Doctrine of Preemption

The Doctrine of Preemption addresses what happens when state laws conflict with federal laws. The doctrine is derived from the Supreme Court interpretation of Article VI Section 2 of the United States Constitution, known as the “Supremacy Clause.”

The Supremacy Clause states that federal law is the “supreme law of the land.” All state and municipal courts must follow the U.S. Constitution and federal laws. The Doctrine of Preemption has been held to mean that if a federal law conflicts with state law, then the federal law trumps the state law. The state law will be declared invalid.

Congress has preempted state regulation in many areas. Congress preempted all state regulations in some cases, such as medical devices. In others, such as labels on prescription drugs, Congress allowed federal regulatory agencies to set national minimum standards but did not preempt state regulations imposing more stringent standards than those imposed by federal regulators.

Preemption can only occur when there is coexistent state and federal power. For example, it does not make sense to describe a state’s inability to declare war as an issue of preemption: the war-making power is the exclusive right of Congress. The same would be true for the power to establish post offices or to issue patents.

But where exclusivity is not clearly established by the Constitution, like in the fields of nuclear power and aviation, the federal government may, in the interest of an effective, uniform regulatory regime, preempt the states from regulating activities that would otherwise be within their general police power to regulate.

Federal law will almost always prevail when it interferes or conflicts with state law, except in circumstances (a) where the Supremacy Clause does not apply and (b) where the federal law is unconstitutional. There are plenty of examples where the tension between state and federal law remains unresolved. For instance, several states have legalized the medical and recreational use of marijuana.

Under federal law, possessing, distributing, or using is still illegal. Federal law punishes the possession and distribution of marijuana per the law concerning other illegal controlled substances. Does federal law trump state law in this case? Will all of the state laws decriminalizing marijuana be declared to be invalid and struck down? So far, the Supreme Court has not had a case pitting state laws on marijuana against federal laws. Such a case will undoubtedly come before the court in the near future, and the Supremacy Clause will be tested.

What are Express Preemption and Implied Preemption?

In 1819 in the case of McCulloch v. Maryland, the United States Supreme Court Chief Justice John Marshall stated that “States have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control the operations of the Constitutional laws enacted by Congress to carry into execution the powers vested in the Federal Government.” This statement has been interpreted and clarified in numerous cases regarding federal preemption of state laws.

Some federal preemption cases are easier than others, as some federal laws distinctly state that federal law is supreme on the given topic while others do not. Thus, two categories of federal preemption exist: express preemption and implied preemption. Implied preemption is further split into conflict preemption and field preemption.

Express preemption occurs when Congress explicitly states within a statute that the state law will be preempted. Simply put, when Congress explicitly states that federal law is the exclusive law, states cannot interfere with that federal law.

Express preemption cases tend to be simpler than implied preemption cases. This is because the courts need only analyze the plain meaning of the federal statute in question, considering Congress’ intent in enacting the statute.

Implied preemption occurs when Congress does not explicitly state that a statute is intended to preempt state law. The federal statute may be silent as to whether it preempts state law, may be ambiguous as to whether it preempts state law, or may raise questions about whether state law and federal law work together.

The Supreme Court has ruled that there is an inference that federal law does preempt state law if the law falls into the two subcategories of implied preemption: conflict preemption or field preemption. The subcategories of implied preemption are described as follows:

• Conflict Preemption: Conflict preemption occurs when a state law directly conflicts with a valid federal law, making it either impossible to comply with both or the state law stands as a great obstacle to accomplishing the objectives of Congress when it enacted the federal law. In essence, if a state law directly conflicts with federal law, then the state law will be struck down or preempted.
• Field Preemption: Field preemption occurs when Congress substantially occupies a field of regulation, basically precluding any state regulation from entering the field. As an example, federal law has taken over the laws in the area of television broadcasting. If a state passes a law in this field, even if it does not directly conflict with federal law, it can still be struck down or preempted because Congress has occupied the field with federal legislation.
  • Nuclear power is another common example of where the federal government substantially occupies a field. The Commerce Clause of the United States Constitution and the federal government’s dominance in environmental law have resulted in field preemption of state and local laws that interfere with federal nuclear power laws.
  • Another example is Congress’ occupation of the field of ocean fishing. Congress so heavily occupies the field of ocean fishing that any state or local law that frustrates the purpose of the national standards for fishery management will be struck down. This is so, even though Congress never explicitly stated as much in the statutes themselves.

Does Preemption Exist at the State Level?

Just as federal law is superior to state law, state law is superior to local laws. Typically, preemption at the state level follows the process of field preemption, but it can vary based on the state’s constitution.

When the state legislature enacts legislation, and the intent in doing so is to occupy that field, then local municipalities will be preempted from enacting their own legislation within that field. A recent example of this would be that state laws that have legalized medicinal and recreational marijuana now occupy this field, preempting local laws from regulating this field.

Should I Hire an Attorney if I Need Assistance with the Doctrine of Preemption?

If you are involved in a case where you believe that your constitutional rights have been violated due to the Doctrine of Preemption, you should absolutely seek out a well-qualified and knowledgeable government lawyer.

Remember, the doctrine can apply at any time, even when there appears to be no explicit conflict with federal law. Field preemption is a powerful tool that an experienced attorney may use to assist you in such a case. The guidance of an attorney is extremely beneficial when challenging state and local laws that appear less favorable than existing federal laws within the same field.