Definition, interpretive guidance, and resources for lawyers
The Supremacy Clause has played an important role throughout U.S. history. Although initially highly controversial, it has evolved into a bedrock principle of Constitutional law with a well-established meaning and scope.
Jump to ↓
Areas where federal law may preempt state and local law
Definition of the Supremacy Clause
According to Black’s Law Dictionary, the Supremacy Clause, found in Article VI, Clause 2 (sometimes called “Paragraph 2”) of the United States Constitution, declares that in “the [U.S.] Constitution, all laws made in furtherance of the Constitution, and all treaties made under the authority of the United States are the ‘supreme law of the land’” and supersede conflicting provisions in state laws or state constitutions.
Under modern preemption doctrine, the Supreme Court looks primarily at the intent of Congress to determine when a particular federal law takes priority over state law.
Interpreting the Supremacy Clause
The U.S. Supreme Court has identified two general categories of preemption.
Express preemption
Express preemption occurs when a federal law or regulation contains language that explicitly preempts state law. For example, the Employee Retirement Income Security Act (ERISA) contains a clause preempting any state laws that “relate to” regulated benefit plans. The Supreme Court interpreted this clause as preempting state laws that have a “connection with” or a “reference to” ERISA plans.
Implied preemption
Implied preemption occurs when congressional intent for a federal law to preempt state law, while not stated explicitly, can be found implicitly in the federal law’s structure and purpose.
Types of implied preemption
Implied preemption is further divided into two types:
- Field preemption occurs when federal laws preempt states from regulating the same general subject.
- Conflict preemption occurs when a state law creates an obstacle to a federal law’s objectives or when it would be impossible to comply with both state and federal laws.
Congressional intent
In interpreting the Supremacy Clause, the Supreme Court has held that one of the “cornerstones” of its preemption jurisprudence is that “the purpose of Congress is the ultimate touchstone in every preemption case.”
Statutory interpretation
Because preemption cases often focus on congressional intent, litigating these cases becomes mostly a matter of statutory interpretation rather than Constitutional analysis. The federal supremacy principle of the Supremacy Clause is well-established, and litigants generally don’t dispute its meaning or scope. Therefore, in Supremacy Clause cases that involve statutory interpretation, researchers should look into the issues that are common in all types of statutory litigation.
The Supremacy Clause and federalism
Because the scope of the Supremacy Clause is generally not disputed, disputes over federalism usually involve other aspects of the Constitution – the Fourteenth Amendment, the Commerce Clause, and the Spending Clause.
The presumption against preemption
When the federal government’s powers expanded in the 1930s and 40s, the Supreme Court applied a “presumption against preemption” in Supremacy Clause cases that made it harder to find that federal law preempts state law “unless that was the clear and manifest purpose of Congress.” However, more recently, the Court has applied the preemption inconsistently.
Areas where federal law may preempt state and local law
Federal regulations may preempt or partially preempt state and local laws when they regulate certain areas. These include:
- municipal bankruptcy,
- patents, trademarks,
- copyright protection,
- labor and employment laws for local government employers,
- group homes,
- aspects of immigration law,
- interstate commerce, and
- pipeline safety
State preemption of local laws
Just as federal laws take precedence over conflicting state and local laws, state laws may take precedence over conflicting local laws. The application varies by state. Some states may preempt cities and counties in areas including emergency orders, environmental ordinances, fracking ordinances, rentals, and employee sick leave.
Q&A
When does the preemption doctrine of the Supremacy Clause apply?
The preemption doctrine applies when federal and state law conflict. It creates a hierarchy where federal law takes precedence over conflicting state and local laws.
Does the Supremacy Clause apply to federal regulations?
Yes. The federal Constitution, statutes enacted by Congress, and regulations issued by federal agencies may preempt conflicting state and local constitutions, statutes, and regulations.
Is the Supremacy Clause the source of any federal rights?
No. The Supreme Court has held that the Supremacy Clause “is not a source of any federal rights.” Instead, it “‘secure[s]’ federal rights by according them priority whenever they come in conflict with state law.”
