Document Type


Publication Date

Winter 2009

First Page






Source Publication Abbreviation

Hous. L. Rev.


By making federal law supreme to state law, the U.S. Constitution gives Congress "an extraordinary power." Perhaps the extraordinarily powerful nature of the Supremacy Clause is the reason for its checkered treatment by the Supreme Court. Recent preemption decisions give lip service to federalism concerns, but in many cases state statutes, regulations, and remedies have been struck down with little regard for either federal-state comity or institutional competence. If federal regulatory regimes always accomplished optimal regulation perfect equipoise between protecting human health and promoting economic development while fostering innovation by governments and regulated entities-preemption of state law would be far less controversial. Of course, federal regulatory regimes are not always perfect, and the preemption of state laws can leave dangerous regulatory gaps.

This Article sets off in Part II with an assessment of the relationship of preemption and federalism. Part III turns to the Rehnquist and Roberts Courts' treatment of savings clauses when victims seek tort remedies for harm caused by federally regulated activities or products. Next, Part IV assesses the tendency, during the Rehnquist era and continuing through the Roberts Court, to give short shrift to savings clauses when state governments seek to establish more stringent regulatory requirements than imposed by the federal floor. The Article concludes in Part V with suggestions for crafting statutory savings clauses that may survive preemption challenges, as well as more global observations on harmonizing federal objectives with state tort law and state and local regulatory initiatives. In light of the Roberts Court's apparent pro-preemption proclivity, there may be no magic language that ensures against preemption. Careful congressional drafting, however, may promote more rational, equitable results, at least in close cases.