The Structure of Preemption Decisions

• Publication year: 2021

85 Nebraska L. Rev. 912. The Structure of Preemption Decisions

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Garrick B. Pursley*

The Structure of Preemption Decisions

TABLE OF CONTENTS

I. Introduction ................................................... 912 R
II. Preemption's "Fit" Problem ..................................... 918 R
A. The Structure of Constitutional Adjudication ................ 919 R
B. Three Categories of "Preemption" Decisions .................. 921 R
III. Preemption and the Standard Model .............................. 928 R
A. Preemption Holdings as Constitutional Holdings .............. 929 R
B. Mediating Adjudicative Rules ................................ 936 R
C. Statements of Constitutional Meaning ........................ 941 R
IV. The Importance of Understanding Preemption ..................... 954 R
V. Conclusion ..................................................... 958 R

I. INTRODUCTION

Intuition suggests that preemption is a constitutional issue--when we ask whether a state law has been nullified because it conflicts with a federal law, we seem to be asking a constitutional question. But to an outsider, some of our commentary and practice would suggest that preemption has little to do with the Constitution at all. Professor Meltzer, for example, calls preemption a "subconstitutional" issue,1 and Professor Hoke urges that preemption be "de-constitutionalized."2 The Supreme Court treats preemption as a constitutional issue at one

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moment and as a statutory issue the next.3 Unlike other constitutional issues, some courts hold that preemption issues categorically do not warrant Pullman abstention.4 The rule that courts should avoid deciding constitutional questions whenever possible is not uniformly applied to preemption issues5--in fact, courts often decide preemption questions in order to avoid other constitutional issues.6 Historically, suits to enjoin enforcement of allegedly preempted state laws did not qualify under the federal statute providing a special panel of three district court judges for suits to enjoin enforcement of state law on federal constitutional grounds.7

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Preemption is obviously a constitutional issue in the sense that it is accomplished, at bottom, by the operation of constitutional provi-sions.8 I do not mean to suggest that anyone has missed this simple point. But this understanding leaves much to be said. The subconstitutional status often accorded preemption is based on the observation that preemption decisions usually involve the interpretation of federal statutes rather than the text of the Constitution.9 This peculiar feature of preemption decisions, the argument runs, distinguishes them qualitatively from constitutional decisions.10 These views do not appear to depend on judgments about the relative importance of preemption in the hierarchy of constitutional issues.11 Rather, preemption is separated from constitutional issues categorically. One result is that preemption questions are decided by federal courts more often, and with fewer procedural (and perhaps psychological) obstacles, than other constitutional questions.

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This is no doubt troubling to those, like Professor Young, who regard preemption as the central challenge for modern federalism the-ory.12 Congressional and judicial preemption decisions mark off the boundaries of federal and state regulatory authority. When state laws are preempted, state regulatory authority is diminished. The ability of the states to provide meaningful benefits to their citizens through regulation is central to the states' influence in the national political process. States' influence in national politics, in turn, is an essential check on the power of the national government.13 In addition, state regulatory diversity--valued both for its expression of the varied interests of a heterogeneous public and for its ability to promote the improvement of policy generally--is diminished when state laws are preempted.14

Where Congress is otherwise constitutionally empowered to act, Congress's authority to preempt appears to admit of no textual limita-tion15--it is bounded only by the limitations of legislative imagination, and whatever structural requirements can be distilled from concepts of constitutional federalism. But Young insists that a majority of the Supreme Court has not regarded preemption as having much to do with federalism either.16 Nevertheless, "the importance of preemption cases for federalism is not diminished by the fact that preemption cases do not arrive at the Court . . . with constitutional red flags attached."17 Preemption rightfully is regarded as "enormously important"18 and should take center stage in our federalism debates.19

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These concerns are not completely unaccounted for in judicial doctrine. Courts in many cases apply a presumption against preemption that shifts to Congress the burden to make clear its preemptive in-tent.20 Through Congress, the states thus have a say in whether state law is displaced by federal statutes. Still, the number of preemption decisions has increased dramatically.21 This is not only due to the increase in the number of preemptive federal laws that naturally accompanied the expansion of the administrative state. The fairly recent recognition of additional mechanisms for invalidating state laws means that the federal legislative process no longer injects state prerogatives throughout the relevant debate. The invalidation of state laws by the dormant commerce clause,22 the general federal power over international affairs,23 federal administrative regulations,24 and federal common law25--forms of "preemption" that shift the deliberative process from Congress to the courts--occurs with little or no input from the states.26 And the evolution of the political process itself has reduced the effectiveness of process limitations on statutory preemp

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tion.27 Accordingly, some commentators urge that Congress's power to preempt state law should be subject to stricter judicial limitation.28 But the majority of preemption still is accomplished by federal statutes, and the prevailing view remains that preemption debates primarily should be hashed out in the state-inclusive political process rather than the courts. Congress retains the lion's share of the authority to decide whether and how much to preempt; courts engage in "bound-ary-enforcement," applying rules of decision aimed at ensuring that Congress takes the time to "decide [the preemption] question in a sensible way."29 To the extent that the rules applied in preemption cases have proved inadequate to the task of curbing preemption's adverse effects, the observation that preemption is regarded by many as something other than a constitutional issue may suggest fruitful avenues of doctrinal revision.

I do not want to dwell on the normative doctrinal debate. In this Article, I want to focus on our understanding of the structure of constitutional decisionmaking. Professor Berman suggests the following standard model of constitutional adjudication: "A court interprets the Constitution to yield a (judicial) statement of constitutional meaning, on the back of which it may construct a constitutional rule, which rule it then applies to the facts to yield a constitutional holding . . . ."30 Statements of constitutional meaning obviously admit of constitutional "status." And, despite some debate, the constitutional status of the intermediate rule of decision and the holding is similarly obvious in many cases.31 Preemption, however, blurs the boundary between constitutional law and ordinary law, bringing the question of constitutional status front and center.32 The question of preemption's status goes to both the rules of decision applied in preemption decisions and

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the legal principles those rules purport to implement. Statements of constitutional meaning are noticeably absent, and the doctrinal rules applied to the facts, more often than not, appear to be ordinary rules of statutory construction. Despite strong intuition, then, the adjudication of preemption issues seems out of sync with our standard model of constitutional adjudication. But I want to resist the temptation to concede that preemption decisions involve something other than constitutional adjudication. Instead, I suggest that preemption decisions, properly understood, fit a more nuanced version of the standard model.

One of the principal goals of this Article is to show that, although preemption decisions appear to be primarily about statutory interpretation, this is not a reason to distinguish the adjudication of preemption questions from constitutional adjudication. My thesis is that the adjudication of preemption issues is constitutional adjudication full stop. In Part II, I elaborate on the standard model of constitutional adjudication and the ways that preemption decisions apparently fail to track it. In Part III, I argue that the adjudication of preemption issues must be constitutional adjudication because preemption holdings, insofar as they invalidate state laws, are necessarily constitutional. Assuming that constitutional holdings may only be generated by the application of constitutional rules, I suggest a way that the rules applied in preemption cases may be understood to be constitutional adjudicatory rules. Finally, continuing to work backward through the standard model, I argue that traditional judicial statements of constitutional meaning are absent from preemption decisions because the operative constitutional norms are judicially underenforced. In instances of underenforcement, a statement of constitutional meaning is not a necessary condition for constitutional adjudication. By adding the possibility of judicial underenforcement to the standard model, preemption decisions more readily fit and may be more readily recognized as instances of constitutional adjudication...