Vail Daily column: The doctrine of preemption |

Vail Daily column: The doctrine of preemption

Think of law as a swimming pool.

It can be a large one or a small one, as you choose. It can be a classic kidney shape, a rectangle or guitar-shaped like a rock star’s. It doesn’t matter. The concept to focus on is one of filling up.

A pool can be more full or less full; the shallow end empty while the deep is full, or else filled with sparkling, clear fresh water brimming end to end and spilling to the gutters.

Preemption is like that.

Before we get into that, though, let’s consider the geography of law. Like a map, law is made up of certain areas. If not exactly places on a map, they are nonetheless distinct. There is workers’ compensation law, aviation law, real estate law, domestic law, water law and dozens and dozens of other sites along the Route 66 of American jurisprudence. And each area of law — like the neighborhood parks, museums and waterways in a particular locale — has its own rules, regulations and practices. Water law looks about as much like aviation law as an aardvark resembles a hippopotamus. While there are similarities to be sure — one can make out that both are areas of law in the same way as one can make out that an aardvark and a hippo are both mammals — that is where the similarities end.

Um, OK? We’ve gone a bit afield. But the take-home lesson is this; there are distinct and separate areas of law.

Accepting that and employing my analogy of the areas of law being like places on a map, you will have to agree with me that, in the same way as a geographic feature, there is just so much terrain to a particular territory to go around. Just as the area of Cleveland — where all hell portends to break out in July — is 82.47 square miles and the volume of the Grand Canyon is 5.45 trillion cubic yards, each area of law can stretch out just so far before yawning into is neighbor. Shovel in enough soil and the Grand Canyon will eventually fill up.

The point is this; preemption fills an area of law.

Most commonly, preemption is thought of as federal preemption, but there can be state preemption of local law in the same way federal law can preempt the laws of the various states.

The ordinary meaning of the word “preempt” is “to take the place of something.” In musical chairs, if our backsides meet the chair seat at the same time and I hip-check to dislodge you, I have preempted your claim to the chair with mine. “This evening’s episode of Game of Thrones” is preempted by this special report.” And so it goes.

In law it’s not so different.

At law, preemption means that one set of laws crowd out another. Federal law in a particular area may crowd out state law. State law may preempt local law.

When state law and federal law conflict, federal law displaces, or preempts, state law.

What this has to do with is the Supremacy Clause of the Constitution (Article VI, Section 2) which provides that where state and federal law come into conflict, federal law shall (I hate to use the word) “trump” that of the state. “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

Preemption applies regardless of whether the conflicting laws come from legislatures, courts, administrative agencies or constitutions. As but one example, the Voting Rights Act preempts state constitutions and FDA regulations may preempt state court judgments in cases involving prescription drugs. Federal Aviation Administration laws overlord state laws when it comes to the National Airspace System.

Congress has preempted state regulation in many areas. In some cases, such as medical devices, Congress has preempted all state regulation. In others, such as labels on prescription drugs, Congress has allowed federal regulatory agencies to set national minimum standards, but has not preempted state regulations imposing more stringent standards than those imposed by the federal rules. Where rules or regulations do not clearly state whether or not preemption should apply, the courts may become involved; was the intent to fill up that particular area of law?

What, you may be asking, do swimming pools have to do with any of this? Well, admittedly, it’s a bit of a contrivance. But if you think of the boundaries of any particular area of law as the limits of a swimming pool and preemption as the water filling that pool, if preemption applies, the pool is filled — just like the area of law is filled — and no more will fit. When the area of law is filled, just like a brimming pool, trying to add a little more will only cause it to spill out.

Preemption is like a swimming pool. And when the pool is full, it’s simply full.

Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. Robbins may be reached at 970-926-4461 and at any of his email addresses, and

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