USLawEssentials Law & Language
USLawEssentials Law & Language
Preparing for a New Class Behind the Scenes: Part II

Episode 19

The USLawEssentials Law & Language podcast presents Part II of a conversation between Stephen Horowitz and Daniel Edelson concerning preparation for an Introduction to US Law course for LLM students. Daniel taught this class for several years and now it’s Stephen’s turn. He will be teaching an intensive week of classes to international students beginning their legal education in the United States.

Stephen and Daniel discuss the Supremacy Clause, federalism, and preemption. In addition, they talk about ways to introduce students not just to the fundamentals of US law but also to how law students study law in the United States.

Plus Stephen and Daniel try to come up with cool nicknames for themselves and don’t do so well.

If you’ve ever wanted to hear some of the ways instructors get ready to teach US law and legal English you’ll enjoy this episode.


Below is the excerpt from the Supreme Court case, Arizona v. United States, that Stephen and Daniel discuss during this episode.

Federalism, central to the constitutional design, adopts the principle that both the National and State Governments have elements of sovereignty the other is bound to respect. See Gregory v. Ashcroft, 501 U.S. 452,457, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991); U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 838, 115 S.Ct. 1842, 131 L.Ed.2d 881 (1995) (KENNEDY, J., concurring). From the existence of two sovereigns follows *399 the possibility that laws can be in conflict or at cross-purposes. The Supremacy Clause provides a clear rule that federal law “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.” Art. VI, cl. 2. Under this principle, Congress has the power to preempt state law. See Crosby v. National Foreign Trade Council, 530 U.S. 363, 372, 120 S.Ct. 2288, 147 L.Ed.2d 352 (2000); Gibbons v. Ogden, 9 Wheat. 1, 210–211, 6 L.Ed. 23 (1824). There is no doubt that Congress may withdraw specified powers from the States by enacting a statute **2501 containing an express preemption provision. See, e.g., Chamber of Commerce of United States of America v. Whiting, 563 U.S. 582, 592, 131 S.Ct. 1968, 1974–1975, 179 L.Ed.2d 1031 (2011).

State law must also give way to federal law in at least two other circumstances. First, the States are precluded from regulating conduct in a field that Congress, acting within its proper authority, has determined must be regulated by its exclusive governance. See Gade v. National Solid Wastes Management Assn., 505 U.S. 88, 115, 112 S.Ct. 2374, 120 L.Ed.2d 73 (1992) (Souter, J., dissenting). The intent to displace state law altogether can be inferred from a framework of regulation “so pervasive … that Congress left no room for the States to supplement it” or where there is a “federal interest … so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.” Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947); see English v. General Elec. Co., 496 U.S. 72, 79, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990).

Second, state laws are preempted when they conflict with federal law. Crosby, supra, at 372, 120 S.Ct. 2288. This includes cases where “compliance with both federal and state regulations is a physical impossibility,” Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142–143, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963), and those instances where the challenged state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,” Hines, 312 U.S., at 67, 61 S.Ct. 399; see also *400 Crosby, supra, at 373, 120 S.Ct. 2288 (“What is a sufficient obstacle is a matter of judgment, to be informed by examining the federal statute as a whole and identifying its purpose and intended effects”). In preemption analysis, courts should assume that “the historic police powers of the States” are not superseded “unless that was the clear and manifest purpose of Congress.” Rice, supra, at 230, 67 S.Ct. 1146; see Wyeth v. Levine, 555 U.S. 555, 565, 129 S.Ct. 1187, 173 L.Ed.2d 51 (2009).