The Roberts Court's and Obama Administration's Federalism Scorecards

As the summer draws to a close and a new Supreme Court term looms, federalism aficionados might want a summing up of how well the Roberts Court has scored on the protection of federalism. Likewise, as 2012 draws nigh, federalism fans might also be interested in whether and to what extent the Obama Administration has taken federalism seriously.

I have written up a summary of the Roberts Court's eighteen statutory preemption decisions, in which category I include Gonzales v. Oregon, Rapanos v. United States, and Fowler v. United States (a lenity case). My tentative assessment is that the outcomes of the decisions seem to depend a lot on whether the federal and state laws have a "commercial" purpose or a "regulatory" purpose. As I use these terms, “commercial” contexts involve federal and state laws having the purpose of defining the rules for bargaining and remedies for breach of bargains, while “regulatory” contexts involve state and federal laws defining the baseline entitlements over which the parties bargain. (By way of illustration, the “mailbox rule” defining when a contract is accepted is an example of a “commercial” law, while a prohibition on filling a wetlands or building a cement plant in a residential zone are examples of “regulatory” laws). In "commercial" contexts, the Roberts Court seems to find preemption very easily (in seven out of eight decisions, with the outlier -- Cuomo v. Clearing House Ass'n -- being explicable on state autonomy grounds that cut across the commercial-regulatory distinction). In the "regulatory" context, the Roberts Court seem much less willing to deploy broad theories of preemption (rejecting preemption in seven out of ten decisions).

My commercial-regulatory distinction, by the way, is orthogonal to the express-implied preemption distinction that inspires a lot of judicial and scholarly rhetoric but, I think, does not actually drive case outcomes. "Express" preemption clauses, if ambiguous (as they always are), involve analysis largely identical to frustration-of-purpose preemption, because, in both cases, even the strictest textualist will have to rely on legislative purpose to clear up the ambiguity.

What about the Obama Administration's legislative and administrative record? Gillian Metzger has an interesting paper summarizing how the Obama Administrative's major legislative initiatives deal with subnational government. Catherine Sharkey, my colleague, has also conducted an important study of the Obama Administration's agencies' attitude towards federalism, interviewing agency officials to see if they take seriously their duties to comply with the Obama Administration's May 2009 preemption directive and E.O. 13,312 on federalism. Sharkey finds (to my own surprise) that the anti-preemption directive apparently has made a difference with some agencies -- notably, NHTSA, which has disavowed some pro-preemption language in some 2005 NPRMs and argued successfully against preemption in Williamson v. Mazda Motors. (The FDA, by contrast, seems more balky on limiting the preemptive force of its rules).

Altogether, a mixed bag for federalism. But I commend Cathy's and Gillian's studies to anyone who wants detailed but manageable overviews of a complex legislative and administrative track record.