Federal Preemption

Federal Preemption of Omnibus and Sectoral Laws


Each section contains the statute’s text, a summary of its preemptive issues, and a survey of existing case law. When there is a circuit split, the current breakdown is described. Click on each of the buttons to view an individual statute's page.



Each statute page contain an in-depth analysis of the laws in the chart above. Each section will be dedicated to one specific law. The section will begin by looking to the statute’s text. The text will be notated according to a legend below, indicating which words give rise to each type of preemption or savings clause. The text will be followed by a quick summary of the key issues that divide or unite the Circuits. After that is the case law, which looks to see how the circuit courts have interpreted and applied federal preemption in that area. When applicable, there is also a section on further readings, giving citations to articles that discuss the topic in more depth.

Since courts have not addressed every issue, there may be areas that are marked as “Not litigated.”

When dealing with preemption, the ultimate touchstone is Congress’s intention. To determine Congress’s intent, courts look to the statute’s text, structure, and purpose.

Since preemption deals heavily with Congressional intention, it requires a fact-heavy, case-by-case analysis. In each law, Congress’s intent is different, so there are not many generalized “rules” regarding preemption.