When there is a conflict between a state and a federal law which is considered the supreme law of the land?

Article VI, Clause 2 of the United States Constitution, also known as the "Supremacy Clause", states that the U. S. Constitution, Federal statues, and United States treaties are the "supreme law of the land", therefore making them the highest areas of law possible within the legal system of the country.  In other words, if there is conflict between the state and federal law, the federal law is supreme.  In the event of a conflict, state judges are required to follow federal law regardless of what the state law or state constitution declares.United States Constitution.  The U.S. Constitution  is the foudnation of our federal government.  It established America’s national government and fundamental laws, and guaranteed certain basic rights for its citizens.  It was signed on September 17, 1787, by delegates to the Constitutional Convention in Philadelphia, Pennsylvania.

Federal Statutes.  Federal Statutes  are laws enacted by the U.S. Congress with (and in some circumstances without) the approval of the President.  Federal statutes are published in three formats:  (1) initially as individual slip laws, (2) in compilations of slip laws known as session laws, and (3) as codified law incorporated into a code.
U.S. Treaties

1.

U.S. Const. art. VI, cl. 2.

2.

Gade v. Nat'l Solid Wastes Mgmt. Assn., 505 U.S. 88, 108 (1992).

3.

Stephen A. Gardbaum, The Nature of Preemption, 79 Cornell L. Rev. 767, 768 (1994). See also Jamelle C. Sharpe, Toward (a) Faithful Agency in the Supreme Court's Preemption Jurisprudence, 18 Geo. Mason L. Rev. 367, 367 (2011) ("Preemption has become one of the most frequently recurring and perplexing public law issues facing the federal courts today."); Garrick B. Pursley, Preemption in Congress, 71 Ohio St. L. J. 511, 513 (2010) (describing preemption as "the issue of constitutional law that most directly impacts everyday life"); Thomas W. Merrill, Preemption and Institutional Choice, 102 Nw. U. L. Rev. 727, 730 (2008) (noting that "[p]reemption is one of the most widely applied doctrines in public law.").

4.

Pursley, supra note 3, at 513.

5.

William W. Buzbee, Introduction, in Preemption Choice: The Theory, Law, and Reality of Federalism's Core Question 1, 1 (William W. Buzbee ed., 2009).

6.

See Alan Untereiner, The Defense of Preemption: A View From the Trenches, 84 Tul. L. Rev. 1257, 1262 (2010) (arguing that the "multiplicity of government actors below the federal level virtually ensures that, in the absence of federal preemption, businesses with national operations that serve national markets will be subject to complicated, overlapping, and sometimes even conflicting legal regimes."); Richard B. Stewart, Regulatory Compliance Preclusion of Tort Liability: Limiting the Duel-Track System, 88 Geo. L. J. 2167, 2169 (2000) (arguing that state common law "cannot ensure desirable consistency and coordination in legal requirements," which are "especially important for nationally marketed products"); Geier v. Am. Honda Motor Co., Brief for the Chamber of Commerce of the United States of America as Amicus Curiae, Nov. 19, 1999 at 20 (arguing that "common-law decisionmaking is notoriously ill-suited to the establishment of nationwide standards that strike the proper balance among the multitude of societal interests at stake in a particular regulatory setting").

7.

See Untereiner, supra note 6, at 1262 ("In many cases, Congress's adoption of a preemptive scheme . . . ensures that the legal rules governing complex areas of the economy or products are formulated by expert regulators with a broad national perspective and needed scientific or technical expertise, rather than by decision makers—such as municipal officials, elected state judges, and lay juries—who may have a far more parochial perspective and limited set of information."); Scott A. Smith & Duana Grage, Federal Preemption of State Products Liability Actions, 27 Wm. Mitchell L. Rev. 391, 416 (2000) ("[E]xpert federal regulators, intimately familiar with the products and industries they regulate, are arguably far better suited [than state courts and juries] . . . to ascertain the degree of federal uniformity necessary to assure safety, efficacy, and availability at a reasonable cost.").

8.

See Ernest A. Young, Making Federalism Doctrine: Fidelity, Institutional Competence, and Compensating Adjustments, 46 Wm. & Mary L. Rev. 1733, 1850 (2004) ("Preemption doctrine . . . goes to whether state governments actually have the opportunity to provide beneficial regulation for their citizens; there can be no experimentation or policy diversity, and little point to citizen participation, if such opportunities are supplanted by federal policy.").

9.

See Robert R.M. Verchick & Nina Mendelson, Preemption and Theories of Federalism, in Preemption Choice: The Theory, Law, and Reality of Federalism's Core Question 13, 17 (William W. Buzbee ed., 2009) ("[P]reserving state regulatory authority may . . . benefit citizens by prompting greater engagement in government. Citizens are often presumed to be able to participate more directly in policy making at the state level."); Roderick M. Hills, Jr., Against Preemption: How Federalism Can Improve the National Legislative Process, 82 N.Y.U. L. Rev. 1, 4 (2007) ("Federalism's value, if there is any, lies in the often competitive interaction between the levels of government. In particular, a presumption against federal preemption of state law makes sense not because states are necessarily good regulators of conduct within their borders, but rather because state regulation makes Congress a more honest and democratically accountable regulator of conduct throughout the nation.").

10.

Thomas O. McGarity, The Preemption War: When Federal Bureaucracies Trump Local Juries 237 (2008) ("The common law provides an effective vehicle for filling regulatory gaps that inevitably arise at the implementation stage because agencies can never anticipate and regulate every potentially socially undesirable aspect of an ongoing business and cannot possibly envision all of the possible ways that regulatees will react to regulatory programs.").

11.

Gade v. Nat'l Solid Wastes Mgmt. Assn., 505 U.S. 88, 98 (1992).

12.

Id.

13.

Fla. Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43 (1963).

14.

Hines v. Davidowitz, 312 U.S. 52, 67 (1941).

15.

529 U.S. 861, 881-82 (2000).

16.

Wyeth v. Levine, 555 U.S. 555, 565 (2009) (quoting Retail Clerks v. Schermerhorn, 375 U.S. 96, 103 (1963)).

17.

Medtronic, Inc. v. Lohr, 518 U.S. 470, 486 (1996) (internal quotation marks and citation omitted).

18.

Id. (internal quotation marks and citation omitted).

19.

See, e.g., Wyeth, 555 U.S. at 583 (Thomas, J., concurring in the judgment) (rejecting the Court's obstacle preemption jurisprudence as "inconsistent with the Constitution," while noting that the Court "routinely invalidates state laws based on perceived conflicts with broad federal policy objectives, legislative history, or generalized notions of congressional purpose that are not embodied within the text of federal law").

20.

Rice v. Sante Fe Elevator Corp., 331 U.S. 218, 230 (1947). The presumption against preemption has traditionally been justified on the grounds that it promotes respect for federalism and state sovereignty. See Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 533 (1992) (Blackmun, J., concurring in part, concurring in the judgment, and dissenting in part).

21.

See, e.g., De Buono v. NYSA-ILA Med. and Clinical Servs. Fund, 520 U.S. 806, 814 (1997) ("Respondents . . . bear the considerable burden of overcoming the starting presumption that Congress did not intend to supplant state law.") (internal quotation marks and citation omitted); N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 654 (1995). ("[W]e have never assumed lightly that Congress has derogated state regulation, but instead have addressed claims of pre-emption with the starting presumption that Congress does not intend to supplant state law."); Bldg. and Const. Trades Council of Metropolitan Dist. v. Assoc. Builders and Contractors of Massachusetts, 507 U.S. 218, 224 (1993) ("Consideration under the Supremacy Clause starts with the basic assumption that Congress did not intend to displace state law.") (internal quotation marks and citation omitted); Cipollone, 505 U.S. at 518 ("[W]e must construe these provisions in light of the presumption against the pre-emption of state police power regulations."); Gade v. Nat'l Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 116 (1992) ("[Preemption] [a]nalysis begins with the presumption that Congress did not intend to displace state law.") (internal quotation marks and citation omitted); Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 740 (1985) ("We also must presume that Congress did not intend to pre-empt areas of traditional state regulation."); Hillsborough County, Fla. v. Automated Med. Lab., Inc., 471 U.S. 707, 715 (1985) ("The second obstacle in appellee's path is the presumption that state or local regulation of matters related to health and safety is not invalidated under the Supremacy Clause."); Maryland v. Louisiana, 451 U.S. 725, 746 (1981) ("Consideration under the Supremacy Clause starts with the basic assumption that Congress did not intend to displace state law.").

22.

See, e.g., Mutual Pharmaceutical Co., Inc. v. Bartlett, 570 U.S. 472 (2013) (holding that federal law preempted state law without mentioning the presumption against preemption); Kurns v. Ry. Friction Products Corp., 565 U.S. 625 (2012) (similar); PLIVA, Inc. v. Mensing, 564 U.S. 604, 622 (2011) (similar); Bruesewitz v. Wyeth LLC, 562 U.S. 223 (2011) (similar); Rowe v. New Hampshire Motor Transport Ass'n, 552 U.S. 364 (2008) (similar); Geier v. Am. Honda Motor Co., Inc., 529 U.S. 861 (2000) (similar); United States v. Locke, 529 U.S. 89, 108 (2000) (similar).

23.

See, e.g., CTS Corp. v. Waldburger, 573 U.S. 1, 19 (2014) ("[W]hen the text of a pre-emption clause is susceptible of more than one plausible reading, courts ordinarily accept the reading that disfavors preemption.") (internal quotation marks and citations omitted); Wyeth v. Levine, 555 U.S. 555, 565 (2009) (explaining that the presumption against preemption applies "[i]n all preemption cases");Altria Group, Inc. v. Good, 555 U.S. 70, 77 (2008) (explaining that the Court "begin[s its] analysis" with a presumption against preemption "[w]hen addressing questions of express or implied pre-emption") (emphasis added); Bates v. Dow Agrosciences, LLC, 544 U.S. 431, 449 (2005) ("Even if [the defendant] had offered us a plausible alternative reading of [the relevant preemption clause]—indeed, even if its alternative were just as plausible as our reading of the text—we would nevertheless have a duty to accept the reading that disfavors preemption."); Egelhoff v. Egelhoff ex rel. Breiner, 532 U.S. 141, 151 (2001) (invoking the presumption against preemption in interpreting ERISA's preemption clause); Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996) (explaining that the presumption against preemption applies "[i]n all preemption cases"); De Buono v. NYSA-ILA Med. and Clinical Servs. Fund, 520 U.S. 806, 814 (1997) (invoking the presumption against preemption in interpreting ERISA's preemption clause); Travelers, 514 U.S. at 654 (same); Cipollone, 505 U.S. at 518 (invoking the presumption against preemption in interpreting the Federal Cigarette Labeling and Advertising Act's preemption clause).

24.

Puerto Rico v. Franklin Cal. Tax-Free Trust, 136 S. Ct. 1938, 1946 (2016) (explaining that in express preemption cases, the Court "do[es] not invoke any presumption against pre-emption but instead focus[es] on the plain wording of the clause, which necessarily contains the best evidence of Congress' pre-emptive intent.").

25.

See CRS Report R45153, Statutory Interpretation: Theories, Tools, and Trends, by Valerie C. Brannon.

26.

See William N. Eskridge, Jr., Philip P. Frickey & Elizabeth Garrett, Cases and Materials on Legislation: Statutes and the Creation of Public Policy 819 (3d ed. 2001).

27.

John F. Manning & Matthew C. Stephenson, Legislation and Regulation: Cases and Materials 202 (2d ed. 2013).

28.

See Amy Coney Barrett, Substantive Canons and Faithful Agency, 90 B.U. L. Rev. 109, 123-24 (2010) ("Substantive canons are in significant tension with textualism . . . insofar as their application can require a judge to adopt something other than the most textually plausible meaning of a statute."); John F. Manning, Textualism and the Equity of the Statute, 101 Colum. L. Rev. 1, 124 (2001) ("If textualists believe . . . that statutes mean what a reasonable person would conventionally understand them to mean, then applying a less natural . . . interpretation is arguably unfaithful to the legislative instructions contained in the statute."); Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 28 (1997) (arguing that "[t]o the honest textualist," substantive canons "are a lot of trouble"); id. at 28-29 (". . . whether these dice-loading rules are bad or good, there is also the question of where the courts get the authority to impose them. Can we really just decree that we will interpret the laws that Congress passes to mean more or less than what they fairly say? I doubt it.").

29.

Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 548 (1992) (Scalia, J., concurring in the judgment in part and dissenting in part).

30.

Id. See also Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 293 (2012) ("[T]he [presumption against preemption] . . . ought not to be applied to the text of an explicit preemption provision . . . The reason is obvious: The presumption is based on an assumption of what Congress, in our federal system, would or should normally desire. But when Congress has explicitly set forth its desire, there is no justification for not taking Congress at its word—i.e., giving its words their ordinary, fair meaning.").

31.

136 S. Ct. 1938, 1946 (2016).

32.

Buckman Co. v. Plaintiffs' Legal Committee, 531 U.S. 341 (2001).

33.

United States v. Locke, 529 U.S. 89, 108 (2000).

34.

Buckman,531 U.S. at 347-48.

35.

Id. at 347.

36.

570 U.S. 1, 14 (2013).

37.

Id. (internal quotation marks and citation omitted).

38.

United States v. Locke, 529 U.S. 89, 108 (2000).

39.

Id.

40.

Id.

41.

Wyeth v. Levine, 555 U.S. 555, 565 n.3 (2009).

42.

Id. (explaining that the presumption's application "does not rely on the absence of federal regulation").

43.

Locke, 529 U.S. at 108. The uncertainty surrounding the status of the Locke exception to the presumption against preemption is compounded by the fact that the Court did not mention the presumption in two other cases concerning drug labeling decided within four years of Wyeth. See Mutual Pharm. Co., Inc. v. Bartlett, 570 U.S. 472 (2013); PLIVA, Inc. v. Mensing, 564 U.S. 604 (2011).

44.

Alan Untereiner, The Preemption Defense in Tort Actions: Law, Strategy and Practice 77 (2008) ("Although express preemption provisions cover a wide range of subjects, they also follow certain familiar patterns. They often contain similar if not identical words or phrases, including limitations on or exceptions to the scope of preemption.").

45.

See Bragdon v. Abbott, 524 U.S. 624, 645 (1998) ("When judicial interpretations have settled the meaning of an existing statutory provision, repetition of the same language in a new statute indicates, as a general matter, the intent to incorporate [the same] judicial interpretations as well."); Morales v. Trans World Airlines, 504 U.S. 374, 383-84 (1992) (relying on the Court's earlier interpretation of a preemption clause in the Employee Retirement Income Security Act to interpret a similarly worded preemption clause in the Airline Deregulation Act).

46.

Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 46 (1987).

47.

FMC Corp. v. Holliday, 498 U.S. 52, 58 (1990).

48.

N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 655 (1995).

49.

See, e.g., Dan's City Used Cars, Inc. v. Pelkey, 569 U.S. 251, 265 (2013); Travelers, 514 U.S. at 658. See Cal. Div. of Labor Standards Enforcement v. Dillingham Const., N.A., Inc., 519 U.S. 316, 335 (1997) (Scalia, J., concurring) ("[A]pplying the 'relate to' provision [in the Employee Retirement Income Security Act] according to its terms was a project doomed to failure, since, as many a curbstone philosopher has observed, everything is related to everything else.").

50.

Daniel J. Meltzer, Preemption and Textualism, 112 Mich. L. Rev. 1, 20 (1993) (noting that "[t]he most frequently litigated 'related to' preemption clause is found in [ERISA].").

51.

29 U.S.C. §§ 1021-1031.

52.

Id. §§ 1051-1086.

53.

Id. §§ 1101-1114.

54.

Id. § 1144(a).

55.

Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96-97 (1983).

56.

Egelhoff v. Egelhoff ex rel. Breiner, 532 U.S. 141, 148 (2001).

57.

New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 668 (1995).

58.

Egelhoff, 532 U.S. at 147.

59.

Gobeille v. Liberty Mut. Ins. Co., 136 S. Ct. 936, 945 (2016).

60.

Travelers, 514 U.S. at 651-52.

61.

Cal. Div. of Labor Standards Enforcement v. Dillingham Const., N.A., Inc., 519 U.S. 316, 334 (1997).

62.

Travelers, 514 U.S. at 668. The Court held that such "indirect" effects on ERISA plans were sufficiently "acute" to support a finding of preemption in Shaw v. Delta Air Lines, Inc., where it concluded that ERISA preempted a state law that (1) prohibited discrimination in employee benefit plans based on pregnancy, and (2) required employers to pay sick-leave benefits to employees unable to work because of pregnancy. 463 U.S. 85, 97-99 (1983).

63.

Dillingham, 519 U.S. at 325.

64.

486 U.S. 825, 828 (1988) (quoting Ga. Code Ann. § 18-4-22.1 (1982)).

65.

Id. at 829-30.

66.

498 U.S. 133, 139-141 (1990).

67.

Id. at 140.

68.

District of Columbia v. Greater Wash. Bd. of Trade,506 U.S. 125, 130 (1992).

69.

Id.

70.

49 U.S.C. § 1371 (1979).

71.

Am. Airlines, Inc. v. Wolens, 513 U.S. 219, 222 (1995).

72.

49 U.S.C. § 41713(b)(1) (emphasis added).

73.

504 U.S. 374, 382 (1992).

74.

Id. at 388.

75.

49 U.S.C. § 14501.

76.

Id. § 14501(c)(1) (emphasis added).

77.

552 U.S. 364, 368 (2008).

78.

Id. at 371.

79.

Id. at 372.

80.

569 U.S. 251, 265 (2013).

81.

Id. at 259.

82.

Id. at 261.

83.

Id. (internal quotation marks and citation omitted).

84.

Id. (emphasis added).

85.

See, e.g., Rowe v. N.H. Motor Transport Ass'n, 552 U.S. 364, 370 (2008); Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383 (1992); Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96 (1983).

86.

Egelhoff v. Egelhoff ex rel. Breiner, 532 U.S. 141, 148 (2001).

87.

N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 668 (1995).

88.

Shaw, 463 U.S. at 100 n.21.

89.

Cal. Div. of Labor Standards Enf't v. Dillingham Const., N.A., Inc., 519 U.S. 316, 325 (1997).

90.

Dan's City Used Cars, Inc. v. Pelkey, 569 U.S. 251, 261 (2013).

91.

507 U.S. 658, 664 (1993).

92.

Id.

93.

Id. at 665-73.

94.

Id. at 667.

95.

Id. at 667.

96.

Id. at 673-76.

97.

See, e.g., 7 U.S.C. § 136v(b) (providing that states "shall not impose or continue in effect any requirements for labeling and packaging [pesticides] in addition to or different from those required under this subchapter.") (emphasis added); id. § 467e ("Marking, labeling, packaging, or ingredient requirements . . . in addition to, or different than, those made under this subchapter may not be imposed by any State . . . .") (emphasis added); id. § 4817(b) ("The regulation of [promotion and consumer education involving pork and pork products] . . . that is in addition to or different from this chapter may not be imposed by a State.") (emphasis added); 21 U.S.C. § 360k(a) ("[N]o state . . . may establish or continue in effect with respect to a device intended for human use any requirement . . . which is different from, or in addition to, any requirement applicable under this chapter to the device, and which relates to the safety and effectiveness of the device or to any other matter included in a requirement applicable to the device under this chapter.") (emphasis added); id. § 1052(b) ("Requirements within the scope of this chapter with respect to premises, facilities, and operations of any official plant which are in addition to or different than those made under this chapter may not be imposed by any State . . . .") (emphasis added).

98.

565 U.S. 452, 455 (2012).

99.

Id. at 459 (internal quotation marks and citation omitted).

100.

Id. at 459-60.

101.

Bates v. Dow Agrosciences LLC, 544 U.S. 431, 446 (2005); Medtronic, Inc. v. Lohr, 518 U.S. 470, 494-97 (1996).

102.

Bates, 544 U.S. at 447.

103.

Id. at 454 (emphasis in original).

104.

See McMullen v. Medtronic, Inc., 421 F.3d 482, 489 (7th Cir. 2005).

105.

See Bates, 544 U.S. at 447-48.

106.

See id.

107.

See, e.g., 7 U.S.C. § 136v(b) (providing that no state "shall . . . impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under this subchapter.") (emphasis added); 21 U.S.C. § 360k(a) (providing that no state "may establish or continue in effect with respect to a device intended for human use any requirement . . . which is different from, or in addition to, any requirement applicable under this chapter to the device.") (emphasis added); 46 U.S.C. § 4306 ("[A] state . . . may not establish, continue in effect, or enforce a law or regulation establishing a recreational vessel or associated equipment performance or other safety standard or imposing a requirement for associated equipment . . . that is not identical to a regulation prescribed under . . . this title.") (emphasis added); 49 U.S.C. § 30103(b)(1) ("When a motor vehicle standard is in effect under this subchapter, a State . . . may prescribe or continue in effect a standard applicable to the same aspect of performance of a motor vehicle or motor vehicle equipment only if the standard is identical to the standard prescribed under this subchapter.") (emphasis added).

108.

Riegel v. Medtronic, Inc., 552 U.S. 312, 324 (2008). See also Medtronic, Inc. v. Lohr, 518 U.S. 470, (1996); Cipollone v. Liggett Group, 505 U.S. 504, 521 (1992).

109.

Sprietsma v. Mercury Marine, 537 U.S. 51, 63 (2002).

110.

46 U.S.C. §4306 (emphasis added).

111.

Id. §4311(g).

112.

Sprietsma, 537 U.S. at 63.

113.

Id.

114.

Id.

115.

Id.

116.

See "Compliance Savings Clauses" and "Example: Automobile Safety Regulations."

117.

Sandi Zellmer, When Congress Goes Unheard: Savings Clauses' Rocky Judicial Reception, in Preemption Choice: The Theory, Law, and Reality of Federalism's Core Question 144, 146 (William W. Buzbee, ed., 2009).

118.

Untereiner, supra note 44, at 204-05.

119.

See, e.g., 7 U.S.C. § 2910(a) ("Nothing in this chapter may be construed to preempt or supersede any other program relating to beef promotion organized and operated under the laws of the United States or any State."); id. § 6812(c) ("Nothing in this chapter may be construed to preempt or supersede any other program relating to cut flowers or cut greens promotion and consumer information organized and operated under the laws of the United States or a State."); id. § 7811(c) ("Nothing in this chapter may be construed to preempt or supersede any other program relating to Hass avocado promotion, research, industry information, and consumer information organized and operated under the laws of the United States or of a State.").

120.

See, e.g., 12 U.S.C. § 2616 ("This chapter does not annul, alter, or affect, or exempt any person subject to the provisions of this chapter from complying with, the laws of any State with respect to [real estate] settlement practices, except to the extent that those laws are inconsistent with any provision of this chapter, and then only to the extent of the inconsistency."); 15 U.S.C. § 1693q ("This subchapter does not annul, alter, or affect the laws of any State relating to electronic fund transfers, dormancy fees, inactivity charges or fees, service fees, or expiration dates of gift certificates, store gift cards, or general-use prepaid cards, except to the extent that those laws are inconsistent with the provisions of this subchapter, and then only to the extent of the inconsistency."); id. § 5722 ("This subchapter does not annul, alter, or affect, or exempt any person subject to the provisions of this subchapter from complying with, the laws of any State with respect to telephone billing practices, except to the extent that those laws are inconsistent with any provision of this subchapter, and then only to the extent of the inconsistency.").

121.

12 U.S.C. § 2616 (authorizing the Consumer Financial Protection Bureau (CFPB) to determine whether state laws are "inconsistent with" the relevant federal statute, and providing that the CFPB "may not determine that any State law is inconsistent with" the federal statute "if the [CFPB] determines that such law gives greater protection to the consumer."); 15 U.S.C. § 1693q ("A State law is not inconsistent with this subchapter if the protection such law affords any consumer is greater than the protection afforded by this subchapter."); id. § 5722 (authorizing the Federal Trade Commission (FTC) to determine whether state laws are "inconsistent with" the relevant federal statute, and providing that the FTC "may not determine that any State law is inconsistent with" the federal statute "if the [FTC] determines that such law gives greater protection to the consumer.").

122.

See Bank of Am. v. City and Cty. of San Francisco, 309 F.3d 551, 565 (9th Cir. 2002); Bank One v. Guttau, 190 F.3d 844, 850 (8th Cir. 1999); Untereiner, supra note 44, at 20.

123.

523 F.3d 546, 548 (5th Cir. 2008).

124.

See Ervin v. JP Morgan Chase Bank NA, No. GLR-13-2080, 2014 WL 4052895 at *3 (D. Md. Aug. 13, 2014); Palacios v. IndyMac Bank, FSB, No. CV 09-04601, 2009 WL 3838274 at *4 (C.D. Cal. Nov. 13, 2009); Perkins v. Johnson, 551 F. Supp. 2d 1246, 1255 (D. Colo. 2008).

125.

See, e.g., 15 U.S.C. § 2074(a) ("Compliance with consumer product safety rules or other rules or orders under this chapter shall not relieve any person from liability at common law or under State statutory law to any other person."); 21 U.S.C. § 360pp(e) ("Except as provided in the first sentence of section 360ss of this title, compliance with this part or any regulations issued thereunder shall not relieve any person from liability at common law or under statutory law."); 42 U.S.C. § 5409(c) ("Compliance with any Federal manufactured home construction or safety standard issued under this chapter does not exempt any person from any liability under common law."); 46 U.S.C. § 4311(g) (providing that compliance with federal boat regulations "does not relieve a person from liability at common law or under State law.").

126.

See Untereiner, supra note 44, at 194-96. In many jurisdictions, a defendant's compliance with government regulations can serve as relevant evidence in products liability litigation, and some courts have further held that compliance with government regulations renders a product nondefective as a matter of law.See Restatement of the Law (Third): Products Liability section 4 cmt. e (1998).

127.

529 U.S. 861, 868 (2000).

128.

15 U.S.C. § 1392(d).

129.

Id. § 1397(k).

130.

Id. As discussed in "Example: Automobile Safety Regulations," the Geier Court held that the NTMVSA impliedly preempted the relevant common law claims even though it did not expressly preempt those claims. Notably, the Court appeared to consider the NTMVSA's savings clause to be relevant only to its interpretation of the statute's express preemption clause, reasoning that the savings clause did not create any sort of "special burden" disfavoring implied preemption. Geier, 529 U.S. at 870-71.

131.

Id. at 868.

132.

Sprietsma v. Mercury Marine, 537 U.S. 51, 63 (2002).

133.

47 U.S.C. § 414. See also 7 U.S.C. § 209(b) ("[T]his section shall not in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this chapter are in addition to such remedies."); id. § 499e(b) ("[T]his section shall not in any way abridge or alter the remedies now existing at common law or by statute, and the provisions of this chapter are in addition to such remedies.").

134.

See Pennsylvania R.R. v. Puritan Coal Mining Co., 237 U.S. 121, 129-30 (1915) ("The [savings clause] was added . . . not to nullify other parts of the act, or to defeat rights or remedies given by preceding sections, but to preserve all existing rights which were not inconsistent with those created by the statute . . . But for this proviso . . . , it might have been claimed that, Congress having entered the field, the whole subject of liability of carrier to shippers in interstate commerce had been withdrawn from the jurisdiction of the state courts, and this clause was added to indicate that the commerce act, in giving rights of action in Federal courts, was not intended to deprive the state courts of their general and concurrent jurisdiction."); see also Am. Tel. and Tel. Co. v. Central Office Tel., Inc., 524 U.S. 214, 226 (1998) (holding that a remedies savings clause in the Communications Act of 1934 did not save state laws that were inconsistent with federal law).

135.

See, e.g., 33 U.S.C. § 1370 ("[N]othing in this chapter shall . . . preclude the right of any State or political subdivision thereof . . . to adopt or enforce . . . any standard or limitation respecting discharges of pollutants. . . .") (emphasis added); 42 U.S.C. § 2018 ("Nothing in this chapter shall be construed to affect the authority or regulations of any Federal, State, or local agency with respect to the generation, sale, or transmission of electric power produced through the use of nuclear facilities licensed by the Commission.") (emphasis added); id. § 6929 ("Nothing in this chapter shall be construed to prohibit any State or political subdivision thereof from imposing any requirements, including those for site selection, which are more stringent than those imposed by such regulations.") (emphasis added).

136.

See, e.g., 7 U.S.C. § 136v(a) ("A State may regulate the sale or use of any federally registered pesticide or device in the State, but only if and to the extent that the regulation does not permit any sale or use prohibited by this subchapter.") (emphasis added); 42 U.S.C. § 9614(a) ("Nothing in this chapter shall be construed or interpreted as preempting any State from imposing additional liability or requirements with respect to the release of hazardous substances within such State.") (emphasis added); 49 U.S.C. § 14501(c)(2)(A) (providing that the Interstate Commerce Act "shall not restrict the safety regulatory authority of a State with respect to motor vehicles . . . .") (emphasis added).

Similarly, some preemption clauses bar any "State or . . . political subdivision thereof" from regulating a certain subject matter, while others by their terms preempt only "State" laws. Compare 42 U.S.C. § 7543(a) ("No State or any political subdivision thereof shall adopt or attempt to enforce any standard relating to the control of emissions from new motor vehicles or new motor vehicle engines subject to this part.") (emphasis added); 49 U.S.C. § 5125(a) (providing that "a requirement of a State, political subdivision of a State, or Indian tribe is preempted" under certain circumstances) (emphasis added); id. § 14501(a)(1) ("No State or political subdivision thereof . . . shall enact or enforce any law, rule, regulation, standard, or other provision having the force and effect of law relating to" certain subjects) (emphasis added), with 7 U.S.C. § 136v(b) ("Such State shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under this subchapter.") (emphasis added); 21 U.S.C. § 360eee-4(b)(2) ("No State shall regulate third-party logistics providers as wholesale distributors.") (emphasis added); 42 U.S.C. § 7543(a) ("No State shall require certification, inspection, or any other approval relating to the control of emissions from any new motor vehicle or new motor vehicle engine as condition precedent to the initial retail sale, titling (if any), or registration of such motor vehicle, motor vehicle engine, or equipment.") (emphasis added).

137.

501 U.S. 597, 607-08 (1991); 7 U.S.C. § 136v(a).

138.

Mortier, 501 U.S. at 607-08 (internal quotation marks and citation omitted).

139.

536 U.S. 424, 429 (2002); 49 U.S.C. § 14501(c)(2)(A) (emphasis added).

140.

Ours Garage, 536 U.S. at 429.

141.

See Crosby v. National Foreign Trade Council,530 U.S. 363, 372 (2000).

142.

See Wyeth v. Levine, 555 U.S. 555, 565 (2009) ("[T]he purpose of Congress is the ultimate touchstone in every pre-emption case.") (quoting Retail Clerks v. Schermerhorn, 375 U.S. 96, 103 (1963)); Barnett Bank of Marion County, N.A. v. Nelson, 517 U.S. 25, 31 (1996) (explaining that where "explicit pre-emption language does not appear, or does not directly answer the question . . . courts must consider whether the federal statute's 'structure and purpose,' or nonspecific statutory language, nonetheless reveal a clear, but implicit, pre-emptive intent.").

143.

Gade v. Nat'l Solid Wastes Mgmt. Assn., 505 U.S. 88, 98 (1992).

144.

Id. The Court has explained that these subcategories of implied preemption are not "rigidly distinct," and that "field preemption may be understood as a species of conflict preemption" because "[a] state law that falls within a pre-empted field conflicts with Congress' intent . . . to exclude state regulation." English v. General Elec. Co., 496 U.S. 72, 79 n.5 (1990). See also Laurence Tribe, American Constitutional Law 486 (2d ed. 1988) (noting that when state law "undermin[es] a congressional decision in favor of national uniformity of standards," it "presents a situation similar in practical effect to that of federal occupation of a field").

145.

Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947).

146.

Id.

147.

See Arizona v. United States, 567 U.S. 387 (2012).

148.

See, e.g., English v. Gen. Elec. Co., 496 U.S. 72, 82-85 (1990).

149.

City of Burbank v. Lockheed Air Terminal Inc., 411 U.S. 624, 633 (1973).

150.

United States v. Locke, 529 U.S. 89, 111 (2000) (quoting 46 U.S.C. § 3703(a)); see Ray v. Atlantic Richfield Co., 435 U.S. 151, 163-65 (1978).

151.

Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 300, 305 (1988); Exxon Corp. v. Eagerton, 462 U.S. 176, 184 (1983).

152.

Kurns v. R.R. Friction Prods. Corp., 565 U.S. 625, 636 (2012).

153.

331 U.S. 218 (1947). The Supreme Court's mid-century decisions did not always clearly distinguish between field preemption and conflict preemption. See, e.g., Pennsylvania v. Nelson, 350 U.S. 497, 501-02 (1956) (noting that "different criteria have furnished touchstones" for the Court's implied preemption decisions, and that the Court had used a variety of expressions in those decisions, including "conflicting; contrary to; occupying the field; repugnance; difference; irreconcilability; inconsistency; violation; curtailment; and interference").

154.

Rice, 331 U.S. at 221-22.

155.

Id.

156.

Id. The Rice Court also held that certain state law claims—for example, an allegation that the warehouse had violated state law by failing to secure state approval for certain construction contracts—survived preemption because they involved fields that the Warehouse Act did not address. Id. at 236-37.

157.

See Arizona v. United States, 567 U.S. 387 (2012). Under the Immigration and Nationality Act, the term "alien" refers to "any person not a citizen or national of the United States." 8 U.S.C. § 1101(a)(3).

158.

312 U.S. 52, 72-74 (1941).

159.

Id. at 66. While Hines did not hold that federal power over alien regulation was "exclusive," subsequent Supreme Court cases have characterized it as a field preemption decision. SeeArizona, 567 U.S. at 401.

160.

Arizona, 567 U.S. at 401-02 ("Federal law makes a single sovereign responsible for maintaining a comprehensive and unified system to keep track of aliens within the Nation's borders.").

161.

8 U.S.C. § 1304(e).

162.

Id. at 401. Even though a violation of the identification card requirement was already punishable as a misdemeanor under federal law, the Arizona statute made violation of the requirement a state misdemeanor. Id.

163.

Id. at 401.

164.

Id.

165.

Id. at 402. In Arizona, the Court also invalidated two other provisions of the relevant Arizona law because they conflicted with federal law. First, the Court held that federal law preempted a provision in the Arizona law that prohibited unauthorized aliens from seeking work. Id. at 406-07. Specifically, the Court reasoned that the federal Immigration Control and Reform Act of 1986 (IRCA)—which made it unlawful for employers to hire unauthorized aliens, but did not impose liability on unauthorized aliens themselves—preempted this provision in the Arizona law because it reflected "a deliberate choice" not to penalize unauthorized aliens for seeking work. Id. at 405. Second, the Court held that federal law preempted a provision in the Arizona statute that allowed state police to arrest persons who they reasonably believed committed a removable offense without a warrant. Id. at 410. The Court reasoned that this provision in the Arizona law "violate[d] the principle that the removal process is entrusted to the discretion of the Federal Government" by allowing state police to "perform[] the functions of an immigration officer" in circumstances not authorized by federal law. Id. at 408-09.

In contrast, the Court upheld another provision in the Arizona statute that required state police to make a reasonable attempt to determine the immigration status of any person they stopped, detained, or arrested if an officer had reasonable suspicion that the person was an unlawfully present alien. Id. at 413-15. The Court held that this provision did not conflict with federal law, which "le[ft] room for a policy requiring state officials to contact ICE" to verify an individual's immigration status. Id. at 412-13. However, the Court noted that this provision (which had not gone into effect) was still susceptible to as-applied challenges—specifically, in cases where state police prolong a detention solely to verify a person's immigration status. Id. at 413-15.

166.

424 U.S. 351 (1976).

167.

Id. at 358-59. DeCanas pre-dated the current federal work-authorization rules for aliens contained in the IRCA. See 8 U.S.C. § 1324a(a)(1)(A).

168.

DeCanas, 424 U.S. at 359.

169.

Id.

170.

563 U.S. 582, 587 (2011). In Whiting, the Court also upheld a provision of the Arizona law that required employers use the "E-Verify" program, which allows users to verify a person's work authorization status. See id. at 608-09.

171.

See Va. Uranium, Inc. v. Warren, 587 U.S. _ (2019) (Gorsuch, J., lead opinion) (slip op., at 9); English v. Gen. Elec. Co., 496 U.S. 72, 84-85 (1990).

172.

English, 496 U.S. at 80.

173.

Id. at 81; 42 U.S.C. § 2011.

174.

42 U.S.C. § 2021(g).

175.

Id. § 2021(k).

176.

Id. §§ 5814, 5841.

177.

461 U.S. 190, 216 (1983).

178.

Id.

179.

Id. at 205.

180.

Id. at 205 (emphasis added).

181.

Id. at 207. In its 2019 decision in Virginia Uranium, Inc. v. Warren, the Court clarified that AEA preemption will depend on this type of inquiry into the motivations of a challenged state law only when the state law implicates a "core federal power" reserved to the NRC. 587 U.S. _ (2019) (Gorsuch, J., lead opinion) (slip op., at 9); (Ginsburg, J., concurring in the judgment) (slip op., at 7, 9-10). In that case, the Court held that federal law did not preempt a Virginia statute banning the mining of uranium—a radioactive metal used in the production of nuclear fuel. See id. (Gorsuch, J., lead opinion) (slip op., at 1); (Ginsburg, J., concurring in the judgment) (slip op., at 7). Under the AEA and its subsequent amendments, the NRC has the authority to regulate the milling, transfer, use, and disposal of uranium, but not uranium mining conducted on private lands. See id. (Gorsuch, J., lead opinion) (slip op., at 1). In upholding the Virginia mining ban, a majority of the Court declined to evaluate the state's underlying motivation, explaining that such an inquiry is appropriate (if at all) only when state law regulates an activity related to the NRC's "core federal powers" under the AEA. See id. (Gorsuch, J., lead opinion) (slip op., at 9); (Ginsburg, J., concurring in the judgment) (slip op., at 7, 9-10). While the Court interpreted Pacific Gas as recognizing that the construction of nuclear power plants involves one of these "core federal powers," a majority of the Justices agreed that uranium mining does not implicate similar federal authorities because it falls outside the NRC's jurisdiction. See id. (Gorsuch, J., lead opinion) (slip op., at 9); (Ginsburg, J., concurring in the judgment) (slip op., at 7). The Court accordingly relied on this distinction to uphold the Virginia law without evaluating its underlying purpose.

182.

Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 241-42 (1984).

183.

9 U.S. 236, 247 (1959).

184.

Id. at 251.

185.

Id.

186.

Id.

187.

Id. at 251-52.

188.

Id. at 250-52.

189.

Id. at 256.

190.

496 U.S. 72, 90 (1990).

191.

Id. at 85.

192.

Id.

193.

Id. at 85-86.

194.

Id. at 86.

195.

See Arizona v. United States, 567 U.S. 387, 402 (2012); Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 231 (1947).

196.

See O'Melveny & Myers v. FDIC, 512 U.S. 79, 85 (1994) ("Nor would we adopt a court-made rule to supplement federal statutory regulation that is comprehensive and detailed; matters left unaddressed in such a scheme are presumably left subject to the disposition provided by state law."); see also Bates v. Dow Agrosciences LLC, 544 U.S. 431, 459 (2005) (Breyer, J., concurring) (noting "this Court's increasing reluctance to expand federal statutes beyond their terms through doctrines of implied preemption"); Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 617 (1997) (Thomas, J., dissenting) ("[O]ur recent cases have frequently rejected field pre-emption in the absence of statutory language expressly requiring it."); Southland Corp. v. Keating, 465 U.S. 1, 18 (1984) (Stevens, J., concurring in part and dissenting in part) ("[E]ven where a federal statute does displace State authority, it rarely occupies a field completely, totally excluding all participation by the legal systems of the states.") (internal quotation marks and citation omitted).

197.

See N.Y. State Dep't of Social Servs. v. Dublino, 413 U.S. 405, 415 (1973). See also Hillsborough Cty., Fla. v. Automated Med. Lab., Inc., 471 U.S. 707, 716 (1985) (explaining that courts should not infer field preemption "whenever an agency deals with a problem comprehensively," because such an inference would be inconsistent with "the federal-state balance embodied in [the Court's] Supremacy Clause jurisprudence").

198.

See, e.g., Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 231-32 (1947).

199.

English v. Gen. Elec. Co., 496 U.S. 72, 85 (1990).

200.

135 S. Ct. 1591, 1600-01 (2015). See also English, 496 U.S. at 83 (explaining in dicta that generally applicable criminal laws are not likely to fall within the preempted field of nuclear safety regulation).

201.

Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm'n, 461 U.S. 190, 209-10, 213-14 (1983).

202.

See note 181 supra.

203.

See Va. Uranium, Inc. v. Warren, 587 U.S. _ (2019) (Gorsuch, J., lead opinion) (slip op., at 6); (Ginsburg, J., concurring in the judgment) (slip op., at 8).

204.

See Gade v. National Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 108 (1992).

205.

Fla. Lime & Avocado Growers v. Paul, 373 U.S. 132, 142-43 (1963).

206.

Hines v. Davidowitz, 312 U.S. 52, 67 (1941).

207.

Fla. Lime, 373 U.S. at 142-43.

208.

Id.

209.

Wyeth v. Levine, 555 U.S. 555, 573 (2009).

210.

See Meltzer, supra note 50, at 8 (describing situations in which it is impossible to comply with both state and federal requirements as "rare").

211.

570 U.S. 472, 493 (2013); 564 U.S. 604, 610 (2011).

212.

Bartlett, 570 U.S. at 475; PLIVA, 564 U.S. at 610.

213.

Bartlett, 570 U.S. at 475; PLIVA, 564 U.S. at 610.

214.

See PLIVA, 564 U.S. at 612.

215.

Bartlett, 570 U.S. at 476-77; PLIVA, 564 U.S. at 612-13.

216.

Bartlett, 570 U.S. at 476-77; PLIVA, 564 U.S. at 612-13. For further information on the approval and labeling process for generic drugs under Hatch-Waxman and related laws, see CRS Report R44703, Generic Drugs and GDUFA Reauthorization: In Brief, by Judith A. Johnson.

217.

Bartlett, 570 U.S. at 486-87; PLIVA, 564 U.S. at 617.

218.

Bartlett, 570 U.S. at 487-87; PLIVA, 564 U.S. at 610.

219.

PLIVA, 564 U.S. at 618.

220.

Id. at 616.

221.

PLIVA, 564 U.S. at 623-24.

222.

Bartlett, 570 U.S. at 488-89.

223.

555 U.S. 555, 573 (2009).

224.

Id. at 571. The Court further clarified this standard in its 2019 decision in Merck Sharp & Dohme Corp. v. Albrecht, explaining that "clear evidence" requires drug manufacturers to demonstrate that they "fully informed" the FDA of the justifications for the warning required by the relevant state law and that the FDA nevertheless rejected the proposed change. 139 S. Ct. 1668, 1672 (2019).

225.

See Hines v. Davidowitz, 312 U.S. 52, 67 (1941).

226.

See id.; Geier v. American Honda Motor Co., Inc., 529 U.S. 861, 875 (2000); Felder v. Casey, 487 U.S. 131, 153 (1988).

227.

Chamber of Commerce v. Whiting, 563 U.S. 582, 607 (quoting Gade v. Nat'l Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 111 (1992) (Kennedy, J., concurring)).

228.

Crosby, 530 U.S. at 366-67. As the Court noted in Crosby, Burma changed its name to Myanmar in 1989.See id. at 366 n.1. However, because the parties in Crosby referred to the country as Burma, the Court followed suit. Id.

229.

Id. at 366-67.

230.

Id. at 376.

231.

Id. at 377-79.

232.

Id. at 380. After Crosby, Congress has included specific language in certain sanctions statutes that explicitly allows states to pass sanctions laws of their own. See, e.g., Comprehensive Iran Sanctions, Accountability and Divestment Act, Pub. L. No. 111-195, 124 Stat. 1312 (July 1, 2010).

233.

Crosby, 530 U.S. at 380-81.

234.

529 U.S. 861, 865 (2000).

235.

See "Compliance Savings Clauses."

236.

Geier, 529 U.S. at 875.

237.

Id.

238.

Id.

239.

562 U.S. 323 (2011).

240.

Id. at 332.

241.

Id.

242.

487 U.S. 131, 153 (1988).

243.

Id.

244.

Id. at 138.

245.

Id. at 141-42.

246.

Id. at 138.

247.

Wyeth v. Levine, 555 U.S. 555, 573 (2009).

248.

See Ernest A. Young, "The Ordinary Diet of the Law": The Presumption Against Preemption in the Roberts Court, 2011 Sup. Ct. Rev. 253, 327-28 (2011) (characterizing PLIVA as an "expansion" of impossibility preemption).

249.

PLIVA, Inc. v. Mensing, 564 U.S. 604, 623-24 (2011).

250.

Mutual Pharm. Co., Inc. v. Bartlett, 570 U.S. 472, 488 (2013).

251.

SeeCrosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 380 (2000).

252.

Seeid. at 377-80.

253.

Geier v. Am. Honda Motor Co., 529 U.S. 861, 875 (2000).

254.

Crosby, 530 U.S. at 374-77.

255.

Geier, 529 U.S. at 875.

256.

Felder v. Casey, 487 U.S. 131, 138-142 (1988).

257.

Note, Preemption as Purposivism's Last Refuge, 126 Harv. L. Rev. 1056, 1065 (2013). See also Meltzer, supra note 50, at 35-43 (considering whether obstacle preemption is consistent with textualism).

258.

Wyeth v. Levine, 555 U.S. 555, 583 (2009) (Thomas, J., concurring in the judgment).

259.

See Thomas Jipping, What Brett Kavanaugh's Speeches Tell Us About His Judicial Approach, The Heritage Fdn. (July 22, 2018), https://www.heritage.org/courts/commentary/what-brett-kavanaughs-speeches-tell-us-about-his-judicial-approach (arguing that Justice Kavanaugh embraces a "textualist" approach to statutory interpretation); Max Alderman & Duncan Pickard, Justice Scalia's Heir Apparent?: Judge Gorsuch's Approach to Textualism and Originalism, 69 Stan. L. Rev. Online 185, 185 (2017) (characterizing Justice Gorsuch as a "rigorous textualist").

260.

See Va. Uranium, Inc. v. Warren, 587 U.S. _ (2019) (Gorsuch, J., lead opinion) (slip op., at 14-15).

261.

Id. (Gorsuch, J., lead opinion) (slip op., at 14).

262.

Id. (Gorsuch, J., lead opinion) (slip op., at 15).

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