Newsletter Highlights

by Leslie Kamil

The United States and each state are governed by a variety of laws. Our laws come from the federal (i.e., U.S.), state, or local/municipal/county governments, or a combination of these governments.

Constitution  – the most fundamental law of a sovereign body. There is a U.S. Constitution and each state has its own Constitution. In many cases, “constitution” refers to a single written document that explicitly creates government institutions, defines the scope of government power, and guarantees certain civil liberties. 

Statute – a law enacted by a legislature. Statutes are also called acts, such as the Civil Rights Act of 1964. There are both federal and state statutes that must be passed by both houses of Congress, and then they are usually approved/signed by the President or Governor before they can take effect. 

Regulation – an official rule. In the government, certain administrative agencies have a narrow authority to control conduct within their areas of responsibility. These agencies have been delegated the power to create and apply the rules, or “regulations.”

Case law – also called common law, is based on judicial decisions rather than law based on constitutions, statutes, or regulations. Case law concerns unique disputes resolved by courts using the concrete facts of a case. It refers to the collection of precedents and authority set by previous judicial decisions on a particular issue or topic. In that sense, case law differs from one jurisdiction to another.

 

Understanding the Supremacy Clause and Preemption: Which Laws Reign Supreme?

Areas of Law by Different Levels of Government

Federal Government

The powers of the federal government are listed in the U.S. Constitution, Article I, Section 8. Those powers include but are not limited to: immigration, social security, social welfare, health, bankruptcy, the postal service, intellectual property such as copyright / patent / trademark, environmental issues, customs, food and drug regulation, interstate commerce, and the military. Any powers not specifically listed in the U.S. Constitution as federal powers are left to the states.

State Government

State laws include, but are not limited to: family law matters (such as divorce), child custody, guardianships, contracts, corporations, landlord-tenant issues, business licensing and regulation of professions, workers’ compensation, wills, trusts, estates, and probate.

Local, Municipal (i.e., Town or City), and County Governments

These laws often include, but are not limited to: zoning, property ownership and deed registration, police and emergency services, school boards, libraries, and road maintenance.

 

Understanding the Supremacy Clause and Preemption: Which Laws Reign Supreme?

Laws Overlap

Some areas of law are governed by federal, state, and/or local laws. This usually happens when either the federal or the state congress spends money to create programs for the general welfare. Typically, when federal funds are offered to a state, some element of federal law is involved. This is also the case when the state provides money to local governments. Such areas of law include, but are not limited to: health, labor, education, taxes, consumer protection, employment, and subsidized housing.

Which Laws Reign Supreme?

Preemption of law occurs when a law at a higher level of government is used to overrule authority at a lower level. Preemption conflicts can and do emerge between federal, state, and local governments.

These conflicts are resolved by the Supremacy Clause of the U.S. Constitution, Article VI, which says that laws enacted in furtherance of the U.S. Constitution are the “supreme law of the land,” and that federal laws have superiority over the state constitutions and laws. The Supremacy Clause also includes federal statutes enacted by Congress.

Michigan state law operates similarly, through a clause in its Constitution, state statutes, and a combination of the Dillion Rule and Home Rule. Both rules are tasked with carrying out the mission of the state to allocate services to their constituents on the local level. States use these rules to keep local governments focused on what they do best, while allowing for state preemption and exceptions to the preemptions. Common recent targets of state preemption include ordinances related to the minimum wage and paid sick leave, firearms policy, plastic bags, and marijuana decriminalization.

Summary and Action

Remember that laws can be changed at any time. It is important to understand how laws interact at different levels of government and the impact of elected officials on those laws. Ensuring that elected officials’ values and priorities align with yours is indeed crucial in shaping the legal landscape.

Help get people OUT TO VOTE!! Talk to your family and friends.

 

References

The Supremacy Clause

The Overview of the Supremacy Clause

State, Local, and Municipal Laws

Preemption conflicts between state and local governments

White Paper Dillon – House Rule

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