Preemption/Supremacy Clause Developments

A preemption cause of action under the Supremacy Clause is becoming an important potential alternative to section 1983 when states violate federal law. This article discusses two developments on this.

A recent article on the subject analyzes 20 cases decided by the Supreme Court between October 1996 and June 2003 in which private plaintiffs filed civil actions in federal court against state officers or local governments or officers seeking prospective declaratory or injunctive relief to remedy an alleged violation of a federal statute or to block enforcement of a state or local law allegedly preempted by a federal statute. David Sloss, Constitutional Remedies for Statutory Violations, 89 Iowa L.Rev. 355 (January 2004).

The author concludes that in all nine of the cases involving a state law or regulation, as well as one case that involved an administrative order, the Court went to the merits without considering whether the allegedly preemptive federal statute provided a cause of action. In the ten cases involving state "executive" action—policy or practice—the Court reached the merits only if the federal statute provided a cause of action. Sloss argues that the Supreme Court has implicitly recognized an implied cause of action under the Supremacy Clause, and that the cause of action should extend to the "executive" action cases as well.

In a case falling on the "executive" side of the line (i.e., policy rather than law), the Eastern District of Virginia recently found that immigrant plaintiffs, represented by MALDEF, had stated a cause of action under the Supremacy Clause to challenge the state's policy of denying college admission to undocumented aliens using standards that conflicted with federal immigration law standards on who is legally or illegally in the country. Equal Access Educ. v. Merten, 305 F.Supp. 2d 585, 593-94, 608 (E.D. Va. 2004). Like many of these cases, the court went straight to the merits without considering where the cause of action was.