Process-Based Preemption

Abstract

The question of preemption arises because Constitution establishes a federal system with two governments (one federal and one state) have overlapping power to regulate same matters involving same parties in same territory. To succeed, such a system requires a means of deciding when federal law displaces state law. The Founders chose Supremacy Clause (reinforced by Article III) to perform this function. Although seemingly one-sided, Clause actually incorporates several important political and procedural safeguards designed to preserve proper balance between governance prerogatives of federal government and states. It does this by recognizing only three sources of law as the supreme Law of Land – Constitution, Laws, and Treaties of United States. Elsewhere, Constitution prescribes precise and cumbersome procedures to govern adoption of each source of supreme federal law. These procedures establish exclusive means of adopting the supreme Law of Land. By requiring participation and assent of multiple actors subject to political safeguards of federalism, these procedures make supreme federal law relatively difficult to adopt. More importantly, these procedures suggest exclusivity because Constitution guarantees states (regardless of size or population) equal suffrage in Senate and gives Senate (or states) an absolute veto over adoption of each and every source of law recognized by Supremacy Clause. This means courts must identify an applicable provision of Constitution, Laws, and Treaties of United States adopted pursuant to specified procedures before they may preempt state law. By operation of Supremacy Clause, these three sources override contrary state law. The negative implication of Clause, however, is state law continues to govern in absence of the supreme Law of Land.This process-based understanding of preemption has potential implications for two related federalism doctrines: presumption against preemption and more controversial clear statement requirement. The traditional presumption against preemption maintains that historic police powers of States [are] not to be superseded by [a] Federal Act unless was clear and manifest purpose of Congress. A clear statement rule is similar in function but requires Congress make its intent to preempt state law clear on face of In addition, some formulations go farther by suggesting Congress intends to alter usual constitutional balance between States and Federal Government, it must make its intention to do so unmistakably clear in language of statute. Critics of these doctrines argue presumption against preemption contradicts Supremacy Clause, and clear statement rules amount to a ‘backdoor’ version of constitutional activism. Although certainly subject to abuse, this paper suggests both doctrines – if properly limited – may play a useful role in implementing Constitution’s political and procedural safeguards of federalism.