Non obstante


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Related to Non obstante: Non obstante veredicto

NON OBSTANTE, Eng. law. These words, which literally signify notwithstanding, are used to express the act of the English king, by which he dispenses with the law, that is, authorizes its violation.
     2. He cannot by his license or dispensation make an offence dispunishable which is malum in se; but in certain matters which are mala prohibita, be may, to certain persons and on special occasions, grant a non obstante. 1 Th. Co. Litt. 76, n. 19; Vaugh. 330 to 359; Lev. 217; Sid. 6, 7; 12 Co. 18; Bac. Ab. Prerogative, D. 7. Vide Judgment non obstante veredicto.

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But it is also possible that the differences in context were so great and so evident as to make it implausible that a global non obstante clause was thought necessary and hence implausible that the Supremacy Clause should be so understood.
Among the reasons why any analogy of preemption to implied repeals and non obstante clauses is severely strained is that a federal statute can preempt state law enacted after the federal law was first passed.
(305) One might view these canons as specific, narrow presumptions that stand as exceptions to the general non obstante approach of the Supremacy Clause.
That question would not be governed by the non obstante reading of the Supremacy Clause, but once a court had ruled, for example, that a state flag-burning law unconstitutionally limited free expression, it would be odd, at least in our post-incorporation world, to reach a different result in a subsequent case involving an identical federal law on the ground that the Supremacy Clause does not apply.
Rejection of the non obstante interpretation of the Supremacy Clause does not, in itself, resolve the broader question about the appropriateness of the presumption against preemption.
Preemption and textualism

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