Preemption Cases and Judicial Activism

[David Sloss]

John,
 
You are correct in asserting that the remedy is confined to prospective
injunctive and/or declaratory relief, not damages.  The courts rarely
say where the private right of action comes from in these cases - they
just assume that it exists.  Plaintiffs sometimes rely on the
Declaratory Judgment Act, but at times they seem to rely on either the
Supremacy Clause or section 1983.  Of course, section 1983 won't work
unless there's a "federal right," and there are many cases that would
probably not pass the "federal right" test enunciated by the Court in
Gonzaga v. Doe.  Federal jurisdiction in these cases is based on a rule
that the Court announced in a footnote in Shaw v. Delta Airlines, 463
U.S. 85 (1983).
 
David Sloss
 
-----Original Message-----
From: jfnbl at earthlink.com [mailto:jfnbl at earthlink.com] 
Sent: Monday, September 18, 2006 5:49 AM
To: David Sloss; conlawprof at lists.ucla.edu
Subject: Re: Preemption Cases and Judicial Activism
 
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 slu.edu> slossdl at slu.edu
SSRN Home Page: http://ssrn.com/author=368797
 

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