Cecily Zamora
In the United States, preemption is a legal doctrine that allows higher levels of government to restrict or prevent lower-level governments from self-regulating. When state law and federal law conflict, federal law displaces or preempts state law due to the Supremacy Clause of the Constitution. This is based on the idea that a higher authority of law will displace the law of a lower authority when the two conflict. The preemption doctrine applies to legislatures, courts, administrative agencies, and constitutions. However, the Tenth Amendment limits what state laws can be federally preempted, and the Supreme Court has cautioned that courts should favour state authority when evaluating evidence of Congressional intent.
| Characteristics | Values |
|---|---|
| What is preemption? | The preemption doctrine refers to the idea that a higher authority of law will displace the law of a lower authority of law when the two authorities come into conflict. |
| When does federal law preempt state law? | When a federal statute conflicts with state law, or when federal laws dominate a field that a state law seeks to regulate. |
| What are the types of conflicts? | Outright conflict, express preemption, and implied preemption. |
| What are the types of preemption? | Express preemption and implied preemption. |
| What is an example of federal law preempting state law? | In Sperry v. Florida, 373 U.S. 379 (1963), the Supreme Court ruled that federal patent law preempted state law regarding the licensure of attorneys. |
| What is an example of state law not being preempted by federal law? | State marijuana regulation laws are not preempted by federal law due to the Tenth Amendment and the principle of dual sovereignty. |
| What is the role of the Supreme Court? | The Supreme Court interprets lawmakers' intent and prefers interpretations that avoid preempting state laws. |
| What factors influence the extent of state preemption of local laws? | Whether local governments have the power to govern (Home Rule) or if they follow Dillon's Rule, which restricts legislation to areas expressly allowed by the state. |
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Marijuana laws
At the federal level, marijuana possession and distribution laws are outlined in the Controlled Substances Act (CSA) and the Supremacy Clause of the United States Constitution, which establishes federal law as the "supreme Law of the Land." Despite this, the US system of government recognizes dual sovereignty, allowing states to serve as "laboratories of democracy" and chart their paths regarding marijuana legislation.
As of 2022, 37 states, the District of Columbia, and four US territories have legalized the use of medical marijuana. Additionally, 13 states and one territory have decriminalized cannabis use, and 18 states, two territories, and the District of Columbia have enacted laws permitting recreational marijuana use. This shift in state legislation has significantly reduced the number of people arrested for cannabis-related offenses and provided safe and regulated access to cannabis for millions of Americans.
The conflict between state and federal marijuana laws has led to legal complexities, particularly regarding banking rules and regulations. Business lawyers advising clients in the cannabis industry face challenges due to the lack of clear guidance and direction. The federal government's enforcement efforts have also evolved, with the Department of Justice issuing statements and memos clarifying their approach to enforcement in states that have legalized cannabis. In 2018, the Department of Justice rescinded a previous memo and began requiring US Attorneys to enforce federal marijuana laws more strictly. However, in 2023, President Biden issued a blanket pardon for simple possession, attempted possession, or use of marijuana, further complicating the legal landscape.
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Immigration laws
The United States federal government regulates immigration, but states also have their own laws that can control immigration within their borders. The U.S. Congress controls all immigration-related regulations, and the White House enforces immigration laws. The Immigration and Nationality Act (INA) of 1952 dictates most aspects of federal immigration law, including visas and citizenship status.
However, the Supremacy Clause of the U.S. Constitution (Article VI, Cl. 2) invalidates, or preempts, state laws that interfere with or are contrary to federal law. The U.S. Supreme Court has ruled that the federal government has "broad and exclusive power" to regulate immigration, preempting state and local laws that also attempt to do so. This means that state regulation of immigration, in the form of a state law or local ordinance, cannot determine who should or should not be admitted into the country and the conditions under which a legal entrant may remain.
Federal immigration law expressly allows states and localities to independently regulate the employment of illegal aliens through licensing and similar laws. However, laws and regulations targeting "illegal aliens" may be preempted because they require state officials to make independent assessments of the legality of an applicant's presence in the United States. For example, the Supreme Court ruled that federal law preempted Arizona's 2010 law that gave local officers immigration enforcement authority, stating that only federal law can determine immigration violations.
There is a growing trend for municipalities to adopt "sanctuary" or "welcoming" policies that promote immigrants' welfare. In response, a dozen states have adopted statutes that bar municipalities from maintaining these policies, refusing or limiting cooperation with federal immigration enforcement. These preemption laws are a concern for immigrant rights groups, who challenge state laws affecting immigration, particularly those requiring proof of citizenship or legal residence, as they can lead to racial profiling.
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Patent laws
In the United States, the Constitution declares that federal law is "the supreme law of the land". This means that when a federal law conflicts with a state or local law, the federal law will supersede the other law or laws. This is known as "preemption".
However, determining whether federal law preempts state law is not always straightforward and often requires an extensive analysis. While Congress can include specific language in a statute that preempts state law, preemption could also be implied by other factors.
In the context of patent laws, the Supreme Court has ruled that federal law can preempt state law. In the case of Sperry v. Florida, 373 U.S. 379 (1963), there was a conflict between federal patent laws and a state law governing the licensure of attorneys. The U.S. Patent Office had licensed an individual as a patent agent, but the State of Florida deemed this to be an unauthorized practice of law. The Supreme Court ruled that federal law preempted state law in this instance, stating that preemption was "necessary and proper to accomplish" the objectives of the patent laws.
Another example of federal patent law preempting state law can be found in the case of Gade v. National Solid Wastes Management Association, 505 U.S. 88 (1992). Here, the Court ruled that federal laws governing hazardous waste preempted Illinois laws on the same subject. This is an example of "field preemption", where federal laws and regulations have extensively covered a field, leaving no room for state laws.
It is important to note that preemption can occur in three main forms: outright conflict, express preemption, and implied preemption. Outright conflict occurs when a state law directly opposes a federal law. Express preemption occurs when a federal law directly opposes a local power. Implied preemption is more controversial and occurs when the local ordinance permits or prohibits an act that is contradicted by the state legislature, or when there is a clear legislative intent that the "field" is preempted by federal law.
In summary, while federal patent law generally supersedes state law in cases of conflict, each instance of potential preemption must be carefully analyzed, considering the specific circumstances and legislative intent.
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Hazardous waste laws
In the United States, the preemption doctrine refers to the idea that a higher authority of law will displace the law of a lower authority when the two conflict. When federal law and state law clash, federal law supersedes state law due to the Supremacy Clause of the Constitution.
However, the Tenth Amendment limits what state laws can be federally preempted. While federal law creates challenges and injustices, it does not prevent states from legalizing cannabis for adults' or medical use. This is because the federal government has never alleged in court that federal laws preempt state medical marijuana or legalization and regulation laws. The Department of Justice has not targeted state-legal marijuana providers in over a decade, formalizing a policy of non-interference unless a specific federal interest is implicated.
State laws and regulations concerning hazardous waste must be at least as stringent as federal laws and regulations. The Resource Conservation and Recovery Act (RCRA) is a federal program that is continually modified to incorporate technical changes for managing hazardous wastes. New York's hazardous waste management regulations are updated to reflect the changes in the evolving RCRA program. The New York State Department of Environmental Conservation (DEC) has developed various regulations, policy documents, technical and administrative guidance memorandums (TAGMs), and enforcement discretion letters to help businesses understand the regulations and comply with the statutory and regulatory requirements for hazardous waste management.
The DEC's hazardous waste management program helps prevent the generation of industrial hazardous wastes and advances the control and treatment of hazardous wastes that are a necessary byproduct of commerce and industry. All facilities that treat, store, or dispose of hazardous waste must investigate and clean up spills or releases of hazardous wastes or materials with hazardous constituents. These requirements were established under the federal Hazardous and Solid Waste Amendments of 1984 (HSWA), with similar amendments made to state law. Hazardous waste is tracked using a cradle-to-grave approach, meaning that entities handling a shipment of hazardous waste must be identified on a hazardous waste manifest document to track the shipment.
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Medical device laws
In the United States, the preemption doctrine refers to the idea that a higher authority of law will displace the law of a lower authority when the two conflict. In such cases, federal law displaces, or preempts, state law, due to the Supremacy Clause of the Constitution.
Medical devices are subject to the laws and regulations administered by the FDA (Food and Drug Administration). The Federal Food, Drug, and Cosmetic Act, which includes provisions on medical devices, appears in 21 U.S.C. 301. The Act prohibits the movement of adulterated or misbranded medical devices in interstate commerce (21 U.S.C. 331). It also authorizes the FDA to seize or prevent the distribution of such items (21 U.S.C. 334) and to report violations to a U.S. Attorney for prosecution (21 U.S.C. 335).
The FDA has issued regulations to promote consistency in the regulation of medical devices. These include the Quality Management System Regulation (QMSR) Final Rule, which amends the device current good manufacturing practice (CGMP) requirements of the Quality System (QS) regulation (21 CFR Part 820). The QMSR incorporates the international standard for medical device quality management systems set by the International Organization for Standardization (ISO 13485:2016).
Additionally, the FDA requires premarket notifications (510(k)) for Class I and Class II devices, which can be reviewed by Accredited Persons. For Class III devices, which are high-risk devices, a more involved process called Premarket Approval (PMA) is required, including the submission of clinical data. Investigational device exemptions (IDE) allow investigational devices to be used in clinical studies to collect safety and effectiveness data required to support PMA applications or 510(k) submissions.
While federal law generally preempts state law, there are exceptions. For example, in the context of marijuana regulation, the federal government has not interfered with states' legalization of cannabis for medical or adult use. The Tenth Amendment limits what state laws can be federally preempted, and requiring state agents to enforce federal marijuana laws is considered unconstitutional commandeering of a state's resources. Similarly, in City of Riverside v. Empire Patients Health and Wellness Center Inc. (2013), the court ruled in favor of local ordinances over state preemption, as long as the state statute does not expressly forbid it.
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Frequently asked questions
Yes, federal law can preempt state law. This is known as federal preemption and is based on a federal law that regulates the conduct of private actors. Preemption can arise in any area over which Congress has authority, but it is most often an issue in areas in which Congress and the states share authority.
Federal preemption occurs when a federal law conflicts with a state law. In such cases, the federal law will displace the state law. Preemption can be express or implied. Express preemption occurs when a federal law explicitly states that it preempts state law. Implied preemption occurs when there is a conflict between federal and state laws, making it impossible to comply with both.
No, state law cannot preempt federal law. However, states have the power to restrict or prevent lower-level governments, such as cities or counties, from self-regulating. This is known as state preemption and allows states to limit the legislative power of lower-level municipalities.
