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CRS Annotated Constitution

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The Standards Applied.— As might be expected from the caveat just quoted, any overview of the Court’s preemption decisions[p.247]can only make the field seem muddled and to some extent it is. But some guidelines 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.1026 Provisions governing preemption can be relatively interpretation free.1027 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.”1028 But, more often than not, express preemptive language may be ambiguous or at least not free from conflicting interpretation. 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.1029

[p.248]

Perhaps the broadest preemption section ever enacted, Sec. 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.”1030 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 “law[s] . . . 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.1031 Interpretation of the provisions has resulted in contentious and divided Court opinions.1032

Illustrative of the judicial difficulty with ambiguous preemption language is the fractured opinions in the Cipollone case, 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.1033 The 1965 provision[p.249]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;1034 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.1035

Supplement: [P. 249, add to text following n.1035:]

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,50 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.51 The issue, then, 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.52

Following Cipollone, the Court observed that while 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 it is Congress’ purpose that is the ultimate touchstone.53

The Court continued to struggle with application of express preemption language to state common–law tort actions in Geier v. American Honda Motor Co.54 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. However, despite the saving clause, the Court ruled that a common law tort action seeking damages for failure to equip a car with an airbag was preempted because its application would frustrate the purpose of a Federal Motor Vehicle Safety Standard that had allowed manufacturers to choose from among a variety of “passive restraint” systems for the applicable model year.55 The Court’s holding makes clear, contrary to the suggestion in Cipollone, that existence of express preemption language does not foreclose operation of conflict (in this case “frustration of purpose”) preemption.

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,”1036 States are ousted from the field. Still a paradigmatic example of field preemption is Hines v. Davidowitz,1037 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. 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.1038 Similarly, in Pennsylvania[p.250]v. Nelson,1039 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.1040

The Rice case 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.1041 However, it is often a close decision whether a federal law has regulated part of a field, however defined, or the whole area, so that state law cannot even supplement the federal.1042 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, since “economic” regulation of power generation has traditionally been left to the States – an arrangement maintained by the Act – and since the state law could be justified as an economic rather than a safety regulation.1043

A city’s effort to enforce stiff penalties for ship pollution that resulted from boilers approved by the Federal Government was[p.251]held not preempted, the field of boiler safety, but not boiler pollution, having been occupied by federal regulation.1044 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.1045 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.1046 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.1047

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.1048

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,1049 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[p.252]sources. The Court, in a brief, per curiam opinion, had no difficulty finding the state provision preempted.1050

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.1051 On the other hand, it was 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.1052 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.1053

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.1054 Thus, the Court 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[p.253]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.1055 In Felder v. Casey,1056 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. Sec. 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.1057

Supplement: [P. 253, add to text following n.1057:]

In Boggs v. Boggs,56 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.” 57

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’ full objectives under the federal Burma sanctions law.58 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.” 59

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.1058 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.”1059

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.1060 The application of state antitrust laws to authorize indirect purchasers to recover for all overcharges passed on to them by direct purchasers was held[p.254]to implicate no preemption concerns, inasmuch as the federal antitrust laws had been interpreted as not permitting indirect purchasers to recover under federal law; state law may be inconsistent with federal law but in no way did it frustrate federal objectives and policies.1061 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.1062


Footnotes

1026 Not only congressional enactments can preempt. Agency regulations, when Congress has expressly or implied empowered these bodies to preempt, are “the supreme law of the land” under the supremacy clause and can displace state law. E.g., City of New York v. FCC, 486 U.S. 57, 63–64 (1988); Louisiana Public Service Comm. v. FCC, 476 U.S. 355 (1986); Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691 (1984); Fidelity Federal Savings & Loan Assn. v. de la Cuesta, 458 U.S. 141 (1982). Federal common law, i.e., law promulgated by the courts respecting uniquely federal interests and absent explicit statutory directive by Congress, can also displace state law. See Boyle v. United Technologies Corp., 487 U.S. 500 (1988) (Supreme Court promulgated common–law rule creating government–contractor defense in tort liability suits, despite Congress having considered and failed to enact bills doing precisely this); Westfall v. Erwin, 484 U.S. 292 (1988) (civil liability of federal officials for actions taken in the course of their duty). Finally, ordinances of local governments are subject to preemption under the same standards as state law. Hillsborough County v. Automated Medical Laboratories, 471 U.S. 707 (1985).

Supplement: [P. 247, add to n.1026, immediately preceding City of New York v. FCC:]

Smiley v. Citibank, 517 U.S. 735 (1996) .

1027 Thus, Sec. 408 of the Federal Meat Inspection Act, as amended by the Wholesome Meat Act, 21 U.S. C. Sec. 678 , provides that “[m]arking, labeling, packaging, or ingredient requirements in addition to, or different than, those made under this chapter may not be imposed by any state . . . .” See Jones v. Rath Packing Co., 430 U.S. 519, 528– 532 (1977). Similarly, much state action is saved by the Securities Exchange Act of 1934, 15 U.S.C. Sec. 78bb (a), which states that “[n]othing in this chapter shall affect the jurisdiction of the securities commissioner (or any agency or officer performing like functions) of any State over any security or any person insofar as it does not conflict with the provisions of this chapter or the rules and regulations thereunder.” For examples of other express preemptive provisions, see Norfolk & Western Railway Co. v. American Train Dispatchers’ Assn., 499 U.S. 117 (1991); Exxon Corp. v. Hunt, 475 U.S. 355 (1986).

Supplement: [P. 247, add to n.1027:]

And see Department of Treasury v. Fabe, 508 U.S. 491 (1993) .

1028 Aloha Airlines v. Director of Taxation, 464 U.S. 7, 13–14 (1983).
1029 Morales v. TWA, 112S.Ct.2031 (1992). The section, 49 U.S.C. Sec. 1305 (a)(1), was held to preempt state rules on advertising.

Supplement: [P. 247, add to n.1029:]

See also American Airlines v. Wolens, 513 U.S. 219 (1995) .

1030 Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 739 (1985), repeated in FMC Corp. v. Holliday, 498 U.S. 52, 58 (1991).
1031 29 U.S.C. §§ 1144 (a), 1144(b)(2)(A), 1144(b)(2)(B). The Court has described this section as a “virtually unique pre–emption provision.” Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 24 n. 26 (1983). See Ingersoll–Rand Co. v. McClendon, 498 U.S. 133, 138–139 (1990); and see id., 142–145 (describing and applying another preemption provision of ERISA).
1032 Ingersoll–Rand Co. v. McClendon, 498 U.S. 133 (1990) (ERISA preempts state common–law claim of wrongful discharge to prevent employee attaining benefits under plan covered by ERISA); FMC Corp. v. Holliday, 498 U.S. 52 (1990) (provision of state motor–vehicle financial–responsibility law barring subrogation and reimbursement from claimant’s tort recovery for benefits received from a self–insured health–care plan preempted by ERISA); Fort Halifax Packing Co. v. Coyne, 482 U.S. 1 (1987) (state law requiring employers to provide a one–time severance payment to employees in the event of a plant closing held not preempted by 5–4 vote); Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724 (1985) (state law mandating that certain minimum mental–health– care benefits be provided to those insured under general health– insurance policy or employee health–care plan is a law “which regulates insurance” and is not preempted); Shaw v. Delta Air Lines, Inc., 463 U.S. 85 (1983) (state law forbidding discrimination in employee benefit plans on the basis of pregnancy not preempted, because of another saving provision in ERISA, and provision requiring employers to pay sick–leave benefits to employees unable to work because of pregnancy not preempted under construction of coverage sections, but both laws “relate to” employee benefit plans); Alessi v. Raybestos–Manhattan, Inc., 451 U.S. 504 (1981) (state law prohibiting plans from reducing benefits by amount of workers’ compensation awards “relates to” employee benefit plan and is preempted);

Supplement: [P. 248, add to n.1032:]

District of Columbia v. Greater Washington Bd. of Trade, 506 U.S. 125 (1992) (law requiring employers to provide health insurance coverage, equivalent to existing coverage, for workers receiving workers’ compensation benefits); John Hancock Mutual Life Ins. Co. v. Harris Trust and Savings Bank, 510 U.S. 86 (1993) (ERISA’s fiduciary standards, not conflicting state insurance laws, apply to insurance company’s handling of general account assets derived from participating group annuity contract); New York State Conf. of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645 (1995) (no preemption of statute that required hospitals to collect surcharges from patients covered by a commercial insurer but not from patients covered by Blue Cross/Blue Shield plan); De Buono v. NYSA–ILA Med. and Clinical Servs. Fund, 520 U.S. 806 (1997) ; California Div. of Labor Stds. Enforcement v. Dillingham Constr., Inc., 519 U.S. 316 (1997) ; Boggs v. Boggs, 520 U.S. 833 (1997) (decided not on the basis of the express preemption language but instead by implied preemption analysis).

1033 Cipollone v. Liggett Group, Inc., 112S.Ct.2608 (1992). The decision as a canon of construction promulgated two controversial rules. First, the courts should interpret narrowly provisions that purport to preempt state police–power regulations, and, second, that when a law has express preemption language courts should look only to that language and presume that when the preemptive reach of a law is defined Congress did not intend to go beyond that reach, so that field and conflict preemption will not be found. Id., 2618; and id., 2625–2626 (Justice Blackmun concurring and dissenting). Both parts of this canon are departures from established law. Narrow construction when state police powers are involved has hitherto related to implied preemption, not express, and courts generally have applied ordinary–meaning construction to such statutory language; further, courts have not precluded the finding of conflict preemption, though perhaps field preemption, because of the existence of some express preemptive language. See id., 2632–2634 (Justice Scalia concurring and dissenting).
1034 Id., 2618–2619 (opinion of the court), 2626 (Justice Blackmun concurring).
1035 Id., 2619–2625 (plurality opinion), 2626–2631 (Justice Blackmun concurring and dissenting), 2634–2637 (Justice Scalia concurring and dissenting).
1036 Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). The case also is the source of the often quoted maxim that when Congress legislates in a field traditionally occupied by the States, courts should “start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.” Ibid.
1037 312 U.S. 52 (1941).
1038 The Court also said that courts must look to see whether under the circumstances of a particular case, the state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Id., 67. That standard is obviously drawn from conflict preemption, for the two standards are frequently intermixed. Nonetheless, not all state regulation is precluded. De Canas v. Bica, 424 U.S. 351 (1976) (upholding a state law penalizing the employment of an illegal alien, the case arising before enactment of the federal law doing the same thing).
1039 350 U.S. 497 (1956).
1040 Id., 502–505. Obviously, there is a noticeable blending into conflict preemption.
1041 Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947).
1042 Compare Campbell v. Hussey, 368 U.S. 297 (1961) (state law requiring tobacco of a certain type to be marked by white tags, ousted by federal regulation that occupied the field and left no room for supplementation), with Florida Lime & Avocado Growers, Inc., 373 U.S. 132 (1963) (state law setting minimum oil content for avocados certified as mature by federal regulation is complementary to federal law, since federal standard was a minimum one, the field having not been occupied). One should be wary of assuming that a state law that has dual purposes and impacts will not, just for the duality, be held to be preempted. See Gade v. National Solid Wastes Mgmt., 112S.Ct.2374 (1992); Perez v. Campbell, 402 U.S. 637 (1971) (under bankruptcy clause).
1043 Pacific Gas & Electric Co. v. Energy Resources Conservation & Dev. Comm., 461 U.S. 190 (1983). Neither does the same reservation of exclusive authority to regulate nuclear safety preempt imposition of punitive damages under state tort law, even if based upon the jury’s conclusion that a nuclear licensee failed to follow adequate safety precautions. Silkwood v. Kerr–McGee Corp., 464 U.S. 238 (1984). See also English v. General Electric Co., 496 U.S. 72 (1990) (employee’s state–law claim for intentional infliction of emotional distress for her nuclear–plant employer’s actions retaliating for her whistleblowing is not preempted as relating to nuclear safety).
1044 Huron Portland Cement Co. v. City of Detroit, 362 U.S. 440 (1960).
1045 Askew v. American Waterways Operators, 411 U.S. 325 (1973).
1046 Ray v. Atlantic Richfield Co., 435 U.S. 151 (1978). See also Exxon Corp. v. Eagerton, 462 U.S. 176 (1983) (preempting a state ban on pass–through of a severance tax on oil and gas, because Congress has occupied the field of wholesale sales of natural gas in interstate commerce); Schneidewind v. ANR Pipeline Co., 485 U.S. 293 (1988) (Natural Gas Act preempts state regulation of securities issuance by covered gas companies); Bonito Boats v. Thunder Craft Boats, 489 U.S. 141 (1989) (under patent clause, state law extending patent–like protection to unpatented designs invades an area of pervasive federal regulation).

Supplement: [P. 251, add to n.1046 after Ray v. Atlantic Richfield citation:]

United States v. Locke, 120 S. Ct. 1135 (2000) (applying Ray).

1047 City of Burbank v. Lockheed Air Terminal, 411 U.S. 624 (1973).
1048 Transcontinental Gas Pipe Line Corp. v. Mississippi Oil & Gas Board, 474 U.S. 409 (1986); Puerto Rico Dept. of Consumer Affairs v. Isla Petroleum Corp., 485 U.S. 495 (1988).
1049 479 U.S. 1 (1986).
1050 See also Lawrence County v. Lead–Deadwood School Dist., 469 U.S. 256 (1985) (state law requiring local governments to distribute federal payments in lieu of taxes in same manner as general state–tax revenues conflicts with federal law authorizing local governments to use the payments for any governmental purpose); Southland Corp. v. Keating, 465 U.S. 1 (1984) (state franchise law requiring judicial resolution of claims preempted by federal arbitration law precluding adjudication in state or federal courts of claims parties had contracted to submit to arbitration); Perry v. Thomas, 482 U.S. 483 (1987) (federal arbitration law preempts state law providing that court actions for collection of wages may be maintained without regard to agreements to arbitrate). See also Free v. Bland, 369 U.S. 663 (1962).

Supplement: [P. 252, add to n.1050 before Free v. Brand:]

Allied–Bruce Terminix Cos. v. Dobson, 513 U.S. 265 (1995) (federal arbitration law preempts state law invalidating pre–dispute arbitration agreements that were not entered into in contemplation of substantial interstate activity); Doctor’s Associates, Inc. v. Casarotto, 517 U.S. 681 (1996) (federal arbitration law preempts state statute that conditioned enforceability of arbitration clause on compliance with special notice requirement).

1051 Fidelity Federal Savings & Loan Assn. v. de la Cuesta, 458 U.S. 141 (1982).
1052 California Federal Savings & Loan Assn. v. Guerra, 479 U.S. 272 (1987). Compare Cloverleaf Butter v. Patterson, 315 U.S. 148 (1942) (federal law preempts more exacting state standards, even though both could be complied with and state standards were harmonious with purposes of federal law).
1053 Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132 (1963).
1054 The standard is, of course, drawn from Hines v. Davidowitz, 312 U.S. 52, 67 (1941).

Supplement: [P. 252, add to n.1054:]

See also Barnett Bank v. Nelson, 517 U.S. 25 (1996) (federal law empowering national banks in small towns to sell insurance preempts state law prohibiting banks from dealing in insurance; despite explicit preemption provision, state law stands as an obstacle to accomplishment of federal purpose).

1055 Jones v. Rath Packing Co., 430 U.S. 519, 532–543 (1977).
1056 487 U.S. 131 (1988).
1057 Philco Aviation v. Shacket, 462 U.S. 406 (1983).
1058 Michigan Canners & Freezers Assn. v. Agricultural Marketing & Bargaining Bd., 467 U.S. 461 (1984). See also Nantahala Power & Light Co. v. Thornburg, 476 U.S. 953 (1986) (state allocation of costs for purposes of setting retail electricity rates, by disallowing costs permitted by FERC in setting wholesale rates, frustrated federal regulation by possibly preventing the utility from recovering in its sales the costs of paying the FERC–approved wholesale rate); Capital Cities Cable v. Crisp, 467 U.S. 691 (1984) (state ban on cable TV advertising frustrates federal policy in the copyright law by which cable operators pay a royalty fee for the right to retransmit distant broadcast signals upon agreement not to delete commercials); International Paper Co. v. Ouellette, 479 U.S. 481 (1987) (damage action based on common law of downstream State frustrates Clean Water Act’s policies favoring permitting State in interstate disputes and favoring predictability in permit process).
1059 California v. FERC, 495 U.S. 490 (1990). The savings clause was found inapplicable on the basis of an earlier interpretation of the language in First Iowa Hydro–Electric Cooperative v. FPC, 328 U.S. 152 (1946).
1060 Wisconsin Public Intervenor v. Mortier, 501 U.S. 597, 614– 616 (1991).
1061 California v. ARC America Corp., 490 U.S. 93 (1989).
1062 Hayfield Northern R. Co. v. Chicago & N. W. Transp. Co., 467 U.S. 622 (1984). See also CTS Corp. v. Dynamics Corp. of America, 481 U.S. 69 (1987) (federal law’s broad purpose of protecting shareholders as a group is furthered by state anti–takeover law); Rose v. Rose, 481 U.S. 619 (1987) (provision governing veterans’ disability benefits protects veterans’ families as well as veterans, hence state child–support order resulting in payment out of benefits is not preempted).

Supplement Footnotes

50 518 U.S. 470 (1996) . See also CSX Transportation, Inc. v. Easterwood, 507 U.S. 658 (1993) (under Federal Railroad Safety Act, a state common–law claim alleging negligence for operating a train at excessive speed is preempted, but a second claim alleging negligence for failure to maintain adequate warning devices at a grade crossing is not preempted); Norfolk So. Ry. v. Shanklin, 120 S. Ct. 1467 (2000) (applying Easterwood).
51 21 U.S.C. Sec. 350k(a).
52 The dissent, by Justice O’Connor and three others, would have held preempted the latter claims, 518 U.S. at 509, whereas Justice Breyer thought that common–law claims would sometimes be preempted, but not here. Id. at 503 (concurring).
53 518 U.S. at 484–85. See also id. at 508 (Justice Breyer concurring); Freightliner Corp. v. Myrick, 514 U.S. 280, 288–89 (1995) ; Barnett Bank v. Nelson, 517 U.S. 25, 31 (1996) ; California Div. of Labor Stds. Enforcement v. Dillingham Constr., Inc., 519 U.S. 316, 334 (1997) (Justice Scalia concurring); Boggs v. Boggs, 520 U.S. 833 (1997) (using “stands as an obstacle” preemption analysis in an ERISA case, having express preemptive language, but declining to decide when implied preemption may be used despite express language), and id. at 854 (Justice Breyer dissenting) (analyzing the preemption issue under both express and implied standards).
54 120 S. Ct. 1913 (2000).
55 The Court focused on the word “exempt” to give the saving clause a narrow application—as “simply bar[ring] a special kind of defense, . . . that compliance with a federal safety standard automatically exempts a defendant from state law, whether the Federal Government meant that standard to be an absolute requirement or only a minimum one.” 120 S. Ct. at 1919.
56 520 U.S. 833 (1997) .
57 Id. at 841. The dissent, id. at 854 (Justice Breyer), agreed that conflict analysis was appropriate, but he did not find that the state law achieved any result that ERISA required.
58 Crosby v. National Foreign Trade Council, 120 S. Ct. 2288 (2000).
59 120 S. Ct. at 2295 n.8.
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