1974 Corvette Stingray 
This 1974 bad boy drank 14 gallons per mile.

A federal law can, and often does, set nation-wide standards.  Take the old cap on speed limits.  Between 1974 and 1995, the maximum road velocity ranged from 55 to 65 miles per hour across the U.S.

The example points up a second aspect of nation-wide federal rules.  Before the energy crisis in the early 1970s, state (and local) governments chose their own speed limits.  But then Congress overrode — preempted — them.  Faster state rates fell to federal power in the name of saving fuel.

But federal statutes don't always make the preemptive effect of nation-wide rules clear.  In some cases, Congress says it means to override state and local laws.  In others, it doesn't.  That leaves courts and agencies to sort out whether the law preempts sub-federal rules or not.

The job gets tougher when federal agencies, acting without a clear mandate from Congress, issue rules that conflict with state and local regulations.  Do the new rules preempt sub-federal law?  To the courthouse we go!

Fights over preemption raged more than just about any place else in the area of safety rules.  Each state has its own statutes, regulations, and common law rules on safety.  Does a federal rule that calls for a less stringent standard control?  Or does a tougher state test apply even if it conflicts with the federal one?

In 2001, federal agencies started taking steps to sweep away doubts. Over the ensuing eight years, some — many — issued regulations that outright said they overrode state and local law.

 The executive branch changed course yesterday on preemption.  President Barack Obama sent to the heads of executive departments and agencies a memo instructing them to preempt state law "only with full consideration of the legitimate prerogatives of the States and with a sufficient legal basis for preemption."  It further directed:

1. Heads of departments and agencies should not include in regulatory preambles statements that the department or agency intends to preempt State law through the regulation except where preemption provisions are also included in the codified regulation.

2. Heads of departments and agencies should not include preemption provisions in codified regulations except where such provisions would be justified under legal principles governing preemption, including the principles outlined in Executive Order 13132 [(1999)].

3. Heads of departments and agencies should review regulations issued within the past 10 years that contain statements in regulatory preambles or codified provisions intended by the department or agency to preempt State law, in order to decide whether such statements or provisions are justified under applicable legal principles governing preemption. Where the head of a department or agency determines that a regulatory statement of preemption or codified regulatory provision cannot be so justified, the head of that department or agency should initiate appropriate action, which may include amendment of the relevant regulation.

Blawgletter sees preemption as neither good nor bad as a general rule.  Some things need mandatory nation-wide standards.  Commercial pilot licensing come to mind.  But we do need to balance local needs against federal ones — and to err, if at all, on the side of rules that reflect more local values and priorities.

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