Preemption:
• When does Preemption come up?
o Preemption comes up whenever there is a federal law or regulation and the
state law in the same regulatory area. There is a concurrent authority area there
is also a state law in the same area. Hence, if someone doesn’t want to abide by
the state rules, they sue and find the state laws to be unconstitutional because it
is preempted by the federal law.
o Preemption only occurs when there is a federal law or program or regulatory
decision in the background and in foreground there is a state law in the form of
state statute, state regulation, state common law (Torts and Contract) lawsuits.
o The most common type of state common law tort case.
• What laws cue the Preemption dance:
o Federal:
▪ Federal statute/legislation passed pursuant to Congress powers to
regulate interstate commerce.
▪ Administrative regulation promulgated because U.S. Congress passed
enabling legislation (pursuant to ICC) telling agency to make a rule
(promulgate a rule)
