Commerce Clause and Federal Preemption
Article I, section 8, clause 3 of the United States Constitution empowers Congress to regulate interstate or foreign commerce. Even in the absence of congressional enactments, the United States Supreme Court has held that States are precluded either from discriminating against interstate commerce or from imposing an undue burden on competition from interstate enterprises. Congress, however, may authorize States to discriminate against out-of-state companies, as it has done to a limited extent in the field of insurance pursuant to the McCarran-Ferguson Act. When state governments are acting as market participants in contrast to government regulators Commerce Clause restrictions are lifted. States may favor their own business enterprises.
Under the Supremacy Clause of Article 6 of the Constitution, federal statutes or federal regulations issued by executive branch agencies preempt conflicting state laws that obstruct achievement of the federal regulatory objective except in cases where Congress has stated its intent to leave state regulatory authority undisturbed.
Mr. Fein has written extensively on commerce clause and federal preemption matters ranging from financial or environmental regulation to energy, drugs, or cigarette advertising. He is well versed in the regulatory authority of the Environmental Protection Agency, the Federal Energy Regulatory Commission, the Federal Communications Commission, the Federal Trade Commission, the Securities Exchange Commission, the National Labor Relations Board, the Consumer Product Safety Commission, the federal Food and Drug Administration, and the Federal Reserve Board. He regularly addressed federal preemption of state or local restrictions on broadcast advertising, cable or otherwise as general counsel of the Federal Communications Commission. He has testified before federal agencies regulating financial institutions regarding authority to preempt state laws via regulations authorized by Congress.
Mr. Fein has litigated cases challenging state restrictions on out-of-state insurance companies under the Commerce Clause. As Special Assistant to the Assistant Attorney General for Antitrust in the United States Department of Justice, Mr. Fein frequently confronted state laws that impaired the free market purpose of the federal antitrust statutes.
