State power and pre-emption doctrine

[Ernest Young]

I think there's something to Larry's suggestion that, as real limits on
Congress's power become more imaginable (in the wake of Lopez and
Morrison), the Court is losing interest in "soft limits" on Congress's
authority that operate through statutory construction and cede the ultimate
choice to Congress.  Certainly that is how Caleb Nelson, who is very
"conservative" on federalism issues but has written an important attack on
the presumption against preemption in a recent Virginia Law Review,
explained his willingness to undermine what I tend to see as a much more
important protection for states.

I want to suggest, however, that the preemption cases tend to be influenced
by cross-cutting divisions on the Court that are both (1) more general or
less "political" than the Justice's preferences on particular substantive
issues (i.e., tort reform, etc.) and yet (2) not part of a general
federalism strategy either.  One is the issue of textualism.  Justice
Scalia has written (about Chevron) that interpretive presumptions will be
triggered less often for him simply because he is more likely than less
textualist judges to consider a particular piece of statutory text to be
"clear."  That might explain why some of the more textualist justices (who
also happen to be the pro-states justices in other cases) are less likely
to be influenced by a federalism rule that takes the form of a canon of
construction, operative only when the text is ambiguous.

Second, the presumption against preemption is sometimes subordinated to
other interpretive presumptions that may be more dear to the justices'
hearts.  Where he does find that text is unclear, Justice Scalia prefers to
defer to an administrative agency under Chevron, since the agency is
supposedly more democratically accountable.  So in a case like Iowa
Utilities Board in OT 1998, for example, the federalism debate becomes
secondary to a debate between Justices Scalia and Breyer about the scope
and power of Chevron deference -- a subject which I suspect both justices
care far more about than federalism (both being old administrative law
jocks).  Both Justices take federalism positions in that case contrary to
their usual bent, but the switch is understandable when one looks at how
those positions support their usual (and more strongly held) positions on
deference to administrative agencies.

These points explain only a subset of the cases.  But I suspect that
similar cross-cutting issues that are not simply political preferences for
more or less regulation can be found in many preemption cases.  And I don't
think that most practicing lawyers or judges -- or even academics --
perceive "preemption" as a unified field in which the Court ought to work
to achieve doctrinal consistency.  Most preemption articles, for instance,
discuss only preemption in labor law, or tort law, etc.  That's changing,
but slowly.  I certainly think the Court ought to make an effort to
reconcile its preemption cases to its broader federalism commitments, but
there's little sign of that yet.

Incidentally, I think Sandy is right on the mark in suggesting that the
justices may simply see cases like Crosby as "foreign policy" cases rather
than "federalism" cases, although I don't think there's anything "vulgar
realist" about it.  Someone like the Chief or Justice Scalia simply has to
choose between doctrinal commitments to federalism, on the one hand, and
Executive freedom of action, on the other.  In a foreign policy case, he
probably doesn't have much problem choosing the latter.  The problem, of
course, is that it's hard at the margins to define what really is a
"foreign policy" case.

Sorry for the length of this post -- it's an interesting set of questions.

Ernie Young


At 09:17 PM 08/03/2000 -0400, you wrote:
>Responding to Mark Tushnet's suggestions, I don't think it's all that tough
>to harmonize a strong presumption against affirmative commandeering with an
>almost boundless tolerance for negative commandeering within the perimeter
>set by Lopez/Morrison or some other version of an outer limit for the
>spheres of congressional lawmaking power, once one has settled on a working
>definition of affirmative commandeering so that a ban on retaining a gun
>license applicant's records beyond 21 days, to take a simple example, isn't
>seen as just a negative recasting of an affirmative command that the state
>or local licensing agency get rid of the records by the 21st day ...
>Assuming the latter problem is solved, the tolerance for negative
>commandeering simply follows from the Supremacy Clause while the presumption
>against positive commandeering may reasonably be thought to follow from an
>anti-tyranny principle coupled with a structural appreciation for how
>command and control vitiates checks and balances.
>
>I doubt that there's really room for Mark's second notion -- that of
>grafting an analogue of the market participant exception to the dormant
>commerce clause onto the permissive posture toward negative commandeering
>(i.e., federal preemption) -- since I see no basis for treating a state's
>proprietary or fiscal activities as less subject to federal authority within
>the national sphere than a private entity's activities would be. Recall that
>it is the analogy to a private enterprise (which cannot violate the dormant
>commerce clause all by itself) that made the market participant exception
>appealing in the first instance. It's that fact rather than Crosby, I think,
>that stands in the way of this kind of construct for state decisional
>autonomy in the negative commandeering context.  The reason it doesn't work
>in Crosby, as the First Circuit decision affirmed by the Crosby Court on
>narrower grounds demonstrated powerfully, was that even in the absence of
>controlling federal legislation, the market participant exception is of
>doubtful relevance to foreign commerce and offers no answer to the "once
>voice in foreign affairs" theme of Zschernig v. Miller. The reason it
>doesn't work generally, apart from my point about the failure of the private
>analogy when the issue is the reach of federal legislative power, is similar
>to the reason National League of Cities v. Usery fell apart, as recounted in
>Garcia.
>
>In any event, the problem I was trying to explore wasn't the one Mark seems
>to be addressing. Mark is talking about either reconciling the absence of
>islands of state sovereignty in the sea of federal preemption (called
>negative commandeering in his story) with the presumption against positive
>federal commandeering, or creating islands of state sovereignty in the
>federal preemption sea to balance those that exist to limit positive federal
>commandeering. I was taking for granted that basic asymmetry (for
>anti-tyranny and command-and-control reasons) and certainly wasn't looking
>for new islands in the negative commandeering sea but was asking, instead,
>why the same Court that has so assiduously limited the affirmative reach of
>federal legislative power generally, through doctrines that define islands
>of state sovereignty in the form of anti-commandeering rules and the like or
>that define limits on the federal sea as a whole, has begun to abandon the
>enterprise of construing strictly the federal shoreline laid down by the
>national government so as to avoid washing over zones of state autonomy
>inadvertently or haphazardly.
>
>My suggested answer focused on the conscious shift from judicially
>protecting those zones by insisting on congressional lawmaking processes
>taking a certain form and having a certain clarity of output to judicially
>protecting those zones (or similar ones) by directly defining the
>permissible areas of federal concern and by directly restricting the
>permissible structure of federal legislative directives (hence, the
>anti-commandeering principle).
>
>Sandy Levinson, in contrast, was suggesting an avowedly political answer,
>one that all but attributes bad faith to some (most?) of the Justices by
>saying that they twist the principles set out in cases from the early 1990s
>and previously (like Gregory v. Ashcroft) to begin giving broader preemptive
>effect to the federal laws generated by the more conservative Congresses of
>recent years than the same bunch was prepared to give to the federal laws
>generated by the more liberal Congresses of yesteryear. Thus, on Sandy's
>view, the pro-business measures enacted in the mid-1990s by Republican
>Congresses are stretched, clear statement or no, to blanket the progressive
>measures enacted by some sovereign states, by the same Court that would have
>shrunk the anti-business, pro-consumer or pro-environment measures enacted
>in the 1970s and 1980s by Democratic Congresses to leave room for the
>progressive measures enacted by other sovereign states.
>
>Without a fuller study than I can claim to have yet made of the whole range
>of preemption decisions, I can't say how accurate that account is
>descriptively. I can say that I find it deeply troubling normatively and
>hope there are enough counterexamples to make one doubt it descriptively as
>well.  --  Larry Tribe
>
>-----Original Message-----
>From: Mark Tushnet [mailto:TUSHNET at WPGATE.LAW3.GEORGETOWN.EDU]
>Sent: Thursday, August 03, 2000 5:03 PM
>To: CONLAWPROF at listserv.ucla.edu
>Subject: Re: State power and pre-emption doctrine
>
>
>Here's a pretty telegraphic version of a response to part of Larry Tribe's
>questions:  One might see preemption as a sort of negative commandeering of
>state legislative authority, in the sense that a national statute that
>preempts state law forecloses a state legislature from pursuing the policy
>that it otherwise would choose.  *Printz* and *New York* deny Congress the
>power to commandeer affirmatively.
>
>There are, I think, two ways of harmonizing negative and affirmative
>commandeering.  (1)  We might identify differences between the two relevant
>to the policies underlying the ban on affirmative commandeering.  The Court
>has identified a couple of instrumental policies, such as diffusion of
>political responsibility and the consumption of state policy-making energy,
>that pretty clearly would not support the negative/affirmative distinction.
>(That's obviously conclusory, but it is my conclusion.)  But the ban on
>affirmative commandeering also rests on some formalist, non-instrumentalist
>structural principles, about which I think it quite difficult to say
>anything coherent (in the sense of explaining why the formalist line is
>drawn as it is, and does or does not extend to something else).  I concede
>that, like all formalisms, this one too might "support" the
>affirmative/negative distinction.
>
>(2)  One might construct a parallel protection for state decisional autonomy
>in the negative commandeering context.  Here, however, *Crosby* (and cases
>it cites) pretty clearly stands in the way.  The most likely candidate for
>such a protection, in my view, would be something like a "market
>participant" exception to preemption, but *Crosby* makes that hard to
>defend.  (It's possible that, on the analogy to *Wunnicke,* there could be a
>market-participant exception to preemption, but that it would extend only to
>a primary boycott ¯ Massachusetts's refusal to purchase goods made in Burma
>¯ and not to a secondary [in *Wunnicke's* terms, "downstream"] boycott.
>That seems to me pretty arbitrary, but maybe it's defensible.)
>
>I'm developing a more elaborate version of this argument to be given at a
>conference at the University of Tulsa Law School later this year, and will
>be happy to share a draft when it's available (in a couple of weeks, I
>hope).
>
>Mark Tushnet
>Georgetown University Law Center
>600 New Jersey Ave. NW
>Washington, DC  20001
>     202-662-9106
>     202-662-9497 (fax)
>tushnet at law.georgetown.edu
>
Ernie Young

Assistant Professor of Law
University of Texas School of Law
727 East Dean Keeton St.
Austin, TX 78705
(512) 232-5561
eyoung at mail.law.utexas.edu