Intergovernmental Relationships

Current Issues

Federal Preemption.  The U.S. Supreme Court ruled that federal law preempted state law in four cases this spring.  First, in Riegel v. Medtronic, Inc., the Court held that the plaintiffs' state common law and strict liability claims were state "requirements" with respect to defendant's medical device, and that they were "different from, or in addition to" the federal requirements under the federal Medical Device Amendments of 1976.  The Court held that the MDA thus expressly preempted state common law and strict liability claims.  An edited version of the opinion is here. 

Next, the Court held in Rowe v. New Hampshire Motor Transport Ass'n that federal transportation law, forbidding states to "enact or enforce a law . . . related to a price, route, or service of any motor carrier," preempted Maine's laws that regulated tobacco shipment in order to cut down on underage smoking.  Click here for an edited version of the opinion. 

Third, in Preston v. Ferrer, the Court held that the Federal Arbitration Act, which provides that "[a] written provision in any . . . contract evidencing a transaction involving commerce to settle by arbitrary. . . shall be valid," preempted a portion of California's Talent Agencies Act, which grants jurisdiction over certain disputes to the California Labor Commissioner, where the parties contracted to resolve any contractual dispute by arbitration.  The Court ruled that Buckeye Check Cashing, Inc. v. Cardegna (2006) "largely, if not entirely, resolves the dispute."  An edited version of the opinion is here.

Finally, the Court ruled in Chamber of Commerce v. Brown that National Labor Relations Act preempted a California law that prohibited several classes of employers that received state funds from using those funds "to assist, promote, or deter union organizing."  The Court ruled that the NLRA contained no express preemption clause, but that the California law "regulate[d] activity that the NLRA protects, prohibits, or arguably protects or prohibits," under San Diego Building Trades Council v. Garmon (or "Garmon preemption").  Click here for an edited version of the opinion.

Dormant Commerce Clause.  The U.S. Supreme Court ruled on May 19, 2008, in Dep't of Revenue of Kentucky v. Davis that states may exempt interest on their own bonds, even while not exempting interest on other states' bonds, from state income tax without running afoul of the dormant commerce clause.  (The case was particularly significant because 41 states similarly exempt their own bonds, but not other states' bonds, from state income tax.)  The Court followed its approach in United Haulers (from the 2006 term) and that "a government function is not suscetible to standard dormant Commerce Clause scrutiny owing to its likely motivation by legitimate objectives distinct from the simple economic protectionism the Clause abhors."  (Justices Souter and Stevens alternatively argued that the state operated as a market participant in issuing bonds.)  An edited version of the opinion is here.