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Libertas: Guiding Questions and Principles for Determining Preemption: Assignment


Project: Guiding Questions and Principles for Determining Preemption
Assigned 12/4/19
Due Tuesday 12/10/19 (we will present in class)
100 points Major Test/Project Grade

In small groups (3-4, no more than 4 students) identify an issue, other than McCulloch v. Maryland – historical or current – in which there was conflict between federal and state power. Use the guiding questions below to help develop an analysis. You will work on this assignment during class on Tuesday, Wednesday, Thursday and Friday present your findings to the class on Tuesday September 4th.

Presentation Rubric
Your group will present the information during class on Tuesday, 9-10-19. Even if one of your group members is absent.  Remember, your group can upload everything to OneDrive. You must send me any slides during the first 10 minutes of class on Friday.  You can share them with me on OneDrive or you can email them to me  This is so we can transition through each presentation smoothly.


  • Presentations should be between 2 (minimum) and 5 (maximum) minutes
  • All group members speak during the presentation
  • No more than four slides total, each slide should have 1) at least one visual aid and 2) no more than three short sentences
  • Slides should supplement the presentation.  The focus should be on the presenters delivering the information. 
  • You should not read from the slides.  You may use one notecard during your presentation to aid in your delivery.

Guiding Questions:

  • What is the issue?
  • What, if any, is the applicable state law?
  • What, if any, is the applicable federal law? regs
  • Does the state law directly contradict federal law? (See below standards in which to determine preemption)
  • Was the issue resolved? If so, how?

Executive Order 13132 of August 4, 1999 - See 64 Fed. Reg. 43, 255 - August 10, 1999, Sec. 4. Special Requirements for Preemption.
Agencies, in taking action that preempts State law, shall act in strict accordance with governing law.

  1. Agencies shall construe, in regulations and otherwise, a Federal statute to preempt State law only where the statute contains an express preemption provision or there is some other clear evidence that the Congress intended preemption of State law, or where the exercise of State authority conflicts with the exercise of Federal authority under the Federal statute.
  2. Where a Federal statute does not preempt State law (as addressed in subsection
    (a) of this section), agencies shall construe any authorization in the statute for the issuance of regulations as authorizing preemption of State law by rulemaking only when the exercise of State authority directly conflicts with the exercise of Federal authority under the Federal statute or there is clear evidence to conclude that the Congress intended the agency to have the authority to preempt State law.
  3. Any regulatory preemption of State law shall be restricted to the minimum level necessary to achieve the objectives of the statute pursuant to which the regulations are promulgated.
  4. When an agency foresees the possibility of a conflict between State law and Federally protected interests within its area of regulatory responsibility, the agency shall consult, to the extent practicable, with appropriate State and local officials in an effort to avoid such a conflict.
  5. When an agency proposes to act through adjudication or rulemaking to preempt State law, the agency shall provide all affected State and local officials notice and an opportunity for appropriate participation in the proceedings.