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ArtVI.C2.1.1.3 Supremacy Clause: Current Doctrine

Article VI, Clause 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, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

In the 1940s, the Court began to develop modern standards, still recited and relied on, for determining when preemption occurred.1 All modern cases recite some variation of the basic standards. [T]he question whether a certain state action is pre-empted by federal law is one of congressional intent. The purpose of Congress is the ultimate touchstone. To discern Congress’s intent we examine the explicit statutory language and the structure and purpose of the statute. 2 Congress’s intent to supplant state authority in a particular field may be explicitly stated in the statute's language or implicitly contained in its structure and purpose. 3 Because preemption cases, when the statute contains no express provision, theoretically turn on statutory construction,4 generalizations about them can carry one only so far. Each case must construe a different federal statute with a distinct legislative history. If the statute and the legislative history are silent or unclear, the Supreme Court has developed general criteria which it purports to use in determining the preemptive reach.

Absent explicit pre-emptive language, we have recognized at least two types of implied pre-emption: field pre-emption, where the scheme of federal regulation is so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it, . . . and conflict pre-emption, where compliance with both federal and state regulations is a physical impossibility, . . . or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. 5 However, federal regulation of a field of commerce should not be deemed preemptive of state regulatory power in the absence of persuasive reasons – either that the nature of the regulated subject matters permits no other conclusion, or that the Congress has unmistakably so ordained. 6 At the same time, [t]he relative importance to the State of its own law is not material when there is a conflict with a valid federal law, for the Framers of our Constitution provided that the federal law must prevail. 7

In the final analysis, the generalities that may be drawn from the cases do not decide them. Rather, the fate of state legislation in these cases has not been determined by these generalities but by the weight of the circumstances and the practical and experienced judgment in applying these generalities to the particular instances. 8

The Standards Applied

As might be expected from the caveat just quoted, any overview of the Court's preemption decisions can only make the field seem tangled, and to some extent it is. But some threads may be extracted.

Express Preemption. Of course, it is possible for Congress to write preemptive language that clearly and cleanly prescribes or does not prescribe displacement of state laws in an area.9 Provisions governing preemption can be relatively interpretation free,10 and the Court has recognized that certain statutory language can guide the interpretation.11 For example, a prohibition of state taxes on carriage of air passengers or on the gross receipts derived therefrom was held to preempt a state tax on airlines, described by the state as a personal property tax, but based on a percentage of the airline's gross income. The manner in which the state legislature has described and categorized [the tax] cannot mask the fact that the purpose and effect of the provision are to impose a levy upon the gross receipts of airlines. 12

But, more often than not, express preemptive language may be ambiguous or at least not free from conflicting interpretation. Thus, the Court was divided with respect to whether a provision of the Airline Deregulation Act proscribing the states from having and enforcing laws relating to rates, routes, or services of any air carrier applied to displace state consumer-protection laws regulating airline fare advertising.13 Delimiting the scope of an exception in an express preemption provision can also present challenges. For example, the Immigration Control and Reform Act of 1986 (IRCA), which imposed the first comprehensive federal sanctions against employing aliens not authorized to work in the United States, preempted any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ unauthorized aliens. 14 In Chamber of Commerce of the United States v. Whiting , a majority of the Court adopted a straightforward plain meaning approach to uphold a 2007 Arizona law that called for the suspension or revocation of the business licenses (including articles of incorporation and like documents) of Arizona employers found to have knowingly hired an unauthorized alien.15 By contrast, two dissenting opinions were troubled that the Arizona sanction was far more severe than that authorized for similar violations under either federal law or state laws in force prior to IRCA. The dissents interpreted IRCA's licensing and similar laws language narrowly to cover only businesses that primarily recruit or refer workers for employment, or businesses that have been found by federal authorities to have violated federal sanctions, respectively.16

At issue in AT&T Mobility, LLC v. Concepcion 17 was a savings provision of the Federal Arbitration Act (FAA) that made arbitration provisions in contracts valid, irrevocable and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. 18 An arbitration provision in their cellular telephone contract forbade plaintiffs from seeking arbitration of an allegedly fraudulent practice by AT&T on a class basis. The Court closely divided over whether the FAA saving clause made this anti-class arbitration provision attackable under California law against class action waivers in consumer contracts, or whether the savings clause looked solely to grounds for revoking the cellular contract that had nothing to do with the arbitration provision.19 Another case focused on a preemption clause that preempted certain laws of a State [or] political subdivision of a State regulating motor carriers, but excepted [State] safely regulatory authority. The Court interpreted the exception to allow a safety regulation adopted by a city: [a]bsent a clear statement to the contrary, Congress’s reference to the ‘regulatory authority of a State’ should be read to preserve, not preempt, the traditional prerogative of the States to delegate their authority to their constituent parts. 20

Perhaps the broadest preemption section ever enacted, § 514 of the Employment Retirement Income Security Act of 1974 (ERISA), is so constructed that the Court has been moved to comment that the provisions are not a model of legislative drafting. 21 The section declares that the statute shall supersede any and all State laws insofar as they now or hereafter relate to any employee benefit plan, but saves to the States the power to enforce any law . . . which regulates insurance, banking, or securities, except that an employee benefit plan governed by ERISA shall not be deemed an insurance company, an insurer, or engaged in the business of insurance for purposes of state laws purporting to regulate insurance companies or insurance contracts.22 Interpretation of the provisions has resulted in contentious and divided Court opinions.23

Also illustrative of the judicial difficulty with ambiguous preemption language are the fractured opinions in Cipollone , in which the Court had to decide whether sections of the Federal Cigarette Labeling and Advertising Act, enacted in 1965 and 1969, preempted state common-law actions against a cigarette company for the alleged harm visited on a smoker.24 The 1965 provision barred the requirement of any statement relating to smoking health, other than what the federal law imposed, and the 1969 provision barred the imposition of any requirement or prohibition based on smoking and health by any State law. It was, thus, a fair question whether common-law claims, based on design defect, failure to warn, breach of express warranty, fraudulent misrepresentation, and conspiracy to defraud, were preempted or whether only positive state enactments came within the scope of the clauses. Two groups of Justices concluded that the 1965 section reached only positive state law and did not preempt common-law actions;25 different alignments of Justices concluded that the 1969 provisions did reach common-law claims, as well as positive enactments, and did preempt some of the claims insofar as they in fact constituted a requirement or prohibition based on smoking health.26

Little clarification of the confusing Cipollone decision and opinions resulted in the cases following, although it does seem evident that the attempted distinction limiting courts to the particular language of preemption when Congress has spoken has not prevailed. At issue in Medtronic, Inc. v. Lohr 27 was the Medical Device Amendments (MDA) of 1976, which prohibited states from adopting or continuing in effect with respect to a [medical] device any requirement that is different from, or in addition to the applicable federal requirement and that relates to the safety or effectiveness of the device.28 The issue was whether a common-law tort obligation imposed a requirement that was different from or in addition to any federal requirement. The device, a pacemaker lead, had come on the market not pursuant to the rigorous FDA test but rather as determined by the FDA to be substantially equivalent to a device previously on the market, a situation of some import to at least some of the Justices.

Unanimously, the Court determined that a defective design claim was not preempted and that the MDA did not prevent states from providing a damages remedy for violation of common-law duties that paralleled federal requirements. But the Justices split 4-1-4 with respect to preemption of various claims relating to manufacturing and labeling. FDA regulations, which a majority deferred to, limited preemption to situations in which a particular state requirement threatens to interfere with a specific federal interest. Moreover, the common-law standards were not specifically developed to govern medical devices and their generality removed them from the category of requirements with respect to specific devices. However, five Justices did agree that common-law requirements could be, just as statutory provisions, requirements that were preempted, though they did not agree on the application of that view.29

Following Cipollone , the Court observed that, although it need not go beyond the statutory preemption language, it did need to identify the domain expressly pre-empted by the language, so that our interpretation of that language does not occur in a contextual vacuum. That is, it must be informed by two presumptions about the nature of preemption: the presumption that Congress does not cavalierly preempt common-law causes of action and the principle that Congress’s purpose is the ultimate touchstone.30

The Court continued to struggle with application of express preemption language to state common-law tort actions in Geier v. American Honda Motor Co. 31 The National Traffic and Motor Vehicle Safety Act contained both a preemption clause, prohibiting states from applying any safety standard different from an applicable federal standard, and a saving clause, providing that compliance with a federal safety standard does not exempt any person from any liability under common law. The Court determined that the express preemption clause was inapplicable, because the saving clause implied that some number of state common law actions would be saved. However, despite the saving clause, the Court ruled that a common law tort action seeking damages for failure to equip a car with a front seat airbag, in addition to a seat belt, was preempted. According to the Court, allowing the suit would frustrate the purpose of a Federal Motor Vehicle Safety Standard that specifically had intended to give manufacturers a choice among a variety of passive restraint systems for the applicable model year.32 The Court's holding makes clear, contrary to the suggestion in Cipollone , that existence of express preemption language does not foreclose the alternative operation of conflict (in this case frustration of purpose) preemption.33

In Virginia Uranium, Inc., v. Warren , the Supreme Court considered whether a disputed statutory provision was a preemption clause at all.34 A clause in the Atomic Energy Act provided that nothing in the relevant section should be construed to affect state authority to regulate activities for purposes other than protection against radiation hazards. 35 A litigant argued this provision displaced any state law . . . if that law was enacted for the purpose of protecting the public against ‘radiation hazards.’ 36 Justice Gorsuch disagreed, writing for three members of the Court, instead describing this provision as a non-preemption clause. 37 He said that this statute meant only state laws that seek to regulate the activities discussed in that section should be be scrutinized to ensure their purposes aim at something other than regulating nuclear safety. 38 Three concurring Justices agreed that the effect of this provision was relatively limited, reading the law to address only those activities that were already regulated under the statute.39

Field Preemption. Where the scheme of federal regulation is so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it, 40 states are ousted from the field. Still a paradigmatic example of field preemption is Hines v. Davidowitz ,41 in which the Court held that a new federal law requiring the registration of all aliens in the country precluded enforcement of a pre-existing state law mandating registration of aliens within the state.42 Adverting to the supremacy of national power in foreign relations and the sensitivity of the relationship between the regulation of aliens and the conduct of foreign affairs, the Court had little difficulty declaring the entire field to have been occupied by federal law.43 Similarly, in Pennsylvania v. Nelson ,44 the Court invalidated as preempted a state law punishing sedition against the National Government. The Court enunciated a three-part test: (1) the pervasiveness of federal regulation, (2) federal occupation of the field as necessitated by the need for national uniformity, and (3) the danger of conflict between state and federal administration.45

Rice itself held that a federal system of regulating the operations of warehouses and the rates they charged completely occupied the field and ousted state regulation.46

Field preemption analysis often involves delimiting the subject of federal regulation and determining whether a federal law has regulated part of the field, however defined, or the whole area, so that state law cannot even supplement the federal.47 Illustrative of this point is the Court's holding that the Atomic Energy Act's preemption of the safety aspects of nuclear power did not invalidate a state law conditioning construction of nuclear power plants on a finding by a state agency that adequate storage and disposal facilities were available to treat nuclear wastes, because economic regulation of power generation has traditionally been left to the states – an arrangement maintained by the Act – and because the state law could be justified as an economic rather than a safety regulation.48

A city's effort to enforce stiff penalties for ship pollution that resulted from boilers approved by the Federal Government was held not preempted, the field of boiler safety, but not boiler pollution, having been occupied by federal regulation.49 A state liability scheme imposing cleanup costs and strict, no-fault liability on shore facilities and ships for any oil-spill damage was held to complement a federal law concerned solely with recovery of actual cleanup costs incurred by the Federal Government and which textually presupposed federal-state cooperation.50 On the other hand, a comprehensive regulation of the design, size, and movement of oil tankers in Puget Sound was found, save in one respect, to be either expressly or implicitly preempted by federal law and regulations. Critical to the determination was the Court's conclusion that Congress, without actually saying so, had intended to mandate exclusive standards and a single federal decisionmaker for safety purposes in vessel regulation.51 Also, a closely divided Court voided a city ordinance placing an 11 p.m. to 7 a.m. curfew on jet flights from the city airport where, despite the absence of preemptive language in federal law, federal regulation of aircraft noise was of such a pervasive nature as to leave no room for state or local regulation.52

The Court has, however, recognized that when a federal statute preempts a narrow field, leaving states to regulate outside of that field, state laws whose target is beyond the field of federal regulation are not necessarily displaced by field preemption principles,53 and such state laws may incidentally affect the preempted field.54 In Oneok v. Learjet , gas pipeline companies and the federal government asserted that state antitrust claims against the pipeline companies for alleged manipulation of certain indices used in setting natural gas prices were field preempted because the Natural Gas Act (NGA) regulates wholesale prices of natural gas.55 The Court disagreed. In so doing, the Court noted that the alleged manipulation of the price indices also affected retail prices, the regulation of which is left to the states by the NGA.56 Because the Court viewed Congress as having struck a careful balance between federal and state regulation when enacting the NGA, it took the view that,57 where (as here) a state law can be applied both to sales regulated by the federal government and to other sales, we must proceed cautiously, finding pre-emption only where detailed examination convinces us that a matter falls within the pre-empted field as defined by our precedents. 58 The Court found no such preemption here, in part because the target at which the state law aims was practices affecting retail prices, something which the Court viewed as firmly on the States’ side of th[e] dividing line. 59The Court also noted that the broad applicability of state antitrust laws supported a finding of no preemption here,60 as does the states’ historic role in providing common law and statutory remedies against monopolies and unfair business practices.61 However, while declining to find field preemption, the Court left open the possibility of conflict preemption, which had not been raised by the parties.62

Congress may preempt state regulation without itself prescribing a federal standard; it may deregulate a field and thus occupy it by opting for market regulation and precluding state or local regulation.63

Conflict Preemption. Several possible situations will lead to a holding that a state law is preempted as in conflict with federal law. First, it may be that the two laws, federal and state, will actually conflict. Thus, in Rose v. Arkansas State Police ,64 federal law provided for death benefits for state law enforcement officers in addition to any other compensation, while the state law required a reduction in state benefits by the amount received from other sources. The Court, in a brief, per curiam opinion, had no difficulty finding the state provision preempted.65

Second, conflict preemption may occur when it is practically impossible to comply with the terms of both laws. Thus, where a federal agency had authorized federal savings and loan associations to include due-on-sale clauses in their loan instruments and where the state had largely prevented inclusion of such clauses, while it was literally possible for lenders to comply with both rules, the federal rule being permissive, the state regulation prevented the exercise of the flexibility the federal agency had conferred and was preempted.66 More problematic are circumstances in which a party has an administrative avenue for seeking removal of impediments to dual compliance. In Pliva, Inc. v. Mensing ,67 federal law required generic drugs to be labeled the same as the brand name counterpart, while state tort law required drug labels to contain adequate warnings to render use of the drug reasonably safe. There had been accumulating evidence that long-term use of the drug metoclopramide carried a significant risk of severe neurological damage, but manufacturers of generic metoclopramide neither amended their warning labels nor sought to have the Food and Drug Administration require the brand name manufacturer to include stronger label warnings, which consequently would have led to stronger labeling of the generic. Five Justices held that state tort law was preempted.68 It was impossible to comply both with the state law duty to change the label and the federal law duty to keep the label the same.69 The four dissenting Justices argued that inability to change the labels unilaterally was insufficient, standing alone, to establish a defense based on impossibility.70 Emphasizing the federal duty to monitor the safety of their drugs, the dissenters would require that the generic manufacturers also show some effort to effectuate a labeling change through the FDA.

The Court reached a similar result in Mutual Pharmaceutical Co. v. Bartlett .71There, the Court again faced the question of whether FDA labeling requirements preempted state tort law in a case involving sales by a generic drug manufacturer. The lower court had held that it was not impossible for the manufacturer to comply with both the FDA's labeling requirements and state law that required stronger warnings regarding the drug's safety because the manufacturer could simply stop selling the drug. The Supreme Court rejected the stop-selling rationale because it would render impossibility pre-emption a dead letter and work a revolution in . . . pre-emption case law. 72

In contrast to Pliva, Inc. v. Mensing and Mutual Pharmaceutical Co. v. Bartlett , the Court found no preemption in Wyeth v. Levine , a state tort action against a brand-name drug manufacturer based on inadequate labeling.73 A brand-name drug manufacturer, unlike makers of generic drugs, could unilaterally strengthen labeling under federal regulations, subject to subsequent FDA override, and thereby independently meet state tort law requirements. In another case of alleged impossibility, it was held possible for an employer to comply both with a state law mandating leave and reinstatement to pregnant employees and with a federal law prohibiting employment discrimination on the basis of pregnancy.74 Similarly, when faced with both federal and state standards on the ripeness of avocados, the Court discerned that the federal standard was a minimum one rather than a uniform one and decided that growers could comply with both.75

Third, a fruitful source of preemption is found when it is determined that the state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress.76 Thus, despite the inclusion of a saving clause preserving liability under common law, the National Traffic and Motor Vehicle Safety Act nevertheless was found to have preempted a state common law tort action based on the failure of a car manufacturer to install front seat airbags: Giving car manufacturers some leeway in developing and introducing passive safety restraint devices was, according to the Court, a key congressional objective under the Act, one that would frustrated should a tort action be allowed to proceed.77 The Court also has voided a state requirement that the average net weight of a package of flour in a lot could not be less than the net weight stated on the package. While applicable federal law permitted variations from stated weight caused by distribution losses, such as through partial dehydration, the state allowed no such deviation. Although it was possible for a producer to satisfy the federal standard while satisfying the tougher state standard, the Court discerned that to do so defeated one purpose of the federal requirement – the facilitating of value comparisons by shoppers. Because different producers in different situations in order to comply with the state standard may have to overpack flour to make up for dehydration loss, consumers would not be comparing packages containing identical amounts of flour solids.78 In Felder v. Casey ,79 a state notice-of-claim statute was found to frustrate the remedial objectives of civil rights laws as applied to actions brought in state court under 42 U.S.C. § 1983. A state law recognizing the validity of an unrecorded oral sale of an aircraft was held preempted by the Federal Aviation Act's provision that unrecorded instruments of transfer are invalid, since the congressional purpose evidenced in the legislative history was to make information about an aircraft's title readily available by requiring that all transfers be documented and recorded.80

In Boggs v. Boggs ,81 the Court, 5-to-4, applied the stands as an obstacle test for conflict even though the statute (ERISA) contains an express preemption section. The dispute arose in a community-property state, in which heirs of a deceased wife claimed property that involved pension-benefit assets that was left to them by testamentary disposition, as against a surviving second wife. Two ERISA provisions operated to prevent the descent of the property to the heirs, but under community-property rules the property could have been left to the heirs by their deceased mother. The Court did not pause to analyze whether the ERISA preemption provision operated to preclude the descent of the property, either because state law relate[d] to a covered pension plan or because state law had an impermissible connection with a plan, but it instead decided that the operation of the state law insofar as it conflicted with the purposes Congress had intended to achieve by ERISA and insofar as it ran into the two noted provisions of ERISA stood as an obstacle to the effectuation of the ERISA law. We can begin, and in this case end, the analysis by simply asking if state law conflicts with the provisions of ERISA or operates to frustrate its objects. We hold that there is a conflict, which suffices to resolve the case. We need not inquire whether the statutory phrase 'relate to' provides further and additional support for the pre-emption claim. Nor need we consider the applicability of field pre-emption. 82

Similarly, the Court found it unnecessary to consider field preemption due to its holding that a Massachusetts law barring state agencies from purchasing goods or services from companies doing business with Burma imposed obstacles to the accomplishment of Congress’s full objectives under the federal Burma sanctions law.83 The state law was said to undermine the federal law in several respects that could have implicated field preemption – by limiting the President's effective discretion to control sanctions, and by frustrating the President's ability to engage in effective diplomacy in developing a comprehensive multilateral strategy – but the Court decline[d] to speak to field preemption as a separate issue. 84

Also, a state law making agricultural producers' associations the exclusive bargaining agents and requiring payment of service fees by nonmember producers was held to counter a strong federal policy protecting the right of farmers to join or not join such associations.85 And a state assertion of the right to set minimum stream-flow requirements different from those established by FERC in its licensing capacity was denied as being preempted under the Federal Power Act, despite language requiring deference to state laws relating to the control, appropriation, use, or distribution of water. 86

Contrarily, a comprehensive federal regulation of insecticides and other such chemicals was held not to preempt a town ordinance that required a permit for the spraying of pesticides, there being no conflict between requirements.87 The application of state antitrust laws to authorize indirect purchasers to recover for all overcharges passed on to them by direct purchasers was held to implicate no preemption concerns, because the federal antitrust laws had been interpreted to not permit indirect purchasers to recover under federal law; the state law may have been inconsistent with federal law but in no way did it frustrate federal objectives and policies.88 The effect of federal policy was not strong enough to warrant a holding of preemption when a state authorized condemnation of abandoned railroad property after conclusion of an ICC proceeding permitting abandonment, although the railroad's opportunity costs in the property had been considered in the decision on abandonment.89

Footnotes

  1.  Jump to essay-1 E.g., Hines v. Davidowitz, 312 U.S. 52 (1941) ; Cloverleaf Butter v. Patterson, 315 U.S. 148 (1942) ; Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947) ; California v. Zook, 336 U.S. 725 (1949) .
  2.  Jump to essay-2 Gade v. National Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 96 (1992) (internal quotation marks and case citations omitted). Conversely, a state’s intentions with regard to its own law is relevant only as it may relate to ‘the scope of the state law that Congress understood would survive’ the preemptive effect of federal law or the nature of the effect of state law on on the subject matter Congress is regulating. Gobeille v. Liberty Mut. Ins. Co., 577 U.S. ___, No. 14-181, slip op. at 11 (2016) (internal quotations omitted).
  3.  Jump to essay-3 Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977) ; FMC Corp. v. Holliday, 498 U.S. 52 (1990) ; Wisconsin Public Intervenor v. Mortier, 501 U.S. 597, 604–605 (1991) .
  4.  Jump to essay-4 See, e.g., Va. Uranium, Inc. v. Warren, 587 U.S. ____, No. 16-1275, slip op. at 4 (2019) (plurality opinion) (stating that the Court will approach the question of preemption much as [it] would any other [question] about statutory meaning, looking to the text and context of the law in question and guided by the traditional tools of statutory interpretation); see also id. at 8 (Ginsburg, J., concurring) (looking to statutory text, context, and history to determine whether a federal statute preempted a state law).
  5.  Jump to essay-5 Gade v. National Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 98 (1992) (internal quotation marks and case citations omitted). The same or similar language is used throughout the preemption cases. E.g., Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992) ; id. at 532–33 (Justice Blackmun concurring and dissenting); id. at 545 (Justice Scalia concurring and dissenting); Wisconsin Public Intervenor v. Mortier, 501 U.S. 597, 604–05 (1991) ; English v. General Electric Co., 496 U.S. 72, 78–80 (1990) ; Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248 (1984) ; Pacific Gas & Elec. Co. v. State Energy Resources Comm'n, 461 U.S. 190, 203–04 (1983) ; Fidelity Fed. Savings & Loan Ass'n v. de la Cuesta, 458 U.S. 141, 153 (1982) ; Florida Lime & Avocado Growers v. Paul, 373 U.S. 132, 142 (1963) ; Hines v. Davidowitz, 312 U.S. 52, 67 (1941) .
  6.  Jump to essay-6 Florida Lime & Avocado Growers v. Paul, 373 U.S. 132, 142 (1963) ; Chicago & Northwestern Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 317 (1981) . Where Congress legislates in a field traditionally occupied by the States, courts should start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress. Pacific Gas & Electric Co. v. State Energy Resources Conservation & Dev. Comm., 461 U.S. 190, 206 (1983) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947) ). Nonetheless, this assumption may go only so far. See, e.g., Pliva, Inc. v. Mensing, 564 U.S. ___, No. 09-993, slip op. at 15 (2011) (Thomas, J., plurality opinion) ([T]he text of the Clause—that federal law shall be supreme, 'any Thing in the Constitution or Laws of any State to the Contrary notwithstanding'—plainly contemplates conflict pre-emption by describing federal law as effectively repealing contrary state law.).
  7.  Jump to essay-7 Free v. Bland, 369 U.S. 663 (1962) .
  8.  Jump to essay-8 Union Brokerage Co. v. Jensen, 322 U.S. 202, 211 (1944) (per Justice Frankfurter).
  9.  Jump to essay-9Regulations as well as statutes can preempt. Agency regulations, when Congress has expressly or implied empowered these bodies to preempt, are the supreme law of the land and can displace state law. E.g., Smiley v. Citibank, 517 U.S. 735 (1996) ; City of New York v. FCC, 486 U.S. 57, 63–64 (1988) ; Louisiana Public Service Comm'n v. FCC, 476 U.S. 355 (1986) ; Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691 (1984) ; Fidelity Fed. Savings & Loan Ass'n v. de la Cuesta, 458 U.S. 141 (1982) . Federal common law, i.e., law applied by the courts in the absence of explicit statutory directive, and respecting uniquely federal interests, can also displace state law. See Boyle v. United Technologies Corp., 487 U.S. 500 (1988) (Supreme Court promulgated common-law rule creating government-contractor defense in tort liability suits, despite Congress’s having considered and failed to enact bills doing precisely this); Westfall v. Erwin, 484 U.S. 292 (1988) (civil liability of federal officials for actions taken in the course of their duty). Finally, ordinances of local governments are subject to preemption under the same standards as state law. Hillsborough County v. Automated Medical Laboratories, 471 U.S. 707 (1985) .
  10.  Jump to essay-10Thus, § 408 of the Federal Meat Inspection Act, as amended by the Wholesome Meat Act, 21 U.S.C. § 678, provides that [m]arking, labeling, packaging, or ingredient requirements in addition to, or different than, those made under this chapter may not be imposed by any state . . . . See Jones v. Rath Packing Co., 430 U.S. 519, 528–32 (1977) . See also National Meat Ass'n v. Harris, 565 U.S. ___, No. 10-224, slip op. (2012) (broad preemption of all state laws on slaughterhouse activities regardless of conflict with federal law). Similarly, much state action is saved by the Securities Exchange Act of 1934, 15 U.S.C. § 78bb(a), which states that [n]othing in this chapter shall affect the jurisdiction of the securities commissioner (or any agency or officer performing like functions) of any State over any security or any person insofar as it does not conflict with the provisions of this chapter or the rules and regulations thereunder. For examples of other express preemptive provisions, see Norfolk & Western Ry. v. American Train Dispatchers' Ass'n, 499 U.S. 117 (1991) ; Exxon Corp. v. Hunt, 475 U.S. 355 (1986) . See also Department of Treasury v. Fabe, 508 U.S. 491 (1993) .
  11.  Jump to essay-11For example, in Coventry Health Care of Missouri, Inc. v. Nevils , the Court noted that it has 'repeatedly recognized' that the phrase 'relate to' in a preemption clause 'express[es] a broad pre-emptive purpose.' Congress characteristically employs the phrase to reach any subject that has 'a connection with, or reference to,' the topics the statute enumerates. 581 U.S. ___, No. 16-149, slip op. at 7 (2017) (quoting Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383–84 (1992) ) (internal citation omitted). Coventry Health Care involved an express preemption provision of the Federal Employees Health Benefits Act of 1959 (FEHBA) under which any terms of contracts with private carriers for federal employees' health insurance that relate to the nature, provision, or extent of coverage of benefits (including payments with respect to benefits) . . . supersede and preempt any State or local law . . . which relates to health insurance or plans. Id. at 1 (quoting 5 U.S.C. § 8902(m)(1)) (internal quotation marks omitted; emphasis added). A federal employee brought an action alleging violations of a Missouri consumer protection law against a private carrier that asserted a lien against the employee's personal injury settlement under the subrogation and reimbursement terms of a health insurance contract. While there was no dispute that the Missouri law relates to health insurance, the Court examined whether the contractual subrogation and reimbursement terms relate to . . . payments with respect to benefits. Id. at 2. Based on the statutory language, including Congress' use of the expansive phrase 'relate to,' the Court held that such contractual provisions do 'relate to . . . payments with respect to benefits' because subrogation and reimbursement rights yield just such payments. When a carrier exercises its right to either reimbursement or subrogation, it receives from either the beneficiary or a third party 'payment' respecting the benefits the carrier had previously paid. Id. at 6–7. The Court also rejected the respondent's argument that allowing a contract to preempt state law violated the Supremacy Clause, which by its terms provides preemptive effect to the laws of the United States. Id. at 9. The Court held that the regime Congress enacted is compatible with the Supremacy Clause, id. at 1–2, because, like [m]any other federal statutes, FEHBA provides that certain contract terms have preemptive force only to the extent that the contract fall[s] within the statute's preemptive scope. Id. at 9. In this way, the Court concluded that the statute, not a contract, strips state law of its force. Id. For a discussion of preemption in the context of the Supremacy Clause, see infra Article VI: Clause 2.
  12.  Jump to essay-12 Aloha Airlines v. Director of Taxation, 464 U.S. 7, 13–14 (1983) .
  13.  Jump to essay-13 Morales, 504 U.S. at 374 . The section, 49 U.S.C. § 1305(a)(1), was held to preempt state rules on advertising. See also American Airlines, Inc. v. Wolens, 513 U.S. 219 (1995) ; Nw., Inc. v. Ginsberg, 572 U.S. ___, No. 12-462, slip op. (2014) (holding that the Airline Deregulation Act's preemption provision applied to state common law claims, including an airline customer's claim for breach of the implied covenant of good faith and fair dealing). But see Dan's City Used Cars, Inc. v. Pelkey, 569 U.S. ___, No. 12-52, slip op. (2013) (provision of Federal Aviation Administration Authorization Act of 1994 preempting state law related to a price, route, or service of any motor carrier . . . with respect to the transportation of property held not to preempt state laws on the disposal of towed vehicles by towing companies).
  14.  Jump to essay-148 U.S.C. § 1324a(h)(2).
  15.  Jump to essay-15 563 U.S. 582 (2011) . The Whiting majority notably began its analysis of whether the challenged Arizona statute was preempted by federal law with a statement that [w]hen a federal law contains an express preemption clause, we ‘focus on the plain wording of the clause, which necessarily contains the best evidence of Congress’ preemptive intent.’ Id. at 594. Subsequently, in writing for the majority in Commonwealth of Puerto Rico v. Franklin California Tax-Free Trust , Justice Thomas cited this language from Whiting in support of the proposition that no presumption against preemption is to be applied when a congressional enactment includes an express preemption clause. See 579 U.S. ___, No. 15-233, slip op. at 9 (2016) (declining to apply a presumption against preemption in finding that the federal Bankruptcy Code preempts a Puerto Rico bankruptcy law).
  16.  Jump to essay-16 Whiting, 563 U.S. at 612 (Breyer, J., dissenting); id. at 631 (Sotomayor, J., dissenting).
  17.  Jump to essay-17 563 U.S. ___, No. 09-893, slip op. (2011) .
  18.  Jump to essay-189 U.S.C. § 2.
  19.  Jump to essay-19Writing for the Court, Justice Scalia held, inter alia, that the saving clause was not intended to open arbitration provisions themselves to possible scrutiny. 563 U.S. ___, No. 09-893, slip op. (2011) . The four dissenting Justices interpreted the saving clause as allowing use of the California law to attack the anti-class arbitration contract provision. Id. (Breyer, J. dissenting).
  20.  Jump to essay-20 City of Columbus v. Ours Garage and Wrecker Serv., 536 U.S. 424, 429 (2002) .
  21.  Jump to essay-21 Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 739 (1985) , repeated in FMC Corp. v. Holliday, 498 U.S. 52, 58 (1990) .
  22.  Jump to essay-2229 U.S.C. §§ 1144(a), 1144(b)(2)(A), 1144(b)(2)(B). The Court has described this section as a virtually unique pre-emption provision. Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 24 n.26 (1983) . See Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 138–139 (1990) ; see also id. at 142–45 (describing and applying another preemption provision of ERISA).
  23.  Jump to essay-23 Gobeille v. Liberty Mut. Ins. Co., 577 U.S. ___, No. 14-181, slip op. at 9 (2016) (holding that ERISA — with its extensive reporting, disclosure, and recordkeeping requirements that are central to, and an essential part of, its uniform plan administration system — preempted a Vermont law requiring certain entities, including health insurers, to report health care related information to a state agency); Aetna Health, Inc. v. Davila, 542 U.S. 200 (2004) (suit brought against HMO under state health care liability act for failure to exercise ordinary care when denying benefits is preempted); Boggs v. Boggs, 520 U.S. 833 (1997) (decided not on the basis of the express preemption language but instead by implied preemption analysis); De Buono v. NYSA–ILA Med. & Clinical Servs. Fund, 520 U.S. 806 (1997) ; Cal. Div. of Labor Standards Enf't v. Dillingham Constr., Inc., 519 U.S. 316 (1997) ; N.Y. State Conf. of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645 (1995) (no preemption of statute that required hospitals to collect surcharges from patients covered by a commercial insurer but not from patients covered by Blue Cross/Blue Shield plan); John Hancock Mut. Life Ins. Co. v. Harris Trust & Sav. Bank, 510 U.S. 86 (1993) (ERISA's fiduciary standards, not conflicting state insurance laws, apply to insurance company's handling of general account assets derived from participating group annuity contract); District of Columbia v. Greater Washington Bd. of Trade, 506 U.S. 125 (1992) (law requiring employers to provide health insurance coverage, equivalent to existing coverage, for workers receiving workers' compensation benefits); Ingersoll-Rand Co. v. McClendon, 498 U.S. 133 (1990) (ERISA preempts state common-law claim of wrongful discharge to prevent employee attaining benefits under plan covered by ERISA); FMC Corp. v. Holliday, 498 U.S. 52 (1990) (provision of state motor-vehicle financial-responsibility law barring subrogation and reimbursement from claimant's tort recovery for benefits received from a self-insured health-care plan preempted by ERISA); Fort Halifax Packing Co. v. Coyne, 482 U.S. 1 (1987) (state law requiring employers to provide a one-time severance payment to employees in the event of a plant closing held not preempted by 5-4 vote); Metro. Life Ins. Co. v. Massachusetts, 471 U.S. 724 (1985) (state law mandating that certain minimum mental-health-care benefits be provided to those insured under general health-insurance policy or employee health-care plan is a law which regulates insurance and is not preempted); Shaw v. Delta Air Lines, 463 U.S. 85 (1983) (state law forbidding discrimination in employee benefit plans on the basis of pregnancy not preempted, because of another saving provision in ERISA, and provision requiring employers to pay sick-leave benefits to employees unable to work because of pregnancy not preempted under construction of coverage sections, but both laws relate to employee benefit plans); Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504 (1981) (state law prohibiting plans from reducing benefits by amount of workers' compensation awards relates to employee benefit plan and is preempted).
  24.  Jump to essay-24 Cipollone v. Liggett Group, 505 U.S. 504 (1992) . The decision relied on two controversial rules of construction. First, the courts should interpret narrowly provisions that purport to preempt state police-power regulations, and, second, that when a law has express preemption language courts should look only to that language and presume that when the preemptive reach of a law is defined Congress did not intend to go beyond that reach, so that field and conflict preemption will not be found. Id. at 517; and id. at 532–33 (Justice Blackmun concurring and dissenting). Both parts of this canon are departures from established law. Narrow construction when state police powers are involved has hitherto related to implied preemption, not express preemption, and courts generally have applied ordinary-meaning construction to such statutory language; further, courts have not precluded the finding of conflict preemption, though perhaps field preemption, because of the existence of some express preemptive language. See id. at 546–48 (Justice Scalia concurring and dissenting).
  25.  Jump to essay-25 505 U.S. at 518–19 (opinion of the court), 533-34 (Justice Blackmun concurring).
  26.  Jump to essay-26 505 U.S. at 520–30 (plurality opinion), 535-43 (Justice Blackmun concurring and dissenting), 548-50 (Justice Scalia concurring and dissenting).
  27.  Jump to essay-27 518 U.S. 470 (1996) . See also CSX Transportation, Inc. v. Easterwood, 507 U.S. 658 (1993) (under Federal Railroad Safety Act, a state common-law claim alleging negligence for operating a train at excessive speed is preempted, but a second claim alleging negligence for failure to maintain adequate warning devices at a grade crossing is not preempted); Norfolk So. Ry. v. Shanklin, 529 U.S. 344 (2000) (applying Easterwood ).
  28.  Jump to essay-2821 U.S.C. § 350k(a).
  29.  Jump to essay-29The dissent, by Justice O'Connor and three others, would have held preempted the latter claims, 518 U.S. at 509 , whereas Justice Breyer thought that common-law claims would sometimes be preempted, but not here. Id. at 503 (concurring).
  30.  Jump to essay-30 518 U.S. at 484–85 . See also id. at 508 (Justice Breyer concurring); Freightliner Corp. v. Myrick, 514 U.S. 280, 288–89 (1995) ; Barnett Bank v. Nelson, 517 U.S. 25, 31 (1996) ; California Div. of Labor Standards Enforcement v. Dillingham Construction, Inc., 519 U.S. 316, 334 (1997) (Justice Scalia concurring); Boggs v. Boggs, 520 U.S. 833 (1997) (using stands as an obstacle preemption analysis in an ERISA case, having express preemptive language, but declining to decide when implied preemption may be used despite express language), and id. at 854 (Justice Breyer dissenting) (analyzing the preemption issue under both express and implied standards).
  31.  Jump to essay-31 529 U.S. 861 (2000) .
  32.  Jump to essay-32The Court focused on the word exempt to give the saving clause a narrow application – as simply bar[ring] a special kind of defense, . . . that compliance with a federal safety standard automatically exempts a defendant from state law, whether the Federal Government meant that standard to be an absolute requirement or only a minimum one. 529 U.S. at 869 . But cf. Sprietsma v. Mercury Marine, 537 U.S. 51 (2002) (interpreting preemption language and saving clause in Federal Boat Safety Act as not precluding a state common law tort action).
  33.  Jump to essay-33 Compare Williamson v. Mazda Motor of America, Inc., 562 U.S. ___, No. 08-1314, slip op. (2011) (applying same statute as Geir , and later version of same regulation, no conflict preemption found of common law suit based on rear seat belt type, because giving manufacturers a choice on the type of rear seat belt to install was not a significant objective of the statute or regulation). For a decision applying express preemption language to a variety of state common law claims, see Bates v. Dow Agrosciences LLC, 544 U.S. 431 (2005) (interpreting FIFRA, the federal law governing pesticides).
  34.  Jump to essay-34 587 U.S. ____, No. 16-1275, slip op. at 6 (2019) .
  35.  Jump to essay-35 Id. at 5 (quoting 42 U.S.C. § 2021(k)) (internal quotation mark omitted).
  36.  Jump to essay-36 Id. at 6.
  37.  Jump to essay-37 Id.
  38.  Jump to essay-38 Id.
  39.  Jump to essay-39 Id. at 7 (Ginsburg, J., concurring).
  40.  Jump to essay-40 Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947) . The case also is the source of the oft-quoted maxim that when Congress legislates in a field traditionally occupied by the states, courts should start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress. Id.
  41.  Jump to essay-41 312 U.S. 52 (1941) .
  42.  Jump to essay-42In Arizona v. United States , the Court struck down state penalties for violating federal alien registration requirements, emphasizing that [w]here Congress occupies an entire field, … even complementary state regulation is impermissible. 567 U.S. ___, No. 11-182, slip op. at 10 (2012) The same case also struck down on preemption grounds state sanctions on aliens who work or seek employment without federal authorization, id. at 12–15 , and authority for state officers to make warrantless arrests based on possible deportability under federal immigration law. Id. By contrast, a regime of state immigration status checks with federal authorities was found not to be preempted on its face because the regime was supported by federal law facilitating federal-state cooperation in immigration enforcement.
  43.  Jump to essay-43The Court also said that courts must look to see whether under the circumstances of a particular case, the state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. 312 U.S. at 67 . That standard is obviously drawn from conflict preemption, for the two standards are frequently intermixed. See AT&T Mobility, LLC v. Concepcion, 563 U.S. ___, No. 09-893, slip op. at 9–18 (2011) (Scalia, J.). Nonetheless, not all state regulation is precluded. De Canas v. Bica, 424 U.S. 351 (1976) (rejecting a field preemption challenge to a state law that penalized businesses for employing an unlawfully present alien, prior to Congress' enactment of the Immigration Reform and Control Act of 1986, Pub. L. No. 99–603, 100 Stat. 3359a).
  44.  Jump to essay-44 350 U.S. 497 (1956) .
  45.  Jump to essay-45 350 U.S. at 502–05 . Obviously, there is a noticeable blending into conflict preemption.
  46.  Jump to essay-46 Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947) .
  47.  Jump to essay-47 See Kurns v. Railroad Friction Products Corp., 565 U.S. ___, No. 10-879, slip op. (2012) (state suit by the estate of maintenance engineer alleging manufacturer's defective design of locomotive components and failure to warn of accompanying dangers held preempted by the Locomotive Inspection Act; the subject of the Act held to be the regulation of locomotive equipment generally, including its manufacture, and not limited to regulating activities of locomotive operators or regulating locomotives while in use for transporation). Compare Campbell v. Hussey, 368 U.S. 297 (1961) (state law requiring tobacco of a certain type to be marked by white tags, ousted by federal regulation that occupied the field and left no room for supplementation), with Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132 (1963) (state law setting minimum oil content for avocados certified as mature by federal regulation is complementary to federal law, because federal standard was a minimum one, the field having not been occupied). One should be wary of assuming that a state law that has dual purposes and impacts will not, just for the duality, be held to be preempted. See Gade v. National Solid Wastes Mgmt. Ass'n, 505 U.S. 88 (1992) ; Perez v. Campbell, 402 U.S. 637 (1971) (under Bankruptcy Clause).
  48.  Jump to essay-48 Pacific Gas & Elec. Co. v. Energy Resources Comm'n, 461 U.S. 190 (1983) . Neither does the same reservation of exclusive authority to regulate nuclear safety preempt imposition of punitive damages under state tort law, even if based upon the jury's conclusion that a nuclear licensee failed to follow adequate safety precautions. Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984) . See also Va. Uranium, Inc. v. Warren, 587 U.S. ____, No. 16-1275, slip op. at 1 (2019) (plurality opinion) (holding that the Atomic Energy Act does not preempt a state law banning uranium mining); id. at 1 (Ginsburg, J., concurring) (same); English v. General Electric Co., 496 U.S. 72 (1990) (employee's state-law claim for intentional infliction of emotional distress for her nuclear-plant employer's actions retaliating for her whistleblowing is not preempted as relating to nuclear safety).
  49.  Jump to essay-49 Huron Portland Cement Co. v. City of Detroit, 362 U.S. 440 (1960) .
  50.  Jump to essay-50 Askew v. American Waterways Operators, 411 U.S. 325 (1973) .
  51.  Jump to essay-51 Ray v. Atlantic Richfield Co., 435 U.S. 151 (1978) . United States v. Locke, 529 U.S. 89 (2000) (applying Ray ). See also Exxon Corp. v. Eagerton, 462 U.S. 176 (1983) (preempting a state ban on pass-through of a severance tax on oil and gas, because Congress has occupied the field of wholesale sales of natural gas in interstate commerce); Schneidewind v. ANR Pipeline Co., 485 U.S. 293 (1988) (Natural Gas Act preempts state regulation of securities issuance by covered gas companies); Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141 (1989) (under Patent Clause, state law extending patent-like protection to unpatented designs invades an area of pervasive federal regulation).
  52.  Jump to essay-52 City of Burbank v. Lockheed Air Terminal, 411 U.S. 624 (1973) .
  53.  Jump to essay-53 Oneok, Inc. v. Learjet, Inc., 575 U.S. ___, No. 13-271, slip op. at 10–12 (2015) .
  54.  Jump to essay-54 Cf. Hughes v. Talen Energy Mktg., LLC, 578 U.S. ___, No. 14-614, slip op. at 12–13 (2016) (holding that while States . . . may regulate within the domain Congress assigned to them even when their laws incidentally affect areas within the federal regulatory field, States may not seek to achieve ends, however legitimate, through regulatory means that intrude on the federal government’s authority over the field in question) (citing to Oneok, Inc., slip op. at 11 ).
  55.  Jump to essay-55 See Oneok, Inc., slip op. at 3, 10 .
  56.  Jump to essay-56 Id. at 3.
  57.  Jump to essay-57 Id. at 13.
  58.  Jump to essay-58 Id. at 10.
  59.  Jump to essay-59 Id. at 11.
  60.  Jump to essay-60 Id. at 13.
  61.  Jump to essay-61 Id. at 14.
  62.  Jump to essay-62 Id. at 15–16.
  63.  Jump to essay-63 Transcontinental Gas Pipe Line Corp. v. Mississippi Oil & Gas Board, 474 U.S. 409 (1986) ; Puerto Rico Dept. of Consumer Affairs v. Isla Petroleum Corp., 485 U.S. 495 (1988) .
  64.  Jump to essay-64 479 U.S. 1 (1986) .
  65.  Jump to essay-65For similar examples of conflict preemption, see Wos v. E.M.A., 568 U.S. ___, No. 12-98, slip op. (2013) (holding that a North Carolina statute allowing the state to collect up to one-third of the amount of a tort settlement as reimbursement for state-paid medical expenses under Medicaid conflicted with anti-lien provisions of the federal Medicaid statute where the settlement designated an amount less than one-third as the medical expenses award). See also Doctor's Assoc.'s, Inc. v. Casarotto, 517 U.S. 681 (1996) (federal arbitration law preempts state statute that conditioned enforceability of arbitration clause on compliance with special notice requirement); Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265 (1995) (federal arbitration law preempts state law invalidating predispute arbitration agreements that were not entered into in contemplation of substantial interstate activity).
  66.  Jump to essay-66 Fidelity Fed. Savings & Loan Assn. v. de la Cuesta, 458 U.S. 141 (1982) .
  67.  Jump to essay-67 564 U.S. ___, No. 09-993, slip op. (2011) .
  68.  Jump to essay-68 564 U.S. ___, No. 09-993, slip op. (2011) (Thomas, J.).
  69.  Jump to essay-69Justice Thomas, joined on point by three others, characterized the Supremacy Clause phrase any [state law] to the Contrary notwithstanding as a non obtstante provision that suggests that federal law should be understood to impliedly repeal conflicting state law and indicates limits on the extent to which courts should seek to reconcile federal and state law in preemption cases. 564 U.S. ___, No. 09-993, slip op. at 15–17 (2011) (Thomas, J.).
  70.  Jump to essay-70 564 U.S. ___, No. 09-993, slip op. (2011) (Sotomayor, J., dissenting).
  71.  Jump to essay-71 570 U.S. 472 (2013) .
  72.  Jump to essay-72 Id. at 475.
  73.  Jump to essay-73 Wyeth v. Levine, 555 U.S. 555, 581 (2009) ; see also Merck Sharp & Dohme Corp. v. Albrecht, 587 U.S. ___, No. 17-290, slip op. at 9 (2019) (explaining that pursuant to the standard announced in Wyeth , state law failure-to-warn claims are pre-empted by federal law when there is ‘clear evidence’ that the FDA would not have approved the warning that state law requires, and holding that impossibility preemption based on clear evidence is a question of law for a judge, not a jury, to decide).
  74.  Jump to essay-74 California Federal Savings & Loan Ass'n v. Guerra, 479 U.S. 272 (1987) . Compare Cloverleaf Butter Co. v. Patterson, 315 U.S. 148 (1942) (federal law preempts more exacting state standards, even though both could be complied with and state standards were harmonious with purposes of federal law).
  75.  Jump to essay-75 Florida Lime & Avocado Growers v. Paul, 373 U.S. 132 (1963) .
  76.  Jump to essay-76The standard is drawn from Hines v. Davidowitz, 312 U.S. 52, 67 (1941) , which often is held out as a leading example of field preemption analysis. When frustration of purpose predominates in an opinion, it may be fairer to characterize the issue as one of conflict preemption, rather than field preemption, for the possibility of a limited state role would appear to be implicitly recognized. Arizona v. United States , in which the Court found three of the four Arizona immigration provisions it examined to be preempted, illustrates the continuum from field to conflict analysis. In overturning state penalties for violations of federal alien registration requirements, the Court found the sweep and detail of the federal law to leave no room whatsoever for state regulation. In overturning state sanctions against unauthorized aliens seeking employment or working, the Court emphasized that the comprehensive system of federal employer sanctions eschewed employee sanctions, and allowing states to impose them would upset the careful policy balance struck by Congress. In overturning state authority to arrest individuals believed to be deportable on criminal grounds, the Court did not examine whether state officers have any inherent arrest authority in deportation cases, but rather found that allowing states to engage in such arrests as a general matter creates an obstacle to congressional objectives. And finally, the Court declined to overturn on its face a state policy of checking the immigration status of individuals stopped by the police for general law enforcement purposes, finding that federal law facilitated status checks and only implementation of the status check policy would disclose whether federal enforcement policy ultimately would be frustrated. 567 U.S. ___, No. 11-182, slip op. (2012) .

    See also Barnett Bank of Marion County v. Nelson, 517 U.S. 25 (1996) (federal law empowering national banks in small towns to sell insurance preempts state law prohibiting banks from dealing in insurance; despite explicit preemption provision, state law stands as an obstacle to accomplishment of federal purpose); Hillman v. Maretta, 569 U.S. 483 (2013) (state law cause of action against ex-spouse for life insurance proceeds paid under a designation of beneficiary in a federal employee policy held to be preempted by a federal employee insurance statute giving employees the right to designate a beneficiary; beyond administrative convenience, Congress intended that the proceeds actually belong to the named beneficiary). Unsurprisingly, the Justices at times disagree on what Congress's primary objectives and purposes were in passing particular legislation, and such a disagreement can end with different conclusions about whether state law has been preempted. See AT&T Mobility, LLC v. Concepcion, 563 U.S. ___, No. 09–893, slip op. (2011) .

  77.  Jump to essay-77 Geier v. American Honda Motor Co., 529 U.S. 861 (2000) .
  78.  Jump to essay-78 Jones v. Rath Packing Co., 430 U.S. 519, 532–543 (1977) .
  79.  Jump to essay-79 487 U.S. 131 (1988) .
  80.  Jump to essay-80 Philco Aviation v. Shacket, 462 U.S. 406 (1983) .
  81.  Jump to essay-81 520 U.S. 833 (1997) .
  82.  Jump to essay-82 520 U.S. at 841 . The dissent, id. at 854 (Justice Breyer), agreed that conflict analysis was appropriate, but he did not find that the state law achieved any result that ERISA required.
  83.  Jump to essay-83 Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000) .
  84.  Jump to essay-84 530 U.S. at 374 n.8 .
  85.  Jump to essay-85 Michigan Canners & Freezers Ass'n v. Agricultural Marketing & Bargaining Bd., 467 U.S. 461 (1984) . See also Nantahala Power & Light Co. v. Thornburg, 476 U.S. 953 (1986) (state allocation of costs for purposes of setting retail electricity rates, by disallowing costs permitted by FERC in setting wholesale rates, frustrated federal regulation by possibly preventing the utility from recovering in its sales the costs of paying the FERC-approved wholesale rate); Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691 (1984) (state ban on cable TV advertising frustrates federal policy in the copyright law by which cable operators pay a royalty fee for the right to retransmit distant broadcast signals upon agreement not to delete commercials); International Paper Co. v. Ouellette, 479 U.S. 481 (1987) (damage action based on common law of downstream state frustrates Clean Water Act's policies favoring permitting state in interstate disputes and favoring predictability in permit process).
  86.  Jump to essay-86 California v. FERC, 495 U.S. 490 (1990) . The savings clause was found inapplicable on the basis of an earlier interpretation of the language in First Iowa Hydro-Electric Cooperative v. FPC, 328 U.S. 152 (1946) .
  87.  Jump to essay-87 Wisconsin Public Intervenor v. Mortier, 501 U.S. 597, 614–16 (1991) .
  88.  Jump to essay-88 California v. ARC America Corp., 490 U.S. 93 (1989) .
  89.  Jump to essay-89 Hayfield Northern Ry. v. Chicago & N.W. Transp. Co., 467 U.S. 622 (1984) . See also CTS Corp. v. Dynamics Corp. of America, 481 U.S. 69 (1987) (federal law's broad purpose of protecting shareholders as a group is furthered by state anti-takeover law); Rose v. Rose, 481 U.S. 619 (1987) (provision governing veterans' disability benefits protects veterans' families as well as veterans, hence state child-support order resulting in payment out of benefits is not preempted).