Preemption in the legal field refers to the principle that Federal law and Federal objectives are supreme over similar inconsistent or contradictory decisions of the fifty (50) States. The legal concept of Federal Law Supremacy derives from the United States Constitution, Article VI, section 2 which states:

THE SUPREMACY CLAUSE This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

What this means is that once Congress passes a law that covers an area or topic, the States may not pass laws that interfere, impede, or contradict that Federal Law. When Congress expressly covers an area or topic, like immigration, that preemption is called express preemption. There is another type of preemption called implied preemption. Implied preemption can occur in three (3) different ways. A detailed discuss of the three (3) ways is beyond the scope of this article. It is enough to say that in implied preemption situations, the courts look at whether the state law attempts to prevent or impede a federal objective. This is a very simplified explanation but it is enough for one to understand the concept. There are some exceptions to the Supremacy Clause that concern the Tenth and Fifth Amendment to the United States Constitution, but that also is a discussion for another day.

Preemption is important because of the dozens if not hundreds of Federal agencies that have been created over the years. These agencies promulgate rules and regulations and then often times it is claimed that these rules and regulations preempt and prevent the States from passing laws that are different. An obvious example is the Food and Drug Administration. This agency has been charged with the responsibility of protecting the public by insuring that prescription drugs sold to the public are safe. Sadly, this agency has been like the “fox watching the hen house” in the past eight (8) years. Too many times drugs have been released on the public that are not safe or effective. Some examples are the diet drugs commonly called phen fen. Then there was Rezulin and Vioxx, just to mention a few. These drugs should not have been sold to the public. While one might suggest that all the blame can be placed on the drug manufacturers, what then is the purpose of the Federal Food and Drug Agency.

Many legal experts have pointed out that the Bush Administration has seriously weakened many Federal Agencies that were created to protect the public. Some independent writers have even pointed to examples that paint a very clear picture of this claim. In order to substantiate this claim, one only needs to do a Google search using the relevant keywords. (Google is a remarkable and convenient learning tool). It is often easy to forget why we have Federal Agencies. It is terrible when a great public disaster reminds us of the purpose and reason for the existence of some of our Federal Agencies. Few people on the Mississippi Gulf Coast or in Louisiana would doubt the need for Homeland Security, Housing and Urban Development, or the Corps of Engineers, though they may say these agencies have not been effective during the present Administration.

Preemption is a vital and necessary tool to bring consistency to the laws of the Federal Government and the fifty (50) States. It has been and is currently being abused to deprive citizens of right to seek compensation for the harms and losses they suffer at the hands of the insurance industry and big corporations. Hopefully a new Presidential Administration will bring some fairness and reasonableness back to this area of the law. I like to remind people to be careful about how they complain about the law-they may need the protection of the law themselves one day!

The Food and Drug Administration is amending some of its rules. I would not be surprised to see an effort by that organization to strip from people their right to seek damages from drug companies, even in those cases where harmful drugs are placed on the market and cause death and injury. For insightful information in this area and other areas of public concern, go to the website of Public Citizen. Another good organization is the Center for Justice and Democracy. These organizations track changes that adversely harm good, hard-working Americans. The topics are written in a very simple and easy-to-read manner. If you want to help, join the organizations and get on their e mail lists. That way you can be kept informed on matters that might adversely affect you or your family. The best way to be involved is to be informed and educated.

Disclaimer: This blog is intended as general information purposes only, and is not a substitute for legal advice. Anyone with a legal problem should consult a lawyer immediately.

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