Academic journal article Brigham Young University Law Review

Treaties and the Presumption against Preemption

Academic journal article Brigham Young University Law Review

Treaties and the Presumption against Preemption

Article excerpt


When deciding whether a federal statute that regulates domestic issues preempts state law, "the Supreme Court presumes that congress does not intend to displace the traditional regulatory authority of the States."1 The question arises whether this same presumption applies when the federal law at issue is an Article II treaty. At this stage, the draft Restatement (Fourth) of the Foreign Relations Law of the United States replies that "[t]he case law does not clearly support any presumption regarding preemption of State law by a treaty."2 This Article attempts to demonstrate that there is (or should be) more clarity in favor of a presumption against preemption in the treaty context than the draft Restatement (Fourth) suggests. Part I summarizes the nature of the presumption against preemption. Part II identifies which of the three types of treaty- self-executing, executed, and non-self-executing-may effect preemption. For those treaties that may work preemption, Part III explores whether the presumption against preemption attaches.


To begin, it is important to understand the nature of the presumption against preemption.3 The reach of the presumption is not entirely clear. Sometimes the presumption is stated broadly: the presumption is said to apply generally, not just when the state law that might be preempted falls within an area of traditional state regulation.4 Thus, in Wyeth v. Levine, the Court asserted that

[i]n all pre-emption cases, and particularly in those in which Congress has 'legislated . . . in a field which the States have traditionally occupied,' . . . we 'start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.'5

The narrower version of the presumption focuses on the particular threat of displacing state authority in areas of traditional state regulation.6 The Supreme Court invoked this narrower version in Egelhoff v. Egelhoff ex rel. Breiner when it stated, "There is . . . a presumption against pre-emption in areas of traditional state regulation such as family law."7 While some of the arguments in favor of the narrower version also support the broader version, the draft Restatement (Fourth) addresses the narrower version of the presumption.8 This Article follows suit.


One might read the draft Restatement (Fourth) as suggesting that even the narrower version of the presumption against preemption applies less frequently in the treaty context, with the result that treaties tend to preempt state law more readily than do statutes. While it may be true that certain types of treaties preempt more readily than statutes (an issue addressed infra), this is not true of all treaties. Treaties generally present in one of three forms:9 (1) non-self-executing treaty, (2) executed non-self-executing treaty, or (3) self-executing treaty.10 If any of these treaties lacks power to preempt state law, the presumption against preemption would not apply. Concluding that the presumption does not apply would not mean that treaties preempt more than statutes, but less. The presumption would not apply because the treaty could not effect preemption at all, rather than because the treaty could preempt unobstructed by the preemption.

To understand the work of the presumption against preemption, then, we must ask the preliminary question whether treaties of each type may preempt state law. Self-executing treaties clearly may, as the draft Restatement (Fourth) recognizes.11 Asakura v. City of Seattle provides a familiar example.12 In Asakura, a local ordinance sought to prevent a Japanese subject from operating a pawnshop in Seattle notwithstanding a U.S.-Japan treaty of amity securing the rights of Japanese subjects to carry on business in the United States on the same terms as U.S. citizens.13 Noting that the treaty was self-executing-that is, "operate[d] of itself without the aid of any legislation"-the Court concluded that the offending ordinance was preempted. …

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