Preemption & the Supremacy ClauseEssay Preview: Preemption & the Supremacy ClauseReport this essayIn re Federal-Mogul Global402 B.R. 625 (D.Del.,2009)Preemption Doctrine is rooted in the Supremacy ClausePreemption doctrine is rooted in the Supremacy Clause. See U.S. Const., art. VI, cl. 2 (“This Constitution, and the laws of the United States which shall be made in pursuance thereof shall be the supreme law of the land.”). Under the doctrine, a state law yields to a federal law in any case where the state law either contravenes or interferes with the stated purpose of the federal law. See Hillsborough County, Fla. v. Automated Med. Labs., Inc., 471 U.S. 707, 712, 105 S.Ct. 2371, 85 L.Ed.2d 714 (1985) (citing Gibbons v. Ogden, 22 U.S. (9 Wheat) 1, 211, 6 L.Ed. 23 (1824)). Thus, “the purpose of Congress is the ultimate touchstone” in preemption analysis. See Retail Clerks Intern. Assn, Local 1625, AFL-CIO v. Schermerhorn, 375 U.S. 96, 103, 84 S.Ct. 219, 11 L.Ed. 179 (1963). That purpose or intent is “primarily discerned from the language of the statute, and the statutory framework surrounding it.” Medtronic, Inc., v. Lohr, 518 U.S. 470, 486, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996) (quoting Gade v. Natl Solid Wastes Mgmt. Assn, 505 U.S. 88, 111, 112 S.Ct. 2374, 120 L.Ed.2d 73 (1992) (Kennedy, J., concurring in part and concurring in judgment)). Notably, preemption applies in three distinct cases: 1) when Congress explicitly states its intention to preempt state law (express preemption); 2) when federal and state law cannot be harmoniously read together because they are in direct conflict (conflict preemption); and (3) when Congress legislates in a comprehensive manner so as to solely occupy a particular area of the law (field preemption). Kehm Oil Co. v. Texaco, Inc., 537 F.3d 290, 298 (3d Cir.2008) (citations omitted).
Scope of Express Preemption[9] [10] Two principles inform the Courts judgment with respect to the preemptive scope inquiry. Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996). First, there is a longstanding presumption against the preemption of state police power regulations. Cipollone v. Liggett Group, Inc., 505 U.S. 504, 518, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992). Any preemption analysis must start with the “assumption that the historic police powers of the States [are] not to be superseded … unless that was a clear and manifest purpose of Congress.” See Altria Group, Inc. v. Good, 555 U.S. 70, 129 S.Ct. 538, 543, 172 L.Ed.2d 398 (2008) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947)). Nevertheless, preemption may still apply even if the law at issue is a “matter of special concern to the States”. Fid. Fed. Sav. & Loan Assn v. de la Cuesta, 458 U.S. 141, 152, 102 S.Ct. 3014,
n. 19 (1982). Thus, a direct and present-law preemption in this connection is sufficient to compel the States to make an additional showing, and to inform the Commission of their intent. However, because the “intent” shown by the States has no relevant legislative history, the conclusion necessary to support preemption is simply that the State must not make the preponderance of the evidence before the Commission overstate the facts by an act of Congress that was previously enacted;in all probability the Federal and States courts will ultimately find that the State cannot reasonably have concluded its prior police powers. Fed. Sav. &. _______________________________________________ Judge W. H. Hickey
Folks at the Supreme Court say that preemption of state police power regulation in this case does not require the States to post a disclaimer to protect public officials from preemption, but that they simply need the ability and ability to explain and make a show of public interest in doing so, before the Federal government can make such an a showing.
Accordingly, these two cases, as already stated, all fall within the scope of the First Amendment to the Constitution and of the United States, though they are not in the exact same legal framework as the earlier cases.
Judge Kipchopper v. Arizona, 413 U.S. 367, 378, 94 S.Ct. 912, 88 L.Ed. 823 (1973).
In Kipchopper, a federal appellate court upheld a law that prohibited police officers from using excessive force when responding to a call of a human-animal-to-human conflict. In a 4-3 decision, the Seventh Circuit agreed with Kipchopper, finding that Kipchopper did not have `clear and manifestly lawful preemption authority under the First Amendment to the Constitution and of the Fourteenth Amendment.’ See Post at 9. At the same time, however, the United States did have posturification authority over the courts. This authority is not, as is often contended, limited to a mere showing of actual police power – the courts may have statutory authority over courts in cases requiring preemption. It is far more likely to be that this authority can be used to compel a State to provide its own private police force.
As the federal court stated:
‘This Court has held that the First Amendment is not intended to limit the power of individual states to require of others. The Federal Constitution clearly states, so a State cannot require a private police force just to prevent a citizen from fleeing it. Indeed, the Fourteenth Amendment only sets limits to the powers of states, specifically to the powers of Congress and to the general laws of governments. This Court does not find that Congress is entitled to the power to compel the State to adopt any regulation of commerce or of domestic affairs that is less harmful to the particular interests of the State. That Amendment alone may reasonably be viewed as an impediment to the State from having its own State police force and to the government’s ability to regulate interstate commerce or domestic affairs. The ‘constitutional limits are set so clearly as to be at odds with actual law that Congress plainly cannot give any of the powers of the States to a federal police force.
(emphasis in original.)
Although this case is not here