Hastings Constitutional Law Quarterly Volume 16 Article 3 Number 1 Fall 1988 1-1-1988 Preemption and Federalism: The iM ssing Link Paul Wolfson Follow this and additional works at: https://repository.uchastings.edu/ hastings_constitutional_law_quaterly Part of the Constitutional Law Commons Recommended Citation Paul Wolfson, Preemption and Federalism: The Missing Link, 16 Hastings Const. L.Q. 69 (1988). Available at: https://repository.uchastings.edu/hastings_constitutional_law_quaterly/vol16/iss1/3 This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Constitutional Law Quarterly by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. ARTICLE Preemption and Federalism: The Missing Link By PAUL WOLFSON* Introduction As a weapon against state economic and social regulation, the pre- emption doctrine threatens to become the new Lochner.1 As the states take up much of the regulatory power that Congress has forsworn,2 cor- porations are advancing the Supremacy Clause3 as an obstacle to state regulation in fields such as environmental protection,' employment dis- crimination,' labor law,6 nuclear power,7 workplace safety,8 and securi- ties.9 The courts have had many opportunities to develop a readily applied preemption doctrine. Preemption cases have reached the Supreme Court frequently because they have often come within the * Associate, Wilmer, Cutler & Pickering, Washington, D.C., J.D. Yale Law School, 1987. The author wishes to thank Betsy Cavendish, Michael Froomkin, and Paul Kahn for their many helpful comments and suggestions. 1. Lochner v. New York, 198 U.S. 45 (1905) (New York statute limiting bakers to 60 'hour work week violated Due Process Clause of Fourteenth Amendment). 2. See, eg., Can-Do Capitals: States Enlarge Roles As Congress Is Unable To Solve Problems, Wall St. J., June 28, 1988, at 1, col. 1. 3. "This Constitution, and the Laws of the United States which shall be made in Pursu- ance thereof.., shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwith- standing." U.S. CONST. art. VI, cl. 2. 4. See California Coastal Comm'n v. Granite Rock Co., 107 S. Ct. 1419 (1987); Interna- tional Paper Co. v. Ouellette, 107 S. Ct. 805 (1987). 5. See California Fed. Sav. & Loan Ass'n v. Guerra, 107 S. Ct. 683 (1987). 6. See Allis-Chalmers Corp. v. Lueck, 471 U.S. 202 (1985). 7. See Pacific Gas & Elec. Co. v. State Energy Resources & Dev. Comm'n, 461 U.S. 190 (1983). 8. See Note, Getting Away with Murder: Federal OSHA Preemption of State Criminal Prosecutionsfor IndustrialAccidents, 101 HARV. L. RaV. 535 (1987). 9. See CTS Corp. v. Dynamics Corp. of Am., 107 S. Ct. 1637 (1987); Edgar v. MITE Corp., 457 U.S. 624 (1982). HASTINGS CONSTITUTIONAL LAW QUARTERLY [Viol. 16:69 Court's mandatory appellate jurisdiction."0 When it can do so, the Court usually bases its rulings on preemption rather than other constitutional provisions because preemption cases concern congressional intent, and therefore Congress can overturn the Court's interpretation if the Court is mistaken." Yet frequent opportunities to refine .preemption doctrine have not yielded a consistent jurisprudence. Although the Supreme Court has referred to four categories of pre- emption in almost every one of its recent preemption cases, 12 the catego- 10. Until-recently, parties could appeal of right to the Supreme Court fromfederal appel- late decisions striking down- state statutes as."repugnant to the Constitution, treaties, or laws of the United States," 28 U.S.C. § 1254(2) (1982), and from state court decisions upholding state statutes against a supremacy clause challenge, 28 U.S.C. § 1257(2) (1982). The Supreme Court has recently heard several preemption cases on appeal. See, e.g., Goodyear Atomic Corp. v. Miller, 108 S.Ct. 1704, 1708 (1988); Fort Halifax Packing Co. v. Coyne, 107 S.Ct. 2211, 2214 (1987); Nantahala Power & Light Co. v. Thornburg, 476 U.S. 953, 962 (1986); Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 738 (1985). Congress recently elim- inated most of the Supreme Court's mandatory appellate jurisdiction. See Pub. L. No. 100- 352, 1988 U.S. CODE CONG. & ADMIN. NEWS 102 Stat. 662., 11. See, e.g., Exxon Corp. v. Eagerton, 462 U.S. 176 (1983); Blum v. Bacon, 457 U.S. 132, 137-38 (1982). The Court occasionally has given the impression of reaching out for the pre- emption issue even when the claim was not raised and considered below. See, e.g., Capital Cities Cable, Inc. v. Crigp, 467 U.S. 691, 697-98 (1994); Arkansas Elec. Coop. Corp. v. Arkan- sas Pub. Serv. Comm'n, 461 U.S. 375, 382 & n.6 (1983); Blum v. Bacon, 457 U.S. at 137 n.5. This practice enables the Court to avoid constitutional issues on which there is no consensus. See, e.g., Blum v. Bacon, 457 U.S at 146 (unanimous ruling on supremacy clause issue made moot claim that state program excluding recipients of Aid to Families with Dependent Chil- dren (AFDC) from receiving emergency cash assistance violated Equal Protection Clause). Compare Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691 (1984) (unanimous resolution on preemption issue made moot question whether state statute prohibiting broadcast of liquor advertisements violated First Amendment) with Posadas de P.R. Assocs. v. Tourism Co., 106 S. Ct. 2968 (1986) (five-to-four split on whether Puerto Rico statute restricting advertising of casino gambling violated First Amendment). The Court's reliance on congressional willing- ness to overturn mistaken cases of statutory interpretation has been severely criticized in sev- eral contexts. See, e.j, Johnson v. Transportation Agency, 107 S. Ct. 1442, 1472-73 (1987) (Scalia, J., dissenting). See generally Kahn, Gramm-Rudman and the Capacity of Congress to Control the Future, 13 HASTINGS CONST. L.Q. 185, 211 (1986). 12. The cases usually contain some version of the following: It is well established that within constitutional limits Congress may preempt state authority by so stating in express terms. Absent explicit preemptive language, Con- gress' intent to supersede state law altogether may be found from a "'scheme of federal regulation... so pervasive as to-make reasonable the inference that Congress left no room for the States to supplement it,' because the 'Act of Congress may touch a field in which the federal interest is so dominant that the federal system willbe assumed to preclude enforcement of state laws on the same subject,' or because 'the object sought to be obtained by the federal law and the character of obligations im- posed by it may reveal the same purpose.'" Even where Congress has not entirely displaced state regulation in a specific area, state law is preempted to the extent that it actually conflicts with federal law. Such a conflict arises when "compliance with both federal and state regulations is a physical impossibility," or where state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Fall 19881 PREEMPTION AND FEDERALISM ' - Fall 19981 ries are useless in difficult cases. It is often. hard to determine which category governs a particular case. One-of the nation's eminent appellate judges recently wrote, "We are somewhat wary that these ready citations list, but do not describe, and catalog, but do not define,, any real distinc- tions among the various types of preemption." 3 The Supreme Court's failure to appreciate the link between preemp- tion and the Constitution is the chief cause of the defects in preemption doctrine. This Article explores ways in which that link might be re- stored. Part One examines the salient difficulties with the Supreme Court's current preemption jurisprudence. First, the Court's cases hold- ing that state laws must fall if Congress has"'occupied the field" of legis- lation have failed to provide courts with adequate guidance for determining whether a field has been occupied. Second, the Court's pro- nouncement that state laws must yield if they "stand as an obstacle" to a congressional objective is functionally indistinguishable from the Court's holding that state laws are ousted when Congress "occupies the field," although the Court treats the two rules as separate bases, for preemption. The "stands as an obstacle" test also forces the courts either to search quixotically for the "spirit" of a statute, or to choose'between two doctri- nally deficient theories of preemption, which I shall-call the "floor, not ceiling" theory and the "delicate balance" theory. Part Two discusses the roots of this dissonance in preemption, par- ticularly the Court's reluctance to consider preemption doctrine as. an aspect of constitutional law and its preference to treat preemption as an exercise in statutory interpretation. Part Two argues that preemption cases raise important questions about the nature of federalism under our Constitution and present delicate questions concerning the legislative Pacific Gas & Elee. Co. v. State Energy Resources Conservation & Dev. Comm'n, 461 U.S. 190, 203-04 (1983) (citations omitted). For other recent incantations of the test, see, California Coastal Comm'n v. Granite Rock Co., 107 S. Ct. 1419, 1425 (1987); International Paper Co. v. Ouellette, 107 S. Ct. 805, 811 (1987); California Fed. Say. & Loan Ass'n. v. Guerra, 107 S. Ct. 683, 689 (1987). Justice White listed four types of preemption in Pacific Gas & Electric: express preemp- tion, "leaving no room" preemption (known as "occupying the field" preemption in other cases), physical impossibility preemption, and obstacle preemption. But citing Pacific Gas & Electric in a later case, Justice White found only two general types of preemption, one with two subtypes.