Estate Planning News

Respondent Vigorously Argues That This Commission Lacks Jurisdiction Because Of The Doctrine Of Preemption

Respondent vigorously argues that this Commission lacks jurisdiction because of the doctrine of preemption. We find the Respondent's reliance on this doctrine to be misplaced and unsupported by binding precedent. The doctrine of preemption has had a long and varied history through numerous decisions of the United States Supreme Court. The doctrine, simplified in the extreme, holds that where there is a grant of power to the federal government in a field which requires a uniform system of regulation,[2] and the federal government has exercised its power, the states are barred from entering and/or regulating the field. Gibbons v. Ogden, 9 Wheat. 1, 6 L.Ed. 23 (1824); Wilson v. The Black Bird Creek Marsh Co., 2 Pet. 245, 7 L.Ed. 412 (1829); Cooley v. Board of Wardens of the Port of Philadelphia, 12 How. 299, I3 L.Ed. 996 (1851); Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947); Hines v. Davidowitz, supra, n.2.[3]

The preemptive effect of the National Labor Relations Act, 29 U.S.C. 151 et seq. (hereinafter the "NLRA" or the "Federal Act") on the authority of the states in the field of labor relations was initially developed by Guss v. Utah Labor Relations Board, 353 U.S. 1 (1957), and San Diego Building Trades v. Garmon, 359 U.S. 236 (1959). In Guss, the United States Supreme Court held that section 10(a)[4] of the NLRA was "the exclusive means whereby States may be enabled to act concerning the matters which Congress has entrusted to the National Labor Relations Board," 353 U.S. at 9, even as to cases over which the Board declines jurisdiction. Because the Board never ceded jurisdiction to state agencies under Section 10(a), Guss created a "no-man's land" of cases which the Board declined to hear and which the states were barred from handling, Garmon extended the reach of Guss to activities arguably protected by Section 7 or 8 of the Federal Act fell within the exclusive province of the Board to decide. If the Board declines to assert jurisdiction, under Guss, the states may not regulate the conduct involved.[5]

Contact our Brooklyn estate planning attorney now.

	Did You Know?
	A Will, is sometimes called a "Last Will and Testament" Used to transfer property you hold in your name to the person(s) and/or organization(s) you want to have it. A Will also typically names someone you select to be your Personal Representative (or "Executor") to carry out your instructions and names a Guardian if you have minor children. A Will only becomes effective upon your death, and after it is admitted to probate.