Treaties and the Presumption Against Preemption

Abstract

When deciding whether a federal statute that regulates domestic issues preempts state law, “the Supreme Court presumes that Congress does not intend to displace the traditional regulatory authority of the States.” The question arises whether this same presumption applies when the federal law at issue is a treaty. At this stage, the Restatement (Fourth) of the Foreign Relations Law of the United States replies that “[t]he case law does not clearly support any presumption regarding preemption of State law by a treaty.” This Article — part of the BYU Law Review Symposium on Treaty Law and the Restatement — demonstrates that there is (or should be) more clarity in favor of a presumption against preemption in the treaty context than the Draft Restatement suggests.

Keywords: foreign relations, treaty, preemption, restatement