Law
How Subnational Governments Use Litigation to Challenge Federal Preemption
Quick fact
In 2020, California filed over 100 lawsuits against the federal government, many challenging federal preemption of state environmental and immigration policies. This aggressive litigation strategy has become a defining feature of modern federalism.
Why this is interesting
Imagine a state passing a strict environmental law, only to have the federal government say 'we've got this covered' — but the state fights back in court. How can a state sue the very government that's supposed to be over it?
Read the full explanation
Understanding How Subnational Governments Use Litigation to Challenge Federal Preemption
In the U.S., the Constitution's Supremacy Clause makes federal law the supreme law of the land, which means federal laws can preempt, or override, state laws in areas where Congress has authority. But the Constitution also grants states significant power, and the 10th Amendment reserves powers not delegated to the federal government to the states. When a state believes the federal government has overstepped its authority or improperly preempted state law, it can challenge that action in court. Subnational governments—both states and cities—use litigation as a tool to test the boundaries of preemption. They argue that the federal law either exceeds Congress's enumerated powers, violates the Tenth Amendment, or fails to meet statutory requirements. This is not just a legal formality; it's a strategic way to resist federal policy and protect state regulatory authority. For example, when the federal government tried to withhold transportation funding from states that didn't comply with certain immigration enforcement mandates, several states and cities sued, arguing that the federal government was coercing them, which violates principles of federalism.
A deeper explanation
Litigation over preemption is rooted in the Constitution's structure. The Supremacy Clause establishes that federal law trumps conflicting state law, but it also implicitly recognizes that states retain their own sovereign powers. The Supreme Court has interpreted preemption in several ways: express preemption, when a federal statute explicitly says it overrides state law; implied preemption, when a federal law is so comprehensive that it leaves no room for state regulation; and conflict preemption, when state law directly conflicts with federal requirements. Subnational governments can challenge preemption by arguing that the federal law is not a valid exercise of congressional power. They may invoke the Tenth Amendment, which prohibits the federal government from commandeering state legislative or executive processes. This doctrine, established in cases like New York v. United States and Printz v. United States, protects states from being forced to implement federal regulatory programs. Additionally, states and cities have standing to sue when they suffer a concrete injury, such as financial loss or the direct conflict between state and federal law. These lawsuits often reach the Supreme Court, which then decides the scope of federal power. This mechanism is vital because it allows subnational governments to push back against perceived federal overreach and safeguard their policy autonomy. Without this litigation avenue, states would have little recourse against Congress's broad use of preemption, and the balance of power would tilt heavily toward the federal government.