1. Constitutional Law I Preemption Nov. 10, 2004

2. Fall, 2004Con Law I - Manheim2 Restrictions on State Action Federal Constitution Art. I, § 10:  No state shall enter into any treaty, alliance, or con- federation; grant letters of marque and reprisal; etc. 14 th Amendment:  No State shall make or enforce any law which shall abridge the privileges or immunities of citizens; etc. Notice: These provisions are self-executing; they do not require any implementing legis- lation by congress. States are forbidden to act in these ways even when congress is silent Preclusion

3. Fall, 2004Con Law I - Manheim3 Restrictions on State Action Federal Constitution Art. VI, § 2:  This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding. Notice: Supremacy of “laws of the US” is not self-executing; it comes into play only when congress passes legislation, or other branch of federal government creates “law” Preemption

4. Fall, 2004Con Law I - Manheim4 Restrictions on State Action Federal Constitution Art. VI, § 2:  This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding. State Law is Preempted when: It is “contrary” to federal law, and The federal law is valid

5. Fall, 2004Con Law I - Manheim5 When is state law “contrary”? Two forms of preemption Express preemption  Federal law explicitly forecloses states from acting Any state law on the subject would be “contrary” to fed. law Implied preemption  Federal law is silent on whether states can act, but The context is such that it is impossible for both state and federal law to act simultaneously; one has to yield Federal law is so comprehensive as to leave no room for supplemental state regulation (because state involvement would frustrate congress’ purpose) Conflict preemption Field preemption

6. Fall, 2004Con Law I - Manheim6 Preemption - Overview Does federal law expressly say that states may not regulate? Yes: Express Preemption  Must determine the scope of preemption E.g., federal law may set only minimum standards Federal law: cars must get 25 mpg State law #1: cars must get 20 mpg State law #2: cars must get 30 mpg  Sometimes, not all state laws on same subject will be preempted No: Consider Implied Preemption

7. Fall, 2004Con Law I - Manheim7 Preemption - Overview Does federal law implicitly say that states may not regulate? Conflict through physical impossibility  Federal law: cars must have 3 rd brake light  State law: cars cannot have 3 rd brake light Conflict through frustration of purpose  Federal law: can’t sell unsafe dietary supplements  State law: can’t sell dietary supplements Occupation of the field  Federal law: comprehensive nuclear safety standards  State law: nuclear energy is unsafe; no power plants

8. Fall, 2004Con Law I - Manheim8 Express Preemption Cipollone v. Liggett (1992) Federal Cigarette Labeling & Advertising Act  “No statement relating to smoking and health, other than the statement required by this Act, shall be required on any cigarette package.  “No statement relating to smoking and health shall be required in the advertising of [cigarettes] …” Why did congress expressly prohibit supple- mental (even consistent) state labeling laws?  Dual purpose: 1) warn about health hazards  2) protect national economy from diverse regulation

9. Fall, 2004Con Law I - Manheim9 Express Preemption Cipollone v. Liggett (1992) Express preemption, but of what? What is the “scope” of preemption under the Labeling Act?  Anything related to smoking and health; or  Anything related to cigarette labeling and health? “No statement relating to smoking and health, other than the statement required by this Act, shall be required on any cigarette package.  Stevens: “cautionary statements on cigarette labels or in cigarette advertising”

10. Fall, 2004Con Law I - Manheim10 Which of these are preempted?

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13. Fall, 2004Con Law I - Manheim13 Presumptions Against preemption Historic police powers of the states are not to be superceded by federal law unless that is the “clear and manifest” purpose of congress. In favor of preemption Less clarity (intent of congress) is required in areas typically under federal power  E.g., immigration Both Cases Congress’ purpose is the “ultimate touchstone”

14. Fall, 2004Con Law I - Manheim14 Express Preemption Cipollone v. Liggett (1992) Public Health Cigarette Smoking Act  “No requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes [that conform to] this Act.” What is the scope of this express preemption? Is a tort action a “requirement or prohibition”?  Yes; tort duties (via common law) are requirements Even if it is, does it respect advertising or marketing of cigarettes?

15. Fall, 2004Con Law I - Manheim15 Express Preemption Cipollone v. Liggett (1992) Public Health Cigarette Smoking Act  “No requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes [that conform to] this Act.” Which common-law claims are preempted? Tort actions for false advertising or failure to warn? Express Warranty (contract)? Fraudulent misrepresentation (tort)? Conspiracy to deprive public of health info (tort)?

16. Fall, 2004Con Law I - Manheim16 Express Preemption Lorillard Tobacco v. Reilly (2001) Federal Cigarette Labeling & Advertising Act a.“No statement relating to smoking and health.. shall be required on any cigarette package.” b.“No requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion” of cigarettes What is the domain expressly preempted?  Modes of construction Textual: express preemption language in b broader than a Legislative history Law expands from labeling to all adverising & promotion Expands from state-required statements to all “requirements and prohibitions”

17. Fall, 2004Con Law I - Manheim17 Express Preemption Lorillard Tobacco v. Reilly (2001) Federal Cigarette Labeling & Advertising Act a.“No statement relating to smoking and health.. shall be required on any cigarette package.” b.“No requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion” of cigarettes What is the domain expressly preempted?  Does “with respect to” pertain only to the content of advertising or also location (zoning) of advertising?  Can a state prohibit all advertising in certain areas, or is it preempted when it comes to cig. advertising? General restriction ok; not based on “smoking and health” Lorillard Tobacco v. Reilly (2001) Federal Cigarette Labeling & Advertising Act a.“No statement relating to smoking and health.. shall be required on any cigarette package.” b.“No requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion” of cigarettes

18. Fall, 2004Con Law I - Manheim18 Express Preemption Does O’Connor properly apply cong’l purpose?  to inform the public that smoking is hazardous  to avoid “diverse, nonuniform and confusing cig. labeling and advertising regulations” inconisistent state laws impede interstate commerce do inconsistent state laws relating to location (zoning)? Lorillard Tobacco v. Reilly (2001) Federal Cigarette Labeling & Advertising Act a.“No statement relating to smoking and health.. shall be required on any cigarette package.” b.“No requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion” of cigarettes

19. Fall, 2004Con Law I - Manheim19 Express Preemption Why does the states-rights block read extent of preemption broadly while the federal-rights block reads it narrowly? Lorillard Tobacco v. Reilly (2001) Federal Cigarette Labeling & Advertising Act a.“No statement relating to smoking and health.. shall be required on any cigarette package.” b.“No requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion” of cigarettes

20. Fall, 2004Con Law I - Manheim20 Implied Preemption - Conflicts Florida Lime & Avocado v. Paul (1963) Competing (conflicting?) regulations  Dept. of Agriculture regs define avocado “maturity” without reference to oil content  California regulations prohibit sale < 8% oil content Is compliance with both state and federal laws physically impossible? Federal standard California standard

21. Fall, 2004Con Law I - Manheim21 Implied Preemption - Conflicts Florida Lime & Avocado v. Paul (1963) Competing (conflicting?) regulations  Dept. of Agriculture regs define avocado “maturity” without reference to oil content  California regulations prohibit sale < 8% oil content Is compliance with both state and federal laws physically impossible? Federal standard California standard

22. Fall, 2004Con Law I - Manheim22 Implied Preemption - Frustration PG&E v. State Energy Comm’n (1983) Atomic Energy Act  § 2018 “Nothing in this Act 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”  § 2021(c) the Commission shall retain authority & responsibility over (1) the construction and operation of any [nuclear] facility; (4) the disposal of [nuclear] byproducts.  § 2021(k) “ Nothing in this section shall be construed to affect the authority of any State or local agency to regulate activities for purposes other than protection against radiation hazards." Express non- preemption Express preemption Clarifies scope of express preemption

23. Fall, 2004Con Law I - Manheim23 Implied Preemption - Frustration PG&E v. State Energy Comm’n (1983) Atomic Energy Act Trinity

24. Fall, 2004Con Law I - Manheim24 Implied Preemption - Frustration PG&E v. State Energy Comm’n (1983) Cal Pub Resources Code  § 25524.1. Nuclear fission powerplants (a) “.. no nuclear fission thermal powerplant requiring the reprocessing of fuel rods … shall be permitted [unless]: (b) “facilities with adequate capacity to reprocess nuclear fuel rods … is approved by an authorized agency of the United States [and] in actual operation”  § 25524.2. Requirements for nuclear powerplant “… no nuclear [powerplant] shall be permitted until (a) “The commission finds that there has been developed and that the United States through its authorized agency has approved and there exists a demonstrated technology or means for the disposal of high-level nuclear waste.”

25. Fall, 2004Con Law I - Manheim25 Implied Preemption - Frustration PG&E v. State Energy Comm’n (1983) Express Preemption  Safety-related construction & operation regulations - yes  Economic-related regulations – no Implied Preemption  Conflict preemption: Ban on construction due to safety concerns – no Ban on construction for economic reasons - no  Frustration of purpose: Ban on construction due to safety concerns – yes impedes federal objective of promoting safe nuclear energy Economic-based ban – no promotion of nuclear power not to proceed “at all costs”

26. Fall, 2004Con Law I - Manheim26 Implied Preemption - Occupation Hines v. Davidowitz (1941) Federal Alien Registration Act  registration, finger-printing, secrecy, and “such additional matters as may be prescribed by Comm’r” Penn. Alien Registration Act  registration, provide “other information and details” Express Preemption – No Conflict Preemption – No Field Preemption  Why might congress not want compatible state laws? State enforcement could obstruct paramount federal policy Development of common law confined to federal courts especially true wrt matters within exclusive federal control