State Preemption

Question 1

Four Types of Preemption

Answer 1

1) Express Preemption
2) Conflict Preemption
3) Obstacle Preemption
4) Field Preemption

Question 2

Express Preemption

Answer 2

What does the statute mean?
When language of the federal law itself/Congress says that the state law is preempted (look to statutory language and congressional intent)

*determine if law falls within expressly preempted federal language

Question 3

Exception to Express Preemption

Answer 3

Savings Clause.

Also determine if the terms used are broad or narrow because they affect the sweep and coverage of state law

Question 4

Conflict Preemption

Answer 4

(Implied)…not in federal law itself, but in the way the federal and state law operate. Person cannot comply with federal and state law at the same time.
Put yourself in the shoes of the regulated person/corporation…Can I comply with both federal and state regulatory scheme

Cheat: If federal standard is higher than preemption is present. BUT if state standard is higher then there is no preemption, just pay the higher price

Question 5

Obstacle Preemption

Answer 5

(Implied) If state law stands as an obstacle to a federal objective, then state law is preempted (null and void) and federal law governs.

*Look to language of text + historical interest. What is the goal of federal act? does state law interfere with ability to achieve objective? (if not clear, make arguments for both sides)

Question 6

Field Preemption

Answer 6

(Implied) If congress has exclusive control over the law (operation or constitutional) and no room for states to regulate, this means congress has occupied the field. State law that is perfectly congruent with federal law is preemptive (null and void). State’s can’t do anything when congress occupies the field…no room to regulate. (paid field preemption with another)

Question 7

Analyzing Preemption

Answer 7

1) Starting point: Congressional intent is best manifested by federal statutory language
2) Beyond statutory text, look to legislative history (not universal agreement)
3) Court starts any preemption analysis with the presumption against preemption (states rights/sovereignty

Question 8

Advise to Congress re: preemption

Answer 8

Use clear and express preemption to make the court’s job easy. All they have to determine then is if state law falls under express language.

(congress always has the last word b/c they can go back to re-write law to include the law)