Talk:Preemption (law)

The section on ERISA needs to be checked for neutrality and copy-edited. --Eastlaw 10:53, 1 April 2007 (UTC)
 * It is a very specific example and frankly I have a hard time seeing what it's doing in the article. The lack of any mention of the term preemptive (also known as preventative) war as a doctrine of the United States is a bit baffling, as well. --Edwin Herdman 06:54, 9 April 2007 (UTC)

I second a vote to look at the neutrality of this article. While I agree that this article is true to the current prevailing court jurisprudence, it should be noted that the Constitution qualifies, in the same section, that state judges do not have to uphold Federal Constitutional laws if they violate state law or state constitutions. See below where emphasis is added.

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 .

This of course would correspond entirely with the 9th and 10th amendments. This view holds that Federal power is limited to only the specific powers that are enumerated in the Constitution, while state powers are only limited or preempted when the Constitution specifically denies a power to the states. However, while this view of the Constitution was almost universal at signing, at the state ratifying conventions, and in the first years of the republic, since Mulberry v Madison, this view, and the 10th amendment for that matter, have been essential ignored.

—Preceding unsigned comment added by 24.126.197.204 (talk) 21:10, 3 November 2008 (UTC)

The comment above said: ". . . it should be noted that the Constitution qualifies, in the same section, that state judges do not have to uphold Federal Constitutional laws if they violate state law or state constitutions."

This is dead wrong. Article VI, in the Supremacy Clause, provides explicitly that state judges must enforce the U.S. Constitution, even if state laws or state constitutions conflict with it. That's what "notwithstanding" means. Furthermore, this does not conflict with any established view of the tenth amendment (how did the ninth even get into this discussion?). Preemption is, by definition, a denial of power to the states by Congress. If Congress is acting within its delegated powers, and if the Constitution does not preserve a power to the states, Congress may preempt the states from acting. One additional point. Marbury v. Madison (not Mulberry) is about separation of powers within the federal government, not about federalism, which concerns allocation of powers between the federal and state governments, which is what preemption is all about.

The preemption article is a mess and needs rewriting. I plan to take that on. —Preceding unsigned comment added by Wikigroupy (talk • contribs) 11:43, 3 May 2009 (UTC)