Supreme Court Preemption Doctrine

Authors

• Christopher H. Schroeder, Duke Law SchoolFollow

Document Type

Chapter of Book

Publication Date

2009

Abstract

In the United States, law and policy always function within layers of government authority – federal, state, and local. This book primarily examines the choices policy makers, legislatures, or agencies face in allocating and coordinating responsibility among these layers; choices that will always be constrained by any limits placed on them by the U.S. Constitution, as interpreted by the Supreme Court. This chapter explores the doctrine that the Supreme Court has elaborated to address one set of those constraints, namely the doctrine of preemption.

Preemption doctrine rests on Article VI of the Constitution, which provides that the laws and treaties of the United States ‘‘shall be the supreme law of the land . . . anything in the Constitution or Laws of any State to the contrary notwithstanding.’’ When is a state or local law ‘‘contrary’’ to the laws or treaties of the United States? The doctrine of preemption seeks to answer that question, in all the various contexts in which it may arise. Although major elements of the doctrine have been clearly delineated by the Supreme Court, the outcomes of specific clashes between federal and state law prove to be far from certain. The beginning sections of this chapter examine the stated doctrine and some of its difficulties. The chapter concludes by discussing four topics that are currently matters of considerable controversy: (1) when do broad federal statutes preempt the abilities of the states and localities to address unanticipated, new environmental, health and safety concerns? (2) when do federal statutes preempt state damages actions? (3) what role do federal agencies play in defining the boundaries of the preemptive effects of statutes? and (4) what are the implications of the ‘‘regulatory vacuum’’ that can result from concentrating too much authority at the federal level?

Comments

© Cambridge University Press 2009. This version is free to view and download for private research and study only. Not for re-distribution or re-use.

Citation

Christopher H. Schroeder, Supreme Court Preemption Doctrine, in Preemption Choice: The Theory, Law, and Reality of Federalism's Core Question 119-143 (William W. Buzbee ed., 2009)