Executive Preemption

[slossdl]

Is there any Supreme Court (or even lower court) decision
that establishes
that an agency of the Executive Branch has any authority to
pre-empt state
laws?

The earliest Supreme Court decisions authorizing preemption
of state laws by the executive branch, not surprisingly,
dealt with international executive agreements.  See U.S. v.
Belmont, 301 US 324 (1937); US v. Pink, 315 US 203 (1942). 
More recent decisions along these lines include American
Insurance Association v. Garamendi (2003) and Dames & Moore
v. Regan (1981).  These are cases where the Supreme Court
held that an international agreement concluded by the
executive branch, without congressional authorization,
preempted state law.  Dames & Moore is slightly different
because the Court gave preemptive effect to an executive
order that was designed to implement an international
agreement.

If one focuses on purely domestic cases that do not have a
foreign affairs angle, the earliest case I know of was
Capital Cities Cable v. Crisp, 467 US 691 (1984), where the
Court held that FCC regulations preempted an Oklahoma law. 
As an earlier post noted, the implicit premise here is that
Congress delegated preemptive authority to the FCC.  To the
best of my knowledge, though, the Court has never subjected
that premise to careful scrutiny.

David Sloss
Saint Louis University School of Law