presumption that state law not preempted
-Need intention to supersede or impossible to comply with state and federal law (See Geier v. Am. Honda (2000) (can’t sue for failure to put in passive restraints because interferes with statute requiring phase-in of restraints)
-Not true with federal action (See Sea Clammers – common law action based on federal interstate pollution law pre-empted by pollution act – federal agency determined what was reasonable)
-ERISA says state benefit law preempted (e.g., can’t have state universal healthcare) – lots of litigation in this area
-What sort of deference to agencies saying their actions preempt?
-agency could justify on grounds it can adopt ALL rules and regulations necessary to adopt goals of statute
-Chevron deference?
-other view – unless Congress says pre-empt it doesn’t
-ultimately federalism question