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Dodd-Frank and Federal Preemption
Dodd-Frank and Federal Preemption
Published: 2011/07/20
Channel: Wolters Kluwer - Financial Services Solutions
Federal Preemption--Stealing Your Legal Rights
Federal Preemption--Stealing Your Legal Rights
Published: 2009/02/04
Channel: Searcy Law Video
Federal Preemption
Federal Preemption
Published: 2008/01/13
Channel: U.S. Chamber of Commerce
Preemption
Preemption
Published: 2012/09/11
Channel: MUHCRC
CO reps intro bill to shield state pot laws from federal preemption
CO reps intro bill to shield state pot laws from federal preemption
Published: 2017/05/18
Channel: The Cannabist
Federal Law Preempts States Law
Federal Law Preempts States Law
Published: 2015/11/19
Channel: RepPetri
Article VI For Dummies: The Supremacy Clause Explained
Article VI For Dummies: The Supremacy Clause Explained
Published: 2013/10/28
Channel: Keith Hughes
Generic Drugs and Federal Preemption
Generic Drugs and Federal Preemption
Published: 2010/11/01
Channel: LegallyBrief
Federal Preemption: New Developments and Notable Trends for Drugs & Medical Devices
Federal Preemption: New Developments and Notable Trends for Drugs & Medical Devices
Published: 2015/09/16
Channel: WashLglFndt
Glance Preemption & Priority Live Demonstration
Glance Preemption & Priority Live Demonstration
Published: 2015/10/29
Channel: Applied Information Inc
Constitutional Law-Part 1
Constitutional Law-Part 1
Published: 2014/08/24
Channel: Ida M. Jones
Federal Preemption States Powers National Interests
Federal Preemption States Powers National Interests
Published: 2016/09/20
Channel: Darker
Supremacy Clause
Supremacy Clause
Published: 2015/02/09
Channel: Jason Mance Gordon
Republican States Don
Republican States Don't Care If Your Town Bans Fracking
Published: 2017/01/06
Channel: The Young Turks
Recent Developments in Federal Preemption of State Securities Law Claims
Recent Developments in Federal Preemption of State Securities Law Claims
Published: 2013/09/24
Channel: NetworkTrialLawFirms
Jere Beasley on federal preemption of state laws
Jere Beasley on federal preemption of state laws
Published: 2012/02/20
Channel: Beasley Allen
FDA Preemption: The Battle for Supremacy
FDA Preemption: The Battle for Supremacy
Published: 2015/02/13
Channel: New Jersey Civil Justice Institute
Federal Preemption Litigator Series
Federal Preemption Litigator Series
Published: 2016/09/20
Channel: Darker
Peter Pitts the case for Preemption
Peter Pitts the case for Preemption
Published: 2009/01/23
Channel: Sequence Media Group
Admin Law 2008 | Administrative Law, Preemption, & Federalism
Admin Law 2008 | Administrative Law, Preemption, & Federalism
Published: 2014/03/30
Channel: Duke University School of Law
Madigan: Preemption gave rise to lending problems
Madigan: Preemption gave rise to lending problems
Published: 2010/01/15
Channel: Progress Illinois
Municipal Issues in an Era of Preemption Webinar
Municipal Issues in an Era of Preemption Webinar
Published: 2017/03/10
Channel: Stateside Associates
Understanding Preemption
Understanding Preemption
Published: 2017/06/24
Channel: Ballotpedia videos
State Law Preempted by Federal Immigration Law (SCOTUS 2012)
State Law Preempted by Federal Immigration Law (SCOTUS 2012)
Published: 2016/11/17
Channel: Chris G
Federal Preemption of State and Local Law Legislation Regulation and Litigation
Federal Preemption of State and Local Law Legislation Regulation and Litigation
Published: 2016/09/18
Channel: Isabella Del Fabbro
Federal Preemption of State and Local Law Legislation Regulation and Litigation
Federal Preemption of State and Local Law Legislation Regulation and Litigation
Published: 2016/09/25
Channel: Eden McLeay
Federal Preemption of State and Local Law Legislation Regulation and Litigation
Federal Preemption of State and Local Law Legislation Regulation and Litigation
Published: 2016/09/25
Channel: Sam Wrigley
Say "No" to additional Federal Law to Preempt State Labor Laws
Say "No" to additional Federal Law to Preempt State Labor Laws
Published: 2017/01/16
Channel: Allen Smith
@SenatorDuff @AGJepsen Urge Congress to Vote NO on Federal Preemption of CT Cybersecurity Laws
@SenatorDuff @AGJepsen Urge Congress to Vote NO on Federal Preemption of CT Cybersecurity Laws
Published: 2015/07/21
Channel: CTSen Dems
Preemption Laws: Why States Can
Preemption Laws: Why States Can't Regulate Guns
Published: 2015/12/04
Channel: Thom Hartmann Program
Preemption Threatens the RIghts of Consumers
Preemption Threatens the RIghts of Consumers
Published: 2012/06/05
Channel: Beasley Allen
Preemption - When It Can Be Implied
Preemption - When It Can Be Implied
Published: 2016/09/27
Channel: NetworkTrialLawFirms
Federal, State & Local Drone Laws, Property Rights & Privacy.
Federal, State & Local Drone Laws, Property Rights & Privacy.
Published: 2016/02/05
Channel: DroneLaw.Pro
Rep. Waxman discusses the dangers of federal drug preemption
Rep. Waxman discusses the dangers of federal drug preemption
Published: 2008/08/01
Channel: hkllp
Whistle Where You Work #4: The Assault on Scientific Integrity,
Whistle Where You Work #4: The Assault on Scientific Integrity, 'Preemption'
Published: 2010/03/27
Channel: GovAcctProjTV
Q&A: Preemption: Balancing the Wyeth, Riegel, and Greier Decisions
Q&A: Preemption: Balancing the Wyeth, Riegel, and Greier Decisions
Published: 2010/03/17
Channel: NorthwesternU
NOP doctrine of preemption
NOP doctrine of preemption
Published: 2008/10/13
Channel: voteNOPin08dotcom
5:45 Live: Entergy Preemption Hearing Special
5:45 Live: Entergy Preemption Hearing Special
Published: 2011/08/24
Channel: 545Live
Kewanee Oil v  Bicron Preemption
Kewanee Oil v Bicron Preemption
Published: 2017/03/18
Channel: Research Hours
02-23-11 Patton Twp. PA Preemption Discussion
02-23-11 Patton Twp. PA Preemption Discussion
Published: 2011/02/27
Channel: FOACPAC
ERISA Preemption - Long Term Disability
ERISA Preemption - Long Term Disability
Published: 2013/05/30
Channel: Ray Bourhis
Zieve: Preemption: Balancing the Wyeth, Riegel, and Greier Decisions
Zieve: Preemption: Balancing the Wyeth, Riegel, and Greier Decisions
Published: 2010/03/17
Channel: NorthwesternU
Supreme Court Rules in Favor of Generic  Drug Preemption
Supreme Court Rules in Favor of Generic Drug Preemption
Published: 2011/07/26
Channel: tcdevoto
Preemption Runs 1 5 Testing  4 19 16
Preemption Runs 1 5 Testing 4 19 16
Published: 2016/04/19
Channel: Daniel Oliver
Preemption ruling at the Supreme Court with Jan Schlichtmann and Scott Drake
Preemption ruling at the Supreme Court with Jan Schlichtmann and Scott Drake
Published: 2008/09/25
Channel: Sequence Media Group
Community Broadband Networks and Preemption
Community Broadband Networks and Preemption
Published: 2010/09/28
Channel: Institute for Local Self-Reliance
Bograd: Preemption: Balancing the Wyeth, Riegel, and Greier Decisions
Bograd: Preemption: Balancing the Wyeth, Riegel, and Greier Decisions
Published: 2010/03/17
Channel: NorthwesternU
Arizona Ban on Bag Bans
Arizona Ban on Bag Bans
Published: 2015/04/19
Channel: Notes From The Man Cave
Goldstein: Preemption: Balancing the Wyeth, Riegel, and Greier Decisions
Goldstein: Preemption: Balancing the Wyeth, Riegel, and Greier Decisions
Published: 2010/03/17
Channel: NorthwesternU
America & The Courts 20July09 Preemption Clip
America & The Courts 20July09 Preemption Clip
Published: 2009/09/05
Channel: regpfj
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WIKIPEDIA ARTICLE

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In the law of the United States, federal preemption is the invalidation of a U.S. state law that conflicts with federal law.

Constitutional basis[edit]

According to the Supremacy Clause (Article VI, clause 2) of the United States Constitution,

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.

As the Supreme Court stated in Altria Group v. Good, 555 U.S. 70 (2008), a federal law that conflicts with a state law will trump, or "preempt", that state law:

Consistent with that command, we have long recognized that state laws that conflict with federal law are "without effect." Maryland v. Louisiana, 451 U. S. 725, 746 (1981)

Although many concurrent powers are subject to federal preemption, some are usually not, such as the power to tax private citizens.[1]

Intent of Congress presumed to be deference to states[edit]

In Altria Group v. Good, the Court wrote:

When the text of a pre-emption clause is susceptible of more than one plausible reading, courts ordinarily "accept the reading that disfavors pre-emption." Bates v. Dow Agrosciences LLC, 544 U.S. 431, 449 (2005).

In Wyeth v. Levine (2009), the Court emphasized what it called the "two cornerstones" of pre-emption jurisprudence:

First, "the purpose of Congress is the ultimate touchstone in every pre-emption case." Medtronic, Inc. v. Lohr, 518 U. S. 470, 485 (1996) (internal quotation marks omitted); see Retail Clerks v. Schermerhorn, 375 U. S. 96, 103 (1963). [Medtronic: "[O]ur analysis of the scope of the statute's pre-emption is guided by our oft-repeated comment, initially made in Retail Clerks v. Schermerhorn, 375 U.S. 96, 103, ... (1963), that "the purpose of Congress is the ultimate touch-stone" in every pre-emption case."] Second, "[i]n all pre-emption cases, and particularly in those in which Congress has 'legislated … in a field which the States have traditionally occupied,' … we 'start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.' " Lohr, 518 U. S., at 485 (quoting Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947) ).

See also Reilly, 533 U. S., at 541–542 (citation omitted):

Because 'federal law is said to bar state action in [a] fiel[d] of traditional state regulation,' namely, advertising, we 'wor[k] on the assumption that the historic police powers of the States [a]re not to be superseded by the Federal Act unless that [is] the clear and manifest purpose of Congress'.

Federal Agency Administration Guiding Principles[edit]

(Mandatory authority for independent agencies created by executive order and Cabinet departments; not binding on judicially-created tribunals; congressionally-created independent regulatory agencies are encouraged to comply)

Executive Order 13132 of August 4, 1999 - See 64 Fed. Reg. 43, 255 - August 10, 1999, Sec. 4. Special Requirements for Preemption.

Agencies, in taking action that preempts State law, shall act in strict accordance with governing law.

(a) Agencies shall construe, in regulations and otherwise, a Federal statute to preempt State law only where the statute contains an express preemption provision or there is some other clear evidence that the Congress intended preemption of State law, or where the exercise of State authority conflicts with the exercise of Federal authority under the Federal statute.

(b) Where a Federal statute does not preempt State law (as addressed in subsection (a) of this section), agencies shall construe any authorization in the statute for the issuance of regulations as authorizing preemption of State law by rulemaking only when the exercise of State authority directly conflicts with the exercise of Federal authority under the Federal statute or there is clear evidence to conclude that the Congress intended the agency to have the authority to preempt State law.

(c) Any regulatory preemption of State law shall be restricted to the minimum level necessary to achieve the objectives of the statute pursuant to which the regulations are promulgated.

(d) When an agency foresees the possibility of a conflict between State law and Federally protected interests within its area of regulatory responsibility, the agency shall consult, to the extent practicable, with appropriate State and local officials in an effort to avoid such a conflict.

(e) When an agency proposes to act through adjudication or rulemaking to preempt State law, the agency shall provide all affected State and local officials notice and an opportunity for appropriate participation in the proceedings.

Evidence of Congressional intent to preempt[edit]

In Altria Group v. Good, the Court reiterates that "Congress may indicate pre-emptive intent" in two ways: "through a statute's express language or through its structure and purpose. See Jones v. Rath Packing Co., 430 U. S. 519, 525 (1977)".

Express preemption[edit]

Express preemption occurs only when a federal statute explicitly confirms Congress's intention to preempt state law. English v. General Elec. Co., 496 U.S. 72 (1990). "If a federal law contains an express pre-emption clause, it does not immediately end the inquiry because the question of the substance and scope of Congress' displacement of state law still remains." Altria Group v. Good

Implied preemption[edit]

Implied preemption can occur in two ways: field preemption or conflict preemption. Massachusetts Ass'n of HMOs v. Ruthardt, 194 F.3d 176, 179 (1st Cir. 1999).

Conflict preemption[edit]

Under the Supremacy Clause, any state law that conflicts with a federal law is preempted. Gibbons v. Ogden, 22 U.S. 1 (1824). Conflict arises when it is impossible to comply with both the state and federal regulations, or when the state law interposes [(to) put up (between)] an obstacle to the achievement of Congress's discernible objectives. Gade v. National Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 98 (1992).

Actual conflict. A conflict exists if a party cannot comply with both state law and federal law (for example, if state law forbids something that federal law requires). Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43 (1963).
Obstacle. In addition, even in the absence of a direct conflict between state and federal law, a conflict exists if the state law is an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. Crosby v. National Foreign Trade Council, 530 U.S. 363, 372-73 (2000).
Minimum Safety Standard vs. Uniform Safety Standard
Often there may be a question of frustration of congressional purpose or the state law standing as an obstacle to congressional intent. This will raise a question of whether congressional or administrative intent in passing the law was uniformity or minimum national safety standards. Congressional intent may be to allow States to pass laws that will "establish greater safety than the minimum safety achieved by a federal regulation intended to provide a floor." Geier v. American Honda Motor Co., 529 U.S. 861, 870, 120 S. Ct. 1913, 146 L. Ed. 2d 914 (2000).
Alternatively, the purpose of a federal law could be to set a uniform national standard. This was the case in Geier, where the National Traffic and Motor Vehicle Safety Act of 1966 required auto manufacturers to equip a certain number of their 1987 vehicles with passive restraints. Id. at 864-865. the question before the Supreme Court was whether the Act pre-empted state common-law tort claims saying that the auto manufacturer, although in compliance with the Act, "should nonetheless have equipped a 1987 automobile with airbags." The court indicated that, despite a savings clause, the statute "reflects a desire to subject the industry to a single, uniform set of federal safety standards. Its pre-emption of all state standards, even those that might stand in harmony with federal law, suggests an intent to avoid conflict, uncertainty, cost, and occasional risk to safety itself that too many different safety–standard cooks might otherwise create." Id. at 871.

Field preemption[edit]

Even without a conflict between federal and state law or an express provision for preemption, the courts will infer an intention to preempt state law if the federal regulatory scheme is so pervasive as to "occupy the field" in that area of the law, i.e. to warrant an inference that Congress did not intend the states to supplement it. Gade v. National Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 98 (1992). See also Rice v. Santa Fe Elevator Corp. For example, the courts have held that the National Labor Relations Act (NLRA) preempts state laws directed at conduct actually or arguably prohibited or protected by the NLRA or conduct Congress intended to leave unregulated. San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 244 (1959); Machinists v. Wisconsin Emp. Rel. Commission, 427 U.S. 132, 140-48 (1976).

Preemption in Bankruptcy Courts[edit]

The Bankruptcy Code, which is codified as title 11 of the United States Code, is the uniform federal law that governs all bankruptcy cases.

There are several purposes behind the enactment of the law in its current form. Most important is a fresh start for the honest but unfortunate debtor and equality of distribution to creditors. Since state law governs most contracts, and contracts usually form the basis for debt, there is a lot of overlap between state laws and bankruptcy.

This overlap is ripe for preemption wherever state law interferes with either the debtor's fresh start or a creditor's right to equal distribution.

Examples include: In Hawaii, a homeowner may not sue his homeowner's association unless and until all fees are paid in full. This tremendous leverage for the HOA but has been recently held to be preempted. A homeowner cannot sue the HOA in state court but may be able to do so in bankruptcy court.

In California, several laws including portions of the California Constitution have been held to be unconstitutional. This includes California's one-action rule and protections given to CalPERS.[2]

See also[edit]

References[edit]

External links[edit]

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