Preemption Choice: The Theory, Law, and Reality of Federalism's Core Question.

• Author: Greve, Michael S.
• Position: Book review

PREEMPTION CHOICE: THE THEORY, LAW, AND REALITY OF FEDERALISM'S CORE QUESTION. William W. Buzbee, ed. (1) New York, Cambridge University Press. 2009. Pp. xv + 319. $90.00 (Cloth).

INTRODUCTION

Preemption law, not so long ago a province of legal technicians and policy specialists, has become the subject of an increasingly voluble and contentious debate. Intense political and interest group fights over the preemptive scope of federal law, in areas from global warming to financial regulation to consumer products, have been covered in the popular press. Preemption cases form a core part of the Roberts Court's docket of "business cases," itself a matter of considerable controversy and commentary. (3) Scholarly books and articles on preemption have proliferated in recent years. (4)

Preemption Choice, a collection of essays expertly organized and edited by William W. Buzbee, promises to add to the debate and the burgeoning literature by contributing "to the development of normative arguments against preemption" (p. 3). "Development" is a bit of an exaggeration. Most of the authors have elaborated their positions against preemption elsewhere, often, and in much greater detail; the book's virtue lies in compiling concise, accessible summaries of their views. "Normative" and "against," in contrast, are apt characterizations. Preemption Choice contains summaries of the Supreme Court's jurisprudence (Christopher H. Schroeder) and of preemption doctrine and its interplay with federalism theory (Robert R.M. Verchick & Nina Mendelson); these economical and characteristically competent essays go easy on polemics and normative prescriptions. It also contains an essay by Bradford R. Clark, arguing that the Supremacy Clause, correctly understood, not only grounds but also limits the federal government's preemptive authority. With these exceptions, though, the volume is given over to advocates of "polyphonic," "dynamic," "interactive," "adaptive," or "empowerment" federalism. The varying adjectives--for purposes at hand, I will stick with "polyphonic"--aim to capture supposedly salutary features of a federalism conception that embodies a deep skepticism about the federal preemption of state law. Congress, the contributors agree, should use its powers to set a regulatory "floor" underneath the states. In the absence of federal minimum requirements (for example, for product safety or environmental quality), states are likely to "race to the bottom." (5) Above the floor, however, states should be left free to adopt more stringent, protective regulations. Concurrent state and federal regulation--and, for producers in interstate commerce, a polyphony of at least fifty-one regulators for any given product or transaction (6)--ought to be the general rule. In essay after essay, the authors expound on the virtues of federalism, so conceived: it will facilitate state experimentation, compensate for federal agencies' failures, create information-producing feedback loops among regulators, and allow for the dynamic adaptation of regulatory regimes in response to changed circumstances or new information.

The notion that polyphonic, concurrent regulation might also have significant drawbacks--that state officials, and jurors, as well as federal regulators, may have warped incentives, that concurrent powers might produce cacophony rather than polyphony, that public purposes might get lost in an intergovernmental shuffle, or that compounding legal obligations might result in excessive regulation--does not unduly trouble the contributors. Occasional acknowledgments of "common pro-preemption arguments" (p. 3) based on considerations of uniformity, finality, democratic accountability, or economies of scale are quickly waved aside. The most explicit recognition of polyphony's potential "pitfalls" (Robert A. Shapiro's, pp. 44-46) terminates in the confident conclusion that "[t]he management of dynamic overlap is a task best performed by branches of government other than the courts." (p. 46).

Agreement on the normative priors allows the editor and contributors to trace the implications of their view through a wide range of subtle yet salient questions--for example, the preemption of state tort law (David C. Vladeck), the role of statutory "savings clauses" in favor of state law (Sandi Zellmer), federal preemption by inaction rather than affirmative prohibition (Robert L. Glicksman), and preemption by agency choice rather than explicit legislative mandate (William Funk). However and alas, the inordinate emphasis on ideological and thematic coherence limits both the informational value of Preemption Choice and the plausibility of its federalism vision.

POLYPHONY IN CONTEXT

For readers who are unfamiliar with the preemption debate of the past half-decade, Preemption Choice may seem disorienting. One question arises from the avowedly liberal-progressive thrust of the federalism project embraced in this volume. If memory serves, federalism used to be the conservative Rehnquist Court's agenda, about which progressives had little positive to say. Have they changed their minds, or do they mean something very different by "federalism"? A second question is how and why the once-obscure preemption question (a statutory question, is it not?) has mutated into "Federalism's Core Question" (a constitutional issue--no?). (7) Preemption Choice does not directly engage these questions. The closest it comes to addressing them is Robert A. Shapiro's essay on the law's path "From Dualism to Polyphony."

Shapiro rightly suggests that the federalism embraced in Preemption Choice has a pedigree in the Progressive Era and the New Deal--which, notwithstanding its nationalist impulses, always embodied a potent pro-state streak, famously captured in Justice Brandeis' celebration of states as "laboratories of democracy." (8) Progressive-polyphonic federalism's foe and foil is the "dual" federalism of the nineteenth century, which operated against a baseline of separate and exclusive spheres of federal and state jurisdiction. Dual federalism was dislodged by the New Deal. Contrary to a widespread misunderstanding, however, the New Deal did not simply trump federalism and the states with "nationalist" policies, institutions, and legal doctrines. Rather, Shapiro notes (citing Stephen Gardbaum's important writings on the subject), the New Deal unleashed both the national government and the states from the strictures of the "old" Constitution (pp. 37-41). (9) An integral part of that transformation was a state-protective shift in preemption doctrine. The pre-New Deal Court usually operated with a doctrine of "latent exclusivity": once Congress had entered a regulatory arena, state regulation in the field was deemed preempted regardless of any direct conflict with federal law, and regardless of whether or not Congress had intended that result. (10) In the post-New Deal era, in contrast, preemption law turns on the intent of Congress. Barring an outright conflict between federal and state law, state law continues to operate, concurrent with federal law, unless Congress preempts the states either expressly or by "clear and manifest" implication. (11)

At one level, progressive federalism has changed little over the past century. "Dynamism," "adaptation," and "polyphony" are simply new monikers for the perceived advantages of the "cooperative" federalism championed by Felix Frankfurter and Louis Brandeis. However, the context of those arguments has changed in two highly salient ways. First, the federalism debate of the Progressive era covered a much wider range of legal questions. Federal preemption was a federalism question back then (12)--but not "Federalism's Core Question" by any stretch. In part, this has to do with the lower density of federal legislation at the time. In much larger part, it has to do with the fact that the pre-New Deal Court viewed the protection of the commerce of the United States against state exploitation as its foremost constitutional obligation. To that end, the Court administered a raft of constitutional and jurisdictional doctrines. Among them was the dormant Commerce Clause, which loomed much larger then than it does now, both in terms of its doctrinal breadth and by the sheer number of Supreme Court decisions. (13) There was the federal courts' diversity jurisdiction and the federal general common law of Swift v. Tyson, (14) which gave parties in interstate commerce an escape from what we now call state "hellhole jurisdictions." There was the substantive due process doctrine of Lochner notoriety, which restricted state legislation and regulation in many of the domains where polyphonists would dearly love to see it exercised. (Justice Brandeis' paean to state experimentation, of course, originated in this context.) (15) To these familiar doctrines, one could add others--for example, the Full Faith and Credit Clause, restrictive doctrines of personal jurisdiction, or the then-potent "extraterritoriality" prong of the Due Process Clause, all of which curbed the reach of state law over interstate commerce.

Virtually all of these doctrines disappeared in the wake of the New Deal. (16) The brief historical detour, then, answers the initial question of why preemption has become federalism's "core" question: with the arguable exception of a softened and embattled dormant Commerce Clause, (17) it is the only still-extant state-restrictive doctrine of any practical consequence. This point has doctrinal and practical significance. If the once-narrow preemption debate now teems with constitutional presumptions and macro-theoretical federalism arguments, that is because the humble doctrine has come to do all the work of the long-discarded constitutional doctrines. And if preemption has become ground zero in a grim trench war...