Governments Get Along under the US Constitution

The US Constitution is perhaps the most important legal document in the US. We learned early in school that the Constitution, in the Bill of Rights, guarantees us a number important rights and liberties, like freedom of speech and religion. The Constitution also establishes our form of government by creating the Legislative, Executive, and Judicial branches and defining their powers and duties.

What you may not realize is the Constitution sets a framework for how the federal and state governments work together and separately to preserve law and order.

States Are Important

When the Constitution was signed on September 17, 1787 (which happens to be Constitution Day each year), the drafters knew that the states had to be important players in our form of government. It's a government for the people and by the people. Otherwise, our government wouldn't be much different or better than the English monarchy we fought to separate from.

So, the states were given a number of things, such as the power to determine who represents us in Washington. However, a complete balance of power between the federal and state governments isn't part of the scheme.

Power and Preemption

Under the Supremacy Clause in Article VI of the Constitution, the Constitution itself and the laws of the US (that is "federal laws") are the supreme law of the land. This is the basic idea of the "preemption" doctrine.

Preemption basically means that any federal law trumps state law on the same subject matter. There are two types of preemption:

Express preemption is where Congress, when passing a law, states clearly that its law preempts any state law dealing with the subject matter of Congress' law. A good example is the Employee Retirement Income Security Act (ERISA). The law states that it preempts any state law dealing with employee benefit plans.

Implied preemption is the exact opposite. Congress doesn't say it's preempting state law, but there's a reason to believe that it does in fact preempt state law. This happens in one of two ways:

  • Conflict preemption brings the Supremacy Clause into play. Here, any state law that conflicts with a federal law is trumped by any federal law on the same subject matter. There's a conflict when someone can't follow or obey both a federal and state law, or when the state law interferes with the proper working of a federal law.

For example, a state law that requires cheese manufacturers to label their foods in a way that's different than any rule from the US Food and Drug Administration may be preempted. The manufacturers wouldn't have to follow the state law.

  • Field preemption is the second form of implied preemption. It happens when Congress so completely and fully "occupies a field" that it's clear Congress didn't want the states to pass any laws in that area. A good example is immigration. The Constitution gives Congress sole authority to make immigration laws, and it has created a vast legal scheme to manage immigration matters

So, to some at least, it came as no surprise a court ruled that Arizona's immigration law was preempted by the federal scheme. (Arizona's law is also good example of conflict preemption).

State Power

Under the Tenth Amendment, the powers not given to the federal government by the Constitution, as well as any powers not specifically denied to the States, belong to the States, or to the people. In other words, the states can and do make many laws, like speeding and traffic laws and laws on educational requirements.

They even pass laws where there are already federal laws, too. For example, even though there's a federal minimum wage law, many state laws require an even higher minimum wage. And that's perfectly legal. States can't, however, make their wages lower than the federal wage.

Our system of government is based on the idea that the citizens should govern themselves as much as possible. It does this by striking and keeping a balance between the powers and duties of the federal and state governments. And for over 200 years, it's been working, too.

Questions for Your Attorney

  • If Congress passes a "tort reform law," will it preempt any state's tort reform law?
  • If a state law actually helps federal agencies do their jobs, what difference does it make if the state law is preempted?
  • How can anyone know if a federal law preempts a state law? Is there a list somewhere, or do we need to read every single law?
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