Preemption and Theories of Federalism
Robert R. M. Verchick
Loyola University New Orleans College of Law; Loyola University New Orleans
Nina A. Mendelson
University of Michigan Law School
PREEMPTION CHOICE: THE THEORY, LAW, AND REALITY OF FEDERALISM'S CORE QUESTION, W. Buzbee, ed., Cambridge University Press, 2008
U of Michigan Public Law Working Paper No. 98
Today's legal debates about federalism, as it applies to issues of health and safety and to the environment, are often debates about statutory preemption. This essay focuses on Congress's preemption power and examines the most common legal and theoretical issues surrounding its use. The two most important questions about preemption are related. The first is for the lawmaker: When, or in what way, should state laws be preempted? The second is for the judge: How do you know that state law has been preempted? This essay examines both questions. On the subject of congressional choice, the authors assess the justifications commonly offered for and against preemption, as well as for cooperative, or "power-sharing" arrangements between the federal and state governments. On the subject of judicial review, the authors investigate the constitutional and practical arguments for the common presumptions that underlie many, but not all, court decisions, including the on-again-off-again "clear" evidence rule. The essay devotes attention to three particularly difficult types of preemption cases that fuel much of today's controversy: cases involving asserted preemption by agency action, cases involving areas of traditional federal or state concern, and cases involving statutory "savings" clauses. In the end, the authors observe a general lack of coherence in preemption principles and judicial rules as applied, setting the stage for a broader debate on this important subject.
Number of Pages in PDF File: 17
JEL Classification: K40Accepted Paper Series
Date posted: November 17, 2007 ; Last revised: February 28, 2012
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