Pg 15 Flashcards
What does it mean for preemption to be express (aka: express preemption)?
Congress manifests an intention by explicitly stating it to override state and local laws or regulations. The statute on its face addresses preemption.
Ie: federal law defined eligible foods under WIC and expressly says states can NOT add or subtract to the list
What is implied preemption?
The state law does not directly conflict with a federal law, but it is impossible to comply with the federal and the state statute.
The court will look at the past express language of the federal statute to decide if Congress OCCUPIED THE FIELD the state was trying to regulate and whether enforcement of state law would frustrate federal purposes. The question to ask is whether Congress intended its scheme to function concurrently or to occupy the field
What are the two different types of preemption under the supremacy clause?
Express and implied
What are the three different types of implied preemption?
– conflict preemption
– obstacle preemption
– field preemption
What is conflict preemption as a type of implied preemption under the supremacy clause?
When it is IMPOSSIBLE to comply with the federal statute [that is silent about preemption] and the state statute. Preemption is a necessary implication since people cannot comply with both
What is obstacle preemption as a type of implied preemption under the supremacy clause?
The federal statute says the object and purposes, but not the SCOPE. Preemption happens if the state statute is an obstacle to the purpose or objective of federal law
When determining if implied preemption has occurred, what’s the first thing you have to think about?
What type of state law is being preempted. If it regulates something different from the interests of the federal regulation, it is not preempted
What is field preemption as a type of implied preemption under the supremacy clause?
This can happen in two different ways:
– federal regulatory scheme is so PERVASIVE it implies that Congress left no room for the states to supplement it.
– The federal interest in the field of the federal statute is so DOMINANT that the federal law is assumed to preclude state law on the same subject
What are major questions you should ask when you come up against a preemption issue?
Has Congress preempted any state action, even though it doesn’t conflict with federal law? Did congress manifest its intent to override state or local laws and regulations?
How do you deal with preemption on an exam?
1) If there is overlap between state police power regulations and congressional power to regulate interstate commerce, you must decide if Congress INTENDED TO PREEMPT in this area. It often says so right in the statute, but if not….
2) go through the three-part test for IMPLIED preemption that includes conflict, obstacle, and field preemption
If there is a direct conflict between a federal regulation and state regulation because they are on the same subject or issue, what happens?
The federal law preempts state law and makes it invalid.
If a state regulates conditions for housing chickens and the federal law regulates food additives for chickens, has there been a direct conflict that would result in preemption?
No, because even though they both regulate chickens, they are not on the same subject and there’s no intent to preempt the state’s laws
What is the essay approach for preemption?
– is the federal regulation of the same SUBJECT as state regulation?
– Is there a provision for express preemption in the federal law?
- If there is no express preemption, is there implied preemption?
• what is the RISK of inconsistent demands between state and federal requirements? If significant, did Congress INTEND to prevent it by displacing state power?
• what is the PURPOSE of the federal regulation and is it frustrated by any state regulation?
• is federal interest in the field so DOMINANT that federal law is assumed to preclude state law on even related matters?
What is preemption technically all about?
Congressional intent
What are areas that likely involve preemption?
If the area requires uniformity, if the federal law is very pervasive, if administration of both laws will likely create a conflict, if Congress created an agency to regularly superintend an area, etc.
