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FOCUS ON THE LAW: Supremacy Clause

Last week I heard someone complain that our state legislators just don’t understand the Supremacy Clause.  If that statement is true, I am sure they are not the only ones so I thought it might be worth briefly discussing the Supremacy Clause in this column.

The Supremacy Clause is found in Article VI, Section 2 of the United States Constitution.  It reads as follows:

By Sharon Frankenberg,
Attorney at Law

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties 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.

This means that any federal law trumps any conflicting state law and that all laws of all states and the Federal Government are subordinate to the Constitution.

One of the earliest examples of the use of the Supremacy Clause is the case of McCulloch v. Maryland.  Maryland passed a law taxing all banks located in the state that were not chartered by the state legislature.  The Second Bank of the United States had opened a branch in Baltimore and Maryland levied a tax on it.  The United States Supreme Court ruled that the State of Maryland had no legal right to tax the Second Bank of the United States since it was a federal entity.

Another concept derived from the Supremacy Clause is the preemption doctrine.  Preemption can be either express or implied.  When Congress expressly preempts state law, it clearly states its specific intent to do so.  The only issue for courts to decide in these situations is whether the challenged state law is the one that the federal law was intended to preempt.

Implied preemption may occur despite no express preemption in a federal statute.  In cases involving implied preemption, the courts look to see if Congress has “occupied the field” in which the state is attempting to regulate.  Congress has occupied the field when there is no room left for state regulation , when a state law directly conflicts with federal law, or when the enforcement of the state law might frustrate federal purposes.  Courts will not let the challenged state law stand if, after reviewing the pervasiveness  of the federal scheme of regulation, the federal interest at stake and the danger of frustration of federal goals,  it finds that the federal law must preempt it.

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