Washington Law Review


Daryl R. Hague


In Alverado v. Washington Public Power Supply System, the Washington Supreme Court held that nonbinding agency action preempted Washington's constitutional right to privacy in the context of employee drug testing at nuclear power plants. This preemption holding was based on traditional "occupation of the field" standards, which prohibit concurrent state regulation in areas where the federal government exercises plenary power. Because it was based on an "occupation of the field" finding, the court's decision had the practical effect of permitting nonenforceable agency pronouncements to preempt state constitutional guarantees. An exception to traditional "occupation of the field" doctrine is proposed to rectify this summary preemption of state civil rights. The exception would require that courts uphold state constitutional guarantees when the specific federal interest in an occupied field is only expressed by nonbinding agency pronouncements.

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