Premption Doctrine: Reviving Dormant Laws?

The preemption doctrine in constitutional law applies when two authorities conflict with one another, and a higher authority of law displaces the law of a lower authority. The doctrine is derived from the Supremacy Clause of the United States Constitution, which states that federal law is the supreme law of the land. This means that federal law supersedes any state or local regulation or statute that conflicts with it.

Dormant foreign affairs preemption is a legal concept that gives the federal government exclusive control over foreign affairs. It allows courts to preempt state laws in cases where there is no conflicting federal policy or statute. While the Supreme Court has only once held a state statute unconstitutional under this doctrine, lower courts continue to apply a wide variety of tests to preserve the federal government's exclusive role in foreign affairs.

The application of the preemption doctrine to dormant law is a complex and evolving area of law, with ongoing debates about the reach of congressional regulatory powers and the scope of the dormant foreign affairs power.

Federal preemption

The preemption doctrine can be divided into two categories: express preemption and implied preemption. Express preemption occurs when Congress explicitly states within a statute that federal law takes precedence over state law. Implied preemption occurs when Congress does not explicitly state this intention, but the federal statute may be silent or ambiguous as to whether it preempts state law, or may raise questions about whether state and federal law can coexist.

There are two types of implied preemption: conflict preemption and field preemption. Conflict preemption occurs when a state law directly conflicts with a federal law, making it impossible to comply with both or creating an obstacle to accomplishing the objectives of Congress. Field preemption occurs when Congress occupies an entire field of regulation, precluding any state regulation from entering that field.

In the context of dormant law, specifically dormant foreign affairs preemption, the doctrine allows courts to preempt state laws in cases where there is no conflicting federal policy or statute. This is based on the idea that the federal government should have exclusive control over foreign affairs. While the U.S. Supreme Court has only once held a state statute unconstitutional under this doctrine, lower courts continue to apply a variety of tests to preserve the federal government's exclusive role in foreign affairs.

State preemption

In the United States, state preemption refers to the invalidation of an action by, or the removal of power from, a portion of the state government, typically a municipality or other local government. This usually occurs when there is a political disagreement between the state legislature and the municipal government. The primary source of this division is partisan; since 2010, most state legislatures have been dominated by Republicans, while city governments are usually controlled by Democrats.

In most states, municipalities only have the powers specifically granted to them by state legislatures. While most states have some form of home rule, which expands municipal power, only California and Ohio protect municipalities from preemption. This protection is shrinking, as demonstrated by Ohio's decision to preempt cities from raising the minimum wage and charging a fee for single-use plastic bags.

The United States Supreme Court has struck down preemption laws that conflict with civil rights, as seen in Romer v. Evans (1995). In this case, Colorado voters approved Amendment 2, which preempted municipal anti-discrimination laws protecting gay people. The Supreme Court invalidated this amendment, stating that the law was "born of animosity toward the class of persons affected."

Foreign affairs preemption

Dormant foreign affairs preemption comes into play when there is no explicit conflict between federal and state laws in the foreign affairs context. This doctrine holds that even in the absence of a direct clash, courts can preempt state laws if they infringe on the federal government's exclusive authority over foreign affairs. The rationale is to safeguard the federal government's ability to conduct foreign relations without undue interference from state-level legislation.

The application of dormant foreign affairs preemption is not without controversy. Scholars and legal experts debate the extent of federal authority in this domain, with some arguing for supreme authority rather than exclusive control. Lower courts have employed a range of tests to preserve the federal government's role in foreign affairs while navigating the delicate balance between federal and state powers.

In the case law, the Supreme Court has sparingly invoked dormant foreign affairs preemption, holding a state statute unconstitutional under this doctrine only once. This rarity underscores the cautious approach taken by the judiciary in preempting state laws when there is no overt conflict with federal policy or statute in the realm of foreign affairs.

To address this complex issue, legal scholars have proposed various analytical frameworks. One notable suggestion is to adopt an objective standard that considers the expectations of other countries regarding the federal government's exclusive jurisdiction over specific areas of law. This approach aims to strike a balance between federal authority in foreign affairs and respect for state sovereignty.

Conflict preemption

• When it is impossible to comply with both the state and federal regulations. For example, if state law forbids something that federal law requires.
• When the state law is an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.

In Mutual Pharmaceutical Co. v. Bartlett, the Supreme Court found that federal law enacted under the Commerce Clause prohibited generic drug manufacturers from changing the composition or labelling of drugs approved by the FDA. Therefore, state tort law could not force a generic drug manufacturer to add information to an FDA-approved label or hold it liable for not doing so.

In Gade v. National Solid Wastes Management Association, the Supreme Court determined that federal law preempts a state law that conflicts with federal law. Specifically, the court held that federal Occupational Safety and Health Administration (OSHA) regulations took precedence over Illinois laws on workers handling hazardous material.

In the absence of a federal law, state law controls. State regulations may provide more protection for people than federal law allows. However, federal law will almost always prevail when it interferes or conflicts with state law.

Field preemption

> 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, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

In the context of field preemption, federal preemption occurs when the federal government determines it occupies an entire field of regulation. This means that the federal government has so comprehensively regulated a particular area that state law is excluded.

An example of field preemption is maritime law, including injuries or deaths at sea. The federal government has determined that it has occupation of the field, and therefore, state law is preempted. Another example is voter registration, as seen in the case of Arizona v. Inter Tribal Council of Arizona (2013). The Supreme Court held that the National Voter Registration Act took precedence over an Arizona state law that required voters to provide proof of citizenship to vote in a federal election.

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