Preemption

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• Preemption
• Nov. 10, 2004

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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 forecloses states from
  acting
• Any state law on the subject would be contrary
  to fed. law
• 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
• Federal law is so comprehensive as to leave no
  room for supplemental state regulation (because
  state involvement would frustrate congress
  purpose)

Conflict preemption
Field preemption
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Preemption - Overview

• Does federal law expressly say that states may
  not regulate?
• Yes Express Preemption
• Must determine the scope of preemption
• E.g., federal law may set only minimum standards
• Federal law cars must get 25 mpg
• State law 1 cars must get 20 mpg
• State law 2 cars must get 30 mpg
• Sometimes, not all state laws on same subject
  will be preempted
• No Consider Implied Preemption

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Preemption - Overview

• Does federal law implicitly say that states may
  not regulate?
• 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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Express Preemption

• Cipollone v. Liggett (1992)
• Federal Cigarette Labeling Advertising Act
• No statement relating to smoking and health,
  other than the statement required by this Act,
  shall be required on any cigarette package.
• No statement relating to smoking and health
  shall be required in the advertising of
  cigarettes
• Why did congress expressly prohibit supple-mental
  (even consistent) state labeling laws?
• Dual purpose 1) warn about health hazards
• 2) protect national economy from diverse
  regulation

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Express Preemption

• Cipollone v. Liggett (1992)
• Express preemption, but of what?
• What is the scope of preemption under the
  Labeling Act?
• Anything related to smoking and health or
• Anything related to cigarette labeling and
  health?
• No statement relating to smoking and health,
  other than the statement required by this Act,
  shall be required on any cigarette package.
• Stevens cautionary statements on cigarette
  labels or in cigarette advertising

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Which of these are preempted?
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(No Transcript)
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(No Transcript)
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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 (intent of congress) is required in
  areas typically under federal power
• E.g., immigration
• Both Cases
• Congress purpose is the ultimate touchstone

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Express Preemption

• Cipollone v. Liggett (1992)
• Public Health Cigarette Smoking Act
• No requirement or prohibition based on smoking
  and health shall be imposed under State law with
  respect to the advertising or promotion of any
  cigarettes that conform to this Act.
• What is the scope of this express preemption?
• Is a tort action a requirement or prohibition?
• Yes tort duties (via common law) are
  requirements
• Even if it is, does it respect advertising or
  marketing of cigarettes?

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Express Preemption

• Cipollone v. Liggett (1992)
• Public Health Cigarette Smoking Act
• No requirement or prohibition based on smoking
  and health shall be imposed under State law with
  respect to the advertising or promotion of any
  cigarettes that conform to this Act.

• Which common-law claims are preempted?
• Tort actions for false advertising or failure to
  warn?
• Express Warranty (contract)?
• Fraudulent misrepresentation (tort)?
• Conspiracy to deprive public of health info
  (tort)?

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Express Preemption

• Lorillard Tobacco v. Reilly (2001)
• Federal Cigarette Labeling Advertising Act
• No statement relating to smoking and health ..
  shall be required on any cigarette package.
• No requirement or prohibition based on smoking
  and health shall be imposed under State law with
  respect to the advertising or promotion of
  cigarettes
• What is the domain expressly preempted?
• Modes of construction
• Textual express preemption language in b broader
  than a
• Legislative history
• Law expands from labeling to all adverising
  promotion
• Expands from state-required statements to all
  requirements and prohibitions

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Express Preemption

• Lorillard Tobacco v. Reilly (2001)
• Federal Cigarette Labeling Advertising Act
• No statement relating to smoking and health ..
  shall be required on any cigarette package.
• No requirement or prohibition based on smoking
  and health shall be imposed under State law with
  respect to the advertising or promotion of
  cigarettes

• Lorillard Tobacco v. Reilly (2001)
• Federal Cigarette Labeling Advertising Act
• No statement relating to smoking and health ..
  shall be required on any cigarette package.
• No requirement or prohibition based on smoking
  and health shall be imposed under State law with
  respect to the advertising or promotion of
  cigarettes

• What is the domain expressly preempted?
• Does with respect to pertain only to the
  content of advertising or also location (zoning)
  of advertising?
• Can a state prohibit all advertising in certain
  areas, or is it preempted when it comes to cig.
  advertising?
• General restriction ok not based on smoking and
  health

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Express Preemption

• Lorillard Tobacco v. Reilly (2001)
• Federal Cigarette Labeling Advertising Act
• No statement relating to smoking and health ..
  shall be required on any cigarette package.
• No requirement or prohibition based on smoking
  and health shall be imposed under State law with
  respect to the advertising or promotion of
  cigarettes

• Does OConnor properly apply congl purpose?
• to inform the public that smoking is hazardous
• to avoid diverse, nonuniform and confusing cig.
  labeling and advertising regulations
• inconisistent state laws impede interstate
  commerce
• do inconsistent state laws relating to location
  (zoning)?

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Express Preemption

• Lorillard Tobacco v. Reilly (2001)
• Federal Cigarette Labeling Advertising Act
• No statement relating to smoking and health ..
  shall be required on any cigarette package.
• No requirement or prohibition based on smoking
  and health shall be imposed under State law with
  respect to the advertising or promotion of
  cigarettes

• Why does the states-rights block read extent of
  preemption broadly while the federal-rights block
  reads it narrowly?

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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)
• 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)
• Atomic Energy Act
• Trinity

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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