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[Vol. 25:601

called late in 2006.256 This demonstrates how the political accountability of the state governments can have a big impact on their progressivism.

The Circular Problem of Preemption

Even where state governments are more progressive than the federal government and pass legislation early to tackle social, economic and political issues, the circular problem of pre-emption still exists when Congress comes in and later passes federal policy. Preemption can be an issue even where Congress has not expressly stated that a state law should be preempted by federal.257 Courts have held that even without “explicit preemptive language,” Congress’ desire to preempt state law may still be found.258 This is called implied conflict preemption and “occurs where a federal statute implicitly overrides a state law” by either an intent by Congress for only the federal law to occupy the specific field, or when there is an actual conflict between the state and federal laws.259 Implied conflict preemption can occur even where Congress has not entirely superceded state regulation in an area—a state law will be “preempted [sic] to the extent that it actually conflicts with federal law.”260

An even more alarming application of preemption occurs where the Court holds that a state law may be preempted by a federal statute contrary to the expressed intent of the statute and against the statute’s savings clause. In Geier v. American Honda Motor Co.,261 the Court held that the plaintiff’s state common law claim was preempted by a federal statute, even though that federal statute contained a savings clause aimed

256. Press Release, the Senate Republican Majority, Senate Passes “Timothy’s Law to Provide Mental Health Parity” (Sept. 15, 2006), http://www.senate.state.ny.us/pressreleases.nsf/ (search “PRbyDate” hyperlink; then follow “2006” hyperlink).

257. Morgan, supra note 246, at 1386; (citing Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190, 204 (1983)).

    • 258.

      Pac. Gas & Elec. Co., 461 U.S. at 203-04.

    • 259.

      Turner v. Chevron U.S.A. Inc., No. B173622, 2006 WL 1314013, at *6 (Cal. Ct. App.

  • 2006)

    (citing Freightliner Corp. v. Myrick, 514 U.S. 280, 287 (1995) (stating that “a federal statute

implicitly overrides state law either when the scope of a statute indicates that Congress intended federal law to occupy a field exclusively or when state law is in actual conflict with federal law.”).

260. Pac. Gas & Elec. Co., 461 U.S. at 204. The court further stated that a state statute will be found to conflict with federal legislation where “compliance with both federal and state regulations is a physically impossibility.” Id. (quoting Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43 (1963). Further, the Court held that a conflict may also exist where state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Id. (quoting Hines v. Davidowitz, 312 U.S. 52, 67-68 (1941)).

261. 529 U.S. 861 (2000).

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