[NOISE] I'm now at the fifth major part of my lecture, where I want to look if federalism is a limit on state local government powers. Specifically what I'm talking about here is the way in which the existence of a national government and of other state governments, limits what state and local governments can do. This is an issue that's come up repeatedly through American history. In our time, as I'll talk about, it's especially salient in the area of the environment. To what extent is the ability of a state to regulate the environment limited because the existence of federal laws or because of the existence of other states? This, of course, isn't limited to just the environment, think of it, as I'll talk about it, in the context of immigration law. To what extent is the ability of a state to regulate immigration limited because of the existence of a national government and of other states? As I said earlier, Federalism is simply the allocation of power to the national and state governments. Here I want to focus on federalism as a limit on what state and local governments can do. Or to put this another way. In the second, third, and fourth parts of my lecture, I looked respectively at the federal judicial, the federal legislative, and the federal executive powers. Now I want to shift and talk about state and local government powers. And the extent to which they're limited by there being a federal government and of other state governments. In general, of course, state and local governments can do anything except what's prohibited by the constitution. Here I want to talk about two limits that exist on state and local governments by virtue of federalism. The first is called preemption. Preemption is where a state or local law is declared invalid because it conflicts with federal law. Preemption is derive from Article VI of the Constitution. Article VI says, the Constitution and laws and treaties of the United States are the supreme law of the land. Therefore, if there's a conflict between federal on the one hand and state and local in the other, federal law wins out. The state or local law must yield. Preemption is enormously important as a limit on what state and local governments can do. There were two major kinds of preemption. One is called express preemption. If a federal statute explicitly says that federal law is exclusive in an area, then state and local laws are preempted. Any time that Congress has the authority to act, Congress can declare that federal law is exclusive. And then any effort by a state or local government to regulate will be deemed invalid. Easy example, the Federal Meat Labeling Act says that only the United States Department of Agriculture can ascribe grades or labels for meat. Thus, any attempt by a state to regulate meat labels is going to be deemed preempted. There are many federal laws that create express preemption. For instance, the ERISA Statute, the federal statute regulating pensions. The Income Retirement Security Act says that only the federal government can regulate pensions. Any effort by state or local governments to do so, the Employee Retirement Income Security Act, to do so would be deemed preempted by this statute. Or another example, and I'll talk about a case involving it. Congress passed a law that said that only the federal government can regulate labels on cigarette packages. An issue arose as to rather Massachusetts could regulate advertising with regard to cigarettes. The Massachusetts law specifically said that there could not be advertisements for cigarettes with 1,000 feet of a park or a playground or a school. And it said that any point of sale advertisements had to be five feet above the ground so not to be directly at eye level with children. And the question was, does the federal law regulating the content of cigarette labels preempt that? The Supreme Court, 5-4, said yes. The Supreme Court said, Congress wanted to make sure that only the federal government was regulating cigarette advertising. Thus, this effort by Massachusetts to regulate cigarette advertising was deemed to be preempted by federal law. Now, the dissent in the case said all the federal law is about is the content of ads. Massachusetts was regulating the placement of ads. But that didn't matter to the United States Supreme Court, they found express preemption. Why might Congress adapt an express preemption statute? Well, it could be that Congress believes that uniformity in the country is desirable. I think when Congress said that only the federal government can regulate meat labels or cigarette advertising, they were afraid that otherwise there would be 50 different standards, and it would be very difficult to sell products across the country. Sometimes Congress says there's preemption for state and local laws, that federal law is exclusive, as a result of pressure from lobbyists. Lobbyists want to make sure that there's not stricter state or local laws. So they get Congress to pass a law that says only the federal government can regulate in this area. But the key is, whenever Congress has the power to legislate, Congress can declare in the statute that federal law is exclusive, then state and local law is deemed preemptive. That's express preemption. But there's another kind of preemption as well. It's implied preemption. This is where the federal statute is silent. It doesn't say anything about preemption. Nonetheless, the Supreme Court has found implied preemption in three circumstances. First, if federal law and state law are mutually exclusive, the state law is deed preempted. If it's not possible to simultaneously comply with both the federal law and the state law, the state law is invalidated. An example from the supreme court case, McDermott versus Wisconsin. Federal agency adopted a rule that said that all maple syrup bottles sold in the United States have to have a labels stating their ingredients. State of Wisconsin actually adopted a law that said that maple syrup bottles sold in that state could not have a label stating their ingredients. Quite obviously, it'd be impossible to simultaneously comply with what the federal rule required and the state rule prohibited. The state rule was deemed preempted. Now, this has come up in the environmental area, as I alluded to a few moments ago. When can states set environmental standards stricter than federal law? For example, imagine that the Federal Clean Air Act says there can't be more emissions into the air than a certain amount parts per million, and the state wants to have an even more restrictive standard, to have greater pollution control. Or imagine the Nuclear Regulatory Commission says there can't be more than a certain amount of radiation emitted from a power plant and the state says, we want to have even less. Is the state law preempted there? What's interesting is the courts have consistently said that the federal law should be seen as the floor in regulation not the ceiling. That states can adopt even stricter environmental laws unless Congress chooses to expressly preclude this. So whenever you've got a question as to whether federal law and state law are mutually exclusive, you get to, well, was the federal law meant here to be the minimum or was it meant to be the maximum? Can states go further? And in the environmental area, the Supreme Court has consistently said, the lower federal court especially, said states can go further unless Congress expressly precludes this. Another way of finding implied preemption is if state or local law impedes the achievement of a federal objective. Even if the statute is silent about preemption. And even if there's no conflict, still a state or local law will be struck down if it's found to impede the achievement of federal objective. Again, I'll give you an example from a Supreme Court case. A case called Nash versus Florida. Florida adopted a law that said that anyone who files an unfair labor grievance with the National Labor Relations Board cannot collect unemployment benefits from the state of Florida. The Supreme Court said when Congress created the National Labor Relations Board, passed the National Labor Relations Act, it wanted to encourage people to file grievances. For Florida to punish people who file such grievances is for Florida to impede the achievement of the federal objective. The Florida law was deemed preempted. Now obviously, it requires determining, what is the congressional objective? But as with all areas of preemption, it ultimately comes down to what was Congress's purpose. The third and final kind of implied preemption is sometimes called field preemption. What this says is, if Congress has evidenced a clear desire to have federal law wholly occupy a field, then state and local laws are preempted. Even if there's no express preemption provision and even if there's not implied preemption on either of the two ways I've mentioned. Nonetheless, a state or local law will be struck down if the court believes that Congress has evidenced a desire that federal law be exclusive in that field. Perhaps the most famous example of this concerns immigration law. The Supreme Court has made it clear that Congress has intended that federal immigration law wholly occupy the field, and any effort on the part of the states to regulate immigration is therefore deemed preempted. The Supreme Court initially held this in the early 1940s, in a case called Hines versus Davidowitz. Pennsylvania adopted a law that required that non-citizens register in Pennsylvania. It imposed other restrictions on non-citizens as well. The Supreme Court declared the Pennsylvania law to be preempted by federal law. The Supreme Court said, Congress has evidenced a clear desire to have federal law be exclusive in the field of immigration. Congress all ready was requiring non-citizens to register. The court said in light of this, the Pennsylvania law was deemed preempted. More recently, more controversially, the Supreme Court in 2012 found preempted some key provision of Arizona's restrictive immigration law, SB 1070. Arizona adopted a law saying that undocumented immigrants were imposing a significant financial burden on the state. As a result, Arizona imposed a number of requirements with regard to non-citizens who were present in the state. For example, it said that if a state or local law enforcement officer apprehends a non-citizen and comes to believe that the person is illegally here, the state or local government will continue to detain the individual. It also made it a crime for those who are not lawfully in the United States to apply for work in Arizona or be employed in Arizona. And the Supreme Court, in a case called Arizona versus United States, in a 5-3 decision, found the key provision of Arizona's immigration law, SB 1070, to be preempted by federal law. Justice Kennedy wrote the opinion for the court. He began by discussing in detail that immigration is solely within the province of the federal government. He talked about Congress had evidenced a clear intent that federal immigration law be exclusive in the area. He found the specifics of the Arizona law to be preempted by federal law. He said, for example, only the United States government can decide whether to deport a person who is illegally present or allow the person remain. Justice Kennedy said there may be reasons for foreign policy to allow people who could otherwise be deported, to remain in the United States. He said, or maybe for humanitarian reasons, the United States chooses to allow the person to remain in the United States. If the United States government has made that choice then it's inconsistent with it to let a state government choose to incarcerate such individuals. Justice Kennedy said there's already federal laws regulating the ability to employ those not lawfully in the United States. He said that the Arizona law here is preempted by federal law. Arizona tried to argue to the Supreme Court, it was just providing additional remedies to enforce the federal immigration law. But the Supreme Court rejected that and found that the Arizona law was preempted. What's the interesting as you think about preemption, is that it's ultimately about how to allocate power between the national government and the states. Should the preemptive effect of federal law be limited, or should we leave more governance to state and local governments? Or should preemption be more broadly defined, to carry out the purposes of the federal law? Whatever your answer to that question, from a practical perspective, preemption comes up a great deal of the time because there's a conflict between what the federal law is providing and what state or local law provides. And the court will conclude that there's preemption if there's either express or implied preemption in any of the ways I've discussed.