Basics of Preemption

By Richard Warner

Tutorial

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 The Supremacy Clause

Preemption doctrine concerns when federal law makes state

law unenforceable. The doctrine rests on Article VI of the
United States Constitution, the Supremacy Clause of the
Constitution:

This Constitution, and the Laws of the United States . . . shall

be the supreme Law of the Land . . . any Thing in the
Constitution or Laws of any State to the Contrary
notwithstanding.

So: if a state law conflicts with any federal law, the state law
is unenforceable. If the conflicting state law were
enforceable, the federal law would not be the the supreme
Law of the Land.

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 Conflict Defined

A state law conflicts with federal law if:

(1) one cannot comply with both laws; or,

(2) the state law hinders achieving the purposes of the federal
law.

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 Conflict Preemption

Under the federal Biomaterials Access Assurance Act (21 U.S.C.A.

1601-1606), a biomaterials supplier of an implantable medical device
is liable for harm resulting from defects in the device only if the
supplier is also a manufacturer of medical implants; or, the supplier
is also a seller if medical implants; or, the supplied materials did not
meet the manufacturers contractual specifications. The purpose of
the federal law is to shield suppliers from the more extensive liability
they would otherwise have under state product liability laws.
Suppose a states product liability laws make a supplier of medical
implants liable even if the supplied materials fulfill the
manufacturers contractual specifications, and even if the supplier is
neither a seller nor a manufacturer.

(a) The state law conflicts with the federal law because it is not
possible to comply with both laws.
(b) The state law conflicts with the federal law because the state law
hinders achieving the purpose of the federal law.
 Correct!

Correct. It is possible to comply with both laws; a supplier

complies with both as long as he or she provides a non-
defective product. However, the state law hinders the purpose
of the federal law. That purpose is precisely to limit liability
under state product liability laws.

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 Correct!

Correct. A federal statute expressly preempts a state law

when the federal statute expressly states that it preempts that
law or laws of that type. ERISA expressly states that it
preempts state laws that relate to an employee benefit plan
except where those laws regulate insurance, banking, or
securities.

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 Express and Implied Preemption

In addition to conflict preemption, there are two other kinds of

preemption: express and implied.

A federal statute expressly preempts a state law when the

federal statute expressly states that it preempts laws of that
type.

A federal statute impliedly preempts a state law when the

federal regulatory scheme is so pervasive that it occupies the
field in the area covered by the state law.

Examples follow.

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 Express Preemption

The federal Employee Retirement Income Security Act (ERISA)

states that it preempts state laws insofar as they may now or
hereafter relate to any employee benefit plan. 29 U.S.C.
1144 (a). There is, however, and exception for state laws . .
. which regulate insurance, banking, or securities. 29 U.S.C.
1144 (b)(2)(A).

ERISA expressly preempts state laws that

(a) relate to an employee benefit plan.

(b) relate to an employee benefit plan except where those

laws regulate insurance, banking, or securities.
 Implied Preemption

A federal statute impliedly preempts a state law when the federal regulatory
scheme is so pervasive that it occupies the field in the area covered by the state
law.

The federal statute used to illustrate express preemption also illustrates implied
preemption. That statue was ERISA, the federal Employee Retirement Income
Security Act.

The Texas Health Care Liability Act provided for punitive damages for medical
treatment adversely affecting patient care. ERISA does not contain any provision
allowing punitive damages. 29 U.S.C. 1132.

It is clearest to begin with a question, not about implied preemption, but express
preemption.

If ERISA expressly stated that it preempted state laws that allow punitive
damages, then ERISA would expressly preempt such laws.
(a) True
(b) False
 Correct!

Correct. A federal statute expressly preempts a state law

when the federal statute expressly states that it preempts
laws of that type.

ERISA does not contain any such statement.

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 Conflict Preemption
Under ERISA?

One more question before turning to the implied preemption

issue: if one legislative purpose behind ERISA had been to
deny punitive damage recoveries, then ERISA would preempt
such state laws.

(a) True

(b) False
 Correct.

Correct. A state law conflicts with federal law if (1) one

cannot comply with both laws; or, (2) the state law hinders
achieving the purposes of the federal law. State laws
awarding punitive damages would be preempted because they
would hinder a purpose of ERISA.

There is, however, no clear, unambiguous evidence that one of

the purposes of ERISA was to deny punitive damage recover.

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 Preemption Anyway:Implied Preemption

The United States Supreme Court nonetheless held that ERISA

impliedly preempted the provisions in the Texas Health Care
Liability Act that allowed for punitive damages.

The Court held that the remedies provide in ERISA were

intended to occupy the field in the area of remedies for
medical actions adversely affective patient care. That is, they
were intended to leave no room for any other possible
remedy.

The Court based its ruling on the language of ERISA, its

analysis of legislative intent and legislative history, and on
prior judicial interpretations of ERISA.

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You have completed this tutorial.
 Incorrect.

Incorrect. It is possible to comply with both laws; a supplier

complies with both as long as he or she provides a non-
defective product. However, the state law hinders the purpose
of the federal law. That purpose is precisely to limit liability
under state product liability laws.

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 Incorrect.

Incorrect. A federal statute expressly preempts a state law

when the federal statute expressly states that it preempts that
law or laws of that type. ERISA expressly states that it
preempts state laws that relate to an employee benefit plan
except where those laws regulate insurance, banking, or
securities.

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 Incorrect.

Incorrect. A federal statute expressly preempts a state law

when the federal statute expressly states that it preempts
laws of that type.

ERISA does not contain any such statement, however.

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 Incorrect.

Incorrect. A state law conflicts with federal law if (1) one

cannot comply with both laws; or, (2) the state law hinders
achieving the purposes of the federal law. State laws
awarding punitive damages would be preempted because they
would hinder a purpose of ERISA.

There is, however, no clear, unambiguous evidence that one of

the purposes of ERISA was to deny punitive damage recover.

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