Preemption as a Defense in Federal Mail & Wire Fraud Cases

Another, albeit rarely applicable, defense to a charge of mail or wire fraud is the defense of preemption. This legal strategy argues that a charge under the mail and wire fraud statutes may be superseded or replaced by more specific and narrowly tailored legislation enacted after the original fraud statutes, particularly when such newer laws more directly govern the conduct in question.

When Does Preemption Apply in Fraud Cases?

As discussed earlier, in most instances, the mail and wire fraud statutes are not preempted by later legislation. Courts generally uphold the applicability of the broader fraud statutes unless a clear legislative directive says otherwise. However, a few notable exceptions do exist:

1. Tax Fraud Cases

In cases involving tax-related fraud, federal prosecutors are typically required to consult with the Department of Revenue. In such situations, the department often recommends charging the offense under the Internal Revenue Code, rather than using mail or wire fraud statutes—unless a specific individual was defrauded.

2. National Labor Relations Act (NLRA)

A more concrete example of preemption involves the National Labor Relations Act (NLRA). Congress has explicitly stated that schemes aimed at depriving employees of their rights under the NLRA cannot be prosecuted under the mail or wire fraud statutes.

Preemption Requires Specific Legislative Intent

Except for these narrow exceptions, U.S. courts usually hold that the mail and wire fraud statutes remain fully enforceable. Unless Congress has clearly specified otherwise, newer legislation does not automatically preempt the application of general fraud laws.