Empowerment through restraint: reverse preemption or hybrid lawmaking?

• Author: Little, Laura E.
• Position: Law Review Symposium 2009

ABSTRACT

In the jurisprudence of federal jurisdiction, we often observe federal courts exerting power and control under the banner of restraint and deference to states and to other branches of the federal government. This Article explores two examples of this empowerment technique, in which the United States Supreme Court deployed federal judicial power to resolve choice of law questions. The examples come from diverse contexts: foreign affairs and bankruptcy. In both contexts, the Roberts Court acted in the name of respect for state prerogatives, but bestowed on itself and other federal judges considerable latitude to determine the outcome of suits.

The foreign affairs illustration of this "negative" empowerment technique is the Supreme Court's 2008 decision in Medellin v. Texas. Framed as a choice of law case, Medellin presented the choice between state procedural default rules and treaty provisions interpreted by the International Court of Justice. The bankruptcy illustration derives from a line of cases beginning with Butner v. United States and analyzing the choice between state law and federal bankruptcy law. In both illustrations, the Supreme Court named state law as the "winner."

Beyond showing how the Supreme Court's choice of law analysis empowers the federal judiciary, this Article also explores how the Medellin and bankruptcy cases add to a growing body of hybrid law. Working within the confines of federal principles, the Court allowed other sovereignties (states) to provide meaningful contributions to federal regulation and thereby successfully navigated a permeable line between state and federal law. This bodes well for the future of hybrid lawmaking in general. Might the Court's approach also provide an upbeat message for debates about whether United States courts should integrate international and transnational principles in their decisionmaking?

INTRODUCTION

Behold the hand of restraint. It works in unexpected ways. What is billed as restraint and deference can operate as power and control. We witness this often in the federal courts area. Abstention and standing doctrines are common, easy examples. We have long seen how, using these doctrines under the banner of judicial restraint, the United States Supreme Court has influenced--and in some cases arrested--the development and enjoyment of federal guarantees. (1) I explore here two more recent examples of this technique, in which the Supreme Court deployed federal judicial power to resolve legal issues broadly characterized as choice of law questions. In resolving the choice of law questions, the Supreme Court acted in the name of respect for state prerogatives. Yet by deferring to state authority, the Court bestowed on itself and other federal judicial officers considerable latitude to determine the outcome of suits.

Many have remarked on the Roberts Court's apparent tendency to find federal preemption of state regulation. (2) For Justices who usually champion states' rights, this support for expansive federal authority might be surprising. Allowing state law to flourish, one might argue, dovetails most closely with a world view giving dominance to state sovereignty. (3) But, in fact, federal power plays are not reserved to those cases in which federal actors affirmatively stake out areas of federal domain. Dominance does not always come in positive form. Indeed, through negative constraint--apparently withholding federal regulatory power--the Roberts Court has reinforced federal prerogatives, at least those enjoyed by the federal judicial branch through doctrinal development. (4)

My two illustrations for this negative approach come from diverse contexts: foreign affairs and bankruptcy. While the foreign affairs illustration--Medellin v. Texas (5)--has already been widely associated with preemption, (6) the bankruptcy illustration has not] Framed as a choice of law case, Medellin presented the choice between treaty provisions (as interpreted by the International Court of Justice) and state procedural default rules. The bankruptcy cases present the choice between state and federal bankruptcy laws. In both contexts, the Supreme Court named state law as the "winner." Part of this Article's goal is to demonstrate how in fact federal authority was much more the "winner" in these cases than the Supreme Court let on. I will show how--as in other instances where federal authority regulates through deference--these recent choice of law decisions empower a strong federal judiciary. But my purpose transcends simply characterizing cynically the Supreme Court's choice of law analysis as a means of flexing federal judicial muscle.

Rather, I seek an upbeat, durable message grounded in the observation that both of these diverse contexts (foreign relations and bankruptcy) prompted the Supreme Court to add to a growing body of hybrid law. Working within the confines of federal principles, the Court allowed other sovereignties (states) to provide meaningful contributions to federal regulation. What is often glibly regarded as a strict boundary separating state and federal legal principles did not act as a strict boundary at all. In both contexts, the Supreme Court navigated a permeable line between state and federal law without apparently derogating federal sovereignty or identity.

Whether or not one agrees with the ultimate result of Medellin and the bankruptcy cases, federal judicial control of the doctrine governing the relevant subject matters remained intact. Might this provide a reassuring message for debates about whether United States courts should integrate international and transnational principles in their decisionmaking? Even if skeptical judges are not persuaded by this message, the case studies here provide lessons that inform scholarly projects advocating hybrid legal regulation. I take up these issues at the end of this Article. First, however, I lay the groundwork by reviewing Medellin, the bankruptcy cases, and their jurisprudential qualities. Only then do I reckon with controversies surrounding hybrid lawmaking and the role of foreign and international law in United States adjudication.

1. FOREIGN AFFAIRS AND BANKRUPTCY CASE STUDIES: RANDOM SAMPLES OR FEDERALISM ALLIES?

   On initial impression, the case studies analyzed here could hardly seem more different. Medellin v. Texas was a criminal case that came before the Supreme Court as part of its power to review state court decisions. Medellin presented a public law matter, implicating principles of federalism, foreign affairs, and international issues, as well as questions of horizontal separation of powers among the federal government's branches. The bankruptcy cases, on the other hand, came to the Supreme Court exclusively from the federal court system and concerned private law disputes between debtors and creditors, implicating technical areas of insolvency where few but expert practitioners dare to tread. For my purposes here, the two case studies nonetheless both illustrate common dilemmas raised when state law clashes with other potential laws that might govern a controversy. In both case studies, the Supreme Court chose the same resolution: allow state law to control, but only under circumstances carefully controlled by federal judicial authority.

   While I am cautious in making sweeping analogies between the two contexts, (8) I note their shared pedigree. Indeed, concerns related to both bankruptcy and foreign affairs served as significant catalysts for the framing of the Constitution. For foreign affairs, the Framers sought to remedy deficiencies in the Articles of Confederation that enabled the states to undermine effective national foreign policies. (9) Likewise, the Framers may have established Congress's Bankruptcy Power in response to pro-debtor actions that were allowed to flourish under the Articles. (10) For both subject matters, the Framers acted with deep awareness of the ramifications for federal and state sovereignty. One would therefore expect that a similar approach to federalism should inform choice of law decisions in both contexts. Although the two contexts represent apparently random samples of case law from the Roberts Court, they presented the Court with opportunities to treat similarly the relationship between state and federal laws. That is, in fact, what occurred.

   1. Foreign Affairs: Medellin v. Texas

      Medellin v. Texas is an enormously important decision, rich in its ramifications for law and politics. The case revealed the Roberts Court's approach to treaty interpretation as well as its response to assertions of presidential prerogative on foreign affairs matters. More importantly for purposes here, Medellin presented a chance for the Supreme Court to declare that state law trumps United States treaty obligations as interpreted by an international tribunal and the President of the United States. (11) Characteristically for cases with choice of law implications, Medellin was not accompanied by significant attention in the public and press; that attention was devoted instead to other blockbuster constitutional cases from October Term 2007. (12) Even among legal scholars, my characterization of Medellin as a choice of law decision is unusual.

      Medellin concerned a Mexican death row inmate who, at the time of his arrest and trial, had not been told by Texas authorities of his right to speak to his home consulate--a right guaranteed under the Vienna Convention on Consular Relations. (13) Medellin did not raise this Vienna Convention claim at his trial or on direct appeal, thus triggering state procedural default rules preventing him from raising the claim on collateral review. (14) In related litigation after the United States had signed onto the Vienna Convention, the International Court of Justice ("ICJ") (15) issued an opinion in Case Concerning Avena and Other Mexican Nationals ("Avena"). Avena held that that the Vienna Convention bound individual...