Preemption Cases and Judicial Activism

jfnbl at jfnbl at
Mon Sep 18 03:48:48 PDT 2006

I'm going to have to read your article, but if I understand your 
characterization of the cases you are referring to, they are actions 
for declaratory judgment that anticipate a preemption defense to the 
enforcement state laws. Much of the litigation that I get involved in 
is exactly that kind of case -- an action for declaratory judgment 
and injunctive relief on allegations that municipal regulation of 
telecom and cable company access to the right-of-way is preempted by 
federal law, specifically 47 USC 253. I haven't thought of it as an 
exception to the presumption against implied rights of action, but 
while I work on the cities' side of the street, I imagine that 
plaintiff/petitioner's argument would be that the right of action is 
supplied by the Declaratory Judgment Act, rather than by implication 
from the preempting statute. If the plaintiff satisfies the standing 
requirements of the Declaratory Judgment Act, his stake is in the 
threat of enforcement by the public authorities to which he would 
give way under the presumption against a private right of action. 
There's also an important distinction in the nature of the remedy so 
long as the remedy is confined to declaratory and injunctive relief, 
and he is not entitled to an affirmative right to recover, e.g. under 
sec. 1983 for a violation of the Supremacy Clause.

John Noble

At 6:35 PM -0500 9/17/06, David Sloss wrote:
>I would add one point to the recent discussion about preemption 
>cases and judicial activism.  In many of the preemption cases, the 
>Court has been "activist" in a way that has gone largely unnoticed. 
>Specifically, the Court consistently allows private plaintiffs to 
>bring preemption claims in federal court to enjoin enforcement of 
>state laws that are allegedly preempted by federal statutes, 
>regardless of whether the federal statute at issue creates a private 
>right of action.  In essence, the Court has tacitly recognized an 
>implied private right of action under the Supremacy Clause for 
>statutory preemption claims that fit within the scope of Ex parte 
>Young doctrine - i.e., where plaintiffs sue state officers for 
>prospective, injunctive relief.  This line of cases constitutes a 
>very significant exception to the general presumption against 
>implied rights of action to enforce federal statutes.  I have 
>documented this practice in Constitutional Remedies for Statutory 
>Violations, 89 Iowa L. Rev. 355 (2004).
>David Sloss
>Professor of Law
>Saint Louis University School of Law
>Phone: (314) 977-3477
>FAX: (314) 977-3332
>E-mail: <mailto:slossdl at>slossdl at
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