Federalism - Dormant CC, Preemption

Question 1

What is federalism?

Answer 1

Federalism is the constitutional concept that certain governmental functions should be the responsibility of the individual states and certain functions should be the responsibility of the federal government.

The Constitution creates a system of federalism in the United States, in which two levels of government—federal and state—share control. Both federal and state governments have the power to make laws and enjoy some individual autonomy from one another.

Question 2

What are intergovernmental immunities?

Answer 2

Under the American system of federalism, intergovernmental immunities are the protections that keep the federal and state governments from improperly interfering with the exercise of one another’s powers.

The federal government is generally immune from regulation and direct taxation by the states via the Supremacy Clause. State governments have partial immunity from federal regulation or taxation that interferes with state sovereignty and thus violates the Tenth Amendment.

Question 3

What immunities does the federal government enjoy from actions by state governments?

Answer 3

The federal government is generally immune from regulation and direct taxation by the states. Federal immunity from state laws derives from the Constitution’s Supremacy Clause and is sometimes referred to as intergovernmental immunity.

The federal government may waive its immunity by consenting to state regulation or direct taxation. The federal government is not immune from indirect taxation that is not discriminatory or unreasonably burdensome. McCulloch v. Maryland, 17 U.S. 316 (1819).

Question 4

May the states impose taxes on federal property without the express consent of Congress?

Answer 4

No. Unless a state has express congressional consent, a state may not:

*directly tax the United States or its instrumentalities, or
*forfeit or seize federal-government property for failure to pay a state tax.

Imposing taxes on the federal government’s property can frustrate or destroy federal interests. The Supremacy Clause states that the states cannot interfere with federal interests in this manner. This is sometimes referred to as the doctrine of intergovernmental immunity or federal immunity from state law. However, the federal government can choose to waive this immunity and consent to direct state taxation. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819).

Question 5

What does the Tenth Amendment provide?

Answer 5

The Tenth Amendment provides that powers not expressly delegated to the federal government or prohibited to the states in the Constitution are reserved to the states or the people. This is one means by which the Constitution allocates power between the federal and state governments in the federalist system. State governments have police powers to pass laws to protect the general health, safety, and welfare of people and property within their jurisdictions, provided those laws are constitutional.

In contrast, the federal government has no police power to protect the health, safety, and welfare. An attempt by the federal government to exercise police powers would violate the Tenth Amendment. The exception is in places of exclusive federal jurisdiction like territories, military installations, and government property. There, the federal government has an enumerated police power.

Question 6

What immunities does the state government enjoy from actions by the federal government?

Answer 6

In general, the Tenth Amendment protects attributes that are integral to a state’s sovereign status and involve functions essential to a state’s separate and independent existence. States are not generally immune from regulation, taxation, or civil suit by the federal government. However, states have partial immunity when federal regulation or taxation violates the Tenth Amendment by interfering with state sovereignty.

The federal government may not compel a state to enact legislation or execute federal law and may not commandeer state executive or legislative officials (though Congress may attempt to induce action through conditional spending). However, the anti-commandeering doctrine does not prohibit the federal government from commandeering state judicial officers. In fact, the Constitution obligates state courts to enforce federal law. Printz v. United States, 521 U.S. 898 (1997); New York v. United States, 505 U.S. 144 (1992).

Question 7

Can Congress require a state legislature to enact state legislation to implement a federal law?

Answer 7

No. Congress cannot commandeer state governments by requiring them to enact a state law to implement a federal law. Congress can:

*impose direct regulations that are within its constitutional authority to enact and
*offer incentives to state legislatures to enact state laws.

However, Congress cannot command a state legislature to pass a state statute.

New York v. United States, 505 U.S. 144 (1992)

Question 8

Concerned about the failure of the states to address the problem of teen suicide, Congress enacted a law requiring all states to establish teen-suicide-prevention programs. Congress claimed the law was necessary to promote the general welfare of the nation. The law gave the states broad discretion to determine how their programs were structured. One state sued, alleging that this federal law violated the Tenth Amendment to the U.S. Constitution.

Does this federal law violate the Tenth Amendment?

Answer 8

Yes. This federal law violates the Tenth Amendment. The federal government cannot commandeer the state legislatures by forcing them to enact particular state laws. Doing so would be an unconstitutional invasion of the state’s sovereignty. However, Congress can offer states an incentive to voluntarily adopt legislation. The incentive can be financial or regulatory in nature, as long as it:

*is clearly stated,
*is not unduly coercive (the state can freely choose to accept or reject the deal),
*relates to the activity being subsidized, and
*is not otherwise unconstitutional.

National Federation of Independent Business v. Sebilius, 567 U.S. 519 (2012); New York v. United States, 505 U.S. 144 (1992).

Question 9

Congress enacted a law that required states to impose mandatory annual testing for all automobile drivers who were 70 years and older. If a state failed to enact a law imposing the mandatory testing within a year, then that state’s share of federal highway funds would be reduced by 10 percent until the state enacted the legislation. One state did not adopt a law imposing the mandatory testing. After one year, the federal government reduced that state’s annual highway-fund allocation by 10 percent. The state sued, arguing that the federal law requiring mandatory driver testing violated the Tenth Amendment to the U.S. Constitution.

Is the state correct?

Answer 9

No. The state is incorrect. The federal government can condition a state’s receipt of federal funds on enacting state laws without violating the Tenth Amendment if the condition:

*is clearly stated,
*is not unduly coercive (the state can freely choose to accept or reject the deal),
*relates to the activity being subsidized, and
*is not otherwise unconstitutional.

Here, Congress conditioned the state’s receipt of highway funds on enacting a state mandatory-driver-testing law. Congress did not order the state to enact the law. The condition for funding was clear, related to the activity being subsidized (highway safety), and was not otherwise unconstitutional. While withholding 10 percent of federal funds could be coercive, a state could function without those funds. The condition is not unduly coercive, and the federal law did not violate the Tenth Amendment. Thus, the state is incorrect.

National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012); New York v. United States, 505 U.S. 144 (1992); South Dakota v. Dole, 483 U.S. 203 (1987).

Question 10

Can Congress require local and state law enforcement officers to enforce federal laws?

Answer 10

No. Congress cannot commandeer state executive officers by requiring them to enforce federal statutes. Congress can offer financial incentives to encourage state and local law enforcement agencies to assist with the enforcement of federal laws. However, Congress cannot directly command state or local officers to enforce federal laws. Printz v. United States, 521 U.S. 898 (1997).

Question 11

If Congress, under its Commerce Clause power, passes a law that does not specifically exclude the states from its reach, does that law automatically apply to the states?

Answer 11

No. If Congress, under its Commerce Clause power, passes a law that does not specifically exclude the states from its reach, the law does not automatically apply to the states. Congress must affirmatively include a plain statement that unambiguously indicates that the regulation applies to the states.

For laws passed under Congress’s Commerce Clause powers, courts will not assume that Congress meant to invade the area of state sovereignty. If the law is silent, or if there is any ambiguity about whether Congress meant for a law passed under its Commerce Clause power to apply to the states, then that law does not apply to the states. Gregory v. Ashcroft, 501 U.S. 452 (1991; Garcia v. SAMTA, 469 U.S. 528 (1985).

Question 12

Does the Tenth Amendment to the U.S. Constitution prevent the federal government from regulating the states as market participants that buy or sell goods and services?

Answer 12

No. The Tenth Amendment does not prevent the federal government from regulating the states as market participants that buy or sell goods and services. For a law to apply to the states as market participants, Congress must include an unambiguous and plain statement indicating that the law is meant to apply to state market participants. As long as the federal law contains that clear, plain statement, the federal law governs both private and state entities that participate in the market.

However, the Tenth Amendment does prevent Congress from regulating the states in their sovereign capacities. If a state is acting to regulate a market, then the state is acting in its sovereign capacity rather than as a market participant.

Reno v. Condon, 528 U.S. 141 (2000);

Question 13

Congress enacted a new disclosure statute. Under this new statute, any entities that sold bonds to the public must have made certain mandatory disclosures in the bond-offering prospectus. Congress included a plain and unambiguous statement in the statute which stated that the law’s disclosure provisions applied to states that sold bonds to the public. One state sold bonds to the general public but it did not make the mandated disclosures in the bond-offering prospectus. The federal government sought to enforce the new mandatory-disclosure requirement against the state. The state argued that the Tenth Amendment to the U.S. Constitution gave the state immunity from having to comply with this federal law.

Is the state correct?

Answer 13

No. The state is incorrect. The Tenth Amendment prevents Congress from regulating the states in their sovereign capacities. However, the Tenth Amendment does not prevent the federal government from regulating the states as market participants that buy or sell goods and services. For a law to apply to the states as market participants, Congress must include an unambiguous and plain statement indicating that the law is meant to apply to state market participants. If the law contains such a statement, then the Tenth Amendment does not apply.

Here, the federal law does not regulate the states in their sovereign capacities. Rather, the law regulates the states only as participants in the bond market. Further, the law contains a plain statement that makes it clear that the law is meant to apply to state bond market participants. The Tenth Amendment does not apply. Thus, the state is incorrect.
Reno v. Condon, 528 U.S. 141 (2000); Garcia v. SAMTA, 469 U.S. 528 (1985).

Question 14

In addition to the federal government’s immunity from state taxation and regulation, what are the main federalism-based limits on state authority?

Answer 14

In addition to the federal government’s immunity from state taxation and regulation, the main federalism-based limits on state authority are:

*the Dormant Commerce Clause, which limits the states’ ability to burden interstate commerce; and,
*the preemption doctrine, under which federal law generally trumps conflicting state laws.

All three federalism-based limits on state authority derive from the Supremacy Clause.

Question 15

What does the Dormant Commerce Clause prohibit?

Answer 15

The Dormant Commerce Clause, also called the negative Commerce Clause, prohibits states from unjustifiably burdening or discriminating against interstate commerce. The Commerce Clause provides that the federal government has the power to regulate interstate commerce. The negative implication is that the states generally do not have the power to regulate interstate commerce.

The dormant aspect of the Commerce Clause means that a state cannot:

*impede or interfere with interstate commerce (i.e., burden) or
*favor local, in-state commerce over out-of-state commerce (i.e., discriminate).

Question 16

In the context of the Dormant Commerce Clause, what is a legitimate local objective that a state law may serve?

Answer 16

In the context of the Dormant Commerce Clause, legitimate local objectives include the subjects of the state’s police power—the general health, safety, and welfare of the state’s citizens. A state may pass regulations that affect interstate commerce, if, among other requirements, those regulations serve legitimate local objectives.

Protection of local economic interests is not a legitimate objective. State laws serving no purpose other than economic protectionism are invalid per se. Pike v. Bruce Church, Inc., 397 U.S. 137 (1970); Dean Milk Co. v. City of Madison, 340 U.S. 349 (1951).

Question 17

If a state law facially discriminates against out-of-state interests, what requirements must be met for the law to be constitutional under the dormant aspect of the Commerce Clause?

Answer 17

To be constitutional under the Dormant Commerce Clause, a state law that facially discriminates against out-of-state interests must:

*advance a legitimate local purpose and
*be the least discriminatory way of achieving that purpose.

Pure economic protectionism (i.e., shielding in-state interests from out-of-state competition) is never a legitimate purpose. Purely protectionist laws are virtually per se invalid. Even if a state has a purportedly legitimate interest in discriminating against out-of-state interests, that interest will be given the strictest scrutiny. To meet the second half of the test, discriminating against out-of-state interests must be essential to achieving the state’s objective. Like the first part of the test, whether there are any possible nondiscriminatory alternatives will be given the strictest scrutiny. Maine v. Taylor, 477 U.S. 131 (1986); Philadelphia v. New Jersey, 437 U.S. 617 (1978);

Question 18

Concerned about the survival of local wild mountain trout, a state government prohibited selling locally caught wild mountain trout to out-of-state purchasers. A restaurant operated just across the state line and regularly purchased wild mountain trout from suppliers in the state. However, the ban on sales to out-of-state purchasers caused the restaurant a significant trout-supply problem that impacted the restaurant’s business. The restaurant sued, arguing that the ban violated the Dormant Commerce Clause.

Does the ban violate the Dormant Commerce Clause?

Answer 18

Yes. The ban violates the Dormant Commerce Clause. The ban facially discriminates against out-of-state interests and is virtually per se invalid. States cannot unjustifiably burden or discriminate against interstate commerce. A law that facially burdens or discriminates against out-of-state interests is constitutional only if the regulation:

*advances a legitimate local purpose and
*is the least discriminatory way of achieving that purpose.

This test creates a rule of virtually per se invalidity that requires the strictest scrutiny.

Here, the ban facially discriminates against out-of-state interests. The conservation of a native fish population is a legitimate local purpose that is advanced by the ban. However, because less discriminatory means also exist to advance this purpose, such as limiting the total number of fish that can be caught, the ban violates the Dormant Commerce Clause.

Question 19

What must a state seeking to defend a state law against a Dormant Commerce Clause challenge prove if the challenged law does not facially discriminate against interstate commerce?

Answer 19

If a state law does not facially discriminate against interstate commerce, a state defending the law from a Dormant Commerce Clause challenge must show that:

*the law advances a legitimate local objective,
*the law is rationally related to the objective, and
*the burdens imposed on interstate commerce are not clearly excessive as compared to the local benefits.

In determining whether the state interest outweighs the effect of the regulation, courts consider the extent of the burden on interstate commerce; the local benefits to the state; and the availability of reasonable, adequate, and nondiscriminatory alternatives. State laws imposing severe burdens on interstate commerce tend to be unconstitutional, even if they advance legitimate local interests. State laws imposing incidental burdens tend to be upheld, unless the burdens are clearly excessive in relation to the putative local benefits. Pike v. Bruce Church, Inc., 397 U.S. 137 (1970); Dean Milk Co. v. City of Madison, 340 U.S. 349 (1951).

Question 20

In a Dormant Commerce Clause case, how does the court weigh the state’s interest against the burden on interstate commerce imposed by the state law?

Answer 20

In a Dormant Commerce Clause case, to determine whether the state’s interest outweighs the burden on interstate commerce imposed by the state law, the court will consider:

*the extent of the burden or discrimination on interstate commerce;
*the local benefits to the state, and
*the availability of reasonable, adequate, and nondiscriminatory alternatives.

The state must prove is that its interest in the legitimate local objective is not outweighed by the law’s discriminatory effect on interstate commerce. State laws imposing severe burdens on interstate commerce tend to be unconstitutional under the Dormant Commerce Clause, even if they advance legitimate local interests. In contrast, state laws imposing only incidental burdens on interstate commerce tend to be upheld, unless the burdens are clearly excessive in relation to the putative local benefits. Pike v. Bruce Church, Inc., 397 U.S. 137 (1970); Dean Milk Co. v. City of Madison, 340 U.S. 349 (1951).

Question 21

If a state regulation only incidentally impacts interstate commerce, what elements will a court balance to determine whether the regulation violates the dormant aspect of the Commerce Clause?

Answer 21

If a state regulation only incidentally impacts interstate commerce, a court will balance the regulation’s burden on interstate commerce against its legitimate local benefits to determine whether the regulation violates the dormant aspect of the Commerce Clause.

The court will find a violation if the burden imposed on interstate commerce is clearly excessive when weighed against legitimate local benefits. Health, safety, and welfare benefits are local benefits that are legitimate. Pike v. Bruce Church, Inc., 397 U.S. 137 (1970); Southern Pacific Company v. Arizona, 325 U.S. 761 (1945).

Question 22

A state government enacted a law limiting the length of trains to no more than 100 total cars. Trains longer than 100 cars needed to be reconfigured before entering the state or else be re-routed to avoid entering the state at all. The law’s legislative history said that the legislature believed shorter trains were safer because shorter trains required shorter braking times to stop. However, safety data showed that the most dangerous aspect of freight-train operation was the initial crossing of a train on a street or highway, not the inability to brake quickly. Having more short trains entering crossings was more dangerous than having fewer long trains because of the increased risk of automobile-train collisions.

Does the state law violate the Dormant Commerce Clause?

Answer 22

Yes. The state law violates the Dormant Commerce Clause. If a facially neutral state law incidentally impacts interstate commerce, the law will violate the Dormant Commerce Clause if the burden the law places on interstate commerce is clearly excessive when weighed against legitimate local benefits.

Here, because the law does not distinguish between interstate and intrastate trains, it is not facially discriminatory. However, forcing all trains in a multi-state region to reconfigure or re-route is a serious burden on interstate train transportation. These burdens are weighed against any legitimate local benefits. However, this law increases the risk of automobile-train collisions. The local benefits are, at most, minimal. The law’s burden on interstate commerce is clearly excessive relative to any local benefits. Thus, the law violates the Dormant Commerce Clause. Pike v. Bruce Church, Inc., 397 U.S. 137 (1970); Southern Pacific Company v. Arizona, 325 U.S. 761 (1945).

Question 23

May states ever pass laws that affect interstate commerce?

Answer 23

Yes. States may pass laws that affect interstate commerce if those laws are rationally related to a legitimate local objective, and the state’s interests in those local objectives are not outweighed by the burden or discrimination the laws place on interstate commerce. In determining whether the state interest outweighs the effect of the regulation, courts consider:

*the extent of the burden or discrimination on interstate commerce;
*the local benefits to the state; and
*the availability of reasonable, adequate, and nondiscriminatory alternatives.

State laws imposing severe burdens on interstate commerce tend to be unconstitutional, even if they advance legitimate local interests. State laws imposing incidental burdens tend to be upheld, unless the burdens are clearly excessive in relation to the putative local benefits. Pike v. Bruce Church, Inc., 397 U.S. 137 (1970); Dean Milk Co. v. City of Madison, 340 U.S. 349 (1951).

Question 24

May a state adopt policies governing the state’s direct participation in a market that favor local interests over out-of-state interests without violating the Dormant Commerce Clause?

Answer 24

Yes. A state may adopt policies governing the state’s direct participation in a market that favor local interests over out-of-state interests without violating the Dormant Commerce Clause. Under the market-participant exception, if a state is acting as a market participant rather than as a sovereign regulator, then the state can adopt and enforce policies that burden or discriminate against interstate commerce without violating the dormant Commerce Clause. This exception applies to both state and local governments.

However, the state may only regulate direct transactions in the immediate market in which it is buying or selling. The state may not attempt to regulate indirect transactions occurring before its sale or purchase in upstream markets or occurring after its sale or purchase in downstream markets.

South-Central Timber Dev., Inc. v. Wunnicke, 467 U.S. 82 (1984); White v. Massachusetts Council of Construction Employers, Inc., 460 U.S. 204 (1983);

Question 25

For state regulations that impact interstate commerce, does the market-participant exception apply to both direct markets and related markets that are downstream from the direct market?

Answer 25

No. The market-participant exception does not apply to both direct markets and related markets that are downstream from the direct market. The reach of the Dormant Commerce Clause is limited to a state’s direct transactions in an immediate market and does not extend to state activity in a related, downstream market.

Thus, even if the state is acting as a participant in a particular market, the state cannot impact or regulate downstream transactions in a way that discriminates against out-of-state interests. Restrictions on downstream markets are treated as regulatory in nature and subject to the same rules that apply to any other facially discriminatory state regulations that burden interstate commerce. South-Central Timber Development v. Wunnicke, 467 U.S. 82 (1984).

Question 26

What does the Supremacy Clause provide?

Answer 26

The Supremacy Clause establishes the Constitution, federal statutes, and treaties as the highest law of the land. This clause establishes a hierarchy of law under which valid federal law preempts state law in the event of a conflict, regardless of the relative wisdom of the competing federal and state policies or the strength of the state’s regulatory interest versus that of the federal government.

The Supremacy Clause is one of the most important constitutional manifestations of federalism, as it explains that the laws of the federal government trump the laws of the states. U.S. Const. art. VI, cl. 2; Cooper v. Aaron, 358 U.S. 1 (1958).

Question 27

What is preemption?

Answer 27

Under the doctrine of preemption, valid federal law will preempt, meaning supersede or replace, conflicting state law. Preemption may be express or implied. The doctrine of preemption originates in the Constitution’s Supremacy Clause, which establishes the Constitution, federal law, and treaties as the highest law of the land.

Question 28

Does the existence of the Dormant Commerce Clause stem from the Supremacy Clause?

Answer 28

Yes. The Supremacy Clause is essentially the rationale behind the Dormant Commerce Clause. The supremacy of federal laws on interstate commerce over state laws yielded the Dormant Commerce Clause’s restrictions on state laws burdening or discriminating against interstate commerce. Cooper v. Aaron, 358 U.S. 1 (1958).

Question 29

What is the hierarchy of laws under the Supremacy Clause, starting with the most authoritative or supreme law and listed in descending order of supremacy?

Answer 29

In descending order of supremacy, the hierarchy of laws under the Supremacy Clause is:

*the U.S. Constitution,
*federal law and treaties,
*executive orders and agreements,
*federal case law,
*state constitutions and statutes, and
*state case law.

Cooper v. Aaron, 358 U.S. 1 (1958); Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304 (1816).

Question 30

The U.S. Supreme Court issued a decision that conflicted with a state’s constitution on a particular issue. A state case involving the issue reached the state supreme court. One state supreme court justice wished to follow the state’s constitution on the issue instead of following the U.S. Supreme Court decision. Another state supreme court justice argued the U.S. Supreme Court decision was binding precedent.

Is a U.S. Supreme Court decision binding precedent?

Answer 30

Yes. A U.S. Supreme Court decision is binding precedent that the lower federal and state courts cannot refuse to follow. Under the Supremacy Clause, federal law is supreme. The Supremacy Clause establishes a hierarchy of law under which federal law preempts state law in the event of a conflict. If a provision in a state constitution or a state statute conflicts with a binding precedent from the U.S. Supreme Court, the federal decision preempts application of the conflicting state law. This means state court judges are bound to follow federal law even if doing conflicts with either the state constitution or state laws.

Here, the state constitution conflicts with the U.S. Supreme Court decision. The state constitution is preempted. The state court must apply the U.S. Supreme Court’s decision. Thus, the decision is binding precedent. Cooper v. Aaron, 358 U.S. 1 (1958); Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304 (1816).

Question 31

If a state law conflicts with a valid federal statute or treaty, is the state law preempted?

Answer 31

Yes. If a state law conflicts with a valid federal law, then the state law is preempted and invalidated by the conflicting federal law. Under the Supremacy Clause, federal laws and ratified treaties are the supreme law of the land.

Question 32

What is express preemption?

Answer 32

Express preemption occurs when a federal statute expressly states that it preempts applicable state law. Statutes using an express-preemption strategy may use language such as “notwithstanding state law to the contrary,” “despite any state law to the contrary,” or state that the federal law “supersedes any and all state laws.”

Question 33

What is conflict preemption?

Answer 33

Conflict or obstacle preemption occurs when a federal statute supersedes a conflicting state law that:

*renders it impossible to comply with the federal statute and the state statute simultaneously or
*presents an obstacle to Congress’s purposes or objectives in the federal law.

If that type of conflict exists, the state law must be superseded by the federal law. This type of preemption is different from express preemption, in which Congress explicitly states that state laws on the subject are preempted.

Fla. Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132 (1963); see also Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363 (2000).

Question 34

What is field preemption?

Answer 34

Field preemption occurs when the scheme of federal legislation is so pervasive that a person can reasonably infer that Congress left no room for the states to regulate (such as in the field of immigration law). In that case, any state statute related to that field must be superseded by the federal scheme. Arizona v. United States, 567 U.S. (2012), 132 S. Ct. 2492 (2012).

Question 35

The federal government enacted extensive and pervasive regulation of the safety requirements of atomic energy in the United States, including the operation of nuclear power plants. However, hearing stories about safety issues in nuclear power plants in foreign countries, a state’s citizens became concerned about a nuclear power plant that operated within the state. To ease those citizens’ concerns, the state decided to enact some of its own safety requirements for the operation of nuclear power plants.

Does field preemption invalidate the state’s regulation of nuclear power plants?

Answer 35

Yes. Field preemption invalidates the state’s regulations. Field preemption occurs if the federal government has regulated an area so completely and thoroughly that no room exists for additional state regulation.

Here, federal regulation of the safety requirements for nuclear power plants is so pervasive that it occupies the entire field. Because Congress has occupied the field, field preemption invalidates any state laws that also try to regulate nuclear-power-plant safety, even if the state regulations do not actually conflict with either the objectives of federal law or the means Congress used to achieve those objectives. The only way this state law could avoid field preemption is if an express savings clause said that state regulations of nuclear energy are allowed. Because there is no saving clause, field preemption invalidates the state’s regulations.

Question 36

What is regulatory preemption?

Answer 36

Regulatory preemption recognizes that, to the extent that federal regulations validly issued by an agency have the force of law, they are entitled to the same preemptive effect as federal law. A federal regulation with the force of law will supersede an inconsistent state law.

Nonbinding agency regulations and materials, however, do not preempt state law.

Question 37

Under the Supremacy Clause, in what ways can a state law can be preempted by federal law?

Answer 37

Under the Supremacy Clause, a state law can be either expressly or impliedly preempted by federal law. Express preemption occurs if Congress enacts a statute that clearly and directly states that the statute is preempting any conflicting state laws. Implied preemption occurs if a state law either:

*impedes the ends or means of a federal law (i.e., conflict or obstacle preemption) or
*attempts to regulate an area already occupied by federal law (i.e., field preemption).

Regulatory preemption occurs when a state law is inconsistent with a federal regulation having the force of federal law.

Question 38

What is the difference between field preemption and conflict preemption?

Answer 38

Conflict preemption involves an implied conflict with a specific law or regulatory scheme, while field preemption involves an implied conflict with an entire subject area of law. Field preemption occurs if Congress has regulated a subject so completely and thoroughly that no room exists for additional state regulation. Conflict preemption occurs if:

*it is impossible to comply with both the state and the federal law or
*the state law obstructs the federal law’s objectives.

It is possible for a given state law to be preempted under both conflict preemption and field preemption.

Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000);

Question 39

Federal law gave the U.S. Coast Guard broad regulatory authority over the operation of ships using the waters of the United States. Federal statutes and U.S. Coast Guard regulations specifically addressed the safety and operation of oil tankers. Federal law had regulated vessel safety for many years and the regulations were both comprehensive and complex. The federal laws and regulations made it clear that their intent was to create a uniform set of standards governing all oil tankers. A state imposed its own safety regulations for the operation of oil tankers using the state’s navigable waterways.

Are the state’s tanker-safety regulations subject to both implied conflict preemption and field preemption?

Answer 39

Yes. The state regulations are subject to both implied conflict and field preemption. Implied conflict preemption occurs if:

*it is impossible to comply with both the state and the federal law or
*the state law obstructs the federal law’s objectives.

Field preemption occurs if the federal government has regulated an area so thoroughly that no room exists for state regulation.

Here, federal regulations set safety requirements for operating oil tankers. Even if the state regulations supplement the federal ones, the state regulations still interfere with the federal government’s intent to have one uniform system. The state regulations are conflict preempted. Federal law also comprehensively regulates this area. Because no room exists for additional state regulation, field preemption also occurs. Thus, the state regulations are subject to both implied conflict and field preemption.

Question 40

Can Congress authorize states to regulate in ways that would otherwise be preempted by a federal law?

Answer 40

Yes. Congress can authorize states to regulate in ways that would otherwise be preempted by a federal law. To do this, Congress can include an express saving clause in a federal law that authorizes state regulations that would otherwise be preempted. If a savings clause applies to a state law, then even if the state law conflicts with federal law in some way, the state law will not be invalidated on preemption grounds.

Question 41

Can Congress give authority to the states to enact laws and regulations that impact interstate commerce?

Answer 41

Yes. Under its Commerce Clause power, Congress can affirmatively give authority to the states to enact laws and regulations impacting interstate commerce. The U.S. Supreme Court has required Congress to demonstrate its intent to authorize states to burden or discriminate against interstate commerce in unmistakably clear terms.

Generally, if Congress has not said anything, the dormant aspect of the Commerce Clause prevents states from regulating interstate commerce. If Congress has been silent, it is because Congress deliberately chose to not regulate and that choice must be respected. A state cannot make a different choice and usurp Congress’s power to regulate interstate commerce if Congress has been silent on an issue.

South-Central Timber Dev., Inc. v. Wunnicke, 467 U.S. 82 (1984); Southern Pacific Railroad Co. v. Arizona, 325 U.S. 761 (1945);

Question 42

Several states wanted to pass laws offering reduced social-welfare benefits to new residents. The states argued that until a person had lived in a state long enough to have a real attachment to the state, that person should only receive partial welfare benefits from that state’s treasury. However, one state argued that a law providing reduced benefits to new residents would burden the ability of indigent people to exercise the right to travel to establish residence in a new state. On their own, the states could not pass laws burdening the right to travel. Accordingly, these states lobbied Congress to pass a federal law giving authority to the states to pass these proposed state laws.

Can Congress authorize the states to pass laws that burden the right to travel?

Answer 42

No. Congress cannot authorize the states to pass laws that burden the right to travel. Such laws violate a substantive right protected under the U.S. Constitution. All fundamental rights are substantive constitutional rights.

Here, the right to travel is a substantive, fundamental right protected by the Constitution. Congress cannot authorize state governments to burden or deny the right to travel. The proposed laws would discriminate against people who have recently traveled, which burdens their substantive constitutional right to travel. Accordingly, Congress lacks the authority to authorize the states to adopt such laws.
Saenz v. Roe, 526 U.S. 489 (1999); Shapiro v. Thompson, 394 U.S. 618 (1969).

Question 43

Can Congress include exceptions in a federal statute that save some state laws from being preempted by that federal statute?

Answer 43

Yes. Congress can include exceptions in a federal statute that save some state laws from being preempted by that federal statute. Generally, a state law is preempted and invalid if it interferes with the methods used by a federal law to achieve a goal. However, if Congress exercises its authority under Article I, § 8 of the U.S. Constitution to make laws, Congress can include a saving clause that says state laws falling within the scope of the saving clause are not preempted by federal law. Wyeth v. Levine, 555 U.S. 555 (2009)