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Preemption in Congress Preemption in Congress GARRICK B. PURSLEY* Modem preemption is about more than courts following the Supremacy Clause 's command to apply federal law rather than state law where the two conflict. More and more, preemption is about courts enforcing Congress's intent that there should be no state law on a subject, even where there is no conflicting substantive provision offederal law. Courts assume that this is a legitimate exercise of congressional power and confine their efforts to determining the categories of state law Congress intended to displace. Even as they bemoan the increasingfrequency of preemption and its effects on state governments, commentators make the same assumption and limit their suggestions to fine-tuning the judicial method for determining the extent Of Congress 's preemptive intent. My approach is different. Rather than take for granted Congress 's power to displace state law in the absence of conflictingfederal law, I examine the potential constitutional sources of that power. It simply will not do, after all, to have the government exercising power of uncertain constitutional origin to such profound effect. Judicialdecisions that defer the question to Congress offer little guidance, so I suggest shifting the focus to Congress itself and lay out a method for discovering Congress 's views on the matter. After discussing the kinds of evidence that might legitimately disclose Congress 's understanding of the constitutional basis and scope of its preemptive authority, I begin a descriptive account of Congress 's understandingby looking at one category of relevant statutory evidence and sketchingfuture research. We cannot assess the legitimacy ofjudicial preemption doctrine without a better account of the constitutional norms the doctrine is supposed to implement. In its deferential posture on the basic question of legislative power, preemption doctrine resembles the approach courts take to the scope of Congress 's commerce power and other basic questions of the constitutionalpermissibility of national legislation. The methodology I map here for assessing Congress 's engagement with these important constitutionalquestions may provide a new approachto understandingand critically evaluatinggovernment compliance with fundamental legal norms. * Assistant Professor, The University of Texas School of Law. I thank Dean Lawrence Sager, Professors Mitchell Berman, Lynn Blais, Jane Cohen, Ian Farrell, William Forbath, Brian Galle, Dan Rodriguez, Jordan Steiker, Ernest Young, Hannah Wiseman, and all the participants in The University of Texas School of Law's faculty colloquiumn for helpful comments and suggestions. As always, I'm grateful to Amber Pursley for care and support. 512 512 STATE~OHIO LA WJOURNAL [o.7:[Vol. 71:3 TABLE OF CONTENTS 1. INTRODUCTION............................................................ 512 II. THE CONCEPTUAL GAP INJUDICIAL PREEMPTION DOCTRINE ....520 A. Clear Cases Versus Indirect Conflicts ......................... 524 B. Effects on State Law .............................................. 526 C. Judicial Underenforcement of Preemption's Authorizing Norm................................................................ 530 111. CONGRESS'S CAPACITY FOR CONSTITUTIONAL DELIBERATION AND DECISIONMAKING ...................................................... 534 A. The Relevant Questions About Institutional Capacity........ 535 B. Bare CongressionalCapacity.................................... 544 1. The Strong Realist Critique .................................... 549 2. The Weak Realist Critique...................................... 553 3. Strategic Argument and the Institutional View .............. 560 C. PracticalObstacles and Aids .................................... 563 IV. EVIDENCE OF CONGRESS'S VIEW OF THE CONSTITUTIONAL NORms GOVERNING PREEMPTION ............................................... 576 A. Kinds of Evidence................................................. 578 B. Statutory Evidence: Frameworks ................................ 588 C. Implication, Open Questions, and a Research Agenda ....... 604 V. CONCLUSION ............................................................... 609 1. INTRODUCTION Most debates about preemption relate to what courts do in preemption cases. Conventional wisdom has it that the Supremacy Clause mandates the displacement of state law or state regulatory authority wherever Congress so intends. On this account, courts in preemption cases really just have to figure out what, exactly, Congress intended to preempt. Yes, preemption decisions involve a number of judge-made doctrinal tools-for determining the existence of implied preemption, conflicts with federal statutory objectives, or federal takeover of an entire "field" of regulation-which, in their plasticity, often make it seem as though preemption is more a matter of judicial discretion than congressional prerogative. But these doctrines are designed to identify and implement congressional intent; indeed, on the standard view that Congress possesses primary authority to preempt state law, these doctrines' legitimacy depends on their validity as proxies for Congress's preemptive intent. Preemption's effects are often striking- nullifying validly enacted state laws and preexisting state regulatory authority are the kinds of things that intuition tells us require substantial 20101 2010] ~PREEMPTIONIN CONGRESS51 513 constitutional justification. But while judicial preemption doctrine, at bottom, entirely abdicates to the Congress the authority to determine when these extreme moves are constitutionally permissible; Congress's views about the constitutional permissibility of preemption have been largely ignored. In this article, I want to start filling this gap by laying some theoretical groundwork and giving the beginnings of an account of congressional views about the constitutional norms governing preemption. Preemption is enormously significant. Current preemption doctrine allows Congress to affirmatively invalidate categories of state law and prospectively close off state regulatory authority with nothing more than a clear showing of its intent to do those things. No conflict with a substantive provision of federal law is required. Thus preemption may be the most important issue for modern federalism theory because it reallocates regulatory authority between the national and state governments. Constricting state regulatory authority reduces states' capacity to provide benefits to their citizens, which in turn diminishes states' effectiveness at checking national expansionism in the political process-a critical prerequisite for a functioning set of "political process" safeguards for federalism.' Preemption also shapes the regulatory environment for most major industries-drugs and medical devices, tobacco, banking, air transportation, securities, cars, and boats; to name a few.2 And, since ISee generally Ernest A. Young, Federal Preemption and State Autonomy [hereinafter Young, Federal Preemption], in FEDERAL PREEMPTION: STATES' POWERS, NATIONAL INTERESTS 251-52 (Richard A. Epstein & Michael S. Greve eds. 2007) [hereinafter FEDERAL PREEMPTION]; Ernest A. Young, Executive Preemption, 102 Nw. U. L. REv. 869, 869 (2008) [hereinafter Young, Executive Preemption]; Ernest A. Young, Making Federalism Doctrine: Fidelity, Institutional Competence, and Compensating Adjustments, 46 WM. & MARY L. REV. 1733, 1848 (2005) [hereinafter Young, Federalism Doctrine]; Ernest A. Young, The Rehnquist Court's Two Federalisms, 83 Thx. L. REv. 1, 130-34 (2004) [hereinafter Young, Federalisms]; Ernest A. Young, Two Cheers for Process Federalism, 46 VILL. L. REv. 1349, 1368-73 (2001) [hereinafter Young, Two Cheers]. 2 On drugs and medical devices, see, e.g., Wyeth v. Levine, 129 S. Ct. 1187 (2009); Riegel v. Medtronic, Ic., 552 U.S. 312 (2008); Buckman Co. v. Plaintiffs' Legal Comm., 531 U.S. 341 (2001); Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996); see also Daniel E. Troy, The Case for FDA Preemption, in FEDERAL PREEMPTION, supra note 1, at 82-85. On tobacco, see, e.g., Altria Group, Inc. v. Good, 129 S. Ct. 538 (2008); Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 546-51 (2001); Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516-24 (1992). On banking, see, e.g., Watters v. Wachovia Bank, N.A., 550 U.S. 1 (2007); Barnett Bank of Marion County v. Nelson, 517 U.S. 25 (1996); see also Hal S. Scott, Federalism and FinancialRegulation, in FEDERAL PREEMPTION, supra note 1, at 140-48. On air transportation, see, e.g., Am. Airlines, Inc. v. Wolens, 513 U.S. 219 (1995). On securities, see, e.g., Merrill Lynch, Inc. v. Dabit, 547 U.S. 71 (2006); Guice v. Charles Schwab & Co., 674 N.E.2d 282 (N.Y. Ct. App. 1996); Dahl v. Charles Schwab & Co., 545 N.W.2d 918 (Minn. 1996); see also Scott, supra, at 148-52. On cars, 514 514 STATE~OHIO LA WJOURNAL [Vol.[o.7: 71:3 preemption determines the diversity, scope, and delivery of a wide variety of important government services to citizens, it is the issue of constitutional law that most directly impacts everyday life. 3 Yet preemption remains profoundly under-theorized: We lack a full account of the constitutional norms that authorize, and perhaps constrain, the national government's authority to preempt state law and the ways in which those norms interact with each other. Some instances of preemption are easily explained. If a Nevada statute bans mining within ten miles of the Grand Canyon but a federal statute that permits mining up to two miles from Canyon where the miners obtain a federal license,
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