State Laws: Federal Government Takeover?

The relationship between state and federal law in the United States is a complex one. While the federal government may want states to make certain things illegal, it doesn’t happen automatically, and the federal government is limited in the ways it can make states comply. This is because, in the US, state governments and the federal government share power, and their functions can overlap or work in parallel. The area of law that addresses possible conflict between state and federal laws is generally referred to as the Supremacy Clause of the US Constitution, which establishes that the Constitution, federal laws, and treaties made under its authority, take priority over conflicting state laws. However, the Supremacy Clause also assumes the underlying priority of federal authority, and the US Supreme Court has limited the authority of Congress to directly regulate the operations of state governments, in what is known as the anti-commandeering doctrine.

The Supremacy Clause

In the late 18th and early 19th centuries, the Supreme Court relied on the Supremacy Clause to establish a robust role for the federal government in managing the nation's affairs. The Court's early field-preemption decisions concluded that any congressional action in certain fields automatically displaced all state laws in those fields. However, during the New Deal era of the 1930s and 1940s, the Court acceded to demands for a more active national government by revising other elements of its federalism jurisprudence.

Federal preemption

In the United States, the federal government and state governments share power, and their functions can overlap or work in parallel. The area of law that addresses possible conflict between state and federal laws is referred to as the Supremacy Clause of the US Constitution, a key provision appearing in Article VI.4.

The Supremacy Clause establishes that the Constitution, federal laws made pursuant to it, and treaties made under its authority, constitute the "supreme Law of the Land", and thus take priority over any conflicting state laws. This is known as the preemption doctrine, which refers to the idea that a higher authority of law will displace the law of a lower authority of law when the two conflict.

The Supremacy Clause assumes the underlying priority of federal authority, but only when that authority is expressed in the Constitution itself. Federal statutes and treaties must be within the parameters of the Constitution and not violate other constitutional limits on federal power, such as the Bill of Rights. The Tenth Amendment to the United States Constitution, for example, states that the federal government has only those powers that are delegated to it by the Constitution.

There are three types of preemption: express preemption, implied preemption, and conflict preemption. Express preemption occurs when a federal statute explicitly confirms Congress's intention to preempt state law. Implied preemption occurs in two ways: field preemption or conflict preemption. Implied preemption is more controversial and may be harder to prevent than other forms of preemption. Conflict preemption occurs when a federal law enacted under Congress' Commerce Clause authority conflicts with state law.

The Supreme Court tries to follow lawmakers' intent and prefers interpretations that avoid preempting state laws. Similarly, state laws will usually prevail when state and local laws are in conflict.

State sovereignty

The Supremacy Clause includes the doctrine of "preemption", which states that federal law supersedes state law in most cases of conflict. However, it is important to note that federal statutes and treaties must adhere to the Constitution's parameters and not violate constitutional limits on federal power, such as the Bill of Rights. The Tenth Amendment further emphasises this balance by stating that the federal government only possesses the powers delegated to it by the Constitution. This highlights the complex nature of state sovereignty in the US, where power is distributed between different levels of government.

While the Supremacy Clause establishes the priority of federal law, there are instances where state laws may contradict federal laws. For example, in the area of cannabis legalisation, some states have legalised medical and adult-use cannabis despite federal laws prohibiting it. In these cases, the federal government has limited ability to compel states to comply, and federal prosecutors have discretion in enforcing federal laws within states. This dynamic demonstrates the dynamic nature of state sovereignty, where the interplay between federal and state authorities is not always straightforward.

The concept of state sovereignty extends beyond the US and is a fundamental principle in international relations. The Westphalian System of state sovereignty, established by the 1648 Treaty of Westphalia, recognised the right of princes to determine the religious affiliation of their kingdoms, marking a separation between religion and state. Over time, the concept of sovereignty has evolved, influenced by the development of self-determination, the prohibition of the use of force, and the recognition of equal rights and duties of states under international law. Today, sovereignty is often associated with the idea of a state's independence, territorial integrity, and supreme authority in decision-making within its jurisdiction.

Federal regulatory power

In the United States, federal regulatory power is a complex interplay between the federal government and state legislatures. The Supremacy Clause of the US Constitution (Article VI, Clause 2) establishes the supremacy of federal law over state law, asserting that the Constitution, federal laws, and treaties made under its authority are the "supreme Law of the Land". This clause, defended by James Madison, recognises federal authority while mandating that it operates within the boundaries of the Constitution.

The Supremacy Clause includes the doctrine of "preemption", which states that federal law supersedes state law in cases of conflict, although this does not apply in all instances. The Supreme Court plays a crucial role in interpreting lawmakers' intent and favouring interpretations that avoid preempting state laws. For example, in Chy Lung v. Freeman, the Court ruled against the detention of a passenger based on a state statute, as it conflicted with federal legislation's authority to regulate the admission of foreign citizens.

The anti-commandeering doctrine limits the authority of Congress to directly regulate state governments. The Court in Gregory v. Ashcroft highlighted "serious constitutional issues" that would arise from interpreting the Age Discrimination in Employment Act to apply to appointed state judges. In New York v. United States, the Court ruled that Congress may not "commandeer" state regulatory processes by ordering states to enact or enforce federal programs. Similarly, in Printz v. United States, the Court held that Congress cannot circumvent this prohibition by conscripting state officers directly.

Anti-commandeering doctrine

The anti-commandeering doctrine is a judicially created federalism protection that limits the authority of Congress to directly regulate the operations of state governments. The doctrine states that the federal government cannot require states or state officials to adopt or enforce federal law. It was created by the Supreme Court from the Tenth Amendment and related federalism principles in two cases: New York v. United States in 1992 and Printz v. United States in 1997.

The anti-commandeering doctrine is based on the idea that Congress lacks the power to issue orders directly to the states. This rule has been justified in three ways:

• Protecting liberty by ensuring a healthy balance of power between the states and the federal government.
• Promoting political accountability by avoiding the blurring of which government is responsible for a particular policy.
• Preventing Congress from shifting the costs of regulation to the states.

The anti-commandeering doctrine has been criticised for having no basis in the text or history of the Constitution, and for being unworkable in practice. In particular, the doctrine has been challenged in cases involving federal regulation of sports gambling, such as Christie v. National Collegiate Athletic Association and New Jersey Thoroughbred Horsemen's Association v. NCAA. These cases have raised the question of whether the federal government can prohibit states from repealing their own laws, such as New Jersey's attempt to revoke its statutory ban on sports gambling.

Despite these criticisms, the Supreme Court has shown no indication of abandoning the anti-commandeering doctrine, indicating that it remains an important principle in US federalism.

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