Preemption by Stealth

Houston Law Review, Vol. 45, p. 1569, 2009

77 Pages Posted: 18 Jul 2009

See all articles by Sandra B. Zellmer

Sandra B. Zellmer

University of Montana - Alexander Blewett III School of Law

Date Written: February 1, 2009


The Supreme Court's recent preemption decisions give lip service to federalism concerns, but in many cases state statutes, regulations, and remedies have been struck down with little regard for either federal–state comity or institutional competence. If federal regulatory regimes always accomplished optimal regulation - perfect equipoise between protecting human health and promoting economic development while fostering innovation by governments and regulated entities - preemption of state law would be far less controversial. Of course, federal regulatory regimes are not always perfect, and the preemption of state laws can leave dangerous regulatory gaps.

Preemption is particularly troublesome when Congress has included a savings clause in the statute at issue. Many federal public health and environmental statutes include savings clauses intended to leave ample room for state law to provide increased protection above the federal regulatory floor. Recent Supreme Court cases reveal a pattern of increasingly hostile reception of savings clauses. This seems particularly true in cases involving state regulatory programs, while tort claims have been treated somewhat more favorably. The inclusion of generously worded savings clauses for state tort claims may explain the results in some cases, but the text of most savings clauses is so similar that, as some courts have noted, “[n]ot even the most dedicated hair-splitter” could distinguish them.

Congress itself has, in some instances, muddied the waters by including both preemption clauses and savings clauses in the same statute. Dueling clauses pose an interpretive conundrum for courts. Both savings clauses and preemption clauses serve to demarcate the boundaries of federal and state law, but, unlike preemption clauses, savings clauses strike the balance in favor of states and state law remedies. In many Supreme Court cases, however, their combined effect has been to neutralize or weaken state police powers and, in turn, diminish the protection of health, safety, and environmental quality by leaving gaping holes in the regulatory framework.

By focusing specifically on cases involving statutory savings clauses, this Article attempts to identify preemption patterns and principles from a discrete set of opinions issued by the Rehnquist and Roberts Courts through 2008. It undertakes a comparative analysis of case law in four areas: (1) the environment; (2) labor and employment; (3) products liability; and (4) agricultural practices. These four were chosen both because of the tremendous activity in these areas by all three branches of the federal government since the 1980s and because of their importance to federal–state relations. The analysis of key cases in these four areas indicates that, where Congress has included a savings clause in the allegedly preemptive federal statute, the Rehnquist Court was willing to allow some redress to injured persons, yet at the same time it paid little attention to savings clauses when it came to the preemption of protective state or local regulations. Where state or local regulations were challenged on preemption grounds, neither the statutory language nor the overarching congressional goals seemed to carry much weight. If we narrow the focus even further, and consider only the Roberts Court, a nascent trend in favor of business and against both state interests and injured persons alike is discernible in both tort and regulatory cases. The most significant tort case issued by the Roberts Court to date, Riegel v. Medtronic, Inc., indicates that the Court is taking an especially broad view of preemption clauses and a correspondingly dim view of savings clauses. It is too early to tell whether we might expect it to find preemption whenever business interests are affected, regardless of the context, but Riegel may be indicative of the future direction of the Roberts Court.

The assessment of preemption cases involving statutory savings clauses makes one thing, at least, readily apparent. Dangerous regulatory gaps would be far less likely if savings clauses were given appropriate weight in both the regulatory context and the tort context. In light of the Court's treatment of savings clauses, there may be no magic language that ensures against preemption, but careful congressional drafting may promote more rational, equitable results, at least in close cases.

Keywords: federalism, preemption, statutory construction, separation of powers

Suggested Citation

Zellmer, Sandra B., Preemption by Stealth (February 1, 2009). Houston Law Review, Vol. 45, p. 1569, 2009, Available at SSRN:

Sandra B. Zellmer (Contact Author)

University of Montana - Alexander Blewett III School of Law ( email )

Missoula, MT 59812-0002
United States
406-243-6653 (Phone)


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