Preemption

1

• Preemption
• April 21, 2005

2
Restrictions on State Action

• Federal Constitution
• Art. I, 10
• No state shall enter into any treaty, alliance,
  or con-federation grant letters of marque and
  reprisal etc.
• 14th Amendment
• No State shall make or enforce any law which
  shall abridge the privileges or immunities of
  citizens etc.

Notice These provisions are self-executing
they do not require any implementing legis-lation
by congress. States are forbidden to act in
these ways even when congress is silent
Preclusion
3
Restrictions on State Action

• Federal Constitution
• Art. VI, 2
• 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.

Notice Supremacy of laws of the US is not
self-executing it comes into play only when
congress passes legislation, or other branch of
federal government creates law
Preemption
4
Restrictions on State Action

• Federal Constitution
• Art. VI, 2
• 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.

• State Law is Preempted when
• It is contrary to federal law, and
• The federal law is valid

5
When is state law contrary?

• Two forms of preemption
• Express preemption
• Federal law explicitly prohibits states from
  acting
• Any state law on the subject would be contrary
  to fed. law
• Note Federal law may explicitly permit states to
  act
• Implied preemption
• Federal law is silent on whether states can act,
  but
• The context is such that it is impossible for
  both state and federal law to act simultaneously
  one has to yield
• Federal law is so comprehensive as to leave no
  room for supplemental state regulation (because
  state involvement would frustrate congress
  purpose)

Conflict preemption
Field preemption
6
Preemption - Overview

• Does fed law explicitly describe preemption?
• Yes 8 Express Non-Preemption supplemental
• Ex 15 USC 78bb  Effect on existing Securities
  laws
• Except as provided in section (f), the rights
  and remedies provided by this title shall be in
  addition to any and all other rights and remedies
  that may exist at law or equity
• Yes 8 Express Preemption (1) exclusive
• 23 USCS 127 Vehicle weight--Interstate System
• No State may enact or enforce any law denying
  reasonable access to motor vehicles subject to
  this title to and from the Interstate Highway
  System to terminals and facilities for food,
  fuel, repairs, and rest.

7
Preemption - Overview

• Does fed law explicitly describe preemption?
• Yes 8 Express Preemption (2) no inconsistent
• 15 USC 1203(a) Flammable Fabrics
• no State or political subdivision of a State
  may establish or continue in effect a
  flammability standard or other regulation for
  such fabric unless the State or political
  subdivision standard or other regulation is
  identical to the Federal standard or other
  regulation
• Yes 8 Express Preemption (3) minimum stds
• 15 USC 1203(b) any State or political
  subdivision of a State may establish and continue
  in effect a flammability standard for its own
  use that provides a higher degree of protection
  from fire

8
Preemption - Overview

• Express preemption
• Whenever congress expressly preempts state law,
  you must determine the preemptive scope
• Ex preemption for flammable fabrics may cover
  only fire safety standards, not labor or
  environmental standards regarding manufacture of
  such fabrics
• If congress has not expressly preempted, 8
  Consider Implied Preemption

9
Preemption - Overview

• Theories of implied preemption
• Conflict through physical impossibility
• Federal law cars must have 3rd brake light
• State law cars cannot have 3rd brake light
• Conflict through frustration of purpose
• Federal law cant sell unsafe dietary
  supplements
• State law cant sell dietary supplements
• Occupation of the field
• Federal law comprehensive nuclear safety
  standards
• State law nuclear energy is unsafe no power
  plants

10
Express Preemption

• Cipollone v. Liggett (1992)
• Federal Cigarette Labeling Advertising Act
• No statement relating to smoking and health,
  other than the statement required by this Act,
  shall be required on any cigarette package.
• No statement relating to smoking and health
  shall be required in the advertising of
  cigarettes
• Why did congress expressly prohibit supple-mental
  (even consistent) state labeling laws?
• Dual purpose 1) warn about health hazards
• 2) protect national economy from diverse
  regulation

11
Express Preemption

• Cipollone v. Liggett (1992)
• Express preemption, but of what?
• What is the scope of preemption under the
  Labeling Act (1965)?
• Anything related to smoking and health or
• Anything related to cigarette labeling and
  health?
• No statement relating to smoking and health,
  other than the statement required by this Act,
  shall be required on any cigarette package.
• Stevens cautionary statements on cigarette
  labels or in cigarette advertising

12
Which of these are preempted?
13
(No Transcript)
14
(No Transcript)
15
Presumptions

• Against preemption
• Historic police powers of the states are not to
  be superceded by federal law unless that is the
  clear and manifest purpose of congress.

• In favor of preemption
• Less clarity (intent of congress) is required in
  areas typically under federal power
• E.g., immigration
• Both Cases
• Congress purpose is the ultimate touchstone

16
Express Preemption

• Cipollone v. Liggett (1992)
• Pub Health Cigarette Smoking Act (1969)
• No requirement or prohibition based on smoking
  and health shall be imposed under State law with
  respect to the advertising or promotion of any
  cigarettes that conform to this Act.
• What is the scope of this express preemption?
• Is a tort action a requirement or prohibition?
• Yes tort duties (via common law) are
  requirements
• Even if it is, does it respect advertising or
  marketing of cigarettes?

17
Express Preemption

• Cipollone v. Liggett (1992)
• Pub Health Cigarette Smoking Act (1969)
• No requirement or prohibition based on smoking
  and health shall be imposed under State law with
  respect to the advertising or promotion of any
  cigarettes that conform to this Act.

• Which common-law claims are preempted?
• Tort actions for false advertising or failure to
  warn?
• Express Warranty (contract)?
• Fraudulent misrepresentation (tort)?
• Conspiracy to deprive public of health info
  (tort)?

18
Express Preemption

• Lorillard Tobacco v. Reilly (2001)
• Federal Cigarette Labeling Advertising Act
• No statement relating to smoking and health ..
  shall be required on any cigarette package.
• No requirement or prohibition based on smoking
  and health shall be imposed under State law with
  respect to the advertising or promotion of
  cigarettes
• What is the domain expressly preempted?
• Modes of construction
• Textual express preemption language in b broader
  than a
• Legislative history
• Law expands from labeling to all adverising
  promotion
• Expands from state-required statements to all
  requirements and prohibitions

Not Covered Spring 2005
19
Express Preemption

• Lorillard Tobacco v. Reilly (2001)
• Federal Cigarette Labeling Advertising Act
• No statement relating to smoking and health ..
  shall be required on any cigarette package.
• No requirement or prohibition based on smoking
  and health shall be imposed under State law with
  respect to the advertising or promotion of
  cigarettes

• Lorillard Tobacco v. Reilly (2001)
• Federal Cigarette Labeling Advertising Act
• No statement relating to smoking and health ..
  shall be required on any cigarette package.
• No requirement or prohibition based on smoking
  and health shall be imposed under State law with
  respect to the advertising or promotion of
  cigarettes

Not Covered Spring 2005

• What is the domain expressly preempted?
• Does with respect to pertain only to the
  content of advertising or also location (zoning)
  of advertising?
• Can a state prohibit all advertising in certain
  areas, or is it preempted when it comes to cig.
  advertising?
• General restriction ok not based on smoking and
  health

20
Express Preemption

• Lorillard Tobacco v. Reilly (2001)
• Federal Cigarette Labeling Advertising Act
• No statement relating to smoking and health ..
  shall be required on any cigarette package.
• No requirement or prohibition based on smoking
  and health shall be imposed under State law with
  respect to the advertising or promotion of
  cigarettes

Not Covered Spring 2005

• Does OConnor properly apply congl purpose?
• to inform the public that smoking is hazardous
• to avoid diverse, nonuniform and confusing cig.
  labeling and advertising regulations
• inconisistent state laws impede interstate
  commerce
• do inconsistent state laws relating to location
  (zoning)?

21
Express Preemption

• Lorillard Tobacco v. Reilly (2001)
• Federal Cigarette Labeling Advertising Act
• No statement relating to smoking and health ..
  shall be required on any cigarette package.
• No requirement or prohibition based on smoking
  and health shall be imposed under State law with
  respect to the advertising or promotion of
  cigarettes

Not Covered Spring 2005

• Why does the states-rights block read extent of
  preemption broadly while the federal-rights block
  reads it narrowly?

22
Implied Preemption - Conflicts

• Florida Lime Avocado v. Paul (1963)
• Competing (conflicting?) regulations
• Dept. of Agriculture regs define avocado
  maturity without reference to oil content
• California regulations prohibit sale lt 8 oil
  content
• Is compliance with both state and federal laws
  physically impossible?

Federal standard
California standard
23
Implied Preemption - Conflicts

• Florida Lime Avocado v. Paul (1963)
• Competing (conflicting?) regulations
• Dept. of Agriculture regs define avocado
  maturity without reference to oil content
• California regulations prohibit sale lt 8 oil
  content
• Is compliance with both state and federal laws
  physically impossible?

Federal standard
California standard
24
Implied Preemption - Frustration

• PGE v. State Energy Commn (1983)
• Trinity
• Atomic Energy Act
• In 1946 and 1954, fedl govt occupied the field
  of atomic energy
• Starting in 1961, congress relaxed preemption and
  allowed some state regulation of nuclear energy

25
Implied Preemption - Frustration

• PGE v. State Energy Commn (1983)
• Atomic Energy Act
• 2018
• Nothing in this Act shall be construed to affect
  the authority or regulations of any Federal,
  State, or local agency with respect to the
  generation, sale, or transmission of electric
  power produced through the use of nuclear
  facilities licensed by the Commission
• 2021(c)
• the Commission shall retain authority
  responsibility over
• (1) the construction and operation of any
  nuclear facility
• (4) the disposal of nuclear byproducts.
• 2021(k)
• Nothing in this section shall be construed to
  affect the authority of any State or local agency
  to regulate activities for purposes other than
  protection against radiation hazards."

Express non-preemption
Express preemption
Clarifies scope of express preemption
26
Implied Preemption - Frustration

• PGE v. State Energy Commn (1983)
• Cal Pub Resources Code
• 25524.1.  Nuclear fission powerplants
• (a) .. no nuclear fission thermal powerplant
  requiring the reprocessing of fuel rods shall
  be permitted unless
• (b) facilities with adequate capacity to
  reprocess nuclear fuel rods is approved by an
  authorized agency of the United States and in
  actual operation
• 25524.2.  Requirements for nuclear powerplant
• no nuclear powerplant shall be permitted
  until
• (a) The commission finds that there has been
  developed and that the United States through its
  authorized agency has approved and there exists a
  demonstrated technology or means for the disposal
  of high-level nuclear waste.

27
Implied Preemption - Frustration

• PGE v. State Energy Commn (1983)
• Express Preemption
• Safety-related construction operation
  regulations - yes
• Economic-related regulations no
• Implied Preemption
• Conflict preemption
• Ban on construction due to safety concerns no
• Ban on construction for economic reasons - no
• Frustration of purpose
• Ban on construction due to safety concerns yes
• impedes federal objective of promoting safe
  nuclear energy
• Economic-based ban no
• promotion of nuclear power not to proceed at all
  costs

28
Implied Preemption - Occupation

• Hines v. Davidowitz (1941)
• Federal Alien Registration Act
• registration, finger-printing, secrecy, and such
  additional matters as may be prescribed by
  Commr
• Penn. Alien Registration Act
• registration, provide other information and
  details
• Express Preemption No
• Conflict Preemption No
• Field Preemption
• Why might congress not want compatible state
  laws?
• State enforcement could obstruct paramount
  federal policy
• Development of common law confined to federal
  courts

especially true wrt matters within exclusive
federal control