Preemption/ Federalism

While the states play an important role in our country’s legal system, the U.S. Constitution grants the federal government limited but essential authority to preempt certain state laws. This federal preemption benefits the U.S. economy by reducing lawsuit abuse, ensuring strong, uniform health and safety standards, as well as providing a consistent and fair legal climate for businesses across the United States. read more...

Preemption of certain state laws improves the climate for businesses, both large and small, by ensuring consistent, uniform national standards. The efficiency savings from preemption are passed on to consumers through reduced prices and increased access to lifesaving and life-improving products. Preemption also allows knowledgeable federal regulators to establish and enforce important uniform health and safety requirements for regulated products. 

On the other hand, in policy areas where federal preemption is limited, businesses are potentially subjected to a confusing and inconsistent patchwork of state and federal laws. In such an environment, plaintiffs’ lawyers are able to exploit inconsistent standards to bring cases in lawsuit-friendly states. Simply put, plaintiffs’ lawyers support eliminating preemption because it would allow them to file more lawsuits.

Eliminating preemption would also hamper a free, nationwide market for goods and services. This was one of the major goals of the Founding Fathers when they adopted the U.S. Constitution, which explicitly allows Congress to regulate commerce “among the several states.”

For these reasons, Congress should reject legislation that would eviscerate federal preemption in areas such as food and drug safety, auto safety, and financial regulations.



Constitutional Constraints: Provisions Limiting Excessive Government Fines

October 27, 2015 | This paper outlines the constitutional constraints that limit excessive and duplicative government fines and penalties, including the Excessive Fines Clause and Due Process Clause.

Legal Reform, The Framers and First Principles

October 23, 2013 | Written by former U.S. Solicitor General Paul Clement, now with Bancroft, this study lays out the constitutional powers of the states to enact legal reforms.

All Results for Preemption/ Federalism

U.S. Chamber of Commerce President Thomas J. Donohue's Remarks at the 13th Annual Legal Reform Summit

October 24, 2012 | Video

At the 13th Annual Legal Reform Summit on October 24, 2011, Thomas J. Donohue, President and Chief Executive Officer of the U.S. Chamber of Commerce, delivered these special remarks. He was introduced by Lisa A. Rickard, President of the U.S. Chamber Institute for Legal Reform. Watch »

Federalism, The Framers, and Federal Legal Reform: Setting the Record Straight

Author: Paul D. Clement of Bancroft PLLC | October 24, 2012 | Research

Congress has from time to time acted to address what it perceives to be the excesses of state tort systems - such as unpredictable punitive damages awards or novel class action rules. Almost invariably these efforts at federal legal reform have prompted critics to suggest that there are unique federalism or Tenth Amendment difficulties with such federal efforts. Needless to say, the specifics of each effort need to be evaluated individually, but in general, the Supreme Court's cases provide remarkably little support for the argument that federal efforts at legal reform are verboten. Read More »

Key Supreme Court Cases of Interest to Business

Author: Brian Quigley | December 15, 2011 | Video

What do Obamacare, preemption, and environmental regulation have in common? All are addressed in Supreme Court cases the business community should be keeping an eye on, according to former U.S. Solicitor General Paul Clement. Watch »

White House Anti-Preemption Memo is a Trial Lawyer Ticket to More Lawsuits

Author: Lisa A. Rickard | May 21, 2009 | Press Release

There is little debate that the consequence of eliminating federal preemption of state laws is more lawsuits. In January, the plaintiffs' lawyer lobby announced their top priority was to gut preemption - which in reality translates into windfall profits for their members. This debate is about allowing plaintiffs' lawyers to open the floodgates of litigation against America's employers. Read More »

Eliminating Federal Preemption: Good for Plaintiffs' Lawyers, Bad for Everyone Else

Author: Lisa A. Rickard | October 09, 2008 | Press Release

In the Fresno Bee, George Washington University Law School lecturer Jeffrey Axelrad warns that plaintiffs' bar-supported legislation designed to expose the manufacturers of devices approved by the Food and Drug Administration to state lawsuits would endanger the lives of Americans who rely on pacemakers, balloon stents and other life-saving medical equipment. The result of the legislation, he argues, would be a hefty payday for the trial lawyers bringing the suits. Read More »

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