« Preparing for Fall Teaching -- Guest Post on Law School Online: Choosing Between Live and Asynchronous Teaching | Main | Watching on-screen, working on paper »

Thursday, July 23, 2020

Rethinking Preemption

In my work on Bushrod Washington, I came across an interesting nugget regarding statutory preemption claims. Back then, if a federal statute was in conflict with an Act of Congress, the courts would declare the state statute unconstitutional. Why was that? Because of the Supremacy Clause, they said. Today we do not say that a state statute like that is unconstitutional--we just say it's preempted.

Does this classification make a difference? Maybe. One thing this shows is that there is sometimes no clear line between a constitutional and a statutory claim. Thus, saying things like "in statutory cases we should do this but in constitutional cases we should do that" is imprecise. Second, if we think of preemption claims as constitutional, then that would suggest that some sort of avoidance canon might be used, either by state courts construing state law, federal courts certifying state law questions to state courts, or federal courts construing federal law. I can't say that I know what the practice is in preemption cases: My impression is that courts take a fairly straightforward approach without avoidance. Third, implied preemption might be disfavored as creating constitutional violations when they are not necessary.

Would all of this be better than current preemption doctrine? I have no idea. 

Posted by Gerard Magliocca on July 23, 2020 at 09:23 AM | Permalink


Having recently briefed a preemption case in the Supreme Court, I feel like I should have some really intelligent thoughts about this, but I don't. However, three maybe mildly intelligent thoughts: (1) Many, though by no means all, of the Court's cases invoke a presumption against preemption, more or less as a substantive canon of interpreting federal statutes. This may come to something like the same thing as your suggestion of avoidance. (2) That said, it strikes me that if we thought of preemption cases as constitutional cases that were governed by constitutional avoidance, the statutes to which you'd apply avoidance are state statutes, which you'd avoid reading as unconstitutional, not federal statutes. The presumption that Congress doesn't enact unconstitutional laws can't, of course, underwrite reading them to avoid preemption. (3) Avoidance bothers me under normal circumstances, as you end up with dubious interpretations of statutes that skirt merely possible findings of unconstitutionality, making it difficult for Congress to get up to the line of unconstitutionality if it wants to. It seems like a doctrine of faux-modesty, except where used in its classical form, where a constitutional question is decided first and a definitively unconstitutional interpretation is avoided. But avoidance as applied to state statutes by federal courts seems especially odd -- less costly, I suppose, but also a strangely futile exercise, as the federal court's interpretation doesn't actually change the meaning of state law or how it's enforced. I suppose federal courts' avoidance in interpreting state law could be defended as a kind of cousin to certain abstention doctrines. So I'm not sure how I'd feel about using it in preemption cases.

Posted by: Asher Steinberg | Jul 23, 2020 5:57:34 PM

The courts, still use that terminology of constitutionality, even regarding the doctrine of preemption. I quote from recent ruling of the Supreme court, in: Kansas v. Garcia:

The Supremacy Clause provides that the Constitution, federal statutes, and treaties constitute “the supreme Law of the Land.” Art. VI, cl. 2. The Clause provides “a rule of decision” for determining whether federal or state law applies in a particular situation. Armstrong v. Exceptional Child Center, Inc., 575 U. S. 320, 324 (2015). If federal law “imposes restrictions or confers rights on private actors” and “a state law confers rights or imposes restrictions that conflict with the federal law,” “the federal law takes precedence and the state law is preempted.” Murphy v. National Collegiate Athletic Assn., 584 U. S. ___, ___ (2018) (slip op., at 22).

End of quotation:

Very classic case by the way concerning preemption. But, this is not the most important issue (the terminology). Here:



Posted by: El roam | Jul 23, 2020 11:45:13 AM

The comments to this entry are closed.