Federalism and Preemption in October Term 1999

Abstract

Relying on national prerogatives and policies in order to ward off state taxes, state regulations, and potential state common-law liability, business litigants found an unusually receptive ear at the Supreme Court this past Term. A staple of the Court's ongoing work is management of the balance of federal and state power in our complex and sophisticated federal structure of government, especially in the context of regulation of commercial enterprises that often seek to avoid federal or state control by claiming that whichever level of government seeks to impose such control lacks authority under the Constitution to do so, because only the other level possesses the requisite power. This year was no exception, although my commentary is limited primarily to the validity of state laws challenged as inconsistent with federal power itself or particular exercises of federal power.