March | April 2017


Primer on Pre-Emption

By Joseph F. Zimmerman, Professor, Rockefeller College of Public Affairs and Policy,
State University of New York
The drafters of the U.S. Constitution established the world’s first federal system by delegating specific powers to Congress in Article 1, Section 8 reserving unspecified powers to the states and empowering Congress and state legislatures to employ concurrent powers, including taxation.
The drafters decided it would be undesirable to have a strict division of regulatory powers and authorized Congress to remove state regulatory powers in response to new developments without a constitutional amendment(s). The 13th, 14th, 15th, 19th, 24th and 26th amendments to the Constitution delegated additional pre-emption powers to Congress.
Congressional pre-emption—or nullification—refers to a statute removing regulatory powers from state and local governments. A pre-emption act can range in length from less than one page to hundreds of pages and may be simple or exceptionally complex. Congress in recent decades included one or more pre-emption statutes in omnibus budget reconciliation acts and appropriation acts that are hundreds of pages in length, as well as in other pre-emption acts. As a result, the total number of pre-emption acts is higher than the total number of individual pre-emption bills signed into law by presidents. The amount of regulatory authority removed from states in a field by a pre-emption act ranges from little to all.

Subject Matter

The subject matter of pre-emption acts has changed over the years. Nineteenth century acts focused principally on bankruptcy, civil rights, false claims and interstate commerce. The early decades of the 20th century witnessed supersession acts relating to bankruptcy, firearms, health, interstate commerce, labor relations, safety, securities and transportation.
Pre-emption acts commencing in 1957 involve age discrimination, animal welfare, civil rights, consumer protection, drug abuse, economic deregulation of specified industries, endangered species, environmental protection, hazardous materials, highway safety, housing, medical devices and voting rights, among others. Congress enacted the first of 20 antiterrorism acts in 1994.

Congressional Powers

Congress lacks authority to directly pre-empt the vast array of powers the states possess to deliver services to their residents unless the services are provided in a discriminatory manner. Congress, however, influences the provision of services by means of conditions attached to grants-in-aid.
Congress also has employed its pre-emption powers since 1978 to nearly completely deregulate the banking, communications, energy and transportation industries, while simultaneously increasing the regulation of state and local governments as polities.
A pre-emption statute may contain a mandate requiring states to initiate a specified action and/or a restraint forbidding states to initiate an action, such as dumping sewage sludge in oceans. State government officers often object to mandates and restraints because of their associated costs.

Pre-emption Pace

Congress first exercised its pre-emption powers by enacting the Copyright Act of 1790 and the Patent Act of 1790 completely removing these powers from the states. The pace of enactment of pre-emption statutes initially was slow, with only 29 such statutes enacted by the end of the 19th century.
The enactment pace began to increase in the 1960s with 47 enactments and reached a peak of 160 enactments from 2000 to 2009. As of Sept. 17, 2013, there were 702 separate pre-emption statutes. Only two such statutes were enacted in 2013 as the result of divided political party control of the two houses of Congress. Congress can devolve any of its delegated powers to states, except coinage, as illustrated by the McCarran-Ferguson Act of 1945 devolving power to states to regulate the insurance industry.

‘Law of the Land'

Article VI of the United States Constitution stipulates all laws enacted by Congress and treaties entered into by the United States with foreign nations are “the supreme law of the land.” Conflict pre-emption refers to a conflict between a state statute and a congressional act or a treaty. Not all conflicting state laws are invalid. The U.S. Supreme Court on a number of occasions opined a conflict between a state statute and a congressional statute is not of sufficient magnitude to trigger “the supreme law of the land” clause.
It is not uncommon for an author to cite the clause and the interstate commerce clause as authority for Congress to pre-empt state laws. A pre-emption statute, however, also may be based upon the power of Congress to regulate bankruptcies, copyrights, naturalization, patents and taxation. Congress amended a number of complete pre-emption statutes, such as ones pertaining to grain standards and railroad safety, in recognition of the fact states can play important roles in administrating the statutes.

State Opposition

State officials do not always oppose a pre-emption bill introduced in Congress, and on occasion urge Congress to enact a pre-emption statute because interstate cooperation is unable to solve a major problem.
The National Governors Association in 1980-81, for example, urged Congress to establish national standards for truck weights and lengths. State government officials also were unable to solve the problem created by commercial vehicle drivers who, holding operator licenses issued by several sister states, continue to drive with a license issued by one state after a license suspension or revocation by another state for a serious motor vehicle violation. State officials supported enactment of the Commercial Motor Vehicle Safety Act of 1986 authorizing states to continue to issue commercial driver’s licenses and making possession or more than one such license a federal crime.

State Powers

The number of pre-emption statutes enacted during a given time period is not an accurate measure of the amount and the importance of regulatory powers removed from state governments. States retain significant regulatory powers and, since 1965, have been exercising them more broadly and frequently in response to congressional enactment of five minimum standards pre-emption acts.
Changes in the global economy, inventions and technological innovations, and lobbying by business, civil rights, environmental, telecommunications and other interest groups will result in Congress continuously pre-empting—completely or partially—the regulatory powers of state and local governments unless state legislatures initiate additional actions to harmonize their regulatory laws and implement administrative rules and regulations. Harmonization can be achieved by enactment of reciprocity statutes, uniform state laws and interstate compacts that create a commission with regulatory powers.