01 July 2013

Law in Plain English: Preemption

This is one in a series of posts designed to describe the structure, procedures, and legal issues of the federal courts (and specifically, the Supreme Court) in plain English. For similar posts, click here.

Preemption is a constitutionally-based legal concept that is a frequent issue in Supreme Court cases. In the October Term 2012, no less than seven cases involved preemption (see Woz v. E.M.A.Arizona v. The Inter Tribal Council of Arizona, Mutual Pharmaceutical Co. v. Bartlett, Dan’s City Used Cars v. Pelkey, American Trucking Associations v. City of Los Angeles, Hillman v. Maretta,  and Tarrant Regional Water District v. Herrmann). Preemption arises from the Constitution. Article VI, Clause 2, known as the Supremacy Clause, reads as follows:
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.
In practice, this means that when a federal and state law conflict, the state law is invalid. Additionally, there are a few important factors to consider. First, Congress must be exercising its enumerated powers. Second, when the text of a preemption clause is susceptible to more than one plausible reading, courts should ordinarily accept the reading that disfavors preemption. Third, when Congress legislates in an area that the states have normally exercised their general police power, the courts will ordinarily presume that the state laws are valid unless Congress says otherwise expressly. Even given these factors, preemption is a difficult issue for the courts (again, one of the reasons why so many preemption cases find their way to the Supreme Court). The facts of each individual cases, the purpose of Congress, and the precise language of the statutory clauses in question, will be subject to exacting scrutiny.
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