Figure 1. Preemption Taxonomy

Source: CRS.

U.S. Const. art. VI, cl. 2.

Gade v. Nat'l Solid Wastes Mgmt. Assn., 505 U.S. 88, 108 (1992).

Stephen A. Gardbaum, The Nature of Preemption, 79 Cornell L. Rev. 767, 768 (1994). See also Jamelle C. Sharpe, Toward (a) Faithful Agency in the Supreme Court's Preemption Jurisprudence, 18 Geo. Mason L. Rev. 367, 367 (2011) ("Preemption has become one of the most frequently recurring and perplexing public law issues facing the federal courts today."); Garrick B. Pursley, Preemption in Congress, 71 Ohio St. L. J. 511, 513 (2010) (describing preemption as "the issue of constitutional law that most directly impacts everyday life"); Thomas W. Merrill, Preemption and Institutional Choice, 102 Nw. U. L. Rev. 727, 730 (2008) (noting that "[p]reemption is one of the most widely applied doctrines in public law.").

Pursley, supra note 3, at 513.

William W. Buzbee, Introduction, in Preemption Choice: The Theory, Law, and Reality of Federalism's Core Question 1, 1 (William W. Buzbee ed., 2009).

See Alan Untereiner, The Defense of Preemption: A View From the Trenches, 84 Tul. L. Rev. 1257, 1262 (2010) (arguing that the "multiplicity of government actors below the federal level virtually ensures that, in the absence of federal preemption, businesses with national operations that serve national markets will be subject to complicated, overlapping, and sometimes even conflicting legal regimes."); Richard B. Stewart, Regulatory Compliance Preclusion of Tort Liability: Limiting the Duel-Track System, 88 Geo. L. J. 2167, 2169 (2000) (arguing that state common law "cannot ensure desirable consistency and coordination in legal requirements," which are "especially important for nationally marketed products"); Geier v. Am. Honda Motor Co., Brief for the Chamber of Commerce of the United States of America as Amicus Curiae, Nov. 19, 1999 at 20 (arguing that "common-law decisionmaking is notoriously ill-suited to the establishment of nationwide standards that strike the proper balance among the multitude of societal interests at stake in a particular regulatory setting").

See Untereiner, supra note 6, at 1262 ("In many cases, Congress's adoption of a preemptive scheme . . . ensures that the legal rules governing complex areas of the economy or products are formulated by expert regulators with a broad national perspective and needed scientific or technical expertise, rather than by decision makers—such as municipal officials, elected state judges, and lay juries—who may have a far more parochial perspective and limited set of information."); Scott A. Smith & Duana Grage, Federal Preemption of State Products Liability Actions, 27 Wm. Mitchell L. Rev. 391, 416 (2000) ("[E]xpert federal regulators, intimately familiar with the products and industries they regulate, are arguably far better suited [than state courts and juries] . . . to ascertain the degree of federal uniformity necessary to assure safety, efficacy, and availability at a reasonable cost.").

See Ernest A. Young, Making Federalism Doctrine: Fidelity, Institutional Competence, and Compensating Adjustments, 46 Wm. & Mary L. Rev. 1733, 1850 (2004) ("Preemption doctrine . . . goes to whether state governments actually have the opportunity to provide beneficial regulation for their citizens; there can be no experimentation or policy diversity, and little point to citizen participation, if such opportunities are supplanted by federal policy.").

See Robert R.M. Verchick & Nina Mendelson, Preemption and Theories of Federalism, in Preemption Choice: The Theory, Law, and Reality of Federalism's Core Question 13, 17 (William W. Buzbee ed., 2009) ("[P]reserving state regulatory authority may . . . benefit citizens by prompting greater engagement in government. Citizens are often presumed to be able to participate more directly in policy making at the state level."); Roderick M. Hills, Jr., Against Preemption: How Federalism Can Improve the National Legislative Process, 82 N.Y.U. L. Rev. 1, 4 (2007) ("Federalism's value, if there is any, lies in the often competitive interaction between the levels of government. In particular, a presumption against federal preemption of state law makes sense not because states are necessarily good regulators of conduct within their borders, but rather because state regulation makes Congress a more honest and democratically accountable regulator of conduct throughout the nation.").

Thomas O. McGarity, The Preemption War: When Federal Bureaucracies Trump Local Juries 237 (2008) ("The common law provides an effective vehicle for filling regulatory gaps that inevitably arise at the implementation stage because agencies can never anticipate and regulate every potentially socially undesirable aspect of an ongoing business and cannot possibly envision all of the possible ways that regulatees will react to regulatory programs.").

Gade v. Nat'l Solid Wastes Mgmt. Assn., 505 U.S. 88, 98 (1992).

Id.

Fla. Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43 (1963).

Hines v. Davidowitz, 312 U.S. 52, 67 (1941).

529 U.S. 861, 881-82 (2000).

Wyeth v. Levine, 555 U.S. 555, 565 (2009) (quoting Retail Clerks v. Schermerhorn, 375 U.S. 96, 103 (1963)).

Medtronic, Inc. v. Lohr, 518 U.S. 470, 486 (1996) (internal quotation marks and citation omitted).

Id. (internal quotation marks and citation omitted).

See, e.g., Wyeth, 555 U.S. at 583 (Thomas, J., concurring in the judgment) (rejecting the Court's obstacle preemption jurisprudence as "inconsistent with the Constitution," while noting that the Court "routinely invalidates state laws based on perceived conflicts with broad federal policy objectives, legislative history, or generalized notions of congressional purpose that are not embodied within the text of federal law").

Rice v. Sante Fe Elevator Corp., 331 U.S. 218, 230 (1947). The presumption against preemption has traditionally been justified on the grounds that it promotes respect for federalism and state sovereignty. See Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 533 (1992) (Blackmun, J., concurring in part, concurring in the judgment, and dissenting in part).

See, e.g., De Buono v. NYSA-ILA Med. and Clinical Servs. Fund, 520 U.S. 806, 814 (1997) ("Respondents . . . bear the considerable burden of overcoming the starting presumption that Congress did not intend to supplant state law.") (internal quotation marks and citation omitted); N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 654 (1995). ("[W]e have never assumed lightly that Congress has derogated state regulation, but instead have addressed claims of pre-emption with the starting presumption that Congress does not intend to supplant state law."); Bldg. and Const. Trades Council of Metropolitan Dist. v. Assoc. Builders and Contractors of Massachusetts, 507 U.S. 218, 224 (1993) ("Consideration under the Supremacy Clause starts with the basic assumption that Congress did not intend to displace state law.") (internal quotation marks and citation omitted); Cipollone, 505 U.S. at 518 ("[W]e must construe these provisions in light of the presumption against the pre-emption of state police power regulations."); Gade v. Nat'l Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 116 (1992) ("[Preemption] [a]nalysis begins with the presumption that Congress did not intend to displace state law.") (internal quotation marks and citation omitted); Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 740 (1985) ("We also must presume that Congress did not intend to pre-empt areas of traditional state regulation."); Hillsborough County, Fla. v. Automated Med. Lab., Inc., 471 U.S. 707, 715 (1985) ("The second obstacle in appellee's path is the presumption that state or local regulation of matters related to health and safety is not invalidated under the Supremacy Clause."); Maryland v. Louisiana, 451 U.S. 725, 746 (1981) ("Consideration under the Supremacy Clause starts with the basic assumption that Congress did not intend to displace state law.").

See, e.g., Mutual Pharmaceutical Co., Inc. v. Bartlett, 570 U.S. 472 (2013) (holding that federal law preempted state law without mentioning the presumption against preemption); Kurns v. Ry. Friction Products Corp., 565 U.S. 625 (2012) (similar); PLIVA, Inc. v. Mensing, 564 U.S. 604, 622 (2011) (similar); Bruesewitz v. Wyeth LLC, 562 U.S. 223 (2011) (similar); Rowe v. New Hampshire Motor Transport Ass'n, 552 U.S. 364 (2008) (similar); Geier v. Am. Honda Motor Co., Inc., 529 U.S. 861 (2000) (similar); United States v. Locke, 529 U.S. 89, 108 (2000) (similar).

See, e.g., CTS Corp. v. Waldburger, 573 U.S. 1, 19 (2014) ("[W]hen the text of a pre-emption clause is susceptible of more than one plausible reading, courts ordinarily accept the reading that disfavors preemption.") (internal quotation marks and citations omitted); Wyeth v. Levine, 555 U.S. 555, 565 (2009) (explaining that the presumption against preemption applies "[i]n all preemption cases"); Altria Group, Inc. v. Good, 555 U.S. 70, 77 (2008) (explaining that the Court "begin[s its] analysis" with a presumption against preemption "[w]hen addressing questions of express or implied pre-emption") (emphasis added); Bates v. Dow Agrosciences, LLC, 544 U.S. 431, 449 (2005) ("Even if [the defendant] had offered us a plausible alternative reading of [the relevant preemption clause]—indeed, even if its alternative were just as plausible as our reading of the text—we would nevertheless have a duty to accept the reading that disfavors preemption."); Egelhoff v. Egelhoff ex rel. Breiner, 532 U.S. 141, 151 (2001) (invoking the presumption against preemption in interpreting ERISA's preemption clause); Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996) (explaining that the presumption against preemption applies "[i]n all preemption cases"); De Buono v. NYSA-ILA Med. and Clinical Servs. Fund, 520 U.S. 806, 814 (1997) (invoking the presumption against preemption in interpreting ERISA's preemption clause); Travelers, 514 U.S. at 654 (same); Cipollone, 505 U.S. at 518 (invoking the presumption against preemption in interpreting the Federal Cigarette Labeling and Advertising Act's preemption clause).

Puerto Rico v. Franklin Cal. Tax-Free Trust, 136 S. Ct. 1938, 1946 (2016) (explaining that in express preemption cases, the Court "do[es] not invoke any presumption against pre-emption but instead focus[es] on the plain wording of the clause, which necessarily contains the best evidence of Congress' pre-emptive intent.").

See CRS Report R45153, Statutory Interpretation: Theories, Tools, and Trends, by Valerie C. Brannon.

See William N. Eskridge, Jr., Philip P. Frickey & Elizabeth Garrett, Cases and Materials on Legislation: Statutes and the Creation of Public Policy 819 (3d ed. 2001).

John F. Manning & Matthew C. Stephenson, Legislation and Regulation: Cases and Materials 202 (2d ed. 2013).

See Amy Coney Barrett, Substantive Canons and Faithful Agency, 90 B.U. L. Rev. 109, 123-24 (2010) ("Substantive canons are in significant tension with textualism . . . insofar as their application can require a judge to adopt something other than the most textually plausible meaning of a statute."); John F. Manning, Textualism and the Equity of the Statute, 101 Colum. L. Rev. 1, 124 (2001) ("If textualists believe . . . that statutes mean what a reasonable person would conventionally understand them to mean, then applying a less natural . . . interpretation is arguably unfaithful to the legislative instructions contained in the statute."); Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 28 (1997) (arguing that "[t]o the honest textualist," substantive canons "are a lot of trouble"); id. at 28-29 (". . . whether these dice-loading rules are bad or good, there is also the question of where the courts get the authority to impose them. Can we really just decree that we will interpret the laws that Congress passes to mean more or less than what they fairly say? I doubt it.").

Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 548 (1992) (Scalia, J., concurring in the judgment in part and dissenting in part).

Id. See also Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 293 (2012) ("[T]he [presumption against preemption] . . . ought not to be applied to the text of an explicit preemption provision . . . The reason is obvious: The presumption is based on an assumption of what Congress, in our federal system, would or should normally desire. But when Congress has explicitly set forth its desire, there is no justification for not taking Congress at its word—i.e., giving its words their ordinary, fair meaning.").

136 S. Ct. 1938, 1946 (2016).

Buckman Co. v. Plaintiffs' Legal Committee, 531 U.S. 341 (2001).

United States v. Locke, 529 U.S. 89, 108 (2000).

Buckman, 531 U.S. at 347-48.

Id. at 347.

570 U.S. 1, 14 (2013).

Id. (internal quotation marks and citation omitted).

United States v. Locke, 529 U.S. 89, 108 (2000).

Id.

Id.

Wyeth v. Levine, 555 U.S. 555, 565 n.3 (2009).

Id. (explaining that the presumption's application "does not rely on the absence of federal regulation").

Locke, 529 U.S. at 108. The uncertainty surrounding the status of the Locke exception to the presumption against preemption is compounded by the fact that the Court did not mention the presumption in two other cases concerning drug labeling decided within four years of Wyeth. See Mutual Pharm. Co., Inc. v. Bartlett, 570 U.S. 472 (2013); PLIVA, Inc. v. Mensing, 564 U.S. 604 (2011).

Alan Untereiner, The Preemption Defense in Tort Actions: Law, Strategy and Practice 77 (2008) ("Although express preemption provisions cover a wide range of subjects, they also follow certain familiar patterns. They often contain similar if not identical words or phrases, including limitations on or exceptions to the scope of preemption.").

See Bragdon v. Abbott, 524 U.S. 624, 645 (1998) ("When judicial interpretations have settled the meaning of an existing statutory provision, repetition of the same language in a new statute indicates, as a general matter, the intent to incorporate [the same] judicial interpretations as well."); Morales v. Trans World Airlines, 504 U.S. 374, 383-84 (1992) (relying on the Court's earlier interpretation of a preemption clause in the Employee Retirement Income Security Act to interpret a similarly worded preemption clause in the Airline Deregulation Act).

Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 46 (1987).

FMC Corp. v. Holliday, 498 U.S. 52, 58 (1990).

N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 655 (1995).

See, e.g., Dan's City Used Cars, Inc. v. Pelkey, 569 U.S. 251, 265 (2013); Travelers, 514 U.S. at 658. See Cal. Div. of Labor Standards Enforcement v. Dillingham Const., N.A., Inc., 519 U.S. 316, 335 (1997) (Scalia, J., concurring) ("[A]pplying the 'relate to' provision [in the Employee Retirement Income Security Act] according to its terms was a project doomed to failure, since, as many a curbstone philosopher has observed, everything is related to everything else.").

Daniel J. Meltzer, Preemption and Textualism, 112 Mich. L. Rev. 1, 20 (1993) (noting that "[t]he most frequently litigated 'related to' preemption clause is found in [ERISA].").

29 U.S.C. §§ 1021-1031.

Id. §§ 1051-1086.

Id. §§ 1101-1114.

Id. § 1144(a).

Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96-97 (1983).

Egelhoff v. Egelhoff ex rel. Breiner, 532 U.S. 141, 148 (2001).

New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 668 (1995).

Egelhoff, 532 U.S. at 147.

Gobeille v. Liberty Mut. Ins. Co., 136 S. Ct. 936, 945 (2016).

Travelers, 514 U.S. at 651-52.

Cal. Div. of Labor Standards Enforcement v. Dillingham Const., N.A., Inc., 519 U.S. 316, 334 (1997).

Travelers, 514 U.S. at 668. The Court held that such "indirect" effects on ERISA plans were sufficiently "acute" to support a finding of preemption in Shaw v. Delta Air Lines, Inc., where it concluded that ERISA preempted a state law that (1) prohibited discrimination in employee benefit plans based on pregnancy, and (2) required employers to pay sick-leave benefits to employees unable to work because of pregnancy. 463 U.S. 85, 97-99 (1983).

Dillingham, 519 U.S. at 325.

486 U.S. 825, 828 (1988) (quoting Ga. Code Ann. § 18-4-22.1 (1982)).

Id. at 829-30.

498 U.S. 133, 139-141 (1990).

Id. at 140.

District of Columbia v. Greater Wash. Bd. of Trade, 506 U.S. 125, 130 (1992).

Id.

49 U.S.C. § 1371 (1979).

Am. Airlines, Inc. v. Wolens, 513 U.S. 219, 222 (1995).

49 U.S.C. § 41713(b)(1) (emphasis added).

504 U.S. 374, 382 (1992).

Id. at 388.

49 U.S.C. § 14501.

Id. § 14501(c)(1) (emphasis added).

552 U.S. 364, 368 (2008).

Id. at 371.

Id. at 372.

569 U.S. 251, 265 (2013).

Id. at 259.

Id. at 261.

Id. (internal quotation marks and citation omitted).

Id. (emphasis added).

See, e.g., Rowe v. N.H. Motor Transport Ass'n, 552 U.S. 364, 370 (2008); Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383 (1992); Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96 (1983).

Egelhoff v. Egelhoff ex rel. Breiner, 532 U.S. 141, 148 (2001).

N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 668 (1995).

Shaw, 463 U.S. at 100 n.21.

Cal. Div. of Labor Standards Enf't v. Dillingham Const., N.A., Inc., 519 U.S. 316, 325 (1997).

Dan's City Used Cars, Inc. v. Pelkey, 569 U.S. 251, 261 (2013).

507 U.S. 658, 664 (1993).

Id.

Id. at 665-73.

Id. at 667.

Id. at 667.

Id. at 673-76.

See, e.g., 7 U.S.C. § 136v(b) (providing that states "shall not impose or continue in effect any requirements for labeling and packaging [pesticides] in addition to or different from those required under this subchapter.") (emphasis added); id. § 467e ("Marking, labeling, packaging, or ingredient requirements . . . in addition to, or different than, those made under this subchapter may not be imposed by any State . . . .") (emphasis added); id. § 4817(b) ("The regulation of [promotion and consumer education involving pork and pork products] . . . that is in addition to or different from this chapter may not be imposed by a State.") (emphasis added); 21 U.S.C. § 360k(a) ("[N]o state . . . may establish or continue in effect with respect to a device intended for human use any requirement . . . which is different from, or in addition to, any requirement applicable under this chapter to the device, and which relates to the safety and effectiveness of the device or to any other matter included in a requirement applicable to the device under this chapter.") (emphasis added); id. § 1052(b) ("Requirements within the scope of this chapter with respect to premises, facilities, and operations of any official plant which are in addition to or different than those made under this chapter may not be imposed by any State . . . .") (emphasis added).

565 U.S. 452, 455 (2012).

Id. at 459 (internal quotation marks and citation omitted).

Id. at 459-60.

Bates v. Dow Agrosciences LLC, 544 U.S. 431, 446 (2005); Medtronic, Inc. v. Lohr, 518 U.S. 470, 494-97 (1996).

Bates, 544 U.S. at 447.

Id. at 454 (emphasis in original).

See McMullen v. Medtronic, Inc., 421 F.3d 482, 489 (7th Cir. 2005).

See Bates, 544 U.S. at 447-48.

See id.

See, e.g., 7 U.S.C. § 136v(b) (providing that no state "shall . . . impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under this subchapter.") (emphasis added); 21 U.S.C. § 360k(a) (providing that no state "may establish or continue in effect with respect to a device intended for human use any requirement . . . which is different from, or in addition to, any requirement applicable under this chapter to the device.") (emphasis added); 46 U.S.C. § 4306 ("[A] state . . . may not establish, continue in effect, or enforce a law or regulation establishing a recreational vessel or associated equipment performance or other safety standard or imposing a requirement for associated equipment . . . that is not identical to a regulation prescribed under . . . this title.") (emphasis added); 49 U.S.C. § 30103(b)(1) ("When a motor vehicle standard is in effect under this subchapter, a State . . . may prescribe or continue in effect a standard applicable to the same aspect of performance of a motor vehicle or motor vehicle equipment only if the standard is identical to the standard prescribed under this subchapter.") (emphasis added).

Riegel v. Medtronic, Inc., 552 U.S. 312, 324 (2008). See also Medtronic, Inc. v. Lohr, 518 U.S. 470, (1996); Cipollone v. Liggett Group, 505 U.S. 504, 521 (1992).

Sprietsma v. Mercury Marine, 537 U.S. 51, 63 (2002).

46 U.S.C. § 4306 (emphasis added).

Id. § 4311(g).

Sprietsma, 537 U.S. at 63.

Id.

Id.

Id.

See "Compliance Savings Clauses" and "Example: Automobile Safety Regulations."

Sandi Zellmer, When Congress Goes Unheard: Savings Clauses' Rocky Judicial Reception, in Preemption Choice: The Theory, Law, and Reality of Federalism's Core Question 144, 146 (William W. Buzbee, ed., 2009).

Untereiner, supra note 44, at 204-05.

See, e.g., 7 U.S.C. § 2910(a) ("Nothing in this chapter may be construed to preempt or supersede any other program relating to beef promotion organized and operated under the laws of the United States or any State."”); id. §. § 6812(c) ("(“Nothing in this chapter may be construed to preempt or supersede any other program relating to cut flowers or cut greens promotion and consumer information organized and operated under the laws of the United States or a State."”); id. §. § 7811(c) ("“Nothing in this chapter may be construed to preempt or supersede any other program relating to Hass avocado promotion, research, industry information, and consumer information organized and operated under the laws of the United States or of a State.").

”). 111 See, e.g., 12 U.S.C. § § 2616 ("“This chapter does not annul, alter, or affect, or exempt any person subject to the provisions of this chapter from complying with, the laws of any State with respect to [real estate] settlement practices, except to the extent that those laws are inconsistent with any provision of this chapter, and then only to the extent of the inconsistency."”); 15 U.S.C. § § 1693q ("“This subchapter does not annul, alter, or affect the laws of any State relating to electronic fund transfers, dormancy fees, inactivity charges or fees, service fees, or expiration dates of gift certificates, store gift cards, or general-use prepaid cards, except to the extent that those laws are inconsistent with the provisions of this subchapter, and then only to the extent of the inconsistency."”); 15 U.S.C. § 5722(a) (“); id. § 5722 ("This subchapter does not annul, alter, or affect, or exempt any person subject to the provisions of this subchapter from complying with, the laws of any State with respect to telephone billing practices, except to the extent that those laws are inconsistent with any provision of this subchapter, and then only to the extent of the inconsistency.").

”). 112 12 U.S.C. § § 2616 (authorizing the Consumer Financial Protection Bureau (CFPB) to determine whether state laws are "“inconsistent with"” the relevant federal statute, and providing that the CFPB "“may not determine that any State law is inconsistent with"” the federal statute "“if the [CFPB] determines that such law gives greater protection to the consumer."”); 15 U.S.C. § § 1693q ("“A State law is not inconsistent with this subchapter if the protection such law affords any consumer is greater than the protection afforded by this subchapter."”); 15 U.S.C. § 5722(a)); id. § 5722 (authorizing the Federal Trade Commission (FTC) to determine whether state laws are "“inconsistent with"” the relevant federal statute, and providing that the FTC "“may not determine that any State law is inconsistent with"” the federal statute "“if the [FTC] determines that such law gives greater protection to the consumer.").

See”). 113 See Gobeille v. Liberty Mut. Ins. Co., 577 U.S. 312, 326 (2016); Bank of Am. v. City and Cty. of San Francisco& Cnty. of S.F., 309 F.3d 551, 565 (9th Cir. 2002); Bank One v. Guttau, 190 F.3d 844, 850 (8th Cir. 1999); UntereinerUNTEREINER, supra note 44,34, at 20. 114 See, e.g., Perkins v. Johnson, 551 F. Supp. 2d 1246, 1255 (D. Colo. 2008). Congressional Research Service 14 link to page 29 Federal Preemption: A Legal Primer Compliance Savings Clauses Some savings clauses provide that compliance with federal law does not relieve a person from liability under state law.115 The principal interpretive issue with such clauses is whether they limit a statute’s preemptive effect (a question of federal law) or are instead intended to discourage the conclusion that compliance with federal regulations necessarily renders a product nondefective as a matter of state tort law.116 While the Supreme Court has not adopted a generally applicable rule concerning the meaning of compliance savings clauses, it has concluded that such clauses can support a narrow interpretation of a statute’s preemptive effect. In Geier v. American Honda Motor Co., the Court relied in part on a compliance savings clause in the National Traffic and Motor Vehicle Safety Act (NTMVSA) to hold that the statute did not expressly preempt state common law claims against an automobile manufacturer.117 The NTMVSA contains a preemption clause prohibiting states from enforcing safety standards for motor vehicles that are not identical to federal standards.118 The statute also includes a savings clause providing that compliance with federal safety standards does not “exempt any person from any liability under common law.”119 In Geier, the Court explained that, although it was “possible” to read the NTMVSA’s preemption clause standing alone as encompassing the state law claims, that reading of the statute would leave the Act’s savings clause without effect.120 The Court thus held that the NTMVSA did not expressly preempt state common law claims based in part on the Act’s savings clause.121 Similarly, as discussed, the Court’s decision in Sprietsma v. Mercury Marine indicated that a compliance savings clause in the FBSA “buttresse[d]” the conclusion that state common law claims did not qualify as “law[s] or regulation[s]” within the meaning of the statute’s preemption clause.122 115 at 20.

523 F.3d 546, 548 (5th Cir. 2008).

See Ervin v. JP Morgan Chase Bank NA, No. GLR-13-2080, 2014 WL 4052895 at *3 (D. Md. Aug. 13, 2014); Palacios v. IndyMac Bank, FSB, No. CV 09-04601, 2009 WL 3838274 at *4 (C.D. Cal. Nov. 13, 2009); Perkins v. Johnson, 551 F. Supp. 2d 1246, 1255 (D. Colo. 2008).

See, e.g., 15 U.S.C. § 2074(a) ("“Compliance with consumer product safety rules or other rules or orders under this chapter shall not relieve any person from liability at common law or under State statutory law to any other person."”); 21 U.S.C. § 360pp(e) ("“Except as provided in the first sentence of section 360ss of this title, compliance with this part or any regulations issued thereunder shall not relieve any person from liability at common law or under statutory law."”); 42 U.S.C. § 5409(c) ("“Compliance with any Federal manufactured home construction or safety standard issued under this chapter does not exempt any person from anyany liability under common law."”); 46 U.S.C. § 4311(gh) (providing that compliance with federal boat regulations "“does not relieve a person from liability at common law or under State law.").

See Untereiner”). 116 See UNTEREINER, supra note 4434, at 194-–96. In many jurisdictions, a defendant'’s compliance with government regulations can serve as relevant evidence in products liability litigation, and some courts have further held that compliance with government regulations renders a product nondefective as a matter of law. See Restatement of the Law (Third): Products Liability section 4 cmt. e (1998).

529 U.S. 861, 868 (2000).

See RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 4 cmt. e (1998). 117 529 U.S. 861, 868 (2000). 118 49 U.S.C. § 30103(b). The NTMVSA was recodified without substantive change in 1994, but in Geier the Court referred to the pre-1994 version of the statute. 529 U.S. at 865; 15 U.S.C. § 1392(d).

Id. § 1397(k).

Id. As discussed in "Example: § 1392(d) (1988). 119 49 U.S.C. § 30103(e); 15 U.S.C. § 1397(k) (1988). 120 Geier, 529 U.S. at 868. As discussed in “Automobile Safety Regulations,",” the Geier Court held that the NTMVSA impliedly preempted the relevant common law claims even though it did not expressly preempt those claims. Notably, the Court appeared to consider the NTMVSA'’s savings clause to be relevant only to its interpretation of the statute's ’s express preemption clause, reasoning that the savings clause did not create any sort of "“special burden"” disfavoring implied preemption. Geier, 529 U.S. at 870-–71. 121 Id. at 868. 122 537 U.S. 51, 63 (2002). Congressional Research Service 15 Federal Preemption: A Legal Primer The Court has thus relied on compliance savings clauses to inform its interpretation of preemption clauses, but has not held that such clauses automatically insulate state laws from preemption. Remedies Savings Clauses Some savings clauses provide that “nothing in” a federal statute “shall in any way abridge or alter the remedies now existing at common law or by statute.”123 While the case law on these “remedies savings clauses” is limited, the Supreme Court has interpreted one such clause as evincing Congress’s intent to disavow field preemption, but not as preserving state laws that conflict with federal objectives.124 “State” vs. “State or Political Subdivision Thereof” Some savings clauses limit a federal statute’s preemptive effect with respect to certain laws enacted by “State[s] or political subdivisions thereof,”125 while others by their terms insulate only “State” laws.126 12371.

Id. at 868.

Sprietsma v. Mercury Marine, 537 U.S. 51, 63 (2002).

47 U.S.C. § § 414. See also 7 U.S.C. § 209(b) ("“[T]his section shall not in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this chapter are in addition to such remedies."”); id.. § § 499e(b) ("“[T]his section shall not in any way abridge or alter the remedies now existing at common law or by statute, and the provisions of this chapter are in addition to such remedies.").

”). 124 See Pennsylvania R.R. v. Puritan Coal Mining Co., 237 U.S. 121, 129-–30 (1915) ("“The [savings clause] was added . . . . . not to nullify other parts of the act, or to defeat rights or remedies given by preceding sections, but to preserve all existing rights which were not inconsistent with those created by the statute . . . But for this proviso . . . , it might have been claimed that, Congress having entered the field, the whole subject of liability of carrier to shippers in interstate commerce had been withdrawn from the jurisdiction of the state courts, and this clause was added to indicate that the commerce act, in giving rights of action in Federal courts, was not intended to deprive the state courts of their general and concurrent jurisdiction."”); see also Am. Tel. and& Tel. Co. v. Central OfficeCent. Off. Tel., Inc., 524 U.S. 214, 226 (1998) (holding that a remedies savings clause in the Communications Act of 1934 did not save state laws that were inconsistent with federal law). 125federal law).

See, e.g., 33 U.S.C. § 1370 ("“[N]othing in this chapter shall . . . preclude or deny the right of any State or political subdivision thereof . . . to adopt or enforce . . . any standard or limitation respecting dischargesdischarges of pollutants. . . .") ”) (emphasis added); 42 U.S.C. § 2018 ("“Nothing in this chapter shall be construed to affect the authority or regulations of any Federal, State, or local agency with respect to the generation, sale, or transmission of electric power produced through the use of nuclear facilities licensed by the Commission."”) (emphasis added); id42 U.S.C. § 6929 ("“Nothing in this chapter shall be construed to prohibit any State or political subdivision thereof from imposing any requirements, including those for site selection, which are more stringent than those imposed by such regulations."”) (emphasis added). 126added).

See, e.g., 7 U.S.C. § 136v(a) ("“A State may regulate the sale or use of any federally registered pesticide or device in the State, but only if and to the extent that the regulation does not permit any sale or use prohibited by this subchapter."”) (emphasis added); 42 U.S.C. § 9614(a) ("“Nothing in this chapter shall be construed or interpreted as preempting any State from imposing additional liability or requirements with respect to the release of hazardous substances within such State.")”) (emphasis added); 49 U.S.C. § § 14501(c)(2)(A) (providing that the Interstate Commerce Act "“shall not restrict the safety regulatory authority of a State with respect to motor vehicles . . . ."”) (emphasis added).

Similarly, some preemption clauses bar any "“State or . . . political subdivision thereof"” from regulating a certain subject matter, while others by their terms preempt only "State"“State” laws. Compare 42 U.S.C. § 7543(a) ("“No State or any political subdivision thereof shall adopt or attempt to enforce any standard relating to the control of emissions from new motor vehicles or new motor vehicle engines subject to this part.")”) (emphasis added); 49 U.S.C. § 5125(a) (providing that "a “a requirement of a State, political subdivision of a State, or Indian tribe is preempted"” under certain circumstances) (emphasis added); id49 U.S.C. § 14501(a)(1) ("“No State or political subdivision thereof . . . shall enact or enforce any law, rule, regulation, standard, or other provision having the force and effect of law relating to"” certain subjects) (emphasis added), with 7 U.S.C. § § 136v(b) ("“Such State shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under this subchapter."”) (emphasis added); 21 (continued...) Congressional Research Service 16 Federal Preemption: A Legal Primer The Supreme Court has twice held that savings clauses that by their terms applied only to “State” laws also insulated local laws from preemption. In Wisconsin Public Intervenor v. Mortier, the Court held that the Federal Insecticide, Fungicide, and Rodenticide Act did not preempt local ordinances regulating pesticides based in part on a savings clause providing that “State[s]” may regulate federally registered pesticides in certain circumstances.127 In concluding that the term “State” included political subdivisions of states, the Court relied on the principle that local governments are “convenient agencies” by which state governments can exercise their powers.128 Similarly, in City of Columbus v. Ours Garage & Wrecker Service, Inc., the Court held that the Interstate Commerce Act (ICA) did not preempt municipal safety regulations governing tow-truck operators based in part on a savings clause providing that the ICA “shall not restrict the safety regulatory authority of a State with respect to motor vehicles.”129 Relying in part on its reasoning in Mortier, the Court explained that, absent a clear statement to the contrary, Congress’s reference to the regulatory authority of a “State” should be read to preserve “the traditional prerogative of the States to delegate their authority to their constituent parts.”130 Implied Preemption As discussed, federal law can impliedly preempt state law even when it does not do so expressly.131 Like its express preemption decisions, the Supreme Court’s implied preemption cases focus on Congress’s intent.132 The Supreme Court has recognized two general forms of implied preemption: field preemption and conflict preemption. Field preemption occurs when a pervasive scheme of federal regulation implicitly precludes supplementary state regulation or when states attempt to regulate a field where there is a sufficiently dominant federal interest.133 Conflict preemption occurs when state law interferes with federal goals.134 ) (emphasis added); 21 U.S.C. § U.S.C. § 360eee-4(b)(2) ("“No State shall regulate third-party logistics providers as wholesale distributors."”) (emphasis added); 42 U.S.C. § 7543(a) ("“No State shall require certification, inspection, or any other approval relating to the control of emissions from any new motor vehicle or new motor vehicle engine as condition precedent to the initial retail sale, titling (if any), or registration of such motor vehicle, motor vehicle engine, or equipment.")”) (emphasis added). 127 501 U.S. 597, 607–added).

501 U.S. 597, 607-08 (1991); 7 U.S.C. § 136v(a).

§ 136v(a). 128 Mortier, 501 U.S. at 607-08 (–08 (citation and internal quotation marks and citation omitted).

omitted). 129 536 U.S. 424, 429428–29 (2002); 49 U.S.C. § § 14501(c)(2)(A). 13014501(c)(2)(A) (emphasis added).

Ours Garage, 536 U.S. at 429.

Ours Garage, 536 U.S. at 429. 131 See Crosby v. NationalNat’l Foreign Trade Council, 530 U.S. 363, 372 (2000).

132 See Wyeth v. Levine,, 555 U.S. 555, 565 (2009) ("“[T]he purpose of Congress is the ultimate touchstone in every pre-emption case."”) (quoting Retail Clerks v. Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996)); Retail Clerks Int’l Ass’n v. Schermerhorn, 375 U.S. 96, 103 (1963)); Barnett Bank of Marion CountyCnty., N.A. v. Nelson, 517 U.S. 25, 31 (1996) (explaining that where "“explicit pre-emption language does not appear, or does not directly answer the question . . . courts must consider whether the federal statute's '’s ‘structure and purpose,'’ or nonspecific statutory language, nonetheless reveal a clear, but implicit, pre-emptive intent.").

Gade v. Nat'”). 133 See Arizona v. United States, 567 U.S. 387, 399 (2012); Gade v. Nat’l Solid Wastes Mgmt. Assn.Ass’n, 505 U.S. 88, 98 (1992). 134 Arizona, 567 U.S. at 399; Gade, 505 U.S. at 98(1992).

Id. The Court has explained that these subcategories of implied preemption are not "“rigidly distinct,"” and that "“field preemption may be understood as a species of conflict preemption" ” because "“[a] state law that falls within a pre-empted field conflicts with Congress'’ intent . . . to exclude state regulation."” English v. GeneralGen. Elec. Co., 496 U.S. 72, 79 n.5 (1990). See also Laurence Tribe, American Constitutional Law 486 (2d ed. 1988) (noting that when state law "undermin[es]; see also LAURENCE TRIBE, AMERICAN (continued...) Congressional Research Service 17 Federal Preemption: A Legal Primer Field Preemption The Supreme Court has held that federal law preempts state law where Congress has manifested an intention that the federal government occupy an entire field of regulation.135 Federal law may reflect such an intent through a scheme of federal regulation that is “so pervasive as to make reasonable the inference that Congress left no room for States to supplement it,” or where federal law concerns “a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.”136 Applying these principles, the Court has held that federal law occupies a variety of regulatory fields, including alien registration;137 nuclear safety;138 aircraft noise;139 the “design, construction, alteration, repair, maintenance, operation, equipping, personnel qualification, and manning” of tanker vessels;140 wholesales of natural gas in interstate commerce;141 and locomotive equipment.142 Examples Grain Warehousing In its 1947 decision in Rice v. Santa Fe Elevator Corp., the Supreme Court held that federal law preempted a number of fields related to grain warehousing, precluding even complementary state regulations of those fields.143 In that case, the Court held that the federal Warehouse Act and associated regulations preempted a variety of state law claims brought against a grain warehouse, including allegations that the warehouse had engaged in unfair pricing, maintained unsafe elevators, and impermissibly mixed different qualities of grain.144 The Court discerned Congress’s intent to occupy the relevant fields from an amendment to the Warehouse Act that made the Secretary of Agriculture’s authorities “exclusive” vis-à-vis federally licensed warehouses.145 Because the text and legislative history of this amendment reflected Congress’s intent to eliminate overlapping federal and state warehouse regulations, the Court held that federal law occupied a number of fields involving grain warehousing. As a result, the Court CONSTITUTIONAL LAW § 6-29, at 1185 (3d ed. 2000) (noting that when state law “undermines a congressional decision in favor of national uniformity of standards,"” it "presents “a situation similar in practical effect to that of federal occupation of a field").

”). 135 Arizona, 567 U.S. at 399; Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947).

Id.

136 Rice, 331 U.S. at 230. 137 See Arizona v. United States, 567 U.S. 387, 401 (2012). 138 (2012).

See, e.g., English v. Gen. Elec. Co., 496 U.S. 72, 82-–85 (1990). 13985 (1990).

City of Burbank v. Lockheed Air Terminal Inc., 411 U.S. 624, 633 (1973).

140 United States v. Locke, 529 U.S. 89, 111 (2000) (quoting 46 U.S.C. § 3703(a)); see Ray v. AtlanticAtl. Richfield Co., 435 U.S. 151, 163-–65 (1978). 14165 (1978).

Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 300, 305 (1988); Exxon Corp. v. Eagerton, 462 U.S. 176, 184 (1983). 142(1983).

Kurns v. R.R. Friction Prods. Corp., 565 U.S. 625, 636 (2012).

143 331 U.S. 218 (1947). The Supreme Court'’s mid-century decisions did not always clearly distinguish between field preemption and conflict preemption. See, e.g., Pennsylvania v. Nelson,, 350 U.S. 497, 501-–02 (1956) (noting that "“different criteria have furnished touchstones"” for the Court'’s implied preemption decisions, and that the Court had used a variety of expressions in those decisions, including "“conflicting; contrary to; occupying the field; repugnance; difference; irreconcilability; inconsistency; violation; curtailment; and interference").

Rice, 331 U.S. at 221-22.

Id.

Id”). 144 Rice, 331 U.S. at 221–22. 145 Id. at 232–33. Congressional Research Service 18 Federal Preemption: A Legal Primer concluded that the Warehouse Act preempted certain state law claims that intruded into those federally regulated fields, even if federal law established standards that were less strict than those imposed by state law.146 Immigration: Alien Registration The Court has also held that federal law preempts the field of alien registration.147 In its 1941 decision in Hines v. Davidowitz, the Court held that federal immigration law—which required aliens to register with the federal government—preempted a Pennsylvania law that required aliens to register with the state, pay a registration fee, and carry an identification card.148 The Court explained that alien regulation is “intimately blended and intertwined” with the federal government’s core responsibilities and that Congress had enacted a “complete” regulatory scheme involving that field, meaning federal law preempted the additional state requirements.149 The Court reaffirmed these general principles in its 2012 decision in Arizona v. United States.150 In Arizona, the Court held that the Immigration and Nationality Act (INA), which requires aliens to carry an alien registration document,151 preempted an Arizona statute that made violations of that federal requirement a crime under state law.152 In holding that federal law preempted this Arizona requirement, the Court explained that—like the statutory framework at issue in Hines—the INA represented a “comprehensive” regulatory regime that occupied the field of alien registration.153 The Court inferred Congress’s intent to occupy this field from the INA’s “full set of standards” governing alien registration, which included specific penalties for noncompliance.154 The Court thus held that federal law preempted even complementary state laws regulating alien registration, like the challenged Arizona requirement.155 The Court has also made clear, however, that other types of state laws concerning aliens do not necessarily fall within the preempted field of alien registration. In its 1976 decision in De Canas v. Bica, for example, the Court held that federal law did not preempt a California law prohibiting 146 Id. at 236. The Rice Court also held that certain state law claims—for example, an allegation that the warehouse had violated state law by failing to secure state approval for certain construction contracts—survived preemption because they involved fields that the Warehouse Act did not address. Id.. at 236-37. 147 at 236-37.

See Arizona v. United States, 567 U.S. 387 (2012). Under the Immigration and Nationality Act, the term "alien" “alien” refers to "“any person not a citizen or national of the United States."” 8 U.S.C. § 1101(a)(3).

148 312 U.S. 52, 72-–74 (1941). 149 Id. at 66–6774 (1941).

Id. at 66. While Hines did not hold that federal power over alien regulation was "“exclusive,"” subsequent Supreme Court cases have characterized it as a field preemption decision. See Arizona, 567 U.S. at 401.

150 Arizona, 567 U.S. at 401-–02 ("“Federal law makes a single sovereign responsible for maintaining a comprehensive and unified system to keep track of aliens within the Nation'’s borders.").

8 U.S.C. § 1304(e).

Id. at 401”). 151 8 U.S.C. § 1304(e). 152 Arizona, 567 U.S. at 400–03. Even though a violation of the identification card requirement was already punishable as a misdemeanor under federal law, the Arizona statute made violation of the requirement a state misdemeanor. Id.

Id. at 401.

Id.

Id. at 402 153 Id. 154 Id. 155 Id. at 401–03. In Arizona, the Court also invalidated two other provisions of the relevant Arizona law because they conflicted with federal law. First, the Court held that federal law preempted a provision in thean Arizona lawprovision that prohibited unauthorized aliens from seeking work. Id.. at 406-07. Specifically–07. Second, the Court reasoned that the federal Immigration Control and Reform Act of 1986 (IRCA)—which made it unlawful for employers to hire unauthorized aliens, but did not impose liability on unauthorized aliens themselves—preempted this provision in the Arizona law because it reflected "a deliberate choice" not to penalize unauthorized aliens for seeking work. Id. at 405. Second, the Court held that federal law preempted a provision in the Arizona statute that allowed state police to arrest persons who they reasonably believed committed a removable offense without a warrant. Id. at 410. The Court reasoned that this provision in the Arizona law "violate[d] the principle that the removal process is entrusted to the discretion of the Federal Government" by allowing state police to "perform[] the functions of an immigration officer" in circumstances not authorized by federal law. Id. at 408-09.

424 U.S. 351 (1976).

Id. at 358-59. De Canas pre-dated the current federal work-authorization rules for aliens contained in the IRCAheld that federal law preempted a provision in the Arizona statute that allowed state police to arrest without a warrant persons whom they had probable cause to believe committed a removable offense. Id. at 410. The Court reasoned that this provision conflicted with federal objectives by allowing state police to perform the functions of an immigration officer in circumstances not authorized by federal law. Id. at 408–09. Congressional Research Service 19 Federal Preemption: A Legal Primer the employment of aliens not entitled to lawful residence in the United States.156 The Court based this conclusion on the absence of provisions regulating employment eligibility in the INA at the time.157 The Court has also upheld several state laws regulating the activities of aliens since De Canas. In Chamber of Commerce v. Whiting, for example, the Court held that federal law did not preempt an Arizona statute allowing the state to revoke an employer’s business license for hiring aliens who did not possess work authorization.158 Nuclear Energy: Safety Regulation The Supreme Court has also held that federal law preempts the field of nuclear safety regulation. The Court has explained, however, that this field does not encompass all state laws that affect safety decisions made by nuclear power plants. Instead, the Court has concluded that state laws fall within the preempted field of nuclear safety regulation if they (1) are motivated by safety concerns and implicate a “core federal power,” or (2) have a “direct and substantial” effect on safety decisions made by nuclear facilities.159 This division of authority is the result of a regulatory regime that has changed significantly over the course of the 20th century. The federal government initially maintained a monopoly over the use, control, and ownership of nuclear technology.160 Beginning in 1954, however, the Atomic Energy Act (AEA) allowed private entities to own, construct, and operate nuclear power plants subject to a “strict” licensing and regulatory regime administered by the Atomic Energy Commission (AEC).161 In 1959, Congress amended the AEA to give the states greater authority over nuclear energy regulation. The 1959 Amendments allowed states to assume responsibility over certain nuclear materials as long as their regulations were “coordinated and compatible” with federal requirements.162 While the 1959 Amendments reserved certain key authorities to the federal government, they also affirmed the states’ authority to regulate “activities for purposes other than protection against radiation hazards.”163 Congress reorganized the administrative framework surrounding these regulations in 1974, when it replaced the AEC with the Nuclear Regulatory Commission (NRC).164 The Supreme Court has held that, although this regulatory scheme preempts the field of nuclear safety regulation, certain state regulations of nuclear power plants that have a non-safety rationale fall outside this preempted field. The Court identified this distinction in Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Commission, where it held that federal law did not preempt a 156 424 U.S. 351 (1976). 157 Id. at 359. De Canas pre-dated the current federal work authorization rules for aliens. See 8 U.S.C. § 1324a(a)(1)(A). 158§ 1324a(a)(1)(A).

De Canas, 424 U.S. at 359.

Id.

563 U.S. 582, 587 (2011). In Whiting, the Court also upheld a provision of the Arizona law that required employers to use the "“E-Verify"” program, which allows users to verify a person'’s work authorization status. See id. at 608-–09. 15909.

See Va. Uranium, Inc. v. Warren, 587 U.S. _139 S. Ct. 1894, 1904 (2019) (Gorsuch, J., lead opinion) (slip op., at 9); English v. Gen. Elec. Co., 496 U.S. 72, 84-–85 (1990). 160 English, 496 U.S. at 80. 161 Id. at 81–8285 (1990).

English, 496 U.S. at 80.

Id. at 81; 42 U.S.C. § 2011.

42 U.S.C. § 2021(g).

Id.; 42 U.S.C. § 2011. 162 42 U.S.C. § 2021(g). 163 Id. § 2021(k). 164 Id. §§ 5814, 5841. Congressional Research Service 20 Federal Preemption: A Legal Primer California statute regulating the construction of new nuclear power plants.165 The California statute conditioned the construction of new nuclear power plants on a state agency’s determination concerning the availability of adequate storage facilities and means of disposal for spent nuclear fuel.166 In challenging this statute, two public utilities contended that federal law made the federal government the “sole regulator of all matters nuclear.”167 The Supreme Court rejected this argument, reasoning that the relevant statutes reflected Congress’s intent to allow states to regulate nuclear power plants for non-safety purposes.168 The Court then concluded that the California law was not preempted because it was motivated by concerns over electricity generation and the economic viability of new nuclear power plants—not a desire to intrude into the preempted field of nuclear safety regulation.169 In addition to holding that the AEA does not preempt all state statutes and regulations concerning nuclear power plants, the Court has upheld the availability of certain state tort claims related to injuries sustained by power plant employees. In Silkwood v. Kerr-McGee Corp., the Court upheld a punitive damages award against a nuclear laboratory arising from an employee’s injuries from plutonium contamination.170 The Court rejected the laboratory’s argument that the damages award impermissibly punished and deterred conduct related to the preempted field of nuclear safety.171 In rejecting this argument, the Court observed that Congress had not provided alternative federal remedies for persons injured in nuclear accidents.172 This omission was significant, the Court reasoned, because it was “difficult to believe” that Congress would have removed all judicial recourse from plaintiffs injured in nuclear accidents without an explicit statement to that effect.173 The Court also reasoned that Congress had assumed the continued availability of state tort remedies when it adopted a 1957 amendment to the AEA.174 Under the relevant amendment, the federal government partially indemnified power plants for certain liabilities for nuclear accidents. 165 461 U.S. 190, 216 (1983). 166 Id. at 194. 167 Id. at 205. 168 Id. 169 Id. at 213–16 § 2021(k).

Id. §§ 5814, 5841.

461 U.S. 190, 216 (1983).

Id.

Id. at 205.

Id. at 205 (emphasis added).

Id. at 207. In its 2019 decision in Virginia Uranium, Inc. v. Warren, the Court clarified that AEA preemption will depend on this type of inquiry into the motivations of a challenged state law only when the state law implicates a "“core federal power"” reserved to the NRC. 587 U.S. _139 S. Ct. 1894, 1904 (2019) (Gorsuch, J., lead opinion) (slip op., at 9); ; id. at 1909 (Ginsburg, J., concurring in the judgment) (slip op., at 7, 9-10). In that case, the Court held that federal law did not preempt a Virginia statute banning the mining of uranium—a radioactive metal used in the production of nuclear fuel. See id. . at 1900 (Gorsuch, J., lead opinion) (slip op., at 1); ; id. at 1912 (Ginsburg, J., concurring in the judgment) (slip op., at 7). Under the AEA and its subsequent amendments, the NRC has the authority to regulate the milling, transfer, use, and disposal of uranium, but not uranium mining conducted on private lands. See id. at 1900 (Gorsuch, J., lead opinion) (slip op., at 1). In upholding the Virginia mining ban, a majority of the Court declined to evaluate the state'’s underlying motivation, explaining that such an inquiry is appropriate (if at all) only when state law regulates an activity related to the NRC's "’s “core federal powers"” under the AEA. See id. at 1904 (Gorsuch, J., lead opinion) (slip op., at 9);; id. at 1912–14 (Ginsburg, J., concurring in the judgment) (slip op., at 7, 9-10). While the Court interpreted Pacific Gas as recognizing that the construction of nuclear power plants involves one of these "“core federal powers,"” a majority of the Justices agreed that uranium mining does not implicate similar federal authorities because it falls outside the NRC'’s jurisdiction. See id. at 1904 (Gorsuch, J., lead opinion) (slip op., at 9);; id. at 1912 (Ginsburg, J., concurring in the judgment) (slip op., at 7). The Court accordingly relied on this distinction to uphold the Virginia law without evaluating its underlying purpose.

Silkwood v. Kerr-McGee Corp., 170 464 U.S. 238, 241-–42 (1984). 171 Id. at 249. 172 Id. 173 Id. 174 Id. at 251–52. Congressional Research Service 21 Federal Preemption: A Legal Primer According to the Court, this scheme reflected an assumption that plaintiffs injured in such accidents retained the ability to bring tort claims against the power plants.175 The Supreme Court applied this reasoning from Silkwood six years later in English v. General Electric Co., where it held that federal law did not preempt state tort claims alleging that a nuclear laboratory had retaliated against a whistleblower for reporting safety concerns.176 In allowing the claims to proceed, the Court rejected the argument that federal law preempts all state laws that affect plants’ nuclear safety decisions. Rather, the Court explained that a state law must have a “direct and substantial” effect on such decisions in order to fall within the federally preempted field of nuclear safety regulation.177 While the Court acknowledged that the relevant tort claims may have had “some effect” on safety decisions by making retaliation against whistleblowers more costly than safety improvements, it concluded that such an effect was not sufficiently “direct and substantial” to render the claims preempted.178 In making this assessment, the Court relied on Silkwood, where it held that the relevant punitive damages award fell outside the field of nuclear safety regulation despite its likely impact on safety decisions.179 Because the Court concluded that the type of damages award at issue in Silkwood affected safety decisions more directly and “far more substantially” than the whistleblower’s retaliation claims, it held that the retaliation claims were not preempted.180 Takeaways A determination that federal law preempts a field has powerful consequences, displacing even state laws and regulations that are consistent with or complementary to federal law.181 Because of these effects, the Supreme Court has cautioned against overly hasty inferences that Congress has occupied a field.182 The Court has rejected the argument that the comprehensiveness of a federal regulatory scheme is sufficient to conclude that federal law occupies a field, explaining that Congress and federal agencies often adopt “intricate and complex” laws and regulations without intending to assume exclusive regulatory authority over the relevant subjects.183 175 Id. at 250–52. 176 496 U.S. 72, 90 (1990). 177 Id. at 85. 178 Id. 179 Id. at 85–86. 180 Id. at 86. 181 See Arizona v. United States, 567 U.S. 387, 401–02 (2012); Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). 182 See O’Melveny & Myers v. FDIC, 512 U.S. 79, 85 (1994) (“42 (1984).

9 U.S. 236, 247 (1959).

Id. at 251.

Id.

Id.

Id. at 251-52.

Id. at 250-52.

Id. at 256.

496 U.S. 72, 90 (1990).

Id. at 85.

Id.

Id. at 85-86.

Id. at 86.

See Arizona v. United States, 567 U.S. 387, 402 (2012); Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 231 (1947).

See O'Melveny & Myers v. FDIC, 512 U.S. 79, 85 (1994) ("Nor would we adopt a court-made rule to supplement federal statutory regulation that is comprehensive and detailed; matters left unaddressed in such a scheme are presumably left subject to the disposition provided by state law."); see also Bates v. Dow Agrosciences LLC, 544 U.S. 431, 459 (2005) (Breyer, J., concurring) (noting "this Court's increasing reluctance to expand federal statutes beyond their terms through doctrines of implied preemption"); Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 617 (1997) (Thomas, J., dissenting) ("[O]ur recent cases have frequently rejected field pre-emption in the absence of statutory language expressly requiring it."); ”); see also Southland Corp. v. Keating, 465 U.S. 1, 18 (1984) (Stevens, J., concurring in part and dissenting in part) ("“[E]ven where a federal statute does displace State authority, it rarely occupies a legal field completely, totally excluding all participation by the legal systems of the states.") (”) (citation and internal quotation marks and citation omitted).

omitted). 183 See N.Y. State Dep'’t of Social Servs. v. Dublino, 413 U.S. 405, 415 (1973). See also Hillsborough Cty., FlaCnty. v. Automated Med. Lab.’ys, Inc., 471 U.S. 707, 716–17 (1985) (explaining that courts should not infer field preemption "“whenever an agency deals with a problem comprehensively,"” because such an inference would be inconsistent with "“the federal-state balance embodied in [the Court'’s] Supremacy Clause jurisprudence").

See, e.g., Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 231-32 (1947).

”). Congressional Research Service 22 Federal Preemption: A Legal Primer The Court has sometimes relied on legislative history and statutory structure—in addition to the comprehensiveness of federal regulations—in assessing field preemption arguments.184 It is unclear, however, to what extent the Court might rely on even these sources in future cases.185 The Court has also adopted a narrow view of the scope of certain preempted fields. For example, the Court has rejected the proposition that federal nuclear energy regulations preempt all state laws that affect the preempted field of nuclear safety regulation. Rather, the Court has explained that, when a core federal power is not at issue, state laws fall within that field only if they have a “direct and substantial” effect on it.186 As a corollary to this principle, the Supreme Court has held that—in certain contexts—generally applicable state laws are more likely to fall outside a federally preempted field than state laws that “target” entities or issues within the field. In Oneok, Inc. v. Learjet, Inc., for example, the Court held that state antitrust claims against natural gas pipelines fell outside the preempted field of interstate natural gas wholesaling because the relevant state antitrust law was not “aimed” at natural gas companies and instead applied broadly to all businesses.187 Finally, the Court’s case law underscores that Congress can narrow the scope of a preempted field with explicit statutory language. In Pacific Gas, for example, the Court held that the preempted field of nuclear safety regulation did not encompass state laws motivated by non-safety concerns based in part on a statutory provision disavowing such an intent.188 While the Court has subsequently narrowed the circumstances in which it will apply Pacific Gas’s purpose-centric inquiry to state laws affecting nuclear energy,189 it has reaffirmed the general principle that Congress can circumscribe a preempted field’s scope with non-preemption clauses.190 Conflict Preemption Federal law also impliedly preempts conflicting state laws.191 The Supreme Court has identified two subcategories of conflict preemption. First, federal law impliedly preempts state law when it is impossible for regulated parties to comply with both sets of laws (impossibility preemption).192 Second, federal law impliedly preempts state laws that pose an obstacle to the “full purposes and objectives” of Congress (obstacle preemption).193 The two subsections below discuss these subcategories of conflict preemption. 184 See, e.g., Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 232–36 (1947); De Canas v. Bica, 424 U.S. 351, 359–60 (1976). 185 See Bates v. Dow Agrosciences LLC, 544 U.S. 431, 459 (2005) (Thomas, J., concurring in part and dissenting in part) (noting “this Court’s increasing reluctance to expand federal statutes beyond their terms through doctrines of implied pre-emption”); Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 617 (1997) (Thomas, J., dissenting) (“[O]ur recent cases have frequently rejected field pre-emption in the absence of statutory language expressly requiring it.”); Kurns v. R.R. Friction Prods. Corp., 565 U.S. 625, 640–41 (2012) (Sotomayor, J., concurring in part and dissent in part) (quoting Justice Thomas’s language from Camps Newfound). 186 English v. Gen. Elec. Co., 496 U.S. 72, 85 (1990). 187 575 U.S. 373, 384–88 (2015); see English v. Gen. Elec. Co., 496 U.S. 72, 85 (1990).

135 S. Ct. 1591, 1600-01 (2015). See also English, 496 U.S. at 83 (explaining in dicta that generally applicable criminal laws are not likely to fall within the preempted field of nuclear safety regulation).

188 Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm'’n, 461 U.S. 190, 209-–10, 213-–14 (1983). 189 See supra note 169. 19014 (1983).

See note 181 supra.

See Va. Uranium, Inc. v. Warren, 587 U.S. _139 S. Ct. 1894, 1902–3 (2019) (Gorsuch, J., lead opinion) (slip op., at 6); ; id. at 1912–13 (Ginsburg, J., concurring in the judgment) (slip op., at 8).

. 191 See Gade v. NationalNat’l Solid Wastes Mgmt. Ass'’n, 505 U.S. 88, 108 (1992).

192 Fla. Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-–43 (1963). 19343 (1963).

Hines v. Davidowitz, 312 U.S. 52, 67 (1941).

Fla. Lime, 373 U.S. at 142-43.

Id.

Hines v. Davidowitz, 312 U.S. 52, 67 (1941). Congressional Research Service 23 Federal Preemption: A Legal Primer Impossibility Preemption The Supreme Court has held that federal law preempts state law when it is impossible to comply with both sets of laws.194 To illustrate this principle, the Court has explained that a hypothetical federal law forbidding the sale of avocados with more than 7% oil content would preempt a state law forbidding the sale of avocados with less than 8% oil content, because avocado sellers could not sell their products and comply with both laws.195 The Court has characterized impossibility preemption as a “demanding defense,”196 and its case law on the issue is not as well developed as other areas of its preemption jurisprudence.197 Even so, the Court has addressed impossibility preemption in two decisions concerning prescription drug labeling. Generic Drug Labeling In PLIVA, Inc. v. Mensing and Mutual Pharmaceutical Co. v. Bartlett, the Supreme Court held that federal regulations of generic drug labels preempted certain state law claims brought against generic drug manufacturers because it was impossible for the manufacturers to comply with both federal and state law.198 In both cases, plaintiffs alleged that they suffered adverse effects from certain generic drugs and argued that the drugs’ labels should have included additional warnings.199 In response, the drug manufacturers argued that the Hatch-Waxman Amendments (Hatch-Waxman) to the Food, Drug, and Cosmetic Act preempted the state law claims.200 Under Hatch-Waxman, drug manufacturers can secure Food and Drug Administration (FDA) approval for generic drugs by demonstrating that they are equivalent to a brand-name drug already approved by the FDA.201 In doing so, the generic drug manufacturers need not comply with the FDA’s standard preapproval process, which requires extensive clinical testing and the development of FDA-approved labeling.202 They must, however, ensure that the labels for their drugs are the same as the labels for corresponding brand-name drugs, meaning that generic manufacturers cannot unilaterally change their labels.203 In both PLIVA and Bartlett, the Court held that the Hatch-Waxman Amendments preempted the relevant state law claims because it was impossible for the generic drug manufacturers to comply with both federal and state law.204 The Court reached this conclusion because federal law 194 Fla. Lime, 373 U.S. at 142–43. 195 Id. 196 Wyeth v. Levine, 555 U.S. 555, 573 (2009). 197 Wyeth v. Levine, 555 U.S. 555, 573 (2009).

See Meltzer, supra note 5041, at 8 (describing situations in which it is impossible to comply with both state and federal requirements as “rare”). 198 564 U.S. 604, 618 (2011); 570 U.S. 472, 493 (2013). 199 PLIVA, 564 U.S. at 610; Bartlett, 570 U.S. at 475. 200 PLIVA, 564 U.S. at 610; Bartlett, 570 U.S. at 475. 201 See requirements as "rare").

570 U.S. 472, 493 (2013); 564 U.S. 604, 610 (2011).

Bartlett, 570 U.S. at 475; PLIVA, 564 U.S. at 610.

Bartlett, 570 U.S. at 475; PLIVA, 564 U.S. at 610.

See PLIVA, 564 U.S. at 612.

BartlettPLIVA, 564 U.S. at 612. 202 Id. at 612–13; Bartlett, 570 U.S. at 476-77;–77. 203 PLIVA, 564 U.S. at 612–13; Bartlett, 570 U.S. at 477 PLIVA, 564 U.S. at 612-13.

Bartlett, 570 U.S. at 476-77; PLIVA, 564 U.S. at 612-13. For further information on the approval and labeling process for generic drugs under Hatch-Waxman and related laws, see CRS Report R44703, Generic Drugs and GDUFA Reauthorization: In Brief, by Judith A. Johnson.

Bartlett, 570 U.S. at 486-87; PLIVA, 564 U.S. at 617.

Bartlett, 570 U.S. at 487-87; PLIVA, 564 U.S. at 610.

PLIVA, 564 U.S. at 618.

Id. at 616.

PLIVA, 564 U.S. at 623-24.

Bartlett, 570 U.S. at 488-89.

555 U.S. 555, 573 (2009).

R46778, The Generic Drug User Fee Amendments (GDUFA): Background and Reauthorization, by Agata Bodie. 204 PLIVA, 564 U.S. at 617–18; Bartlett, 570 U.S. at 486–87. Congressional Research Service 24 Federal Preemption: A Legal Primer prohibited generic manufacturers from unilaterally altering their labels, while the state law claims depended on the existence of a duty to make such alterations.205 In reaching this conclusion in PLIVA, the Court rejected the argument that it was possible for manufacturers to comply with both federal and state law by petitioning the FDA to impose new labeling requirements on the corresponding brand-name drugs.206 The Court rejected this argument on the grounds that impossibility preemption occurs whenever a party cannot independently comply with both federal and state law without seeking “special permission and assistance” from the federal government.207 Similarly, in Bartlett, the Court rejected the argument that it was possible for generic drug makers to comply with both federal and state law by refraining from selling the relevant drugs. The Court rejected this “stop-selling” argument on the grounds that it would render impossibility preemption “all but meaningless.”208 As a result, an evaluation of whether it is possible to comply with both federal and state law must presuppose some affirmative conduct by the regulated party. Despite its decisions in PLIVA and Bartlett, the Supreme Court has rejected impossibility preemption arguments made by brand-name drug manufacturers, who are entitled to unilaterally strengthen the warning labels for their drugs. In Wyeth v. Levine, the Court held that federal law did not preempt a state law failure-to-warn claim brought against a branded drug manufacturer, reasoning that it was possible for the manufacturer to strengthen its label for the drug without FDA approval.209 Obstacle Preemption Federal law also impliedly preempts state laws that pose an “obstacle” to the “full purposes and objectives” of Congress.210 In its obstacle preemption cases, the Supreme Court has held that state law can interfere with federal goals by frustrating Congress’s intent to adopt a uniform system of federal regulation; conflicting with Congress’s goal of establishing a regulatory “ceiling” for certain products or activities; or by impeding the vindication of a federal right.211 The Court has also cautioned, however, that obstacle preemption does not justify a “freewheeling judicial inquiry” into whether state laws are “in tension” with federal objectives, as such a standard would undermine the principle that “it is Congress rather than the courts that preempts state law.”212 205 PLIVA, 564 U.S. at 617–18; Bartlett, 570 U.S. at 486–87. 206 PLIVA, 564 U.S. at 616. 207 Id. at 623–24. 208 Bartlett, 570 U.S. at 488–89. 209 555 U.S. 555, 573 (2009). The Wyeth Court indicated, however, that an impossibility preemption defense may be available to brand-name drug manufacturers when there is “clear evidence” that the FDA would have rejected a proposed change to a brand-name drug’s label. Id. at 571. The Court further clarified this standard in its 2019 decision in Merck Sharp & Dohme Corp. v. Albrecht, explaining that "“clear evidence"” requires drug manufacturers to demonstrate that they "“fully informed"” the FDA of the justifications for the warning required by the relevant state law and that the FDA nevertheless rejected the proposed change. 139 S. Ct. 1668, 1672 (2019).

210 See Hines v. Davidowitz, 312 U.S. 52, 67 (1941).

211 See id..; Geier v. American Honda Motor Co., Inc., 529 U.S. 861, 875 (2000); Felder v. Casey, 487 U.S. 131, 153 (1988). 212(1988).

Chamber of Commerce v. Whiting, 563 U.S. 582, 607 (2011) (quoting Gade v. Nat'’l Solid Wastes Mgmt. Ass'’n, 505 U.S. 88, 111 (1992) (Kennedy, J., concurring)).

Crosby, 530 U.S. at 366-67 in part and concurring in judgment)). Congressional Research Service 25 Federal Preemption: A Legal Primer The subsections below discuss a number of cases in which the Court has held that state law poses an obstacle to the accomplishment of federal goals. Foreign Sanctions The Supreme Court has concluded that state laws can pose an obstacle to the accomplishment of federal objectives by interfering with Congress’s choice to concentrate decisionmaking in federal authorities. The Court’s decision in Crosby v. National Foreign Trade Council illustrates this type of conflict between state law and federal policy goals.213 In Crosby, the Court held that a federal statute imposing sanctions on Burma preempted a Massachusetts statute that restricted state agencies’ ability to purchase goods or services from companies doing business with Burma.214 The Court identified several ways in which the Massachusetts law interfered with the federal statute’s objectives. First, the Court reasoned that the Massachusetts law interfered with Congress’s decision to provide the President with the flexibility to add or waive sanctions in response to ongoing developments.215 Second, the Court explained that, by penalizing certain individuals and conduct that Congress explicitly excluded from federal sanctions, the Massachusetts statute interfered with the federal statute’s goal of limiting the economic pressure imposed by the sanctions to “a specific range.”216 In identifying this conflict, the Court rejected the state’s argument that its law shared the same goals as the federal statute. Instead, the Court reasoned that the additional sanctions imposed by the state law would undermine Congress’s intended “calibration of force.”217 Third, the Court concluded that the Massachusetts law undermined the President’s capacity for effective diplomacy by compromising his ability “to speak for the Nation with one voice.”218 Automobile Safety Regulations The Supreme Court has concluded that some federal laws and regulations evince an intent to establish both a regulatory floor and ceiling for certain products and activities. The Court has interpreted certain federal automobile safety regulations, for example, as not only imposing minimum safety standards on carmakers, but as insulating manufacturers from certain forms of stricter state regulation as well. In Geier v. American Honda Motor Co., the Court held that the National Traffic and Motor Vehicle Safety Act (NTMVSA) and associated regulations impliedly preempted state tort claims alleging that an automobile manufacturer had negligently designed a car without a driver’s side airbag.219 While the Court rejected the argument that the NTMVSA expressly preempted the state 213 530 U.S. 363, 366–67 (2000). 214 Id. at 366–67, 373–74. As the Court noted in Crosby, Burma changed its name to Myanmar in 1989. See id.. As the Court noted in Crosby, Burma changed its name to Myanmar in 1989. See id. at 366 n.1. However, because the parties in Crosby referred to the country as Burma, the Court followed suit. Id.

Id. at 366-67.

Id. at 376.

Id. at 377-79.

Id. at 380. 215 Id. at 376. 216 Id. at 377–79. 217 Id. at 379–80. After Crosby, Congress has included specific language in certain sanctions statutes that explicitly allows states to pass sanctions laws of their own. See, e.g.,, Comprehensive Iran Sanctions, Accountability, and Divestment Act, Pub. L. No of 2010, P.L. 111-195, § 202, 124 Stat. 1312, 1342–43. 218124 Stat. 1312 (July 1, 2010).

Crosby, 530 U.S. at 380-–81. 219 529 U.S. 861, 865 (2000). Congressional Research Service 26 link to page 18 Federal Preemption: A Legal Primer law claims,220 it reasoned that the claims interfered with the federal objective of giving car manufacturers the option of installing a “variety and mix” of passive restraints.221 The Court discerned this goal from, among other things, the history of the relevant regulations and Department of Transportation (DOT) comments indicating that the regulations were intended to lower costs, incentivize technological development, and encourage gradual consumer acceptance of airbags, rather than impose an immediate requirement.222 The Court thus held that the NTMVSA impliedly preempted the state law claims because they conflicted with these federal goals.223 The Court has rejected, however, the argument that federal automobile safety standards impliedly preempt all state tort claims concerning automobile safety. In Williamson v. Mazda Motor of America, Inc., the Court held that a different federal safety standard did not preempt a state law claim alleging that a carmaker should have installed a certain type of seatbelt in a car’s rear seat.224 While the regulation at issue in Williamson allowed manufacturers to choose between two seatbelt options, the Court distinguished the case from Geier on the grounds that the DOT’s decision to offer carmakers a choice was not a “significant” regulatory objective.225 Specifically, the Court reasoned that the state tort action did not conflict with the purpose of the relevant federal regulation, because the DOT’s decision to offer manufacturers an option was based on relatively minor design and cost-effectiveness concerns.226 Federal Civil Rights The Supreme Court has also held that state law can pose an obstacle to federal goals where it impedes the vindication of federal rights. In Felder v. Casey, the Court held that 42 U.S.C. § 1983 (Section 1983)—which provides individuals with the right to sue state officials for federal civil rights violations—preempted a state statute adopting certain procedural rules for bringing Section 1983 claims in state court.227 The state statute required Section 1983 plaintiffs to provide government defendants 120 days’ written notice of the circumstances giving rise to their claims, the amount of their claims, and their intent to bring suit.228 The Court held that federal law preempted these requirements because their purpose and effect conflicted with Section 1983’s remedial objectives.229 Specifically, the Court reasoned that the requirements’ purpose of minimizing the state’s liability conflicted with Section 1983’s goal of providing relief to individuals whose constitutional rights are violated by state officials.230 The Court also concluded that the state statute’s effects interfered with federal objectives because the 220 See supra “Compliance Savings Clauses.” 221 Geier, 529 U.S. at 881. 222 Id. at 874–75. 223 Id. at 881. 224 562 U.S. 323 (2011). 225 Id. at 332. 226 Id. at 335. 227 487 U.S. 131, 153 (1988). 228 Id. at 134. 229 Id. at 138. 230 Id. at 141–42. Congressional Research Service 27 Federal Preemption: A Legal Primer statute’s enforcement would result in different outcomes in Section 1983 litigation based on whether a claim was brought in state or federal court.231 Takeaways The Supreme Court has held that state law can conflict with federal law in a number of ways. State law can conflict with federal law when it is impossible to comply with both sets of laws. While the Court has characterized this type of impossibility preemption argument as a “demanding defense,”232 its decisions in PLIVA and Bartlett arguably extended the doctrine’s scope.233 In those cases, the Court made clear that impossibility preemption remains a viable defense even in instances in which a regulated party can petition the federal government for permission to comply with state law234 or stop selling a regulated product altogether.235 State law can also conflict with federal law when it poses an obstacle to federal goals. In evaluating congressional intent in obstacle preemption cases, the Court has relied upon statutory text,236 structure,237 and legislative history238 to determine a statute’s preemptive scope. Relying on these indicia of legislative purpose, the Court has held that state laws can pose an obstacle to federal goals by interfering with a uniform system of federal regulation,239 imposing stricter requirements than federal law (where federal law evinces an intent to establish a regulatory ceiling),240 or by impeding the vindication of a federal right.241 While obstacle preemption has played an important role in the Court’s preemption jurisprudence since the mid-20th century, recent developments have called the scope of the doctrine into question. Commentators have noted the tension between increasingly popular textualist theories of statutory interpretation (which generally reject extratextual evidence as a possible source of statutory meaning) and obstacle preemption doctrine (which potentially requires courts to consult such evidence).242 Identifying this possible inconsistency, Justice Thomas has categorically rejected the Court’s obstacle preemption jurisprudence, criticizing the Court for “routinely invalidat[ing] state laws based on perceived conflicts with broad federal policy objectives, legislative history, or generalized notions of congressional purposes that are not embodied within the text of federal law.”243 231 Id. at 138. 23281.

529 U.S. 861, 865 (2000).

See "Compliance Savings Clauses."

Geier, 529 U.S. at 875.

Id.

Id.

562 U.S. 323 (2011).

Id. at 332.

Id.

487 U.S. 131, 153 (1988).

Id.

Id. at 138.

Id. at 141-42.

Id. at 138.

Wyeth v. Levine, 555 U.S. 555, 573 (2009).

Wyeth v. Levine, 555 U.S. 555, 573 (2009). 233 See Ernest A. Young, "“The Ordinary Diet of the Law"”: The Presumption Against Preemption in the Roberts Court, 2011 Sup. Ct. RevSUP. CT. REV. 253, 327-–28 (2011) (characterizing PLIVA as an "expansion"“expansion” of impossibility preemption).

234 PLIVA, Inc. v. Mensing, 564 U.S. 604, 623-–24 (2011). 235 Mutual Pharm. Co.24 (2011).

Mutual Pharm. Co., Inc. v. Bartlett, 570 U.S. 472, 488 (2013).

236 See Crosby v. Nat'’l Foreign Trade Council, 530 U.S. 363, 380 (2000).

See id. at 377-80.

Geier v. Am. Honda Motor Co., 529 U.S. 861, 875 (2000).

Crosby, 530 U.S. at 374-77.

Geier, 529 U.S. at 875.

237 See id. at 377–80. 238 See id. at 375 n.9. 239 Id. at 374–77. 240 Geier, 529 U.S. at 875. 241 Felder v. Casey, 487 U.S. 131, 138-142153 (1988). 242 (1988).

Note, Preemption as Purposivism'’s Last Refuge, 126 HarvHARV. L. RevREV. 1056, 1065 (2013). See also Meltzer, supra note 5041, at 35-–43 (considering whether obstacle preemption is consistent with textualism).

243 Wyeth v. Levine, 555 U.S. 555, 583 (2009) (Thomas, J., concurring in the judgment). Congressional Research Service 28 Federal Preemption: A Legal Primer Justice Thomas’s skepticism toward obstacle preemption arguments has drawn additional support in recent cases, especially from Justice Gorsuch. In the Court’s decision in Virginia Uranium, Inc. v. Warren, Justice Gorsuch authored an opinion joined by Justices Thomas and Kavanaugh in which he rejected the proposition that implied preemption analysis should appeal to “abstract and unenacted legislative desires” not reflected in a statute’s text.244 While Justice Gorsuch did not there explicitly endorse a wholesale repudiation of obstacle preemption, he later joined Justice Thomas’s call for the Court to abandon its “purposes and objectives” preemption jurisprudence in a 2020 concurring opinion.245 Although skepticism toward obstacle preemption arguments has drawn additional support in recent Supreme Court cases, to date it has remained a minority view. Author Information Bryan L. Adkins Jay B. Sykes Legislative Attorney Legislative Attorney Alexander H. Pepper Legislative Attorney Disclaimer This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff to congressional committees and Members of Congress. It operates solely at the behest of and under the direction of Congress. Information in a CRS Report should not be relied upon for purposes other than public understanding of information that has been provided by CRS to Members of Congress in connection with CRS’s institutional role. CRS Reports, as a work of the United States Government, are not subject to copyright protection in the United States. Any CRS Report may be reproduced and distributed in its entirety without permission from CRS. However, as a CRS Report may include copyrighted images or material from a third party, you may need to obtain the permission of the copyright holder if you wish to copy or otherwise use copyrighted material. 244 Va. Uranium, Inc. v. Warren, 139 S. Ct. 1894, 1907 (2019). 245 Kansas v. Garcia, 140 S. Ct. 791, 807 (2020) (Thomas, J., concurring). Justice Gorsuch also joined Justice Thomas’s concurrence with the denial of certiorari in Lipschultz v. Charter Advanced Servs. (MN), LLC, 140 S. Ct. 6 (2019), in which Justice Thomas expressed doubt that a federal agency policy can serve as the basis for preemption of state law. Id. at 7. Congressional Research Service R45825 · VERSION 3 · UPDATED 29 Wyeth v. Levine, 555 U.S. 555, 583 (2009) (Thomas, J., concurring in the judgment).

See Thomas Jipping, What Brett Kavanaugh's Speeches Tell Us About His Judicial Approach, The Heritage Fdn. (July 22, 2018), https://www.heritage.org/courts/commentary/what-brett-kavanaughs-speeches-tell-us-about-his-judicial-approach (arguing that Justice Kavanaugh embraces a "textualist" approach to statutory interpretation); Max Alderman & Duncan Pickard, Justice Scalia's Heir Apparent?: Judge Gorsuch's Approach to Textualism and Originalism, 69 Stan. L. Rev. Online 185, 185 (2017) (characterizing Justice Gorsuch as a "rigorous textualist").

See Va. Uranium, Inc. v. Warren, 587 U.S. _ (2019) (Gorsuch, J., lead opinion) (slip op., at 14-15).

Id. (Gorsuch, J., lead opinion) (slip op., at 14).

Id. (Gorsuch, J., lead opinion) (slip op., at 15).