"Joltin' Joe has left and gone away": the vanishing presumption against preemption.

• Author: Massey, Calvin
• Position: Perspectives: Federal Jurisprudence, State Autonomy

When Paul Simon asked, "Where have you gone, Joe DiMaggio?," Mrs. Robinson replied, "Joltin' Joe has left and gone away." (1) But if Simon was a law professor (what a loss to music!), the lyric might have been "[w]here have you gone, the presumption against preemption? Federalists turn their lonely eyes to you."

The Supreme Court regularly states that when Congress legislates "in a field which the States have traditionally occupied ... we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress." (2) But this declaration is devoid of force and no longer even hortatory. If the national motto "In God We Trust" is a "ceremonial deism," the presumption against preemption is a ceremonial federalism. (3)

Consider Egelhoff v. Egelhoff, (4) in which the Court held that the federal Employee Retirement Income Security Act of 1974 (ERISA) (5) expressly preempted a Washington law providing that the designation of a spouse as the beneficiary of a non-probate asset is automatically revoked upon divorce. (6) While the majority acknowledged the applicability of the "presumption against preemption in areas of traditional state regulation such as family law," it summarily dismissed the presumption because "Congress ha[d] made clear its desire for pre-emption." (7) Thus, the Egelhoff majority proved that clarity, like beauty, is in the eye of the beholder. Any express preemption case must begin with a divination of what exactly Congress sought to preempt, in a word, the field that Congress sought to preempt. Surely, the Court could not have meant that ERISA expressly preempts the entire field of state inheritance law. While it might have meant that ERISA expressly preempts only those state laws that conflict with ERISA's objectives, the Egelhoff case was a poor vehicle for such an assertion insofar as the Washington statute reinforced ERISA's ultimate objective of fair protection of employee benefits. (8)

The problem in Egelhoff was that Congress poorly expressed itself since it is clear that Congress intended ERISA to directly preempt state law, but what is not clear is the scope that Congress intended that preemption should have--enter the presumption that the preemption, like Joe DiMaggio, has "left and gone away." The presumption is against a broad reading of federal law that purports to preempt the state law and that expressly acts like other clear statement rules to ensure that the federal political process has focused upon the displacement of state authority. Without such a rule, there is no assurance that Congress has in fact attended the consequences of displacing state authority. This holds true whether one conceives of federalism as primarily enforceable by politics or by judges.

Advocates of politically enforceable federalism should be willing to admit that upholding ambiguous congressional assertions of preemption undermines the very premise of politically enforceable federalism--that political process will carefully weigh the balance of federal and state interests before displacing state authority. Supporters of judicially enforceable federalism may wish that judges would examine the substance of federal law to determine if it is an improper invasion of state authority, but at the least, they will agree that a clear, unambiguous...