963)
• Competing (conflicting?) regulations
• Dept. of Agriculture regs define avocado
  maturity without reference to oil content
• California regulations prohibit sale lt 8 oil
  content
• Is compliance with both state and federal laws
  physically impossible?

Federal standard
California standard
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Implied Preemption - Frustration

• PGE v. State Energy Commn (1983)
• Trinity
• Atomic Energy Act
• In 1946 and 1954, fedl govt occupied the field
  of atomic energy
• Starting in 1961, congress relaxed preemption and
  allowed some state regulation of nuclear energy

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Implied Preemption - Frustration

• PGE v. State Energy Commn (1983)
• Atomic Energy Act
• 2018
• Nothing in this Act shall be construed to affect
  the authority or regulations of any Federal,
  State, or local agency with respect to the
  generation, sale, or transmission of electric
  power produced through the use of nuclear
  facilities licensed by the Commission
• 2021(c)
• the Commission shall retain authority
  responsibility over
• (1) the construction and operation of any
  nuclear facility
• (4) the disposal of nuclear byproducts.
• 2021(k)
• Nothing in this section shall be construed to
  affect the authority of any State or local agency
  to regulate activities for purposes other than
  protection against radiation hazards."

Express non-preemption
Express preemption
Clarifies scope of express preemption
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Implied Preemption - Frustration

• PGE v. State Energy Commn (1983)
• Cal Pub Resources Code
• 25524.1.  Nuclear fission powerplants
• (a) .. no nuclear fission thermal powerplant
  requiring the reprocessing of fuel rods shall
  be permitted unless
• (b) facilities with adequate capacity to
  reprocess nuclear fuel rods is approved by an
  authorized agency of the United States and in
  actual operation
• 25524.2.  Requirements for nuclear powerplant
• no nuclear powerplant shall be permitted
  until
• (a) The commission finds that there has been
  developed and that the United States through its
  authorized agency has approved and there exists a
  demonstrated technology or means for the disposal
  of high-level nuclear waste.

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Implied Preemption - Frustration

• PGE v. State Energy Commn (1983)
• Express Preemption
• Safety-related construction operation
  regulations - yes
• Economic-related regulations no
• Implied Preemption
• Conflict preemption
• Ban on construction due to safety concerns no
• Ban on construction for economic reasons - no
• Frustration of purpose
• Ban on construction due to safety concerns yes
• impedes federal objective of promoting safe
  nuclear energy
• Economic-based ban no
• promotion of nuclear power not to proceed at all
  costs

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Implied Preemption - Occupation

• Hines v. Davidowitz (1941)
• Federal Alien Registration Act
• registration, finger-printing, secrecy, and such
  additional matters as may be prescribed by
  Commr
• Penn. Alien Registration Act
• registration, provide other information and
  details
• Express Preemption No
• Conflict Preemption No
• Field Preemption
• Why might congress not want compatible state
  laws?
• State enforcement could obstruct paramount
  federal policy
• Development of common law confined to federal
  courts

especially true wrt matters within exclusive
federal control