This book examines the theory, law, and reality of preemption choice. The Constitution's federalist structures protect states' sovereignty but also create a powerful federal government that can preempt and thereby displace the authority of state and local governments and courts to respond to a social challenge. Despite this preemptive power, Congress and agencies have seldom preempted state power. Instead, they typically have embraced concurrent, overlapping power. Recent legislative, agency, and court actions, however, reveal an aggressive use of federal preemption, sometimes even preempting more protective state law. Preemption choice fundamentally involves issues of institutional choice and regulatory design: should federal actors displace or work in conjunction with other legal institutions? This book moves logically through each preemption choice step, ranging from underlying theory to constitutional history, to preemption doctrine, to assessment of when preemptive regimes make sense and when state regulation and common law should retain latitude for dynamism and innovation.

Congressional Preemption provides an in-depth account of the use of preemption powers by Congress to either partially or completely remove regulatory authority from state and local governments in a wide variety of fields. Author Joseph F. Zimmerman exposes the inadequacies of the two current theories of United States federalism—dual and cooperative—by exploring the impact of Congress' frequent use of its preemption powers since 1965. While the dual and cooperative federalism theories retain a degree of explanatory power, Zimmerman considers why they do not explain the profound systemic changes produced by congressional preemption. Other topics covered include congressional use of conditional grants-in-aid, crossover sanctions, tax credits, tax sanctions, and partial and complete redemption; the theory of political safeguards of federalism; and the Blackmun Thesis, which encourages states to seek relief from preemption statutes in Congress and not the courts. The book concludes with postulates of a broader theory of federalism and recommendations addressed to Congress to reinvigorate the federal system.

Preemption is a doctrine of American constitutional law, under which states and local governments are deprived of their power to act in a given area, whether or not the state or local law, rule or action is in direct conflict with federal law. This book covers not only the basics of preemption but also focuses on such topics as federal mechanisms for agency preemption, implied forms of preemption, and defensive use of federal preemption in civil litigation.

Most people are unaware of a quiet war that has been raging in the courts, federal regulatory agencies, and Congress, a war over federal agency preemption of state common law claims. This text offers scholars and policymakers a full analysis of the legal and policy issues under debate.

The dramatic declaration by U.S. President George W. Bush that, in light of the attacks on 9/11, the United States would henceforth be engaging in "preemption" against such enemies as terrorists armed with weapons of mass destruction forced a wide-open debate about justifiable uses of military force. Opponents saw the declaration as a direct challenge to the consensus, which has formed since the ratification of the Charter of the United Nations, that armed force may be used only in defense. Supporters responded that in an age of terrorism defense could only mean "preemption." This volume of all-new chapters provides the historical, legal, political, and philosophical perspective necessary to intelligent participation in the on-going debate, which is likely to last long beyond the war in Iraq. Thorough defenses and critiques of the Bush doctrine are provided by the most authoritative writers on the subject from both sides of the Atlantic. Is a nation ever justified in attacking before it has been attacked? If so, under precisely what conditions? Does the possibility of terrorists with weapons of mass destruction force us to change our traditional views about what counts as defense? This book provides the most comprehensive assessment to date of the justifiability of preemptive or preventive military action. Its engaging debate, accompanied by an analytic Introduction, focuses probing criticism against the most persuasive proponents of preemptive attack or preventive war, who then respond to these challenges and modify or extend their justifications. Authors of recent pivotal analyses, including historian Marc Trachtenberg, international relations professor Neta Crawford, law professor David Luban, and political philosopher Allen Buchanan, are confronted by other authoritative writers on the nature and justification of war more broadly, including historian Hew Strachan, international normative theorist Henry Shue, and philosophers David Rodin, Walter Sinnott-Armstrong, and Suzanne Uniacke. The resulting lively and many-sided exchanges shed historical, legal, political, and philosophical light on a key policy question of our time. Going beyond the simple dichotomies of popular discussion the authors reflect on the nature of all warfare, the arguments for and against it, and the possibilities for the moral to constrain the military and the political in the face of grave threat. This book is a project of the Oxford Leverhulme Programme on the Changing Character of War.

Congress possesses broad regulatory powers, including the power of complete or partial preemption of state and local regulatory powers. Congress rarely enacted preemption statutes before the twentieth century, but since the 1960s such interventions have grown significantly in number, now totaling over seven hundred, and have transformed the nature of the American federal system. In Innovative Congressional Minimum Standards Preemption Statutes, Joseph F. Zimmerman provides the background and history of this critical transformation, classifying the forms these federal interventions have taken, with a focus on statutes dealing with such environmental issues as water and air quality, restoration of surface-mined areas, and still other areas that, collectively, have produced a revolution in relations between Congress and the states. Contrary to public perceptions of preemption being one-sided and heavy-handed, Zimmerman details the many variations present in these statutes that accommodate state and local interests, allowing for administrative and policy flexibility, and a generally cooperative relationship between states and localities and federal administrative agencies.