In the critically important area of preemption, the Supreme Court's approach to statutory interpretation differs from the approach it follows elsewhere. Whether in politically salient matters, like challenges to Arizona's immigration laws, or in more conventional cases, such as those in which state tort liability overlaps with federal regulation, the Court's preemption decisions reflect a highly purposive approach to reading statutes, most notably through the application of "obstacle preemption" analysis. Recently, however, Justice Thomas has objected to the Court's failure in preemption cases to respect its more textualist approach to issues of statutory interpretation, and he has urged that obstacle preemption be abandoned. Although three other justices have endorsed some aspects of Justice Thomas's approach, no dramatic shift in the Court's approach has yet occurred.
This Article examines recent preemption decisions and seeks to explain why textualist premises have so little grip in this domain. One might therefore view this Article as, in part, a case study of the feasibility of textualism. I argue that Congress lacks the capacity, foresight, and linguistic tools to be able adequately to specify in statutory text the proper resolution of the range of preemption issues that invariably arise under regulatory statutes of any complexity. Consequently, the task of fashioning a workable legal system that integrates state and federal law necessarily falls to courts (with assistance in some instances from federal administrative agencies). This Article concludes by examining recent challenges to the presumption against preemption that Professor Nelson posed and Justice Thomas endorsed. It criticizes the Nelson/Thomas understanding that the Supremacy Clause calls for rejection of the presumption against preemption and explains the significant role that that presumption continues to play.
TABLE OF CONTENTS INTRODUCTION I. THE INEVITABLE FAILURE OF TEXTUAL EXCLUSIVITY A. Recent Decisions and the Persistence of Implied Preemption B. The Challenge for Legislators (and Their Staffs) C. Linguistic Tools and Their Limits 1. "Related to" 2. Clauses That Preempt State Standards or Requirements D. The Nonexclusivity of Express Preemption Clauses E. The "Logical Contradiction" Test for Implied Preemption II. ASSESSING OBSTACLE PREEMPTION A. The Critique of Obstacle Preemption B. Courts Versus Agencies III. THE SUPREMACY CLAUSE, NON OBSTANTE CLAUSES, AND THE PRESUMPTION AGAINST PREEMPTION A. The Supremacy Clause as a Non Obstante Clause B. The Presumption Against Preemption CONCLUSION INTRODUCTION
Federal preemption doctrine has few fans, (1) and critics attack it from many different directions. Proponents of state sovereignty--a viewpoint often associated with political conservatives (2)--view the doctrine and its application as threatening to the federal structure, (3) a point that can embrace multiple concerns, from abstract questions of sovereignty to the claimed virtues of experimentation to protection against the risk that an exclusively federal regime will be subject to regulatory capture. As evidence that the politics of preemption make strange bedfellows, proponents of regulation, who are generally viewed as political progressives, also criticize preemption doctrine as too often deployed in service of an antiregulatory, laissez-faire agenda. (4)
On the other side, skeptics about regulation, or about the viability of subjecting multistate actors to differing state regulatory requirements, (5) are often enthusiastic about preemption of state law. Enthusiasts include those who see it as one means to preclude states from imposing the external costs of their regulatory schemes on the nation as a whole. (6)
With a plethora of cases known for their lack of consistency, a complex set of crosscurrents, a broad set of subject matters, and a recent significant shift in the stance of the executive branch (represented by a 2009 presidential memorandum issued by President Obama), (7) generalizations about the direction of preemption law are hazardous; it is not easy to say who is winning the war. (8) But in the midst of these developments, Justice Thomas has emerged with a clear, strong, and reasonably consistent message. In a series of recent opinions, he has presented an agenda that takes on the prevailing orthodoxy. First, he suggests that interpretation of an express preemption clause should not be informed by a presumption against preemption. (9) And second, he advocates a sharp retrenchment in the doctrine of implied preemption, (10) particularly in so-called "obstacle preemption" cases." These positions flow from a methodological approach that emphasizes textual interpretation and seeks to limit the decisionmaking authority of courts. (12)
Justice Thomas's textualist approach, which draws on a distinguished and influential law review article by Professor Nelson (13) (who served as a law clerk to Justice Thomas), merits careful examination for a number of reasons. First, Justice Thomas has become an island of relative consistency in a sea of shifting frameworks and inconsistent decisions. Professor Sharkey asked, in the title of a recent article, "Is Justice Clarence Thomas the Lone Principled Federalist?" (14) The question thus arises whether textualism holds more promise than other methodologies as a means of creating a consistent judicial approach to the decision of preemption questions. Second, the textualist underpinnings of Justice Thomas's approach, while having not yet
gained consistent adherents in preemption cases, have been increasingly influential (though not entirely dominant) (15) on the Supreme Court in other settings. The formulation of implied preemption doctrine that currently prevails on the Court dates to the early 1940s; at that time, and for a number of decades thereafter, the Supreme Court frequently followed a purposive approach to statutory interpretation in general. (16) But while there has been a considerable shift toward textual statutory interpretation in recent decades, (17) preemption doctrine and practice have resisted that shift. For example, in the Supreme Court's recent preemption decision concerning an Arizona statute directed at undocumented aliens, while Justice Thomas stuck to his textualist guns, (18) the majority (which included Chief Justice Roberts and Justice Kennedy) found three of the four challenged provisions preempted under a muscular version of implied preemption, (19) and Justice Alito agreed that one of those three was impliedly preempted. (20) It is thus worth examining just why a textualist framework, so influential elsewhere, has been so much less important in preemption cases to date.
Most writing seeking to assess textualist interpretation can be viewed as largely deductive, reasoning from general concepts about the Constitution's structure or the nature of interpretation. (21) This Article is, in substantial part, more inductive. I will examine recent preemption decisions to try to extract an understanding of why textualist premises have not (at least yet) gained traction with Justice Thomas's colleagues. I will argue that preemption cases pose particular challenges for textualist theories; in that respect, my choice of topic is stacked against textualism. But the challenges that preemption cases pose for textualism, if especially pronounced, are not discontinuous with broader challenges to textualism. Thus, the Article can also be seen, in part, as a case study of the feasibility of textualism.
A third reason to examine the textualist approach to preemption is that there is some chance that other justices will follow Justice Thomas's lead. In the recent decision in PLIVA, Inc. v. Mensing, (22) the Chief Justice and Justices Scalia and Mito joined Justice Thomas in a plurality opinion that was notable in several respects. The Court in PLIVA held that a state law tort suit against a generic drug manufacturer, alleging a failure to warn, was preempted by the Federal Food, Drug, and Cosmetic Act. (23) But the plurality, reaching well beyond that narrow holding, endorsed an important aspect of the argument made in Professor Nelson's article. The plurality reasoned that the Supremacy Clause, on which preemption doctrine rests, should be understood as a constitutional "non obstante" provision. (24) A non obstante provision in a statute directs courts interpreting that statute not to apply the traditional presumption against implied repeals of other statutory provisions. The plurality in PLWA contended that the Supremacy Clause had a similar purpose with regard to possible conflicts between federal and state law; accordingly, any presumption against preemption is misplaced, and courts "should not strain to find ways to reconcile federal law with seemingly conflicting state law." (25) Finally, turning to the scope of implied preemption, the PLIVA Court (here joined by Justice Kennedy) did not address a standard component of implied preemption--obstacle preemption--under which a state law that conflicts with the purposes of a federal statute is found to be preempted. (26) Instead, the Court said that it has found conflict between state and federal law "where it is 'impossible for a private party to comply with both state and federal requirements," (27) a circumstance it determined was present on the facts of the case. (28)
The PLIVA Court's limited description of the reach of implied preemption could be viewed simply as all that the Court thought was necessary to resolve the case. This limited language, however, contrasts with other opinions that recited a broader doctrine of implied preemption, (29) and it takes on added significance in light of an earlier opinion of Justice Thomas (this time for himself alone) that also relied on Professor Nelson's article and urged a limited role for implied preemption. In Wyeth v. Levine, (30) which also involved a state law...