Preemption Statutes Enactment Pace

The Constitution's Framers apparently assumed Congress would employ the various delegated powers shortly after the fundamental document was ratified by the states. Congress in 1790 enacted two complete preemption statutes— Copyright Act (1 Stat. 124) and Patent Act (1 Stat. 109)—and subsequently enacted a total of only 29 such statutes by 1900. Many preemption statutes, including recent ones, were spurred by inventions and technological developments. Congress's reaction to inventions was not always rapid. An Act to Regulate Interstate Commerce (24 Stat. 379), creating the Interstate Commerce Commission to regulate railroad fares and tariffs, was not enacted until 1887. The Commission was abolished in 1996 (109 Stat. 803) because its most important functions were removed by economic deregulation preemption statutes and its remaining functions were transferred to other departments and agencies.

In the twentieth century Congress increasingly relied upon conditional grants-in-aid to encourage states to implement its policies until 1965 when heavy reliance began to be placed upon preemption statutes which were enacted at the following pace: 14 (1900–1909), 22 (1910–1919), 17 (1920–1929), 31 (1930–1939), 16 (1940–1949), 24 (1950–1959), 47 (1960–1969), 102 (1970–1979), 93 (1980–1989), 83 (1990–1999), and 42 (2000–2004) (Zimmerman and Lawrence 1992; Zimmerman 2005). A total of 520 such statutes have been enacted with several subsequently repealed. A significant number of these statutes were designed to eliminate interstate trade barriers (Zimmerman 2004). It should be noted that a few preemption statutes contain a sunset clause which Congress may extend. The Internet Tax Freedom Act of 1998 (112 Stat. 2681) expired in 2003, but was renewed and extended in 2004 (117 Stat. 2615) for three years.

Congress at its discretion may broaden the coverage of a partial preemption statute, as it did in 1991 when it amended the Employee Retirement Income Security Act of 1974 to include within its coverage telephone and electric cooperative welfare plans (105 Stat. 446). The act was amended again in 2000 “to clarify the application to a church plan that is a welfare plan to State insurance laws that require or solely relate to licensing, solvency, insolvency, or the status of such a plan as a single employer plan” (114 Stat. 499).

Commencing in 1965, Congress initiated a major federalism revolution as regulatory laws were enacted with increased frequency in a wide range of fields previously not preempted and a new type of preemption statute—minimum standards—was employed. Many statutes contain mandates requiring subnational governments to initiate specified expensive actions. Certain preemption statutes, primarily minimum standards preemptions, authorize grants-in-aid to assist subnational governments in financing their regulatory responsibilities. A small number of statutes contain restraints forbidding these governments to initiate a specific action, thereby necessitating a more expensive alternative, as illustrated by the Ocean Dumping Ban Act of 1988 (102 Stat. 4139) which prevented New York City and other municipalities from continuing to dump sewage sludge in the Atlantic Ocean and necessitated the more expensive shipment of the sludge by dedicated trains to disposal sites in Texas (Zimmerman 1994). Fourteen preemption statutes devolve executive powers upon governors, thereby upsetting the constitutional balance of gubernatorial and legislative powers in each state.

The sharp increase in the number of post-1965 preemption statutes is a response to: (1) the failure of states by means of interstate cooperation to solve many multistate problems, including air and water pollution; (2) the ineffectiveness of conditional grants-in-aid in eliminating national problems; (3) the general failure of states to enact harmonious regulatory policies; (4) lobbying by industries, such as the motor vehicle industry, burdened with increasing nonharmonious state regulatory policies; (5) effective lobbying by public interest groups, particularly those representing civil liberties and environmental issues; (6) the election of members of Congress lacking state and local government experience; and (7) activism by certain members of Congress seeking to establish a leadership record in solving major problems as part of their respective strategy of winning the presidency in a future election. The pace of enactment of such statutes slowed somewhat after the Republican party assumed control of Congress in 1995, with 76 enacted by 2004.

Interest Group Lobbying

A positive correlation exists between the increased number of preemption statutes enacted by Congress and the growing influence of private and public interest groups, which naturally transferred part of their attention from state capitols to the national capitol as Congress became more deeply involved in traditional state and local governmental functions. Groups unable to achieve fully or partially their goals by lobbying state legislatures and governors redirected resources to influence Congress, the president, and national bureaucrats with varying degrees of success.

How can states protect their regulatory authority against potential congressional preemption? Chief Justice John Marshall of the United States Supreme Court in Gibbons v. Ogden provided an answer in 1824, relative to the interstate commerce clause, when he opined: “The wisdom and the discretion of Congress, their identity with the people, and the influence which their constituents possess at elections, are, in this, as in many other instances, as that, for example of declaring war, the sole restraint on which they have relied to secure them from its abuse” (22 U.S. 1 at 197).

Herbert Wechsler in 1953 employed this thesis to develop the political safeguard of federalism theory, holding that states can engage in the national political process to help elect members of Congress who will protect the states' reserved regulatory powers. Justice Harry A. Blackman of the Supreme Court endorsed this theory in 1985 in Garcia v. San Antonio Metropolitan Transit Authority (469 U.S. 528 at 556) when he wrote “the principal and basic limits on the federal commerce power is inherent in all state participation in federal government action.” He urged states to seek protection of their regulatory powers not in the courts, but in the political branch of government, i.e., the Congress.

Subnational government officers often lobby Congress for relief from burdensome mandates. The 104^th Congress responded by enacting the Unfunded Mandates Reform Act of 1995 (109 Stat. 48) establishing new congressional procedures for enactment of mandates. The next year Congress provided relief from expensive directives contained in the Safe Drinking Water Amendments of 1986 (110 Stat. 1613) which threatened numerous small local governments with the choice of bankruptcy or abandonment of their drinking water supply system.

Each of the following four sections contains a brief description of the roles played by interest groups in the enactment of a devolution or a preemption statute.

Federalism Theory

Theory has not kept pace with developments in the federal system. The theory of dual federalism is a simple one explain-ing a complete separation of national and state powers. The theory of cooperative federalism builds upon this theory by emphasizing the cooperative nature of national-state relations. Dissatisfaction with the explanatory values of these theories, commencing in the 1960s, led to a myriad of new terms. William H. Stewart (1984, 4) identified 497 figurative descriptors. Neither the two current theories nor the descriptors adequately explain the impact of complete, partial, contingent, and innovative preemption statutes on the current nature of the federal system.

An example of an innovative statute is the Riegle-Neal Interstate Banking and Branching Efficiency Act of 1994 (108 Stat. 2338) which respects the long history of the dual banking system by including several exemptions and savings provisions excluding state statutes from preemption. The act also contains an “opt-in” section permitting interstate branching through de novo branches provided the state law “applies equally to all banks; and expressly permits out-of-state banks to establish de novo branches” (108 Stat. 1352). In addition, the act has an “opt-out” section (108 Stat. 2343) allowing a state legislature to prohibit interstate branching within the state otherwise authorized by the act.

There are three broad spheres of power: a national-controlling sphere, a state-controlling sphere, and a shared national-state-local sphere. The boundaries of the spheres change as Congress places more or less emphasis upon its three intergovernmental roles—facilitator, inhibitor, and initiator. A comprehensive non-equilibrium federalism theory must include elements of imperium in imperio; cooperative interplane interactions; informal congressional preemption in the form of conditional grants-in-aid, tax credits, and tax sanctions; and contingent, complete, partial preemption statutes (Zimmerman 2005).