In general, federal laws are applicable in the same way across all state borders. Under constitutional laws, however, states are permitted to create, implement, and enforce their own laws in addition to federal laws.
This is because every state in the United States is a sovereign entity in its own right and is granted the power to create laws and regulate those laws according to their needs. Another reason for this is that every state has unique characteristics in terms of factor, for example:
- Geography and natural resources;
- Location;
- Demographics of the population;
- Historical operations of:
- business;
- commerce; and
- industry; and
- Community standards and public policies in the state.
It is important to be aware of the idea of laws that differ by state. This way, if an individual moves from one state to another, they will be aware there are certain laws they should review.
What Are Examples of Different Laws in Different States?
There are certain laws, for example, voting laws and criminal laws and statutes, that tend to be somewhat uniform across states. There are, however, certain areas of law that may be very different from one state to the next.
Examples of types of laws that vary from state to state include:
Therefore, an individual should be aware of legal issues that may arise when moving from one state to another or when they are traveling to several different locations in the United States. This applies especially to licenses that are issued in one state and may not be honored in another state.
What Is the Doctrine of Preemption?
The doctrine of preemption addresses the question of what occurs when state laws conflict with federal laws. In order to understand this doctrine, an individual should understand Article VI of the United States Constitution, also referred to as the Supremacy Clause.
The Supremacy Clause provides that federal law is the supreme law of the land. This means that the courts in every state are required to follow the Constitution, laws, and treaties of the federal government as the supreme law of the land.
The Doctrine of Preemption is based on the Supremacy Clause. The doctrine provides that, if there is a federal law that preempts state law, then the state law is declared invalid.
Because of this, a federal court may require a state to refrain from enforcing a law if it would conflict with federal law. If there is not a conflicting federal law, however, a court should enforce the state law.
In addition, if the state law provides more protections for consumers, employees, and other residents than the existing federal law, the state law will stand and will be enforced.
Does Preemption Exist at the State Level?
Similar to the way that federal law is superior to state laws, state laws are superior to local laws. Usually, preemption at the state level follows the process of field preemption but will vary based on the constitution of the state.
When a state legislature enacts legislation and the intent in taking that action is to occupy that field, local municipalities will be preempted from enacting their own legislation within that field. One recent example of this would be in states that have legalized recreational and medicinal marijuana occupying the field and, thereby, preempting local laws from regulating outside the field.
Another example of this issue would be if a state legislature enacted gun control laws and their intent in doing so was to occupy the field of gun control, then the local laws governing gun control will be preempted and deemed invalid.
How Can a Lawyer Help with State Laws?
There may be numerous different state laws governing many different issues. This can be a very important issue to be aware of if an individual moves from one state to another or is involved in a case, such as a divorce, where the parties reside in different states.
Examples of categories of legal issues that may be governed by different laws depending on the state include, but are not limited to:
- Three strikes laws;
- Divorce, as noted above; and
- Wills.
There are many states that have three strikes laws, also called three strikes rules. These laws impose harsher sentences on defendants who are convicted of certain felonies three times.
In the majority of cases, the penalty upon the third conviction is a mandatory sentence of life in prison. There are numerous states that have a third strike law, including:
- Arkansas (since 1995);
- Arizona (since 2005);
- California (since 1994);
- Colorado (since 1994);
- Connecticut (since 1994);
- Delaware (since 1973);
- Florida (since 1995);
- Georgia (since 1994);
- Indiana (since 1994);
- Kansas (since 1994);
- Louisiana (since 1994);
- Maryland (since 1975 but amended in 1994);
- Massachusetts (since 2012);
- Montana (since 1995);
- Nevada (since 1995);
- New Jersey (since 1995);
- New Mexico (since 1994);
- New York (since 1797);
- North Carolina (since 1994);
- North Dakota (since 1995);
- Pennsylvania (since 1995);
- South Carolina (since 1995);
- Tennessee (since 1994);
- Texas (since 1952);
- Utah (since 1995);
- Vermont (since 1995);
- Virginia (since 1994);
- Washington (since 1993); and
- Wisconsin (since 1994).
In the context of divorce, different state law issues arise related to residency. It is common for an individual to move to a different state if they separate from their spouse.
This may present potential difficulties when they are formally filing for a divorce and reaching a final resolution. Every state requires that a spouse who files for divorce be a resident of the state in which they file their divorce petition.
The amount of time that is required to establish residency may vary by state but, in general, ranges from 6 months to 1 year. Residency is defined as having a physical presence in addition to the intent to remain indefinitely in that state.
In the context of wills, moving states can also have an effect. If an individual moves, they should have a qualified lawyer review their will document to ensure it conforms with the state laws of the new state to which they are moving.
In general, a properly executed will likely be regarded as a valid will by the laws of the new state. However, because the requirements for creating a valid will may vary from state to state, it is important to have a lawyer review the document.
Do I Need a Lawyer for Help with Issues Concerning State Laws?
Legal issues related to state laws may, in some cases, require the expert advice and opinion of a lawyer. If you have any issues, questions, or concerns regarding the rules of government and law in your area, it may be helpful to consult with a government lawyer.
Your lawyer can provide you with the answers to your questions. Your lawyer can also help represent you if you have to be involved in a lawsuit or legal claim.
If you have any online legal issues, such as a divorce or criminal charges, or have a written will, it is important to consult with a lawyer in the state to which you move. It is always best to be proactive when dealing with issues that may have a major impact on your and your loved ones.
