The Supremacy Clause, Original Meaning, and Modern Law MICHAEL D. RAMSEY* Under the U.S. Constitution, if federal interests conflict with state law, when must the latter give way? Although the Constitution's text appears to resolve the question in Article VI's Supremacy Clause, important recent scholarship argues that an approach anchored by the Supremacy Clause's text cannot provide a practicalaccount of modern law nor useful guidancefor the future. More broadly, these critiques use the example of the Supremacy Clause to cast general doubt upon text-based originalism as a practical tool for resolving modern disputes. This article defends a textual approach to key modern issues of supremacy, including executive foreign affairs preemption, preemptive federal common law, and non-self-executing treaties. It finds that, while modem doctrine and modern conceptions of law differ somewhat from the outlook of the founding era, these differences are not insurmountable obstacles: a combination of text and stare decisis, as indicated by the Supreme Court's approach to executive preemption in Medellin v. Texas, can supply workable solutions to modern supremacy debates. The article thus suggests that conventional academic concerns over the practicality of text-based originalism may be considerably overstated. TABLE OF CONTENTS 1. INTRODUCTION ................................................ 560 II. THE TEXT-BASED APPROACH TO SUPREMACY .................. 564 A. Basic Outlines and Tensions with Modern Law ..................... 564 1. No Executive Preemption. ................. ..... 565 2. No Preemptive FederalCommon Law...... ............. 567 3. Complete Preemption by Article VI Sources of Law ........ 570 B. Academic Responses ...................... ...... 570 III. THE SUPREMACY CLAUSE'S ORIGINAL MEANING ...... ......... 572 A. The Supremacy Clause Within the Constitution's Text .......... 572 B. The Supremacy Clause's Role in the Drafting and Ratifying History ........... ................... ..... 575 C. Structural and HistoricalConsiderations. .............. 578 1. Executive Lawmaking ..................... .... 579 2. FederalCommon Law-General Considerations............ 580 3. Federal Common Law-Specific Instances ..... ..... 584 * Hugh and Hazel Darling Foundation Professor of Law and Faculty Director of International and Comparative Law Programs, University of San Diego Law School. For helpful conversations and suggestions I thank Bradford Clark, Daniel Hulsebosch, David Golove, Richard Pildes, Michael Rappaport, and the participants at the New York University School of Law Constitutional Law Colloquium. 560 OHIO STATE LA WJOURNAL [Vol. 74:4 a. Foreign Affairs ...................... ..... 584 b. Admiralty............................... 587 c. InterstateDisputes ................... ..... 589 d. Rights and Obligations ofFederal Officials and Institutions......................... 592 e. Conclusion ......................... ..... 593 4. Non-self-executing Treaties ............... ...... 594 IV. THE SUPREMACY CLAUSE AND MODERN LAW ............ ...... 599 A. Executive and Administrative Preemption ......... .... 599 B. FederalCommon Law and the Erie Revolution..... ..... 601 C. FederalCommon Law After Erie......... ..... ....... 604 1. Admiralty ....................................... 604 2. InterstateDisputes ..................... ...... 605 3. Immunity of FederalOfficials and Institutions.................606 4. Rights and Obligations ofFederalInstitutions.................606 5. FederalCommon Law of Foreign Relations.... ..... 608 6. FurtherExtensions: Boyle v. United Technologies ......... 610 D. Non-self-executing Treaties ....................... 611 V. A PATH FOR THE FUTURE................................ 613 A. Medellin as a Model .................................. 613 B. Re-thinking the FederalCommon Law ofForeign Relations.615 C. The Future ofNon-self-execution ............. ...... 617 VI. CONCLUSION............................................... 618 I. INTRODUCTION Under the U.S. Constitution, if federal interests conflict with state interests, when must the latter give way? One view is that the answer is found largely within the text and original meaning of the second clause of Article VI, the Supremacy Clause.' For others, this answer is too simplistic, assigning too much determinacy to the Clause's text, too much weight to the Clause's role in the original design, and too little attention to nuanced ways state-federal conflicts are resolved in modem adjudication. An approach anchored by the 1The leading proponent of the textual approach is Professor Bradford Clark. See Bradford R. Clark, Federal Lawmaking and the Role of Structure in Constitutional Interpretation,96 CALIF. L. REv. 699, 701 (2008) [hereinafter Clark, FederalLawmaking]; Bradford R. Clark, Federal Common Law: A StructuralReinterpretation, 144 U. PA. L. REv. 1245, 1261-64 (1996) [hereinafter Clark, Federal Common Law]. For discussion in the context of the Constitution's foreign affairs provisions, see MICHAEL D. RAMSEY, THE CoNsTrruioN's TEXT INFOREIGN AFFAIRS 289-90 (2007). 2013] SUPREMACY CLAUSE 561 Supremacy Clause's text, this view contends, cannot provide a practical account of modern law nor a useful path for the future. 2 This debate affects at least three contentious issues of modern law. The first, a central issue in the U.S. Supreme Court's decision in Medellin v. Texas,3 is executive preemption-the idea that presidential policies, especially in foreign affairs, can displace state laws. The second is federal common law, again especially in foreign affairs, where lower courts have suggested a "federal common law of foreign relations" of uncertain but potentially broad scope that can displace state law in international matters.4 The third is the doctrine of non- self-executing treaties, as developed in recent decades in the lower courts5 and given apparent endorsement by the Supreme Court in a different part of the Medellin decision.6 Each question implicates the Supremacy Clause-the first two because they suggest displacement of state law by federal interests not found in Article VI's "supreme Law" and the third because it indicates that federal interests sometimes may not displace state law even though the federal interests are incorporated into a treaty, part of Article VI's "supreme Law." Whether the Supremacy Clause's text can provide a coherent framework to address these issues is a central challenge to a text-based approach. Broader theoretical concerns are at stake here. Originalism, especially originalism conceived as a focus upon the original meaning of the Constitution's text, has been called "a force to be reckoned with in American constitutional theory."7 But whatever its theoretical attractions, originalism faces a core practical challenge: is the modern legal world so far removed, doctrinally and theoretically, from the world of the Constitution's framers that implementing text-based originalism at a practical level-in the sense of modern judges deciding modern cases-is impossible? 2 Professor Henry Paul Monaghan's Supremacy Clause Textualism, 110 COLUM. L. REV. 731 (2010), is an eloquent and insightful version of the skeptical view. Another important contribution is Peter L. Strauss, The Perils of Theory, 83 NOTRE DAME L. REV. 1567 (2008). 3 552 U.S. 491 (2008). 4 See Jack L. Goldsmith, Federal Courts, Foreign Affairs, and Federalism, 83 VA. L. REV. 1617, 1625-39 (1997) (discussing and criticizing courts' use of a federal common law of foreign relations); Jay Tidmarsh & Brian J. Murray, A Theory of Federal Common Law, 100 Nw. U. L. REV. 585, 594-614 (2006) (describing categories of federal common law). 5 See David Sloss, Non-self-executing Treaties: Exposing a ConstitutionalFallacy, 36 U.C. DAVIS L. REV. 1, 3-6, 12-16 (2002) (describing lower courts' non-self-execution doctrine). 6 Medellin, 552 U.S. at 506-23; see David Sloss, The United States, in THE ROLE OF DOMESTIC COURTS IN TREATY ENFORCEMENT: A COMPARATIVE STUDY 509-14 (David Sloss ed., 2009) (discussing Medellin). 7 THE CHALLENGE OF ORIGINALISM: THEORIES OF CONSTITUTIONAL INTERPRETATION 1 (Grant Huscroft & Bradley W. Miller eds., 2011); see also ROBERT W. BENNETr & LAWRENCE B. SOLUM, CONSTITUTIONAL ORIGINALISM: A DEBATE 78-89 (2011) (noting the prominence of originalism as a theory of interpretation); ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 78-92 (2012) (defending text-based originalism as a core interpretive principle). 562 OHIO STATE LA WJOURNAL [Vol. 74:4 It is difficult to answer this question comprehensively, but one can assess the practicality of text-based originalism in particular fields. The Supremacy Clause seems a useful setting to consider the question, both because important unsettled issues turn upon its scope and because important modem theorists have invoked it as an example of text-based originalism's fundamental impracticality. Among recent scholarship, Henry Paul Monaghan's majestic Supremacy Clause Textualism and Peter Strauss's insightful essay The Perils of Theory both use the Supremacy Clause to illustrate broader claims that originalist/textualist analysis cannot supply workable modem solutions.8 The Supremacy Clause illustrates potential challenges to the modem use of originalism on at least two dimensions. First, as Professor Monaghan describes, modem courts have decided many lines of cases in ways that seem inconsistent with a strict reading of the Clause's text. Second, the rethinking of the nature of law associated