Preemption and textualism.

Author:Meltzer, Daniel J.
Position:I. The Inevitable Failure of Textual Exclusivity D. The Nonexclusivity of Express Preemption Clauses through Conclusion, with footnotes, p. 30-57
 
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  1. The Nonexclusivity of Express Preemption Clauses

    The relationship between express and implied preemption provides another window into textualism's inconsistent application in preemption cases. In Cipollone v. Liggett Group, Inc., (186) the Court suggested that when there is an express preemption clause--at least when the provision is a "reliable indicium of congressional intent with respect to state authority" (187)--there should be no implied preemption. (188) But in recent years the Court has consistently moved away from that application of the expressio unius est exclusio alterius canon. (189)

    A stark example is found in Buckman Co. v. Plaintiffs' Legal Committee, (190) where plaintiffs injured by a medical device sued a consultant to the manufacturer for allegedly having made fraudulent representations to the FDA in the course of helping to secure the device's approval. (191) The Court unanimously found that the claim was impliedly preempted (192) and then said in a footnote that "[i]n light of this conclusion, we express no view on whether these claims are subject to express pre-emption under 21 U.S.C. [section] 360k." (193) That statutory preemption provision appeared to be directed primarily at displacing state requirements concerning the safety or effectiveness of a medical device that differed from federal requirements and may well not have preempted the state tort action for fraud. But from a textualist standpoint, the obvious question is why, assuming that the preemption clause did not apply, that was not the end of the matter. After all, if statutory texts generally reflect legislative compromises, then one should assume that Congress chose to preempt state requirements about the safety and effectiveness of devices but not state prohibitions of misrepresentation to the FDA. (194) Not only, however, did none of the justices so reason (even Justice Stevens, who was generally a preemption skeptic); (195) they all took an approach that, instead of starting with the statutory text, started and finished with implied preemption principles. (196) And Buckman is not the only example of this approach. (197)

  2. The "Logical Contradiction" Test for Implied Preemption

    Like his colleagues, Justice Thomas acknowledges that the Supremacy Clause suggests that federal statutes can have preemptive force even when they contain no textual preemption clause. (198) But following Professor Nelson, he suggests that a court should find implied preemption only when there is a "logical contradiction" between state and federal law. (199) This test embraces two situations. The first is when it is impossible for an actor to comply with both state and federal requirements. The second reaches more broadly to embrace situations when federal law gives an actor a right to engage in conduct that state law prohibits; in this second situation, the actor could comply with both state and federal law, but only at the cost of giving up a federally bestowed right to act differently. (200)

    A careful examination of preemption cases reveals, however, two important features of the logical contradiction standard. First, a great many preemption cases share a common structure that can be characterized as presenting a logical contradiction. Thus, this seemingly limited standard is not necessarily so in practice. Second, the application of the standard does not free a judge from the need to make rather open-ended judgments about the nature of congressional purposes.

    Preemption based on impossibility, even if vanishingly narrow in practice, (201) occasions little dispute in principle. For example, given that the Federal Arbitration Act ("FAA") (202) makes arbitration provisions in contracts involving interstate commerce generally enforceable, a state statute that instead requires adjudication in court would be preempted because it is not possible for the same dispute to be resolved both by arbitration (as the FAA prescribes) and by a court (as the state law requires). Preemption in such a case, as the Supreme Court has recognized, remains a form of implied preemption, (203) but the implication seems rather clear; indeed, the Supremacy Clause speaks rather directly to this situation by providing that federal law is the law of the land, "anything in [state law] to the contrary notwithstanding." (204)

    The second part of the Nelson/Thomas "logical contradiction" standard is, however, far more likely to occasion disagreement in application. (205) Consider the facts of Barnett Bank of Marion County, N.A. v. Nelson. (206) A federal law provided that certain national banks may sell insurance in small towns. A Florida statute prohibited banks in that class from selling insurance. (207) There was a logical contradiction between federal and state law if the federal statute conferred a right to operate that was not qualified by state requirements; no logical contradiction existed if the federal statute merely authorized national banks to sell insurance, subject to whatever regulations state law may have imposed. It seems implausible that the federal law was meant to grant a right to sell insurance regardless of all nonfederal laws--for example, state anti-bribery laws or municipal building codes. The question, then, was whether federal law was meant to grant a right to sell insurance without regard to whether state insurance law prohibited such sales. The federal statutory language--which provided that national banks, in addition to the powers vested in them under federal law, if located in a place whose population does not exceed five thousand, "may ... act as the agent for any fire, life, or other insurance company authorized by the authorities of the State ... to do business [there], by soliciting and selling insurance" (208)--provides no textual basis for distinguishing state insurance law from anti-bribery laws or building codes.

    Arizona v. United States (209) posed a similar problem. One issue in that case was whether federal immigration law preempted a provision of Arizona law that made it a crime for an unauthorized alien to seek or engage in work. (210) Federal law penalizes employers, but not employees, when unauthorized aliens are hired. (211) If the federal statute merely restricts the scope of federal criminal liability, as Justice Alito argued in his dissent, (212) then there is no logical contradiction between federal and state law. But if federal law was meant to ensure that illegal aliens who work would not be punished at all, as the majority held, then a logical contradiction exists. (213) Here, too, no language in the federal statute makes clear which way the federal immigration laws should be read.

    Much the same statutory uncertainty existed in the earlier challenge to a different Arizona law in the Whiting case. Although the challenge to the law was framed as resting on obstacle preemption, it would not be hard to reframe the (losing) argument for preemption as one of logical contradiction: the dissenters contended that under federal law, the "the E-Verify program," through which employers could electronically check the immigration status of prospective employees, (214) was meant to be voluntary, giving employers a right to decide whether to participate. On that view, Arizona's law mandating the use of E-Verify created a logical contradiction. (215)

    Thus, a great number of preemption disputes share a common structure. The party challenging a state or local law, typically a federal regulatee, can generally restate the argument for preemption as a claim that federal law provides a right to be free of regulation by the state for conduct that complies with federal law; put differently, the claim is that federal law is both a floor and a ceiling. That view, if accepted, will establish a logical contradiction. The party opposing preemption will contend that federal law does not create an unqualified right to act in accordance with federal law; federal law creates a floor but not a ceiling. As we have seen, even where textual clauses exist, they typically fail to resolve this difference of view. The absence of any statutory resolution is clearer still when statutes lack such a clause. (216)

    Even the Geier decision, often viewed as the "high water mark for an expansive version of implied preemption," (217) could be refrained as falling within the supposedly narrow "logical contradiction" standard. For there, the Court interpreted the DOT regulatory standard as giving car manufacturers a right to install automatic seatbelts rather than airbags. (218) On that understanding, there was a logical contradiction between that right and state tort liability for having failed to install airbags. (219) The key, of course, is whether the Court properly interpreted the federal rule. But the articulation of a "logical contradiction" test cannot resolve that issue, (220) nor can it spare courts from the need to identify and characterize the purposes of federal statutes or to assess whether the degree of conflict posed by state law is tolerable. (221)

    Perhaps there are some cases of obstacle preemption that cannot be easily reformulated as "logical contradiction" cases, and so it might be an overstatement were one to suggest that the choice of approaches makes no difference whatsoever. But I hope that I have shown that any gap between the approaches is considerably smaller than it might appear and also that the "logical contradiction" test is unlikely to prevent judges from smuggling in subterranean value judgments. Indeed, if I am correct that, whatever the doctrinal standard, preemption decisions are going to rest heavily on judicial understandings of the purposes and objectives of federal legislation, then the lack of transparency of the "logical contradiction" standard in that regard must count as a serious disadvantage.

    1. ASSESSING OBSTACLE PREEMPTION

    Having examined the limits of textualism in determining the scope of preemption, I wish to...

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