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Constitutional Law • The Supremacy Clause
CONLAW#041
Legal Definition
Field preemption is a form of implied preemption. Congress preempts an entire field where: (1) it has intent to occupy the field, as evidence by regulation that is significantly comprehensive in scope, or (2) where congress creates an agency to administer the field.
Plain English Explanation
States are allowed to create their own laws and regulations so long as they don't conflict with Federal laws and regulations. It's sort of like when you live at your parents house. You may have some leniency with how you decorate your room, or which friends you invite into your room, but whatever rules you may come up with to govern your space are ultimately subjected to the more powerful, supreme rules that your parents have established for the home as a whole. In other words, when you have a situation where one of the rules you've made conflicts with one of your parents' rules, your rule no longer matters. It is "preempted" by your parents.
There are 3 types of "preemption" when dealing with these types of situations and it makes sense to discuss all 3 so you can compare and contrast them.
(1) Express preemption occurs when the Federal government expressly says that such a law or regulation is the domain of the Federal government and the State has no right to control it. This would be like your parents saying, "You're not allowed to have a boy/girl sleep over in your room." It leaves no wiggle room. The rule is clear. Any attempt to create a rule to bypass this restriction would be "expressly preempted" by the Federal law, which wins.
(2) Implied Preemption occurs when there is unavoidable conflict between State laws and Federal laws. This happens in two ways. The first way is where the State law creates a "conflict" with Federal law. For example, if your Parents say "All thermostats in the house must be set to no colder than 72 degrees," but in your room you make a rule where "The thermostat must be set to at least 68 degrees," your rule is in conflict with your parents' rule. Obeying your rule requires disobeying your parents. So even though your parents didn't say "You aren't allowed to set any rules that govern the thermostat," you've created a rule that is impliedly preempted by your Parent's rule since only one rule can be followed and your Parent's rule is superior to yours. The second way that implied preemption occurs is when State laws create an obstacle to Federal laws. Imagine that your Parents made a rule where "all power outlets in the house must offer a USB-C charging port." The goal of your parents is to create uniformity and reduce annoyance when trying to charge phones and other devices. However, you decide that all the power outlets in your room should have USB-C and USB-A charge ports. You weren't expressly told not to install USB-A, and you are providing both USB-A and USB-C so there is no conflict, but you've created an obstacle that undermines your Parent's goal of uniformity and simplicity where now instead of all the outlets in the house matching, your room requires its own special outlet plates and connections. Your parents may require you to change them in order to fulfill their objective of uniformity.
(3) Field preemption occurs when the Federal Government creates so many laws and regulations in a specific area that it is clear Congress intends to "occupy the field exclusively," leaving no room for States to create their own regulation even if they technically could do so without causing conflict. Imagine if your Parents said that you're not allowed to hang anything on your walls using glue, tape, nails, staples, 3M strips, or saliva. They didn't explicitly say you couldn't hang anything, they just created a bunch of rules restricting how things are hung. You think, "Well, hey, they didn't say I couldn't use static electricity!" so you rub some wool on a poster and cling it to your wall using the power of physics. You're probably still going to get in trouble because it was obvious that your Parents were "occupying the field" when it came to hanging stuff on your wall, so being a smartass and finding a way around it is probably still going to end up with you getting in trouble. In the real world, the most common example of "field preemption" is immigration law. Immigration law is primarily the domain of the Federal government and the Supreme Court has consistently held that the Federal government's regulation of immigration is so comprehensive that it preempts state laws that attempt to regulate immigration even when they do so in ways that don't technically conflict with Federal law. Note that another way Congress can preempt an entire field is by creating an agency to administer the field. For example, if your Parents say "your sibling is now in charge of how laundry is done in this house," then it's pretty clear that you have no authority to make decisions that have anything to do with how laundry is handled. In the real world, an example of this would be the FCC, which is an agency established to administer the field of radio wave frequencies within the United States, which preempts any State's attempt to try to regulate radio waves within their borders.
There are 3 types of "preemption" when dealing with these types of situations and it makes sense to discuss all 3 so you can compare and contrast them.
(1) Express preemption occurs when the Federal government expressly says that such a law or regulation is the domain of the Federal government and the State has no right to control it. This would be like your parents saying, "You're not allowed to have a boy/girl sleep over in your room." It leaves no wiggle room. The rule is clear. Any attempt to create a rule to bypass this restriction would be "expressly preempted" by the Federal law, which wins.
(2) Implied Preemption occurs when there is unavoidable conflict between State laws and Federal laws. This happens in two ways. The first way is where the State law creates a "conflict" with Federal law. For example, if your Parents say "All thermostats in the house must be set to no colder than 72 degrees," but in your room you make a rule where "The thermostat must be set to at least 68 degrees," your rule is in conflict with your parents' rule. Obeying your rule requires disobeying your parents. So even though your parents didn't say "You aren't allowed to set any rules that govern the thermostat," you've created a rule that is impliedly preempted by your Parent's rule since only one rule can be followed and your Parent's rule is superior to yours. The second way that implied preemption occurs is when State laws create an obstacle to Federal laws. Imagine that your Parents made a rule where "all power outlets in the house must offer a USB-C charging port." The goal of your parents is to create uniformity and reduce annoyance when trying to charge phones and other devices. However, you decide that all the power outlets in your room should have USB-C and USB-A charge ports. You weren't expressly told not to install USB-A, and you are providing both USB-A and USB-C so there is no conflict, but you've created an obstacle that undermines your Parent's goal of uniformity and simplicity where now instead of all the outlets in the house matching, your room requires its own special outlet plates and connections. Your parents may require you to change them in order to fulfill their objective of uniformity.
(3) Field preemption occurs when the Federal Government creates so many laws and regulations in a specific area that it is clear Congress intends to "occupy the field exclusively," leaving no room for States to create their own regulation even if they technically could do so without causing conflict. Imagine if your Parents said that you're not allowed to hang anything on your walls using glue, tape, nails, staples, 3M strips, or saliva. They didn't explicitly say you couldn't hang anything, they just created a bunch of rules restricting how things are hung. You think, "Well, hey, they didn't say I couldn't use static electricity!" so you rub some wool on a poster and cling it to your wall using the power of physics. You're probably still going to get in trouble because it was obvious that your Parents were "occupying the field" when it came to hanging stuff on your wall, so being a smartass and finding a way around it is probably still going to end up with you getting in trouble. In the real world, the most common example of "field preemption" is immigration law. Immigration law is primarily the domain of the Federal government and the Supreme Court has consistently held that the Federal government's regulation of immigration is so comprehensive that it preempts state laws that attempt to regulate immigration even when they do so in ways that don't technically conflict with Federal law. Note that another way Congress can preempt an entire field is by creating an agency to administer the field. For example, if your Parents say "your sibling is now in charge of how laundry is done in this house," then it's pretty clear that you have no authority to make decisions that have anything to do with how laundry is handled. In the real world, an example of this would be the FCC, which is an agency established to administer the field of radio wave frequencies within the United States, which preempts any State's attempt to try to regulate radio waves within their borders.
Hypothetical
Hypo 1: Hypofornia decides to create its own set of rules for managing nuclear power plants, believing it can do a better job than the federal government. However, Congress has passed a comprehensive set of regulations for nuclear safety and established the Nuclear Regulatory Commission (NRC) to oversee all nuclear energy matters across the country. Result: Field preemption applies here. The federal government, through Congress and the NRC, has occupied the entire field of nuclear energy regulation. Hypofornia’s attempt to create its own rules would be invalid because the federal regulations take precedence, leaving no room for state laws.
Hypo 2: New Hypoland wants to set up its own immigration system, requiring people entering the state from other countries to register with state authorities. However, immigration law is governed by the federal government, which has established the Department of Homeland Security (DHS) to manage all immigration matters. Result: Field preemption applies because immigration is a field that the federal government fully occupies. New Hypoland’s attempt to create its own immigration rules is invalid because the federal government has exclusive control over this area through the DHS.
Hypo 3: Bob lives in Hypofornia, a state that wants to regulate radio frequencies used by local broadcasters differently from the federal rules. However, Congress has established the Federal Communications Commission (FCC) to manage all radio frequencies and ensure consistent regulation nationwide. Result: Field preemption applies here. The FCC’s comprehensive regulation of radio frequencies means that Hypofornia cannot impose its own rules. The federal government’s control of this field preempts any state attempts to regulate radio frequencies.
Hypo 4: New Hypoland tries to establish its own space exploration program, with specific safety standards for spacecraft launched from its territory. However, Congress has passed extensive laws governing space exploration and created NASA to oversee the field. Result: Field preemption applies because space exploration is a field occupied by federal law and regulation, particularly through NASA. New Hypoland cannot enforce its own safety standards because the federal regulations cover this area completely.
Hypo 5 (where field preemption would NOT apply): Hypofornia enacts a law requiring all businesses within the state to provide at least 10 days of paid vacation leave for employees. The federal government has general labor laws, but there is no comprehensive federal regulation specifically addressing vacation leave. Result: Field preemption does not apply here because the federal government has not occupied the entire field of vacation leave regulations. Since there is no federal agency or comprehensive law covering this specific area, Hypofornia’s law is valid and enforceable.
Hypo 2: New Hypoland wants to set up its own immigration system, requiring people entering the state from other countries to register with state authorities. However, immigration law is governed by the federal government, which has established the Department of Homeland Security (DHS) to manage all immigration matters. Result: Field preemption applies because immigration is a field that the federal government fully occupies. New Hypoland’s attempt to create its own immigration rules is invalid because the federal government has exclusive control over this area through the DHS.
Hypo 3: Bob lives in Hypofornia, a state that wants to regulate radio frequencies used by local broadcasters differently from the federal rules. However, Congress has established the Federal Communications Commission (FCC) to manage all radio frequencies and ensure consistent regulation nationwide. Result: Field preemption applies here. The FCC’s comprehensive regulation of radio frequencies means that Hypofornia cannot impose its own rules. The federal government’s control of this field preempts any state attempts to regulate radio frequencies.
Hypo 4: New Hypoland tries to establish its own space exploration program, with specific safety standards for spacecraft launched from its territory. However, Congress has passed extensive laws governing space exploration and created NASA to oversee the field. Result: Field preemption applies because space exploration is a field occupied by federal law and regulation, particularly through NASA. New Hypoland cannot enforce its own safety standards because the federal regulations cover this area completely.
Hypo 5 (where field preemption would NOT apply): Hypofornia enacts a law requiring all businesses within the state to provide at least 10 days of paid vacation leave for employees. The federal government has general labor laws, but there is no comprehensive federal regulation specifically addressing vacation leave. Result: Field preemption does not apply here because the federal government has not occupied the entire field of vacation leave regulations. Since there is no federal agency or comprehensive law covering this specific area, Hypofornia’s law is valid and enforceable.
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