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.13 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.14 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.
15 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.16 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.17
At issue in AT&T Mobility, LLC v. Concepcion 18 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.
19 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.20 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.
21
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.
22 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.23 Interpretation of the provisions has resulted in contentious and divided Court opinions.24
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.25 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;26 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.27
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 28 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.29 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.30
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.31
The Court continued to struggle with application of express preemption language to state common-law tort actions in Geier v. American Honda Motor Co. 32 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.33 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.34
In Virginia Uranium, Inc., v. Warren , the Supreme Court considered whether a disputed statutory provision was a preemption clause at all.35 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.
36 A litigant argued this provision displaced any state law . . . if that law was enacted for the purpose of protecting the public against ‘radiation hazards.’
37 Justice Gorsuch disagreed, writing for three members of the Court, instead describing this provision as a non-preemption clause.
38 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.
39 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.40
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,
41 states are ousted from the field. Still a paradigmatic example of field preemption is Hines v. Davidowitz ,42 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.43 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.44 Similarly, in Pennsylvania v. Nelson ,45 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.46
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.47
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.48 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.49
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.50 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.51 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.52 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.53
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,54 and such state laws may incidentally
affect the preempted field.55 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.56 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.57 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,58 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.
59 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.
60 The Court also noted that the broad applicability
of state antitrust laws supported a finding of no preemption here,61 as does the states’ historic role in providing common law and statutory remedies against monopolies and unfair business practices.62 However, while declining to find field preemption, the Court left open the possibility of conflict preemption, which had not been raised by the parties.63
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.64
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 ,65 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.66
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.67 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 ,68 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.69 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.70 The four dissenting Justices argued that inability to change the labels unilaterally was insufficient, standing alone, to establish a defense based on impossibility.71 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 .72 There, 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.
73
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.74 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.75 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.76
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.77 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.78 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.79 In Felder v. Casey ,80 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.81
In Boggs v. Boggs ,82 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.
83
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.84 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.
85
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.86 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.
87
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.88 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.89 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.90