Dean's Address

The concept of federal premption itself originates in the Supremacy Clause of the Constitution.²³  Where federal law is supreme, conflicting state law must yield.²⁴ When Congress explicitly states its intention to preempt state law, state law is preempted.²⁵

However, in most cases, congressional intent to preempt state law is ambiguous or unstated. In those cases, the duty falls upon the Judiciary to interpret congressional intent and determine whether state law should be preempted. Federalism hangs in the balance.

Historically, most of our courts have resolved the benefit of the doubt against federal preemption of state law.²⁷ To protect federalism, courts recognized a presumption against preemption. The Supreme Court held that this presumption ensured that the delicate balance between state and federal government "will not be disturbed unintentionally by Congress or unnecessarily by the Courts."²⁸ The presumption had particular significance in areas traditionally regulated by the states, such as health and safety concerns and state tort remedies.²⁹

In recent years, federal courts have tended to ignore the presumption against preemption and the balance of federalism. Under the doctrine of implied preemption, federal courts have invaded areas traditionally regulated by states and have emasculated state laws. Even when federal law has not expressed the clear intent by Congress to override state law, federal courts have judicially written such legislation under the guise of "implied" preemption. This "implied" legislation represents a particularly virulent form of judicial activism.

The extent of this recent, pervasive usurpation of state law by federal courts is alarming. I offer a few examples.

(1) Courts have interpreted a federal statute designed to provide minimum federal standards for employee benefit plans in such a way as to preempt all state tort actions by an employee.³⁰ Now, even if a group health insurer denies coverage fraudulently or with the intent to harm an employee, that employee has no recourse other than to sue in federal court, without a jury trial, to recover only the benefits he should have been provided.³¹ Over 134 million American workers are insured under such employee benefit plans, and all of them are left without a remedy for the tortious conduct practiced upon them.³² An insurance carrier acting in bad faith in the denial or handling of group hospitalization or medical claims can now do so with impunity. The state courts must stand by helplessly while these injustices are perpetrated on our citizens.

(2) The Supreme Court has interpreted a federal statute that expressly applies to suits against federal employees in such a way as to preempt state products liability actions against private government contractors.³³ The Supreme Court did this despite the fact that Congress had rejected attempts by the contractors, on six separate occasions, to provide legislative immunity from state tort Suits.³⁴ Now, any American killed or injured by a defective product produced under government contract may be unable to sue those responsible or recover compensation for their injuries.

(3) Under the doctrine of implied preemption, courts have held that certain state tort actions against automobile manufacturers are preempted by the National Traffic and Motor Safety Act of 1966.³⁵ These courts found preemption even though Congress expressed a contrary intent in the Act’s saving clause. That saving clause provides that "[c]ompliance with a Federal motor vehicle standard ... does not exempt any person from liability under common law."³⁶ The United States Supreme Court has refused to review those cases. Thus, Americans killed or injured by a defectively designed automobile may be left without a remedy.

(4) Under the doctrine of implied preemption, courts have also precluded certain state tort actions against drug manufacturers,³⁷ against employers,³⁸ against unions,³⁹ against maritime insurance companies,⁴⁰ against common carriers,⁴¹ against pesticide manufacturers,⁴² and others. In what might have been the nadir of federalism, a Houston federal district court recently held that a state wrongful death action against an airline was preempted by the Federal Aviation Act.⁴³ The court found preemption despite the fact that the Federal Aviation Act provided no remedy for wrongful death. The import of this decision would have been that there is no cause of action, either state or federal, for wrongful death if it occurs on a commercial airliner. That opinion remains unpublished, however, and the case was settled prior to appeal.

These decisions are remarkable for their failure to discuss or even consider the intrusion on state powers or the sacrifice of citizens' rights. The long‑term ramifications of these decisions are truly ominous.

First, these decisions have ignored established precedent which distinguished state regulation from state common‑law theories of liability.⁴⁴ Under prior judicial interpretation, state regulation could conflict with federal regulation and thus be preempted.⁴⁵ On the other hand, state common law does not regulate the conduct of defendants, but instead provides compensation for tort victims.⁴⁶ State tort compensation is "deeply rooted in local feeling and responsibility"⁴⁷ and courts will not permit preemption of "traditional state tort law," unless "Congress intended to preclude such awards."⁴⁸ There is no conflict between federal regulation and state compensation, since a defendant can choose to operate under minimum federal standards and pay for the injuries that result, or choose to operate under higher standards to guard against potential injuries.⁴⁹

Second, these decisions have ignored established precedent which refused to find preemption in those cases in which tort victims would be left without a remedy. Shortly after our republic was founded, Chief Justice John Marshall, in Marbury v. Madison, discussed this principle. He said: "The government of the United States has been emphatically termed a government of laws, and not men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for violation of a vested legal right."⁵⁰

Nonetheless, in the face of legislative silence, some modern courts feel free to preempt state tort law even when no alternative federal remedy is available. Such a position, as Justice Blackmun said in the Karen Silkwood case, is "inconceivable."⁵¹ And, as the majority held in Silkwood, "[i]t is difficult to believe that Congress would, without comment, remove all means of judicial recourse for those injured by illegal conduct."⁵² Such a denial of judicial recourse is a denial of due process and a denial of our rights to access to the courts.⁵³

Finally, these decisions have ignored the public policy ramifications. Not only do these decisions strip injured citizens of rights to tort compensation and shift the burden of their loss to the public treasuries, but these decisions also immunize the conduct of wrongdoers and permit them to do harm with impunity.

Congress certainly did not intend such a result. If a manufacturer approached Congress, as some have done, and asked Congress to provide them immunity for their conduct which, through negligence or intent, kills or injures our citizens, can any one of us imagine that Congress would embrace such legislation?⁵⁴ Of course not. But that is often the effect of federal preemption of state laws.

This trend ignores the societal value of state laws designed to guard against harm and designed to shift the burden of loss from the innocent citizen to the guilty wrongdoer. At the same time, these courts remove all incentives from manufacturers and others to improve product designs, to increase warnings to consumers, to restrain representations in advertising, or to do anything more than what is required by federal minimum standards to improve the lot of our citizens.

Federalism is in jeopardy. The Framers' vision of a limited federal government of enumerated powers is being replaced with a new judicial vision of a pervasive federal government supplanting state governments in their traditional enforcement of both common‑law and statutory remedies.

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