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A doctrine based on the Supremacy Clause of the U.S. Constitution that holds that certain matters are of such a national, as opposed to local, character that federal laws preempt or take precedence over state laws. As such, a state may not pass a law inconsistent with the federal law.

A doctrine of state law that holds that a state law displaces a local law or regulation that is in the same field and is in conflict or inconsistent with the state law.

Article VI, Section 2, of the U.S. Constitution provides that the "… Constitution, and the Laws of the United States … shall be the supreme Law of the Land." This Supremacy Clause has come to mean that the national government, in exercising any of the powers enumerated in the Constitution, must prevail over any conflicting or inconsistent state exercise of power. The federal preemption doctrine is a judicial response to the conflict between federal and state legislation. When it is clearly established that a federal law preempts a state law, the state law must be declared invalid.

A state law may be struck down even when it does not explicitly conflict with federal law, if a court finds that Congress has legitimately occupied the field with federal legislation. Questions in this area require careful Balancing of important state and federal interests. Problems arise when Congress fails to make its purpose explicit, which is often the case. The court must then draw inferences based on the presumed objectives of federal law and the supposed impact of related State Action.

The federal right to regulate interstate commerce under the Commerce Clause of the U.S. Constitution has resulted in federal preemption of state labor laws. Likewise, the Supreme Court, in Burbank v. Lockheed Air Terminal, 411 U.S. 624, 93 S. Ct. 1854, 36 L. Ed. 2d 547 (1973), declared that state and local laws that interfere with comprehensive federal environmental laws and regulations are invalid. In California v. Federal Energy Regulatory Commission, 495 U.S. 490, 110 S. Ct. 2024, 109 L. Ed. 2d 474 (1990), the Supreme Court held that state regulations imposing minimum flow rates on rivers used to generate hydroelectric power were preempted by the Federal Power Act (16 U.S.C.A. § 791 et seq. [1933]). In Mississippi Power and Light Company v. Mississippi ex rel. Moore, 487 U.S. 354, 108 S. Ct. 2428, 101 L. Ed. 2d 322 (1988), the Court held that the Federal Energy Regulatory Commission's regulations preempted a state's authority to set electric power rates.

At the state level, preemption occurs when a state statute conflicts with a local ordinance on the same subject matter. Preemption within the states varies with individual state constitutions, provisions for the powers of political subdivisions, and the decisions of state courts. For example, if a state legislature enacts Gun Control legislation and the intent of the legislation is to occupy the field of gun control, then a municipality is preempted from enacting its own gun control ordinance.

The issue of preemption has dominated litigation over the right of states to require insurance companies and Health Maintenance Organizations (HMOs) to accept "any willing [healthcare] provider" rather than to force consumers to stay within the health providers' exclusive networks. HMOs and insurance companies have argued that the 1974 federal Employee Retirement Income Security Act (ERISA) preempted these state laws. ERISA is an extremely complex and technical set of provisions that seek to protect employee benefit programs, which include Pension plans and healthcare plans. Healthcare providers have pointed to the comprehensive nature of ERISA as demonstrating the intent of Congress to maintain a uniform national system. Therefore, they argued, state laws must be preempted to affect this purpose.

The Supreme Court rejected the ERISA preemption argument in two cases involving Health Insurance. In Moran v. Rush Prudential HMO, Inc., 536 U.S. 355, 122 S. Ct. 2151, 153 L. Ed. 2d 375 (2002), the Supreme Court in a 5–4 decision upheld an Illinois law that required HMOs to provide independent review of disputes between the primary care physician and the HMO. In Kentucky Association of Health Plans, Inc. v. Miller, 538 U.S. 329, 123 S. Ct. 1471, 155 L. Ed. 2d 468 (2003), the Court tackled the "any willing provider rule." In a unanimous decision the Court held that Kentucky laws were not preempted by ERISA. The Court concluded that the laws did not deal with employee benefit plans as defined by ERISA but instead were insurance regulations. This was an important distinction because state insurance regulations are not preempted by ERISA.

Further readings

Hoenig, Michael. 2002. "Supreme Court Teaches Preemption Lessons." New York Law Journal 228 (December).

"Interstate Commerce—Preemption." 2002. New Jersey Law Journal 169 (July).

Walsh, Edward. 2003. "Supreme Court Sides with States on HMOs: Groups Can Be Opened to All Providers." Washington Post (April 3).


Federalism; States' Rights.


n. the rule of law that if the federal government through Congress has enacted legislation on a subject matter it shall be controlling over state laws and/or preclude the state from enacting laws on the same subject if Congress has specifically stated it has "occupied the field." If Congress has not clearly claimed preemption, a federal or state court may decide the issue on the basis of history of the legislation (debate in Congress) and practice. Example: Federal standards of meat or other products have preempted state laws. However, federal and state legislation on narcotics control may parallel each other.


noun appropriation, displacement, preclusion, replacement, substitution, supersession, supervention, supplanting
Associated concepts: federal preemption, preemption doctrine
See also: taking
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