Magazine article The American Prospect

State Regulators and Juries: The Right Backs States' Rights When That's Convenient-But Uses Federal Preemption to Overrule Blue State Policies

Magazine article The American Prospect

State Regulators and Juries: The Right Backs States' Rights When That's Convenient-But Uses Federal Preemption to Overrule Blue State Policies

Article excerpt

In the wake of the 2016 elections, many progressives have sought solace in the prospect of resisting Trump administration initiatives and advancing progressive goals in blue states. In his State of the State address last January, California Governor Jerry Brown proclaimed: "California is not turning back. Not now, not ever." Lieutenant Governor Gavin Newsom suggested that California might use its stringent environmental protection laws to impede the Trump administration's efforts to build a wall along its southern border. Washington Governor Jay Inslee proudly announced that "our state will remain undeterred and we will not be slowed one iota by the foolishness that we're hearing out of the White House."

Conversations about how progressive states should resist regressive Trump administration policies and sidestep Republican control of Congress often ignore the elephant in the room-the power of the federal government to preempt state regulations and even the ability of victims of corporate abuse to seek relief in state courts.

Under the Supremacy Clause of the United States Constitution, federal statutes and regulations are the "supreme law of the Land," state laws "to the contrary notwithstanding." This means that when Congress makes law or a federal agency regulates, state laws that conflict with the federal law, or even address the same subject matter, are null and void, unless Congress has provided otherwise. Congress does frequently allow states to enact laws and regulations that go beyond a federal floor, as in minimum-wage rules and clean air standards. But what Congress giveth, Congress can taketh away.

Sometimes Congress addresses preemption in the laws that empower federal agencies to regulate business practices. Lawyers then argue over the meaning of these "express preemption" clauses when companies and their trade associations attack more stringent state laws. Even when federal statutes are silent about preemption, the Supreme Court has held that federal regulations can "impliedly" preempt state laws where Congress would have preempted them, had it thought about the matter. The law of federal preemption is not a model of clarity, but it is not easily ignored, because powerful interests use it to shield themselves from stringent state regulation.

We can understand federal preemption as a neutral tool that can be invoked for good or ill. It is good that the Voting Rights Act of 1965 preempts state laws that restrict the rights of minority citizens to vote. It is bad when a regulated industry persuades Congress to create a weak regulatory program to preempt states with strong programs. For example, the chemical industry has long pressed Congress to preempt strict state toxic substances control laws that make it harder for them to market their products in states like California. It finally prevailed last year when Congress passed the Lautenberg Chemical Safety Act, which enhanced the EPA's ability to regulate toxic chemicals-but also preempted future state regulations. Californians will have to live with the Trump administration's regulation of future toxic chemical risks.

Recognizing that preemption can cut both ways, Congress has sometimes written preemption clauses that preempt only weaker state regulations. Thus, states like California and Connecticut have written more stringent air quality standards than the EPA's standards without fear of preemption. But Congress can always rewrite such laws to take away states' rights to be more protective than federal agencies.


One aspect of the law of preemption that comes as a surprise to most people is the power of Congress and federal agencies to preempt the ability of private individuals to sue irresponsible corporations in state courts for harms caused by badly designed products or overly risky activities. Congress can, of course, replace state common law liability regimes with federal regimes, such as the federal statutes governing claims by injured railroad workers for compensation from employers, or laws outlining liability for damaging side effects of vaccines. …

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