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Preemption as an Alternative to Section 1983

By Lauren K. Saunders

Poverty law advocates have long used Section 1983 as their primary vehicle to raise claims in federal court, but, since the U.S. Supreme Court decision in Gonzaga University v. Doe, relying on Section 1983 to assert these claims has been more difficult. The supremacy clause of the Constitution offers an alternative; advocates may assert in federal court that federal law preempts state statutes, regulations, or other policies that harm low-income clients. Neither damages nor attorney fees are available under preemption claims; however, this may make judges more open to consider claims on behalf of low-income clients. Moreover, the Supreme Court has long recognized the preemption cause of action.

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