Preemption

In a preemption challenge, the challenger is claiming that a state law is unconstitutional because it has been preempted by a valid federal law. Under this analysis, the state law violates the Supremacy Clause of Article VI because the federal government has enacted a law that prohibits the state from acting in a particular way and the state law being challenged is one in which the state is acting in the prohibited manner. To successfully assert a claim of preemption, the challenger must show:

A.  that the federal government has enacted a valid federal law (the law is a constitutional exercise of congressional regulatory power such as the power granted by the Commerce Clause) and that the federal law either:

B.  expressly preempts the state law because it contains explicit preemptive language (see D below); or

C.  impliedly preempts the state law because Congress intended to preempt the state law and the congressional intent can be implied based on conflict preemption (see E below) or field preemption (see F below).

D.  To demonstrate express preemption (see B above), you must show that there is language in the federal statute that expressly states that the federal law preempts certain types of state legislation. Even if the statute contains express preemptive language, there may still be an issue as to the scope of the preemptive effect under that statutory language because it is hard to draft preemption language that removes all ambiguities as to the scope of the intended preemption. In addition to expressly stating an intent to preempt, Congress can also expressly state that it does not intend to preempt certain types of state legislation (express nonpreemption). Just as in the case of express preemption, there can be an issue as to the intended scope of the nonpreemptive language.

E.  To demonstrate (implied) conflict preemption (see C above), the challenger must show either:

(1)  that the state law is in conflict with the federal law because it is physically impossible to comply with both at the same time; or

(2)  that the state law is in conflict with the federal law because it interferes with the objectives of the federal law or is an obstacle to the accomplishment of the federal purpose. To decide whether this type of implied preemption exists, you need to review the statutory language in the federal law and its legislative history to determine what the purpose of the federal law is, and then ask whether the operation of the state law interferes with accomplishing the objectives of the federal law.

F.  To demonstrate (implied) field preemption (see C above), the challenger must show that the federal government has fully occupied the field it has chosen to regulate. In field preemption cases, there does not need to be any conflict between the state and federal law. The state law may even further the same purpose as the federal law. Nevertheless, there may be preemption if the federal regulatory scheme is sufficiently comprehensive to make reasonable the inference that Congress left no room for supplemental state regulation. When the Court is uncertain as to whether Congress intended to preempt the field, it will look at the nature of the regulated area. If the area regulated by Congress is an area in which the federal interest is dominant, the Court will be more inclined to presume that Congress intended to occupy the field (as in the areas of immigration or foreign affairs). If the area regulated by Congress is an area that has traditionally been regulated by the states (as in the area of tort liability), the Court will be less likely to presume that Congress intended to occupy the field. In cases in which a field preemption argument is made, there may also be an argument over how broad or narrow the preempted field is and whether the state law falls within the scope of the field preemption.

G.  The state can defend its state law against a preemption challenge in a variety of ways.  It can argue that (1) the federal law is beyond the power of Congress, (2) the federal law does not expressly preempt state law, (3) the federal law expressly authorizes the states to continue to regulate in the area, and (4) the federal law does not impliedly prempt the state law because it is possible to comply with both state and federal law at the same time, the state law does not interfere with the achievement of the federal purpose, and the federal law does not fully occupy the field the state is regulating.  

H.  On the exam, preemption issues are usually obvious because an exam question raising a preemption issue must describe both a state law that is being challenged and a federal law or regulation that regulates an identical or at least a similar area to that of the state law. In addition, typically the challenger will make a variety of preemption arguments (e.g., there is express preemption, but even if there isn't there is conflict preemption because the state law undermines the accomplishment of the federal purpose, but even if it doesn't there is field preemption because the federal government has fully occupied the field) and the state will need to respond to each of the preemption arguments the challenger makes.