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86 Va. L. Rev. 225 (2000)

handle is hein.journals/valr86 and id is 243 raw text is: PREEMPTION

Caleb Nelson*
T HE powers of the federal government and the powers of the
states overlap enormously. Although the Constitution makes a
few of the federal government's powers exclusive,' the states retain
concurrent authority over most of the areas in which the federal
government can act. As a result, nearly every federal statute ad-
dresses an area in which the states also have authority to legislate
(or would have such authority if not for federal statutes).2
This aspect of our constitutional system makes the interplay of
state and federal law vitally important. The extent to which a fed-
eral statute displaces (or preempts) state law affects both the
* Associate Professor, University of Virginia School of Law. I thank Barbara Arma-
cost, John Harrison, John Jeffries, George Rutherglen, and participants in a faculty
retreat at the University of Virginia for helpful comments. Kent Olson helped track
down an elusive quotation, and Nathaniel S.T. Karas provided valuable research as-
sistance. This Article won the Fifteenth Annual Scholarly Papers Competition of the
Association of American Law Schools and was presented at the Association's annual
meeting in January 2000.
1 See, e.g., U.S. Const. art. I, § 8, cl. 5, and id. art. I, § 10, cl. 1 (giving the federal gov-
ernment exclusive power to coin money); id. art. I, § 8, cl. 11, and id. art. I, § 10, cl. 1
(giving the federal government exclusive power to grant letters of marque and repri-
sal); id. art. II, § 2, cl. 2, and id. art. I, § 10, cl. 1 (giving the federal government
exclusive power to enter into treaties).
2In this respect as in others, the Constitution marked a bold departure from the Ar-
ticles of Confederation, which had given Congress certain sole and exclusive
powers and had left most other matters exclusively to the individual states. See Arti-
cles of Confederation art. IX, paras.1, 4; id. art. II. The Articles' treatment of certain
issues-such as military matters and the payment of common expenses-did require
substantial cooperation between Congress and the states. See id. arts. VI-IX. Still, to
a far greater extent than the present Constitution, the Articles treated powers as be-
longing at either the national or the state level, but not both. See 11 Documentary
History of the First Federal Congress of the United States of America: Debates in the
House of Representatives 1359 (Charlene Bangs Bickford et al. eds., 1992) (report of
Rep. James Madison's remarks on Sept. 5, 1789) (noting the novelty of the con-
currence [under the new Constitution].. . between the legislative authorities of the
federal and State governments).
3In this Article, I use the term preemption to refer to the displacement of state
law by federal statutes (or by courts seeking to fill gaps in federal statutes). I do not
discuss any separate issues concerning the preemption of state law by federal adminis-
trative regulations. In particular, I do not discuss how courts should determine the
scope of an agency's delegated authority to preempt state law, nor do I discuss


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