June 20, 2019 Feature

Federal Preemption of State and Local Law

By Kellen Norwood

Federal preemption of state and local law spans a wide variety of legal fields, and while its causes are numerous, its effect is rather straightforward: A state, and a local governmental body that derives its power from the state, is stripped of its power to regulate certain activities that it would otherwise have the power to regulate by a preemptive federal regime. Preemption can only occur when there is concurrent state and federal power. For example, it would not make sense to describe a state’s inability to declare war as an issue of preemption: the war-making power is the exclusive privilege of Congress. The same would be true for the power to establish post offices or to issue patents. But where exclusivity is not clearly established by the Constitution, like the fields of nuclear power or aviation, the federal government may, in the interest of an effective, uniform regulatory regime, preempt the states from regulating activities that would otherwise be within their general police power to regulate.

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