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9 sec 4 special requirements for preemption agencies in taking action that preempts state law shall act in strict accordance with governing law a agencies shall construe in regulations and otherwise a federal statute to preempt state law only where the statute contains an express preemption provision or there is some other clear evidence that the congress intended preemption of state law or where the exercise of state authority conflicts with the exercise of federal authority under the federal statute b where a federal statute does not preempt state law as addressed in subsection a of this section agencies shall construe any authorization in the statute for the issuance of regulations as authorizing preemption of state law by rulemaking only when the exercise of state authority directly conflicts with the exercise of federal authority under the federal statute or there is clear evidence to conclude that the congress intended the agency to have the authority to preempt state law c any regulatory preemption of state law shall be restricted to the minimum level necessary to achieve the objectives of the statute pursuant to which the regulations are promulgated d when an agency foresees the possibility of a conflict between state law and federally protected interests within its area of regulatory responsibility the agency shall consult to the extent practicable with appropriate state and local officials in an effort to avoid such a conflict e when an agency proposes to act through adjudication or rulemaking to preempt state law the agency shall provide all affected state and local officials notice and an opportunity for appropriate participation in the proceedings evidence of congressional intent to preempt edit in altria group v good the supreme court reiterates that congress may indicate pre emptive intent in two ways through a statute s express language or through its structure and purpose see jones v rath packing co 430 u s 519 525 1977 express preemption edit express preemption occurs only when a federal statute explicitly confirms congress s intention to preempt state law english v general electric 496 u s 72 1990 if a federal law contains an express pre emption clause it does not immediately end the inquiry because the question of the substance and scope of congress displacement of state law still remains altria group v good however legislative preemption of federal common law does not implicate the same federalism concerns that require clear expressions of congressional intent before state law may be preempted 2 implied preemption edit implied preemption can occur in two ways field preemption or conflict preemption massachusetts association of health maintenance organizations v ruthardt 194 f 3d 176 179 1st cir 1999 conflict preemption edit under the supremacy clause any state law that conflicts with a federal law is preempted 3 conflict arises when it is impossible to comply with both the state and federal regulations or the state law interposes an obstacle to the achievement of congress s discernible objectives 4 actual conflict a conflict exists if a party cannot comply with both state law and federal law for example if state law forbids something that federal law requires 5 obstacle in addition even in the absence of a direct conflict between state and federal law a conflict exists if the state law is an obstacle to the accomplishment and execution of the full purposes and objectives of congress 6 in sperry v florida 373 u s 379 1963 the u s supreme court determined that a patent agent who was not a licensed attorney and was authorized to practice before the u s patent office pursuant to a federal statute could not be barred by florida from continuing to practice as a patent agent in florida where the florida supreme court determined that he was guilty of the unauthorized practice of law the u s supreme court affirmed the constitutionality of the law authorizing the patent office to regulate patent agents finding it within the scope of what was necessary and proper for congress to exercise its authority under the patent clause and therefore did not violate the tenth amendment 7 minimum safety standard vs uniform safety standard often there may be a question of frustration of congressional purpose or the state law standing as an obstacle to congressional intent that will raise a question of whether congressional or administrative intent in passing the law was uniformity or minimum national safety standards congressional intent may be to allow states to pass laws that will establish greater safety than the minimum safety achieved by a federal regulation intended to provide a floor 8 alternatively the purpose of a federal law could be to set a uniform national standard this was the case in geier v american honda motor co where the national traffic and motor vehicle safety act required auto manufacturers to equip a certain number of their 1987 vehicles with passive restraints 9 the question before the supreme court was whether the act preempted state common law tort claims saying that the auto manufacturer although in compliance with the act should nonetheless have equipped a 1987 automobile with airbags the court indicated that despite a savings clause the statute reflects a desire to subject the industry to a single uniform set of federal safety standards its pre emption of all state standards even those that might stand in harmony with federal law suggests an intent to avoid conflict uncertainty cost and occasional risk to safety itself that too many different safety standard cooks might otherwise create 10 field preemption edit even without a conflict between federal and state law or an express provision for preemption the courts will infer an intention to preempt state law if the federal regulatory scheme is so pervasive as to occupy the field in that area of the law i e to warrant an inference that congress did not intend the states to supplement it gade v national solid wastes mgmt ass n 505 u s 88 98 1992 see also rice v santa fe elevator corp 331 u s 218 1947 for example the courts have held that the national labor relations act nlra preempts state laws directed at conduct that is actually or arguably prohibited or protected by the act or at conduct that congress intended to leave unregulated san diego building trades council v garmon 359 u s 236 244 1959 machinists v wisconsin employment relations commission 427 u s 132 140 48 1976 preemption in bankruptcy courts edit the bankruptcy code which is codified as title 11 of the united states code is the uniform federal law that governs all bankruptcy cases there are several purposes behind the enactment of the law in its current form the most important is a fresh start for the honest but unfortunate debtor and equality of distribution to creditors since state law governs most contracts which usually form the basis for debt there is much overlap between state laws and bankruptcy that overlap is ripe for preemption wherever state law interferes with either the debtor s fresh start or a creditor s right to equal distribution such as in the following examples in hawaii a homeowner may not sue his homeowner s association hoa unless all fees have been paid in full that was tremendous leverage for the hoa but it has been recently held to be preempted a homeowner may not sue the hoa in state court but may in bankruptcy court in california several laws including portions of the california constitution have been held to be unconstitutional such as california s one action rule and protections given to calpers 11 distinction from commandeering edit congress may enact federal law that supersedes or preempts state law which makes it invalid under the tenth amendment congress may not make a law that forces a state government to take some action that it would not have otherwise taken 12 the distinction between commandeering and preemption was at issue in murphy v national collegiate athletic association 584 u s 453 2018 a case in which new jersey repealed laws criminalizing sports betting while a federal law prevented states providing that states may not sponsor operate advertise promote license or authorize by law or compact sports gambling 13 14 15 the supreme court rejected the respondents argument that the anti authorization provision was a valid preemption of state law under the supremacy clause of the u s constitution 16 the supremacy clause the court pointed out is not an independent grant of legislative power to congress but i nstead it simply provides a rule of decision 17 for a federal provision to validly preempt state law it must represent the exercise of a power conferred on congress by the constitution pointing to the supremacy clause will not do 18 and since the constitution confers upon congress the power to regulate individuals not states the provision at issue must be best read as one that regulates private actors 19 the court then outlined the three types of preemption and illustrated them with cases in mutual pharmaceutical co v bartlett 570 u s 472 2013 an example of conflict preemption federal law enacted under congress commerce clause authority prohibited generic drug manufacturers from changing the composition or labeling of drugs approved by the food and drug administration thus state tort law could not force a generic drug manufacturer to add additional information to the fda approved label or hold it liable for not doing so 20 express preemption operates in essentially the same way but this is often obscured by the language used by congress in framing preemption provisions 21 the court illustrated express preemption with morales v trans world airlines 504 u s 374 1992 concerning a provision of the airline deregulation act that used language that seemed directed to the states and similar to the issue in murphy t o ensure that the states would not undo federal deregulation with regulation of their own the act provided that 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 rates routes or services of any covered air carrier this language might appear to operate directly on the states but it is a mistake to be confused by the way in which a preemption provision is phrased as we recently explained we do not require congress to employ a particular linguistic formulation when preempting state law and if we look beyond the phrasing employed in the airline deregulation act s preemption provision it is clear that this provision operates just like any other federal law with preemptive effect it confers on private entities i e covered carriers a federal right to engage in certain conduct subject only to certain federal constraints 22 the court then explained that field preemption the third type of preemption occurs when federal regulation of a field of regulation is so comprehensive that it has left no room for supplementary state legislation 23 the court noted that even it used the same sort of abbreviated description as congress has done in express preemption such as involved in morales in a 2015 case in which the court described field preemption congress has forbidden the state to take action in the field that the federal statute pre empts 24 however in substance field preemption does not involve congressional commands to the states but like all other forms of preemption it concerns a clash between a constitutional exercise of congress s legislative power and conflicting state law 25 the court then explained why preemption was not applicable to the professional and amateur sports protection act provision prohibiting states from authorizing sports betting in sum regardless of the language sometimes used by congress and this court every form of preemption is based on a federal law that regulates the conduct of private actors not the states once this is understood it is clear that the paspa provision prohibiting state authorization of sports gambling is not a preemption provision because there is no way in which this provision can be understood as a regulation of private actors it certainly does not confer any federal rights on private actors interested in conducting sports gambling operations it does not give them a federal right to engage in sports gambling nor does it impose any federal restrictions on private actors if a private citizen or company started a sports gambling operation either with or without state authorization 3702 1 would not be violated and would not provide any ground for a civil action by the attorney general or any other party thus there is simply no way to understand the provision prohibiting state authorization as anything other than a direct command to the states and that is exactly what the anticommandeering rule does not allow 26 see also edit conflict of laws in the united states a set of doctrines for resolving horizontal conflicts between coequal state sovereigns intergovernmental immunity paramountcy canada analogous doctrine in canadian constitutional law state preemption references edit zimmerman joseph the initiative second edition citizen lawmaking p 78 suny press 2014 city of milwaukee v illinois 451 u s 304 1981 gibbons v ogden 22 u s 1 1824 gade v national solid wastes mgmt ass n 505 u s 88 98 1992 florida lime avocado growers inc v paul 373 u s 132 142 43 1963 crosby v national foreign trade council 530 u s 363 372 73 2000 sperry v florida 373 u s 379 1963 geier v american honda motor co 529 u s 861 870 120 s ct 1913 146 l ed 2d 914 2000 geier 529 u s at 864 865 geier 529 u s at 871 google scholar scholar google com retrieved april 30 2018 conant v walters 309 f 3d 629 9th cir october 29 2002 archived from the original on november 5 2013 de vogue ariane december 4 2017 chris christie goes to the supreme court on sports betting cnn archived from the original on december 4 2017 retrieved december 4 2017 stern mark joseph december 4 2017 chris christie s big gamble the supreme court appears poised to let every state authorize sports betting slate archived from the original on december 9 2017 schwartz davis march 21 2013 high federalism marijuana legalization and the limits of federal power to regulate states cardozo law review 35 567 ssrn 2237618 murphy slip op at 21 24 murphy slip op at 21 murphy slip op at 21 murphy slip op at 21 internal citation and quotation marks removed murphy slip op at 22 citing mutual pharmaceutical co v bartlett 570 u s 472 2013 murphy slip op at 21 murphy slip op at 22 23 quoting 49 u s c app 1305 a 1 1988 ed internal citations and some internal quotation marks removed murphy slip op at 23 internal punctuation altered murphy slip op at 23 quoting oneok inc v learjet inc slip op at 2 2015 murphy slip op at 23 murphy slip op at 23 24 external links edit california fed sav loan ass n v guerra 479 u s 272 1987 reviewing preemption doctrine buzbee william w 2009 preemption choice...