preemption cases excluded from Ringhand study?

jfnbl at earthlink.com jfnbl at earthlink.com
Mon Sep 18 03:37:10 PDT 2006


At 3:00 AM -0400 9/17/06, Ilya Somin wrote:
>I don't think that preemption and invalidation can be considered the 
>same thing. If a state statute is incorrectly preempted as a result 
>of the Supreme Court interpreting a federal statute too broadly, 
>Congress can revise the federal law to negate the Supremes' 
>interpretation. Obviously, the force of inertia will sometimes 
>prevent this, but it is an easier remedy than that which is 
>necessary to change a mistaken constitutional invalidation of a law.
>
>Even as a technical legal matter, a preempted law is not considered 
>to be unconstitutional, as Mark Stein suggests. It is simply 
>overriden by an equally constitutional law enacted by a higher level 
>legislature.
>

I'm not sure that the issue is more than linguistic, but a Westlaw 
search turns up dozens of Supreme Court decisions holding that state 
laws are "invalid" or "unconstitutional" because they "violate" the 
Supremacy Clause. I think, "as a technical legal matter,"  laws are 
not considered unconstitutional until they are held unconstitutional 
by a court of competent jurisdiction; but once they are held 
unconstitutional they are just as invalid if they violate the 
Supremacy Clause as if they violated the First Amendment. The claim 
is triggered by federal law (or its absence in dormant Commerce 
Clause cases) because it /is not/ equally constitutional -- it is 
constitutionally supreme; and that is what supplies the case or 
controversy for the claimed violation of the Supremacy Clause. In any 
case, Congress has the same remedy, which is to override the Court's 
misallocation of legislative authority by legislation that concedes 
or delegates the authority that the Court held Congress intended to 
preempt.

John Noble


>Ilya Somin
>Assistant Professor of Law
>George Mason University School of Law
>3301 Fairfax Dr.
>Arlington, VA 22201
>ph: 703-993-8069
>fax: 703-993-8202
>e-mail: isomin at gmu.edu
>Website: http://mason.gmu.edu/~isomin/
>SSRN Page: http://ssrn.com/author=333339
>
>
>----- Original Message -----
>From: jfnbl at earthlink.com
>Date: Sunday, September 17, 2006 2:25 am
>Subject: Re: preemption cases excluded from Ringhand study?
>
>>  I don't think the enforcement of an express statutory preemption
>>  can
>>  be characterized as judicial activism except in an interpretation
>>  of
>>  its scope that is overbroad. My sense is that narrowing the scope
>>  of
>>  preemption is one of the fairly few distinct and significant
>>  doctrinal retrenchments of the Rehnquist Court that have actually
>>  reined in judicial policy-making. Silkwood, Cippolone, Medtronic,
>>  Spreitsma, Bates. In the end, you have Thomas and Scalia, in
>>  partial
>>  dissent, contending that the majority has gone overboard in
>>  applying
>>  the presumption against preemption to arrive at an unduly narrow
>>  construction of an express preemption.
>>
>>  John Noble
>>
>>  At 6:50 PM -0700 9/16/06, MARK STEIN wrote:
>>  >Lori Ringhand's important and much-discussed study on judicial
>>  >activism seems to exclude most or all preemption cases that are
>>  not
>>  >also decided on some other basis (e.g., dormant commerce clause).
>>  >Should all statutory preemption cases have been included?  To
>>  hold
>>  >that a state law is preempted is to hold that it is
>>  unconstitutional
>>  >in violation of the Supremacy Clause.  If all preemption cases
>>  were
>>  >included, the conservatives might be more activist in striking
>>  down
>>  >state laws as well as federal laws.
>>  >
>>  >Mark
>>  >
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