Preemption Clause too Narrow? Expand it Via Regulations!

Every time a federal agency thinks the scope of a preemption clause in federal law is too narrow may it just write a regulation expanding it? That is the heart of the matter in Coventry Health Care of Missouri v. Nevils.

The question of most interest to state and local governments in this case, more technically, is whether Chevron deference applies to an agency’s regulation construing the scope of a statute’s express-preemption provision. Continue reading


Will Statutes of Repose Make a Come Back?

If preemption is your passion, this Supreme Court term has been a disappointment.Supreme Court3 CTS Corp. v. Waldburger is one of just two preemption cases this term. To the extent local governments benefit from decisions finding no preemption, this case is a victory. But practically speaking, it is probably a Pyrrhic one.

In CTS Corp. v. Waldburger, the Supreme Court held 7-2 that the federal Superfund statute, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), does not preempt state statutes of repose. Continue reading


Can State and Local Police Arrest for Immigration Violations?

That is the question presented in SCOTUSblog’s Petition of the Day.Supreme Court3 The Fourth Circuit ruled in Santos v. Frederick County Bd. of Comm’rs, 725 F.3d 451 (4th Cir. 2013), that

absent express direction or authorization by federal statute or federal officials, state and local law enforcement officers may not detain or arrest an individual solely based on known or suspected civil violations of federal immigration law.

Frederick County’s cert petition argues that this creates a circuit split that the Court should resolve: Continue reading


Ninth Circuit: City Requirement That Cell-Tower Company Obtain Voter Approval Upheld

When T-Mobile sought to place a cell tower in a park owned by the City of Huntington Beach, California, the City granted the company all the regulatory approvals it required. But the City also informed T-Mobile that before it would finally lease the company the rights to the City property that it needed, the company must first obtain approval from City voters, under an amendment to the City charter known as Measure C.CellTower

T-Mobile refused. It claimed that Section 332(c)(7) of the Communications Act, 47 U.S.C. § 332(c)(7),  preempts this City requirement.

Is T-Mobile correct?

Not according to the Ninth Circuit, which decided Omnipoint Communications, Inc. v. City of Huntington Beach, No. 10-56877 (9th Cir. Dec. 11, 2013) last week. The court ruled that because Section 332(c)(7) “applies only to local zoning and land use decisions and does not address a municipality’s property rights as a landowner,” it does not preempt this local requirement, which concerns only how the City may lease its property.

Enacted in 1990, Measure C states: Continue reading


Confining Federal Preemption: The Case of Dan’s City v. Pelkey.

Federal preemption provisions must be read sensibly

Federal preemption provisions must be read sensibly

[This is the second in a series of posts reviewing unheralded but noteworthy decisions for State and local governments from the Supreme Court’s last term. See Koontz here.]

State and local-government attorneys often battle federal preemption—including against broad readings that strain common sense.

The case of Dan’s City Uses Cars, Inc., v . Pelkey reminds you why it’s worth it.

It’s the story of Robert Pelkey.

Continue reading