The Case for Federal Preemption

By September 12, 2007General

Intriguing, albeit legally challenging, hearing today in the Senate Judiciary Committee, “Regulatory Preemption: Are Federal Agencies Usurping Congressional and State Authority.” (Earlier post here.) Testimony has now been posted, including the well-reasoned arguments of Viet Dinh of the Georgtown University Law Center and Bancroft Associates.

To those of us who are skeptical of the federal government’s expansion into every aspect of daily (and business) life, Dinh’s arguments on behalf of preemption are reassuring; federal regulations can, indeed, be reconciled with the principles of federalism. Dinh explains how federal regulations can lead to more effective, efficient and better regulation, while preserving state prerogatives. His conclusion:

I respect the principles that preserve and protect the delicate structure of “Our Federalism” against the aggrandizing propensities of the national government. Well-meaning scholars and legislators have lamented the fact that expansive congressional power under Article I, section 8 coupled with the displacing effect of preemption means that the Framers’ fear that the Federal Government would swallow up the State Legislatures has been realized in the modern regulatory state. The solution, it is advocated, comes in the form of a judicial presumption against preemption or a pre-imposed requirement by Congress of a clear statement of preemption in order to counterbalance the awesome effect of the Supremacy Clause. It seems to me that these proposed solutions are supported by neither constitutional theory nor sound legislative policy.

Redefining the proper balance of state and federal legislative powers is better accomplished directly, through an insistence on the limits of Congress’ enumerated powers under Article I, rather than circuitously and ineffectually through tinkering with the Supremacy Clause. When Congress refrains from exercising its power under, say, the Commerce Clause and its attendant authority to preempt state law, it properly recognizes the competency, legitimacy, and authority of states to regulate matters within their legislative jurisdiction. At the same time, the federal government remains free to regulate, and displace state law if necessary, in order to protect national interests in areas within its legislative responsibility, as enumerated in the Constitution.

A clear statement of a credible case, one that helps ensure federalism, freedom and economic efficiency.

Join the discussion One Comment

  • Theo says:

    Preemption is a trick because it only absolves the guilty: The innocent would get off anyway, but with preemption the wrong-doer gets off too. Imagine you’re crossing a street and a speeding drink driver runs a red light and runs you over; you’ve got pretty serious damages and a good cause of action, right? Preemption would let that driver off the hook because the criminal penalties are exclusive of any civil remedy the victim might have. Is that just? Hell no. Big companies want preemption for one reason – because it gets them off the hook when they’ve been negligent or engaged in misconduct and caused serious injuries and death.

Leave a Reply