The Supremacy Clause of the U.S. Constitution and Preemption of Laws and Executive Orders.

The Supremacy Clause is a founding principle in U.S. Constitutional law. It designates the Constitution as the "supreme law of the land." This usually means, with exceptions, that when: Federal laws, Federal regulations, Executive orders and memoranda, and state laws conflict with the Constitution, the Constitution wins.

The Constitution of the United States was ratified on June 21, 1788. With the ratification of the ninth state, New Hampshire, the Constitution officially took effect on March 4, 1789. The Supremacy Clause has helped establish a strong federal government. Without it, some of the of the delegates drafting the U.S. Constitution feared we would be a nation in constant political turmoil. States and the federal government would continually compete for superiority, and America would not have the comfort of finality we now enjoy.

The Framers included the Supremacy Clause because the Articles of Confederation had no such clause. Under the Articles of Confederation, federal laws did not and could not supersede federal or state statutes and regulations.

Writing in the?Federalist Papers, James Madison argued for the need for a supremacy clause. Madison recognized that state legislatures held all powers not explicitly given to the federal government under?Article I?and?Article II?of the U.S. Constitution. And so, Madison reasoned the Supremacy Clause was necessary to balance the scales of government.

What is the Supremacy Clause?

You can find the Supremacy Clause in Article VI, Clause 2 of the U.S. Constitution. It reads:

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.

What Does the Supremacy Clause Do?

In?McCulloch v. Maryland, (1819); No. 34, Decided: February 01, 1819 [17 U.S. 316,et.seq.]; ?the U.S. Supreme Court cemented the Supremacy Clause as the controlling authority in constitutional law.?McCulloch?set the standard we know today for conflicts between federal and State laws: the Constitution always wins. Federal law supersedes conflicting state laws.

Leading up to?McCulloch, the Maryland General Assembly passed a law imposing a $15,000 annual levy (tax) on any bank doing business in Maryland that was not chartered by the State. This was in direct opposition to the newly formed Second Bank of America. James M. McCulloch, the head of the Second Bank of America's Baltimore branch, refused to pay the tax. Maryland sued McCulloch.

The State of Maryland argued that since the Constitution is silent on the issue of banks, the federal government lacked the authority to find one. The lower courts sided with the State of Maryland, and the federal government appealed to the Supreme Court.

This case was about the division of powers, and the Supreme Court brought control of the law back to the Federal Government with its unanimous decision, recognizing that Congress had the powers to pass laws necessary and proper to carry out its work.

Chief Justice John Marshall delivered the opinion of the Court, and he was clear that the Constitution grants Congress the authority to make all laws necessary to carry out its Constitutional duties. This diagram illustrates what the Constitution preempts or supersedes in both Federal Law and State Law.

Federal law?expressly?preempts state law when the Federal statute contains explicit language to allow the preemption. By contrast, Federal law?implicitly?preempts?State law when that intent is implicit in its structure and purpose. (See: https://constitution.findlaw.com/article6/annotation02.html, concerning Field preemption and conflict preemption. The Supremacy Clause does not, however, allow the federal government to review or veto state laws before they take effect.

Federal law does not preempt State law in areas traditionally regulated by states, such as marriage or drivers’ licenses, unless Congress’s intent to preempt is clear and stated in applicable statute. In recent cases disputes over conflicting laws usually involve?statutory interpretation rather than its scope of application.

In?Pacific Gas & Elec. v. Energy Resources Commission, 461 U.S. 190 (1983), the U.S. Supreme Court resolved a conflict between a California law regarding nuclear power plants and the?Atomic Energy Act of 1954.?42 U.S.C. §2011 et seq. (1946).

The Court recognized that the federal government "occupied" specific fields, like nuclear waste disposal technology and nuclear safety regulation.

The Court later expanded the areas where the federal government and states exercise concurrent authority to balance the powers between the two. The Court articulated a presumption against preemption. Federal law does not automatically replace State law. Federal law must explicitly state Congress' clear intent to preempt.

Impact of the Supremacy Clause

Sometimes, it's difficult to imagine how laws created so long ago can make an impact on our daily lives.?One important example is the use of the Supremacy Clause (and the?Commerce Clause)?to desegregate the American South.?Katzenbach v. McClung?is one such case that changed lives and propelled America toward equality.

Katzenbach v. McClung

In?Katzenbach v. McClung, [379 U.S. 294 (1964), United States Supreme Court, No. 543, Argued: October 05, 1964 Decided: December 14, 1964], the Supreme Court held that the Constitution's commerce clause prevented a restaurant from refusing to serve Black customers. The Katzenbach case featured Ollies Barbecue, an Alabama restaurant that refused to serve Black customers. Ollies purchased forty six percent of its meat from a supplier that procured it from out-of-state.

Katzenbach?built on cases such as?Gibbons v. Ogden,?where the Supreme Court held that Congress alone has the power to regulate interstate commerce. Since a substantial portion of the food Ollies Barbecue served moved in interstate commerce, Congress took the opportunity to step in under the Commerce Clause and prohibit racial discrimination in restaurants offering to serve interstate travelers or serving food where a substantial portion has moved in interstate commerce.

These types of cases, where attorneys general like Nicholas Katzenbach used creative and novel theories, helped systematically desegregate the South. Something as insignificant as meat purchase out of state brought justice to millions of Americans.

Federal Preemption

When state law and federal law conflict, federal law displaces, or preempts, state law, due to the Supremacy Clause of the Constitution. U.S. Const. art. VI., § 2. Preemption applies regardless of whether the conflicting laws come from legislatures, courts, administrative agencies, or constitutions. For example, the Voting Rights Act, an act of Congress, preempts state constitutions, and FDA regulations may preempt state court judgments in cases involving prescription medications.

Congress has preempted state regulation in many areas. In some cases, such as medical devices, Congress preempted all state regulation. In others, such as labels on prescription drugs, Congress allowed federal regulatory agencies to set national minimum standards, but did not preempt state regulations imposing more stringent standards than those imposed by federal regulators. Where rules or regulations do not clearly state whether or not preemption should apply, the Supreme Court tries to follow lawmakers’ intent, and prefers interpretations that avoid preempting state laws.

Executive Orders

Summary Executive orders, presidential memoranda, and proclamations are used by Presidents to achieve their policy goals, set uniform standards for managing the executive branch, or outlining a policy view intended to influence the behavior of private citizens. The U.S. Constitution does not define these presidential instruments and does not explicitly vest the President with the authority to issue them. However, such orders are accepted as an aspect of presidential power. If they are based on appropriate authority (such as the Constitution or statute enabled by Congress), they have the force and effect of law. The Congressional Research Service (https://crsreports.congress.gov/product/pdf/RS/RS20846) ?discusses the nature of these written instruments, with a focus on the scope of presidential authority to execute such instruments, as well as judicial and congressional responses to their use. Some of this discussion follows in the next paragraph.

Executive orders are one vehicle of many through which the President may exercise his authority. While the President’s ability to use executive orders as a means of implementing presidential power has been established as a matter of law and practice, it is equally well established that the substance of an executive order, including any requirements or prohibitions, may have the force and effect of law only if the presidential action is based on power vested in the President by the U.S. Constitution or delegated to the President by Congress.

The President’s authority to issue executive orders does not include a grant of power to implement policy decisions that are not otherwise authorized by law. Indeed, an executive order that implements a policy in direct contradiction to the law will be without legal effect unless the order can be justified as an exercise the President’s exclusive and independent constitutional authority. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 638 (1952) (Jackson, J. concurring) (stating that where a President “takes measures incompatible with the express or implied will of Congress” that “[c]ourts can sustain exclusive presidential control in such case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution ...”)

Executive orders and proclamations are written documents titled as such. Executive orders are normally directed to, and govern actions by, Government officials and agencies. They usually affect private individuals only indirectly. Proclamations in most instances affect primarily the activities of private individuals. Since the President has no power or authority over individual citizens and their rights except where he is granted such power and authority by a provision in the Constitution or by statute, the President’s proclamations are not legally binding and are at best suggestive unless based on firm grants of authority. [Staff of House Comm. on Government Operations, 85th Cong., 1st Sess., Executive Orders and Proclamations: A Study of a Use of Presidential Powers (Comm. Print 1957)].

Executive orders historically have been more contentious as Presidents have issued them over a wide range of controversial areas such as the establishment of internment camps during World War II, (Korematsu v. United States, 323 U.S. 214 (1944); the suspension of the writ of habeas corpus, (Ex Parte Milligan, 71 U.S. 2, 115 (1866), and equal treatment in the armed services without regard to race, color, religion, or national origin, ( Exec. Order No. 9981, 13 Federal Register 4313 (July 28, 1948); “It is hereby declared to be the policy of the President that there shall be equality of treatment and opportunity for all persons in the armed services without regard to race, color, religion or national origin.”

Presidents’ broad usage of executive orders to effectuate policy goals has led some Members of Congress and various legal commentators to suggest that many such orders constitute unilateral executive lawmaking that impacts the interests of private citizens and encroaches upon congressional power, ?See, e.g., William J. Olson and Alan Woll, Policy Analysis, Executive Orders and National Emergencies: How Presidents Have Come to “Run the Country” by Usurping Legislative Power, Cato Institute (October 28, 1999); Tara L. Branum, President or King? The Use and Abuse of Executive Orders in Modern-Day America, 28 J. LEGIS. 1 (2002); John A. Sterling, Above the Law: Evolution of Executive Orders (Part One), 31 UWLA REV. 99 (2000).

By their very nature executive orders lack stability, especially in the face of evolving presidential priorities. The President is free to revoke, modify, or supersede his own orders or those issued by a predecessor. The practice of Presidents modifying and revoking executive orders is exemplified particularly where orders have been issued to assert control over and influence the agency rulemaking process. Beginning with President Gerald Ford’s Administration, the following examples demonstrate the gradual modification by succeeding Presidents in supplementing the congressionally mandated rulemaking process with a uniform set of standards regarding cost benefit considerations.

February 17, 2001, President George W. Bush issued several executive orders that revoked several of President Clinton’s executive orders regarding union dues and labor contracts, significantly altering several requirements pertaining to government contracts. See Exec. Orders Nos. 13201-04, 66 Federal Register 11221, 11225, 11227-28 (2001) (revoking Exec. Order No. 12871, 58 Federal Register 52201 (1993); Exec. Order 12933, 59 Federal Register 53559 (1994)). President Obama subsequently revoked the Bush orders. See Exec. Order No. 13496, 74 Federal Register 6107 (February 4, 2009) (revoking Exec. Order No. 13201); Exec. Order No. 13502, 74 Federal Register 6985 (February 11, 2009) (revoking Exec. Order No. 13202); Exec. Order No. 13495, 74 Federal Register 6103 (February 4, 2009) (revoking Exec. Order No. 13204).

Congress may also influence the duration and effectiveness of executive orders. Orders issued pursuant to authority provided to the President by Congress, as distinguished from orders that are based on the President’s exclusive constitutional authority, may be legislatively modified or nullified. Congress may revoke all or part of such an order by either directly repealing the order, or by removing the underlying authority upon which the action is predicated. Either of these actions would appear to negate the legal effect of the order.

Congressional repeals of executive orders are relatively rare in, primarily because such legislation could run counter to the President’s interests and therefore may require a congressional override of a presidential veto. To effectuate a repeal, Congress need only enact legislation directing that provisions of the executive order “shall not have legal effect.” Additionally, Congress may also inhibit the implementation of an executive order by preventing funds from being appropriated to implement the order; or by directly denying funds to implement a particular section of an order. Conversely, if Congress supports an executive order, and wants to provide the directive with greater stability, Congress may codify the presidential order as it was issued or with certain modifications. Similarly, if the President issues an executive order on questionable legal authority, Congress may subsequently ratify the order either expressly or by implication in subsequent legislation.

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