basics of preemption

8/9/2019 Basics of Preemption

1/18

begin

Basics of PreemptionBy Richard Warner

Tutorial


2/18

next

The Supremacy Clause

Preemption doctrine concerns when federal law makes statelaw unenforceable. The doctrine rests on Article VI of theUnited States Constitution, the Supremacy Clause of theConstitution:

This Constitution, and the Laws of the United States . . . shallbe the supreme Law of the Land . . . any Thing in theConstitution or Laws of any State to the Contrarynotwithstanding.

So: if a state law conflicts with any federal law, the state lawis unenforceable. If the conflicting state law wereenforceable, the federal law would not be the the supremeLaw of the Land.


3/18

next

Conflict Defined

A state law conflicts with federal law if:

(1) one cannot comply with both laws; or,

(2) the state law hinders achieving the purposes of the federallaw.


4/18

Conflict Preemption

Under the federal Biomaterials Access Assurance Act (21 U.S.C.A. 1601-1606), a biomaterials supplier of an implantable medical deviceis liable for harm resulting from defects in the device only if thesupplier is also a manufacturer of medical implants; or, the supplieris also a seller if medical implants; or, the supplied materials did notmeet the manufacturers contractual specifications. The purpose ofthe federal law is to shield suppliers from the more extensive liabilitythey would otherwise have under state product liability laws.

Suppose a states product liability laws make a supplier of medicalimplants liable even if the supplied materials fulfill themanufacturers contractual specifications, and even if the supplier isneither a seller nor a manufacturer.

(a) The state law conflicts with the federal law because it is notpossible to comply with both laws.

(b) The state law conflicts with the federal law because the state lawhinders achieving the purpose of the federal law.


5/18

next

Correct!

Correct. It is possible to comply with both laws; a supplier

complies with both as long as he or she provides a non-

defective product. However, the state law hinders the purpose

of the federal law. That purpose is precisely to limit liability

under state product liability laws.

back


6/18

next

Correct!

Correct. A federal statute expressly preempts a state lawwhen the federal statute expressly states that it preempts thatlaw or laws of that type. ERISA expressly states that itpreempts state laws that relate to an employee benefit planexcept where those laws regulate insurance, banking, orsecurities.

back


7/18next

Express and Implied Preemption

In addition to conflict preemption, there are two other kinds ofpreemption: express and implied.

A federal statute expressly preempts a state law when thefederal statute expressly states that it preempts laws of that

type.

A federal statute impliedly preempts a state law when thefederal regulatory scheme is so pervasive that it occupies thefield in the area covered by the state law.

Examples follow.


8/18

Express Preemption

The federal Employee Retirement Income Security Act (ERISA)states that it preempts state laws insofar as they may now orhereafter relate to any employee benefit plan. 29 U.S.C.1144 (a). There is, however, and exception for state laws . .. which regulate insurance, banking, or securities. 29 U.S.C.1144 (b)(2)(A).

ERISA expressly preempts state laws that

(a) relate to an employee benefit plan.

(b) relate to an employee benefit plan except where thoselaws regulate insurance, banking, or securities.


9/18

Implied Preemption

A federal statute impliedly preempts a state law when the federal regulatoryscheme is so pervasive that it occupies the field in the area covered by the statelaw.

The federal statute used to illustrate express preemption also illustrates impliedpreemption. That statue was ERISA, the federal Employee Retirement IncomeSecurity Act.

The Texas Health Care Liability Act provided for punitive damages for medicaltreatment adversely affecting patient care. ERISA does not contain any provisionallowing punitive damages. 29 U.S.C. 1132.

It is clearest to begin with a question, not about implied preemption, but expresspreemption.

If ERISA expressly stated that it preempted state laws that allow punitivedamages, then ERISA would expressly preempt such laws.

(a) True

(b) False


10/18next

Correct!

Correct. A federal statute expressly preempts a state lawwhen the federal statute expressly states that it preemptslaws of that type.

ERISA does not contain any such statement.

back


11/18

Conflict Preemption

Under ERISA?

One more question before turning to the implied preemptionissue: if one legislative purpose behind ERISA had been todeny punitive damage recoveries, then ERISA would preemptsuch state laws.

(a) True

(b) False


12/18next

Correct.

Correct. A state law conflicts with federal law if (1) onecannot comply with both laws; or, (2) the state law hindersachieving the purposes of the federal law. State lawsawarding punitive damages would be preempted because theywould hinder a purpose of ERISA.

There is, however, no clear, unambiguous evidence that one ofthe purposes of ERISA was to deny punitive damage recover.

back


13/18next

Preemption Anyway:Implied Preemption

The United States Supreme Court nonetheless held that ERISAimpliedly preemptedthe provisions in the Texas Health CareLiability Act that allowed for punitive damages.

The Court held that the remedies provide in ERISA wereintended to occupy the field in the area of remedies formedical actions adversely affective patient care. That is, theywere intended to leave no room for any other possible

remedy.

The Court based its ruling on the language of ERISA, itsanalysis of legislative intent and legislative history, and onprior judicial interpretations of ERISA.

back


14/18

You have completed this tutorial.


15/18next

Incorrect.

Incorrect. It is possible to comply with both laws; a supplier

complies with both as long as he or she provides a non-

defective product. However, the state law hinders the purpose

of the federal law. That purpose is precisely to limit liability

under state product liability laws.

back


16/18next

Incorrect.

Incorrect. A federal statute expressly preempts a state lawwhen the federal statute expressly states that it preempts thatlaw or laws of that type. ERISA expressly states that itpreempts state laws that relate to an employee benefit planexcept where those laws regulate insurance, banking, or

securities.

back


17/18next

Incorrect.

Incorrect. A federal statute expressly preempts a state lawwhen the federal statute expressly states that it preemptslaws of that type.

ERISA does not contain any such statement, however.

back


18/18next

Incorrect.

Incorrect. A state law conflicts with federal law if (1) onecannot comply with both laws; or, (2) the state law hindersachieving the purposes of the federal law. State lawsawarding punitive damages would be preempted because theywould hinder a purpose of ERISA.

There is, however, no clear, unambiguous evidence that one ofthe purposes of ERISA was to deny punitive damage recover.

back

basics of preemption

Documents