August 5, 2020

Preemption of State Tort Law


  • The HEALS Act contains liability protections that would, among other things, preempt state tort law for coronavirus-related lawsuits, replacing it with uniform federal standards.
  • The founders explicitly intended to allow occasional federal preemption of state law, as shown by the supremacy clause of the Constitution.
  • Congress has preempted state tort law frequently in complex areas of the economy and issues of health and safety, where litigation could otherwise drag on for years.

The Constitution allows the federal government to establish a law that state laws cannot contradict. This doctrine, known as federal preemption, has been used hundreds of times since 1789 when issues of national importance arise and there is a particular need for uniformity. Congress often has used preemption to control lawsuits – one of the first laws after the Constitution was ratified prevented state courts from taking jurisdiction over maritime lawsuits.

Areas with Some Federal Preemption of State Tort Law

Examples Preemption of State Tort Law

The Health, Economic Assistance, Liability Protection and Schools Act would preempt state law on coronavirus-related lawsuits. These lawsuits often allege torts — wrongful acts like manufacturing a defective product or providing an unsafe work environment. State tort law imposes behavioral standards on potential litigants and exacts penalties for violating those standards, so it limits what people and businesses can do just as decisively as a statute or regulation. A series of successful product-liability suits will likely force the manufacturer to stop producing the product. Because the tort law of one state can have dramatic effects in other states, Congress has frequently preempted state tort law.

How Preemption Works

Article VI, paragraph 2 of the Constitution, known as the supremacy clause, says: “This Constitution, and the laws of the United States which shall be made in pursuance thereof … shall be the supreme law of the land.” This means that any act within Congress’ power can also preempt contrary state law. Congress can expressly preempt state law by including a preemption clause in the text of the statute. A notable case of express preemption involved Congress preempting state auto safety standards that conflicted with a national law passed in 1966.

Even if Congress does not include an express preemption clause, judges routinely hold that Congress has “implied” that a state law should be preempted. One form of this is “field preemption,” where Congress has so pervasively regulated on the subject that a court may safely infer that it intended to preclude any state legislative activity on that subject. An example is maritime law, including injuries or deaths at sea.

The second kind of implied preemption is known as “conflict preemption.” This occurs when simultaneous compliance with state and federal regulations is impossible or where compliance with state law would present an obstacle to achieving Congress’ goal. One major case in this area involved cigarette warning labels. Another involved a Vermont statute that allowed lawsuits against water pollution emanating on the New York side of Lake Champlain, despite the existence of the federal Clean Water Act, which regulated interstate water pollution.

In the courts, preemption cases generally are matters of statutory interpretation, not constitutional law. If Congress has the constitutional authority to enact a piece of legislation, it automatically has the authority to preempt all state law that conflicts with that legislation. The vast majority of preemption cases therefore involve only the question of whether Congress intended to displace state law. Courts answer this question by interpreting the statute and divining Congress’ intent. 

Express preemption clauses in legislation significantly simplify matters, because Congress spells out how much law it wants to preempt. Most preemption cases therefore involve either a statute where Congress did not expressly convey its intent or a statute containing extremely broad preemption provisions. This type of case requires courts to determine just how far the preemption actually reaches. 

Evolution of Federal Preemption

Far from being an unusual act, federal preemption of state law was one of the key reasons for adoption of the Constitution. Alexander Hamilton and James Madison both wrote in support of the supremacy clause in the Federalist Papers. One of the key faults of the Articles of Confederation had been that national treaties did not apply to the states. Several states failed to adhere to the terms of the Treaty of Paris ending the Revolutionary War, and Britain cited those instances to excuse its own refusal to withdraw all troops from North American forts within territory the United States claimed.

Federal law regularly conflicted with and overruled existing state tort law. As the American economy developed, the federal government often acted to promote commerce between states, and conflicting state provisions could hamper that advancement. In one 1845 case, the Supreme Court ruled that Pennsylvania could not impose a separate toll on the portion of the Cumberland Road in its jurisdiction.

With increased trade between states, tort law became increasingly sophisticated, resulting in many lawsuits. States enacted their own statutes, which sometimes disadvantaged interstate trade or otherwise conflicted with federal plans for development. In a 1913 case, the Supreme Court invalidated a Wisconsin food labeling law on the grounds that its conflict with a federal food labeling law imposed a burden on interstate commerce. At the same time, the increasing share of people working for large businesses caused new pressures on the interstate economy and the tort system. The Supreme Court held in another 1913 case that a Texas law on employer liability was superseded by federal law.

Federal preemption of state tort law has continued apace, often in the fields of health and safety:

  • In 1984, the Supreme Court held that Congress had preempted a Michigan statute making agricultural producers’ associations exclusive bargaining agents. Congress had created its own policy in the area protecting the right of farms to decide whether to join such associations.

  • In 1999, Congress passed the Y2K Act, limiting liability related to feared computer glitches.

  • In 2005, Congress limited liability for firearms manufacturers in the Protection of Lawful Commerce in Arms Act.

  • In 2005, Congress limited liability for organizations manufacturing, distributing, or dispensing medical countermeasures during a health emergency.

  • The Supreme Court held in 2008 that the Federal Food, Drug, and Cosmetic Act barred common-law claims against the safety and effectiveness of certain medical devices given premarket approval by the FDA.

  • In 2011, the court held that federal drug labeling requirements preempt state statutes.

  • In 2012, the court found that a California statute governing slaughterhouses was preempted by the Federal Meat Inspection Act.

Issue Tags: Judiciary, COVID-19