Congress may indicate pre-emptive intent in two ways: through a statute's express language or through its structure and purpose. See Jones v. Rath Packing Co., 430 U. S. 519, 525 (1977).


Express preemption requires a statute (an act of congress) to explicitly say the law which contradicts the state law. Regulatory decrees don't do this.

Implied preemption happens two ways.

Conflict and field preemption. Conflict happens when a state law conflicts with a congressional act, creates an "obstacle" in enforcing a congressional act, or frustrates the purpose of an act of congress. None of those things involve regulations.

Field preemption is when the federal laws "occupy the field" where the state law exists. Again, acts of congress and not regulations.

The Federal Gov't can't change state laws. In Virginia, no paperwork on private sales. It would take an act of congress to change that (supremacy clause). Regulatory orders can't change state law.

Besides obviously unconstitutional efforts, I don't think much can be done.

Check this out. Regulations derive their power from existing law. If the law doesn't say they can do it, or the law can't be interpreted to say they can do it, it can't. The laws have to be sufficiently clear that they give the power to regulate based on the laws.

http://www.trolp.org/main_pgs/issues/v11n1/Pace.pdf