What is reverse preemption?
Reverse preemption is when states ask the federal government to “save us from ourselves.” The usual scenario is a federal entity or interest group calling to decrease state involvement in favor of more federal participation. We see this with the Class Action Fairness Act, for example, in which class actions are pushed out of state courts into federal courts. This is also common in criminal cases where a federal offense is created. Reverse preemption is rare but could happen for a variety of reasons; for example, a state legislator may see federal preemption as the only way to accomplish a state’s goal; a state with a successful program might want such a program to be adopted by all states; or a state might see an issue as being more suited to federal goals.The types of issues that may lend themselves to reverse preemption include the environment—national regulations may be favored by states, as long as the states are not too restricted themselves; the economy—for example, an area tryin
