STATE REJECTION OF FEDERAL LAW.

• Author: Bennett, Thomas B.

Introduction 762 I. Supremacy and Metaphor 768 A. Federalism 769 B. State Constitutional Law and the New Judicial Federalism 771 C. Constitutional Borrowing 774 II. State Rejection in Praci ice 777 A. Textual Congruence, Doctrinal Divergence: The Indirect-Purchaser Rule 778 1. California 782 2. Arizona 784 B. Constitutional Congruence, Doctrinal Divergence: Eminent Domain for Economic Use 786 1. Missouri 788 2. Florida 791 C. Textual Divergence, Doctrinal Convergence: Injury-in-Fact 792 1. Texas 794 2. Michigan 799 3. Oregon 805 III. The Determinants of State Rejection 810 A. Determinants of Rejection 810 1. Conflicts and Supremacy 811 2. Politics 813 3. Textual Convergence and Divergence 816 4. Sites of Decision: Courts Versus Legislatures 817 B. Lessons of State Rejection of Federal Law 818 1. Lessons for Federal Courts 818 2. Lessons for Legal Reformers 819 Conclusion 821 INTRODUCTION

Sometimes the United States Supreme Court speaks, and states do not follow. For example, in 2003, the Arizona Supreme Court "reject[ed]" a decision of the U.S. Supreme Court, because no "sound reasons justif[ied] following" it. (1) Similarly, in 2006, Michigan voters approved a ballot initiative that, according to the legislature that drafted it, sought "at the very least[] to 'freeze' the state's... law to prevent" Michigan courts from following a ruling of the U.S. Supreme Court. (2) Despite their apparent flouting of federal law's supremacy, these decisions remain in effect.

That states may reject the decisions of federal courts challenges a basic view of federalism. Constitutional folklore tells a simple story about the relation between state and federal law. Federal law is supreme within its domain. State law is, at most, ajunior partner. Even when state law supplements federal law, it does so on terms set by federal law. (3) Often these terms take metaphorical form as floors and ceilings. When federal law sets a floor, state law may go further and set a higher standard. On the other hand, where federal law sets a ceiling, state law is barred from imposing alternative or additional restrictions.

This simple view implies a truism: state law cannot trump federal law.

Or can it? Consider how press reports described Colorado's Enhance Law Enforcement Integrity bill, a broad package of police reforms enacted in the wake of sustained activism against police violence during the summer of 2020. The Denver Post said the bill "removes the qualified immunity defense." (4) The Hill said the law "includes the end of qualified immunity for officers." (5) U.S. Representative Ayanna Pressley called on legislators in her state of Massachusetts to follow Colorado's lead and "end qualified immunity." State legislators in New Mexico, New York, and Virginia similarly moved to "eliminat[e] qualified immunity." (7)

Because the doctrine of qualified immunity is part of federal law, the simple view of federalism holds that states cannot "end" qualified immunity. In one sense this objection is correct. As some observers noted, Colorado's bill does not purport to alter the application of qualified immunity as a matter of federal law. (8) Rather, the law creates a state law cause of action analogous to the federal civil rights statute, 42 U.S.C. [section] 1983, and specifies that qualified immunity will be no defense to claims under that new provision of state law. (9)

Yet in nearly every way that matters, Colorado ended qualified immunity. (10) Colorado's constitution protects the same individual rights as the federal constitution, and its statutory scheme for enforcing those rights matches section 1983--minus qualified immunity. Anyone aggrieved by unconstitutional police practices in Colorado may now use state law to sue for money damages without worrying that qualified immunity will stand in the way. On the other side of the coin, police now face financial incentives to respect constitutional rights during their official duties.

This is more than just states going above the floor set by federal law. In adopting the qualified immunity defense, federal courts saw themselves as carefully balancing competing values to reach an ideal legal regime. The Supreme Court's reasoning rested on a belief that, absent qualified immunity, the threat of liability would deter police and other government officials from doing their jobs to the best of their abilities."

States that reject qualified immunity thus challenge the policy balance struck by federal law in two ways. First, as a practical matter, those states disrupt the balance by creating a different set of rules and incentives for government officials within their borders. This disruption is a direct challenge to federal courts' wisdom in crafting the qualified immunity doctrine in the first place. Second, states that reject qualified immunity run an experiment to evaluate empirically that doctrine's necessity and efficacy. If those states toss the doctrine with no great damage to public safety, federal courts will find it harder to insist on a need to protect government actors through official immunity. For those reasons, these states propose to do more than just exceed the floor for official liability set by federal law.

This phenomenon of states rejecting federal law is not new, nor is it limited to qualified immunity. For many years and across many areas of law, from eminent domain to antitrust, states have intentionally departed from federal law in ways that challenge the simple metaphor of floors and ceilings.

This Article documents and analyzes this phenomenon of state rejection of judge-made federal law, which has not received systematicscholarly attention. Because it sweeps broadly, this phenomenon resists easy categories. It manifests in every ideological direction. State actors choose to reject federal law because of personal ambition, institutional prerogatives, and genuine policy disagreements. Yet in all its forms, state rejection of federal law reminds us that simple accounts of federal judicial supremacy and judicial federalism cannot substitute for careful analysis of the complex interaction between state and federal law.

Clarifying the variety of roles that state law can play when it rejects federal law also provides descriptive grounding for a set of prescriptive conclusions. These conclusions have bite whether you think federalism matters only instrumentally to other goals or intrinsically as a constituent part of our structural constitutional order.

First, this phenomenon's breadth and importance is a reminder that there are considerable practical and functional limits to the federal judiciary's power to displace state law across many policy domains. For those who care about federalism only instrumentally because of its impact on policy, this is the key takeaway. It's old hat to say that federalism has only fairweather friends. What this Article shows is that even for fairweather federalists, a more nuanccd view of the relationship between state and federal power will better serve their policy goals. Particularly in an era where politicians increasingly view the federal judiciary's role with skepticism, state law's ability to reject and circumvent federal-court rulings should be a primary option for those seeking to reduce the power of the federal judiciary. (12)

Second, there is a converse lesson for those with consistent ideological views about the best balance of federalism, because crafting ideal policy given the fact of judicial federalism demands attention to detail. Judicial opinions often try to set a policy balance between several competing goals. Yet unless judges are mindful of the substantial but uncertain role that state law can play in determining governing legal rules, that balance can be quickly upset. As the examples documented below show, state law can variably lock in costs federal law sought to avoid, provide an end-run around the federal separation-of-powers scheme, and even effectively displace federal law altogether. Taking heed of not only the power of state law but also the uncertainty about how it will take shape should therefore be an important part of sensible judicial federalism.

To heed this injunction to focus on the details, this Article looks closely at states' reactions to three very different U.S. Supreme Court cases: Illinois Brick Co. v. Illinois, Kelo v. City of New London, and Lujan v. Defenders of Wildlife. These cases established antitrust law's indirectpurchaser rule, takings law's broad economic-use justification, and Article III standing doctrine's strict tripartite test, respectively. In each case, some states vigorously rejected the federal precedent, while others explicitly followed it. In Illinois Brick's wake, we can sort states tidily into "repealer" and "non-repealer" states. (13) After Kelo, we can tot states up based on whether they have rejected an expansive view of the economic-use justification for exercise of the eminent-domain power. (14) And post-Lujan, we can map states based on whether they adopt the tripartite enunciation of standing doctrine. (15) Each example thus shows how state law can either borrow or reject federal law. (16)

These examples also highlight the breadth of state law's rejection of federal law. The rejecting actor may be a court, a legislature, or the electorate; the federal provision may be constitutional or statutory; and the mechanism for rejection under state law may be constitutional or statutory. They also vary in the degree of similarity between the texts of the relevant federal and state laws. In some of these examples, the texts of the federal and state laws are effectively identical; in others, the texts bear no resemblance. Yet despite these differences, across all these variables, the same phenomenon appears. Some states borrow federal law, but many other states reject it.

We can also see what motivates states to reject federal law. A naive view might hold that states reject...