Preemption and institutional choice

Northwestern University Law Review

Volumn 102, Issue 2, 2008, Pages 727-780

  Merrill, Thomas W ^a  

^a Columbia Law School ^*

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EID: 49849089724     PISSN: 00293571     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (232)

1. NEIL K. KOMESAR, IMPERFECT ALTERNATIVES: CHOOSING INSTITUTIONS IN LAW, ECONOMICS, AND PUBLIC POLICY 3 (1994). A notable recent example is ADRIAN VERMEULE, JUDGING UNDER UNCERTAINTY: AN INSTITUTIONAL THEORY OF LEGAL INTERPRETATION (2006). Comparative institutional analysis in law is not new. A prominent work from an earlier generation is HENRY M. HART & ALBERT M. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING AND APPLICATION OF LAW (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994).
2. Marbury v. Madison, 5 U.S. (3 Cranch) 137, 177 (1803).
3. For a preliminary consideration of the value of an institutional choice perspective in resolving questions of federalism, with brief comments about preemption, see Ernest A. Young, Making Federalism Doctrine: Fidelity, Institutional Competence, and Compensating Adjustments, 46 WM. & MARY L. REV. 1733, 1816-53 (2005) [hereinafter Young, Compensating Adjustments];
4. see also Ernest A. Young, The Rehnquist Court's Two Federalisms, 83 TEX. L. REV. 1, 8-13, 65-121 (2004) [hereinafter Young, Two Federalisms]. I have also previously suggested, without extensive analysis, that the institutional choice perspective could illuminate disputes having a federalism dimension.
5. See Thomas W. Merrill, Institutional Choice and Political Faith, 22 LAW & SOC. INQUIRY 959, 981-82 (1997).
6. 505 U.S. 504 (1992).
7. Id. at 517.
8. The presumption was initially articulated in Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947), and has been irregularly applied ever since. See infra notes 61-64 and accompanying text.
9. See generally Paul E. McGreal, Some Rice with Your Chevron?: Presumption and Deference in Regulatory Preemption, 45 CASE W. RES. L. REV. 823 (1995);
10. Nina A. Mendelson, Chevron and Preemption, 102 MICH. L. REV. 737 (2004);
11. Catherine M. Sharkey, Preemption by Preamble: Federal Agencies and the Federalization of Tort Law, 56 DEPAUL L. REV. 227 (2007).
12. 127 S. Ct. 1559 (2007). I filed a brief amicus curiae in Watters on behalf of the Center for State Enforcement of Antitrust and Consumer Protection Laws, Inc., arguing against application of Chevron deference when reviewing agency declarations of preemption.
13. Id. at 1566; see Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).
14. Watters, 127 S. Ct. at 1572 n.13.
15. Id. at 1582-85 (Stevens, J., dissenting).
16. See Sharkey, supra note 7.
17. The issue was avoided in Riegel v. Medtronic, Inc., 128 S. Ct. 999 (2008), a case involving FDA-approved medical devices. Review has been granted in Levine v. Wyeth, No. 2004-384, 2006 WL 3041078 (Vt. Oct. 27, 2006), cert granted, 128 S. Ct. 1118 (2008), which involves the adequacy of warnings in drug package inserts. For lower court decisions responding to requests for deference to FDA views about preemption, see Prohias v. Pfizer, Inc., 490 F. Supp. 2d 1228, 1234-35 (S.D. Fla. 2007); Sykes v. Glaxo-SmithKline, 484 F. Supp. 2d 289, 313-17 (E.D. Pa. 2007); In re Bextra & Celebrex Mktg. Sales Practices & Prod. Liab. Litig., No. M: 05-1699 CRB, 2006 WL 2374742, at *6-7 (N.D. Cal. Aug. 16, 2006); Colacicco v. Apotex, Inc., 432 F. Supp. 2d 514, 525-35 (E.D. Pa. 2006); and Conte v. Wyeth, Inc., No. CGC-04-437382, 2006 WL 3939262, at *1 (Cal. Super. Ct. Sept. 25, 2006). See also In re Vioxx Prod. Liab. Litig., 501 F. Supp. 2d 776, 786 (E.D. La. 2007) ("[T]he majority of courts continue to find that state-law claims against prescription drug manufacturers are not preempted, affording little to no deference to the FDA's recent statements.").
18. Cass R. Sunstein & Adrian Vermeule, Interpretation and Institutions, 101 MICH. L. REV. 885, 938 (2003).
19. Stephen A. Gardbaum, The Nature of Preemption, 79 CORNELL L. REV. 767 (1994) [hereinafter Gardbaum, Nature];
20. see also Stephen Gardbaum, Congress's Power to Preempt the States, 33 PEPP. L. REV. 39 (2005);
21. Stephen Gardbaum, Rethinking Constitutional Federalism, 74 TEX. L. REV. 795 (1996).
22. Gardbaum, Nature, supra note 15.
23. In Howlett v. Rose, 496 U.S. 356 (1990), for example, a state court ruled that state statutory immunity barred consideration of a federal civil rights claim. The Supreme Court held that this nullification of federal law by state law violated the Supremacy Clause. Id. at 376-78.
24. See Caleb Nelson, Preemption, 86 VA. L. REV. 225, 228 (2000) (noting that the class of cases in which compliance with both federal and state law is impossible is "vanishingly narrow"). It is unclear whether this rarity is because cases of conflict in the strong sense of mutual exclusivity are rare or because when such conflicts arise, everyone recognizes that federal law prevails, so such conflicts virtually never result in litigation.
25. See Michael S. Greve & Jonathan Klick, Preemption in the Rehnquist Court: A Preliminary Empirical Assessment, 14 SUP. CT. ECON. REV. 43, 53 (2006) (finding that preemption cases are "overwhelming[ly]" initiated by business or private parties);
26. Roderick H. Hills, Jr., Against Preemption: How Federalism Can Improve the National Legislative Process, 82 N.Y.U. L. REV. 1, 29-30 (2007) (noting that industry interest groups will often favor regulatory uniformity even when that uniformity results in more stringent controls);
27. David B. Spence & Paula Murray, The Law, Economics, and Politics of Federal Preemption Jurisprudence: A Quantitative Analysis, 87 CAL. L. REV. 1125, 1158 (1999) (suggesting that "Coasean" commentators favor broad preemption to encourage "a national market in externalities").
28. See Note, New Evidence on the Presumption Against Preemption: An Empirical Study of Congressional Responses to Supreme Court Preemption Decisions, 120 HARV. L. REV. 1604, 1613-14 (2007) (finding that Congress overrode only two out of 127 preemption decisions rendered by the Supreme Court over a recent twenty-year period).
29. For example, the National Conference of State Legislatures maintains a "preemption monitor" on its website. National Conference of State Legislatures, Preemption Monitor, http://www.ncsl.org/standcomm/sclaw/ PreemptionMonitor_Index.htm (last visited Dec. 2, 2007). In a recent empirical survey of Supreme Court cases, Greve and Klick found "extensive and still-growing state amicus participation in preemption cases - predictably, almost exclusively on the anti-preemption side." Greve & Klick, supra note 19, at 69.
30. For insightful commentary that recognizes this common theme in "federating" decisions, see Samuel Issacharoff & Catherine M. Sharkey, Backdoor Federalization, 53 UCLA L. REV. 1353 (2006).
31. See, e.g., City of Philadelphia v. New Jersey, 437 U.S. 617 (1978) (invalidating discriminatory state legislation); Pike v. Bruce Church, Inc., 397 U.S. 137 (1970) (invalidating state law disproportionately burdening interstate commerce).
32. The Supremacy Clause provides: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. CONST. art. VI, cl. 2.
33. Id. art. I, § 8, cl. 18.
34. See, e.g., Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 540-41 (2001) (identifying the Supremacy Clause as the "relatively clear and simple mandate" that allows Congress to "pre-empt[] state action in a particular area"); Nw. Cent. Pipeline Corp. v. State Corp. Comm'n, 489 U.S. 493, 509 (1989) (referring to Congress's "power under the Supremacy Clause . . . to preempt state law"); Fid. Fed. Sav. & Loan Ass'n v. de la Cuesta, 458 U.S. 141, 152 (1982) (declaring that the "pre-emption doctrine . . . has its roots in the Supremacy Clause"); Morris v. Jones, 329 U.S. 545, 553 (1947) (proclaiming that when state law "collides with the federal Constitution or an Act of Congress . . . the action of a State under its police power must give way by virtue of the Supremacy Clause").
35. Thus, for example, "commerce" might mean buying and selling goods, it might mean all economic activity, or it might even mean any form of "intercourse," see AKIL REED AMAR, AMERICA'S CONSTITUTION: A BIOGRAPHY 107-08 (2005); "freedom of speech" might refer to verbal utterances about politics, or it might refer to any human action having some communicative function, including commercial advertising and nude dancing. See Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 66 (1981) (stating that nude dancing is "not without . . . First Amendment protections"); Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748, 761-70 (1976) (holding commercial advertising entitled to intermediate degree of protection as "speech").
36. Nelson, supra note 18, at 254-57.
37. Id. at 255.
38. JACK N. RAKOVE, ORIGINAL MEANINGS: POLITICS AND IDEAS IN THE MAKING OF THE CONSTITUTION 171-72 (1996);
39. see also Bradford R. Clark, Separation of Powers as a Safeguard of Federalism, 79 TEX. L. REV. 1321, 1348-72 (2001);
40. S. Candice Hoke, Transcending Conventional Supremacy: A Reconstruction of the Supremacy Clause, 24 CONN. L. REV. 829, 856-75 (1992);
41. James S. Liebman & William F. Ryan, "Some Effectual Power": The Quantity and Quality of Decisionmaking Required of Article III Courts, 98 COLUM. L. REV. 696, 709-13 (1998).
42. Hoke, supra note 30, at 865-70.
43. See Clark, supra note 30, at 1355 (citing U.S. CONST. art VI, cl. 2).
44. 17 U.S. (4 Wheat.) 316 (1819).
45. Id. at 436.
46. 22 U.S. (9 Wheat.) 1 (1824).
47. Id. at 210.
48. The Necessary and Proper Clause provides: "The Congress shall have Power . . . To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers [of Article I, § 8], and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." U.S. CONST. art. I, § 8, cl. 18.
49. Indeed, the Necessary and Proper Clause is plausibly read as the source of constitutional authority for Congress to make delegations of other powers. See Thomas W. Merrill, Rethinking Article I, Section 1: From Nondelegation to Exclusive Delegation, 104 COLUM. L. REV. 2097, 2129-31 (2004).
50. Cf. Larry Alexander & Saikrishna Prakash, Delegation Really Running Riot, 93 VA. L. REV. 1035 (2007) (imagining a host of powers that might be delegated under the Necessary and Proper Clause but not suggesting that the Clause itself could be delegated).
51. U.S. CONST. art. VI, cl. 3 ("The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution.").
52. See supra note 30 and accompanying text.
53. See RAKOVE, supra note 30, at 173-77;
54. Nelson, supra note 18, at 249; Saikrishna Bangalore Prakash, Field Office Federalism, 79 VA. L. REV. 1957,2011-12 (1993);
55. Martin H. Redish & Steven G. Sklaver, Federal Power to Commandeer State Courts: Implications for the Theory of Judicial Federalism, 32 IND. L. REV. 71, 85-86 (1998).
56. The Supreme Court has in fact held that state officials other than state judges are bound by the Supremacy Clause. See, e.g., Missouri v. Jenkins, 495 U.S. 33, 56-57 (1990); Cooper v. Aaron, 358 U.S. 1, 18-19 (1958).
57. See generally Henry P. Monaghan, The Supreme Court, 1974 Term, Foreword: Constitutional Common Law, 89 HARV. L. REV. 1, 3 (1975).
58. See Nelson, supra note 18, at 232 (noting a general consensus that "[m]odern preemption jurisprudence is a muddle"); Spence & Murray, supra note 19, at 1146 (noting that preemption cases have proven to be "vexing to the courts" and have produced a "conflicted and fractured body of case law").
59. See, e.g., Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 541 (2001) ("State action may be foreclosed by express language in a congressional enactment, by implication from the depth and breadth of a congressional scheme that occupies the legislative field, or by implication because of a conflict with a congressional enactment." (citations omitted)); Fid. Fed. Sav. & Loan Ass'n v. de la Cuesta, 458 U.S. 141, 152-53 (1982) ("Pre-emption may be either express or implied, and 'is compelled whether Congress' command is explicitly stated in the statute's language or implicitly contained in its structure and purpose."' (quoting Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977))).
60. Cipollone v. Liggett Group, Inc., 505 U.S. 504, 517 (1992). See supra notes 4-5 and accompanying text.
61. See Geier v. Am. Honda Motor Co., 529 U.S. 861, 868, 884-86 (2000) (finding implied preemption in the face of an express preemption clause that the majority construed as not calling for preemption); Freightliner Corp. v. Myrick, 514 U.S. 280, 287-89 (1995) (dismissing as "without merit" the notion that "implied pre-emption cannot exist when Congress has chosen to include an express preemption clause in a statute" and concluding that "[a]t best, Cipollone supports an inference that an express pre-emption clause forecloses implied pre-emption; it does not establish a rule").
62. Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 388 (2000).
63. Buckman Co. v. Plaintiffs' Legal Comm., 531 U.S. 341, 348, 352 (2001).
64. Geier, 529 U.S. 861.
65. See Hoke, supra note 30, at 851 n.103 (noting Supreme Court cases listing between three and six different categories of preemption).
66. Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516 (1992) (quoting Fid. Fed. Sav. & Loan Ass'n v. de la Cuesta, 458 U.S. 141, 153 (1982)).
67. See, e.g., Nelson, supra note 18, at 265-90 (urging the abandonment of frustration of purpose or obstacle preemption).
68. See supra note 17 and accompanying text.
69. See, e.g., Barnett Bank v. Nelson, 517 U.S. 25, 33 (1996) (noting that cases involving the implied preemption of state banking laws "take the view that normally Congress would not want States to forbid, or to impair significantly, the exercise of a power that Congress explicitly granted").
70. Retail Clerks Int'l Ass'n, Local 1625 v. Schermerhorn, 375 U.S. 96, 103 (1963).
71. See, e.g., Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996) ("[O]ur analysis of the scope of the statute's pre-emption is guided by our oft-repeated comment, initially made in Retail Clerks v. Schermerhorn, that '[t]he purpose of Congress is the ultimate touchstone' in every pre-emption case." (citation omitted) (quoting Retail Clerks, 375 U.S. at 103)); Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 252 (1994) ("Whether federal law pre-empts a state law . . . is a question of congressional intent."); English v. Gen. Elec. Co., 496 U.S. 72, 78-79 (1990) ("Pre-emption fundamentally is a question of congressional intent."); La. Pub. Serv. Comm'n v. FCC, 476 U.S. 355, 369 (1986) ("The critical question in any pre-emption analysis is always whether Congress intended that federal regulation supersede state law."); Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 95 (1983) ("In deciding whether a federal law pre-empts a state statute, our task is to ascertain Congress' intent in enacting the federal statute at issue.").
72. As Justice Frankfurter pointed out in his Rice dissent, the idea of searching for a "clear and manifest" congressional intent through doctrines of implied preemption is inherently contradictory. See Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 242-45 (1947) (Frankfurter, J., dissenting).
73. See S. Candice Hoke, Preemption Pathologies and Civic Republican Values, 71 B.U. L. REV. 685, 736 (1991).
74. Fid. Fed. Sav. & Loan Ass'n v. de la Cuesta, 458 U.S. 141.152-53, 159 (1982).
75. Rice, 331 U.S. at 230.
76. See, e.g., Engine Mfrs. Ass'n v. S. Coast Air Quality Mgmt. Dist., 541 U.S. 246 (2004) (finding preemption without mentioning the presumption while the dissent applies the presumption and would find no preemption); Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001) (finding that federal legislation prescribing mandatory health warnings for cigarette packaging and advertising preempts a state prohibition of outdoor cigarette advertising near schools and playground while the dissent argues that the presumption, properly applied, would have spared state regulation concerning the location, as opposed to the content, of cigarette advertising from preemption); Buckman Co. v. Plaintiffs' Legal Comm., 531 U.S. 341 (2001) (declining to apply the presumption in holding state law claims of fraud on a federal agency preempted). As Professor Hoke has observed, the Supreme Court's devotion to its preemption presumptions "can only be described as fickle." Hoke, supra note 59, at 733.
77. In fact, the decision now cited as the canonical statement of the presumption against preemption suggests just such a limitation. See Rice, 331 U.S. at 230 (noting that the presumption applies where Congress has "legislated . . . in a field which the States have traditionally occupied").
78. See, e.g., United States v. Locke, 529 U.S. 89 (2000) (declining to apply the presumption to a state regulation of international shipping, an area where the federal interest is well established). For critiques of the presumption, see Viet D. Dinh, Reassessing the Law of Preemption, 88 GEO. L.J. 2085, 2092-96 (2000); and Marin R. Scordato, Federal Preemption of State Tort Claims, 35 U.C. DAVIS L. REV. 1, 29-31 (2001).
79. Young, Two Federalisms, supra note 3, at 132.
80. See Gardbaum, Nature, supra note 15, at 768.
81. See Richard H. Fallon, Jr., The "Conservative" Paths of the Rehnquist Court's Federalism Decisions, 69 U. CHI. L. REV. 429, 462-63 (2002) (noting the high instance of Supreme Court cases finding state law preempted since the creation of the "current pro-federalism five-member majority"). Although the Court's caseload has fallen in recent years, the percentage of preemption cases on the docket has remained constant (at about 8%), and the Court's tendency to reach pro-preemption outcomes has risen, at least in contested cases. Greve & Klick, supra note 19, at 49-50, 57.
82. See Thomas W. Merrill, Preemption in Environmental Law: Formalism, Federalism Theory, and Default Rules, in FEDERAL PREEMPTION: STATES' POWERS, NATIONAL INTERESTS 166, 166-68 (Richard A. Epstein & Michael S. Greve eds., 2007).
83. See Spence & Murray, supra note 19, at 1162 (concluding, based on empirical survey, that "because judicial norms proscribe citing political pressures or policy preferences as the basis for judicial decisions, all (or nearly all) preemption opinions are cloaked in the language of [formal] sets of decision rules, regardless of the actual basis of the decision").
84. Cf. Hoke, supra note 30, at 889 (recognizing that preemption entails separate inquiries into the meaning of federal statutory law and a determination grounded in the Supremacy Clause as to whether state law is contrary to federal statutory law).
85. See Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).
86. On certification procedures, see Bradford R. Clark, Ascertaining the Laws of the Several States: Positivism and Judicial Federalism After Erie, 145 U. PA. L. REV. 1459 (1997);
87. Judith S. Kaye & Kenneth I. Weissman, Interactive Judicial Federalism: Certified Questions in New York, 69 FORDHAM L. REV. 373 (2000);
88. Kathryn A. Watts, Adapting to Administrative Law's Erie Doctrine, 101 NW. U. L. REV. 997 (2007). Of course, preemption often arises in state court proceedings, see, e.g., Viva! Int'l Voice for Animals v. Adidas Promotional Retail Operations, Inc., 162 P.3d 569 (Cal. 2007), in which case the tribunal is well positioned to ascertain the requirements of state law.
89. See, e.g., Aetna Health Inc. v. Davila, 542 U.S. 200 (2004) (construing the scope of ERISA's express preemption clause).
90. The "relate to" formulation is found in the notorious ERISA preemption provision. See 29 U.S.C. § 1144(a) (2000) (preempting "any and all State laws insofar as they may now or hereafter relate to any employee benefit plan"). Although the Supreme Court initially thought it could resolve cases arising under this clause by simply enforcing its plain meaning, this proved unworkable, with the result that we now have an elaborate jurisprudence of ERISA preemption. See JOHN H. LANGBEIN ET AL., PENSION AND EMPLOYEE BENEFIT LAW 758-841 (4th ed. 2006). For examples of the Court's struggles over terms like "requirement" or "standard," see Bates v. Dow Agrosciences LLC, 544 U.S. 431, 442-54 (2005); Medtronic, Inc. v. Lohr, 518 U.S. 470, 494-503 (1996); and Cipollone v. Liggett Group, Inc., 505 U.S. 504, 520-24 (1992).
91. As one commentator has written: "The task [in preemption decisions] is to determine what a 'successful' implementation of the federal scheme should look like." McGreal, supra note 7, at 838 (emphasis added).
92. See, e.g., Martin v. Waddell, 41 U.S. (16 Pet.) 367, 410-11 (1842).
93. Article 6 of the Virginia Plan, agreed to by the Constitutional Convention on July 29, 1787, provided that the new national legislature would have authority to "legislate in all cases for the general interests of the union, and also in those to which the states are separately incompetent, or in which the harmony on the United States may be interrupted by the exercise of individual legislation." RAKOVE, supra note 30, at 177 (quoting 1 RECORDS OF THE FEDERAL CONVENTION OF 1787, at 21 (Max Farrand ed., rev. ed. 1966) (1911)). This general statement of principle was then replaced by the list of enumerated powers drafted by the committee of detail, which was viewed as reflecting these principles. Id. at 178.
94. See, e.g., United States v. Morrison, 529 U.S. 598, 607 (2000) ("[O]ur interpretation of the Commerce Clause has changed as our Nation has developed.").
95. See U.S. CONST. amend. X; THE FEDERALIST NO. 45, at 241 (James Madison) (George W. Carey and James McClellan eds., 2001).
96. H.P. Hood & Sons, Inc. v. DuMond, 336 U.S. 525, 537 (1949).
97. Id. at 538.
98. Significantly, the Court's modern preemption doctrine evolved out of and shares common roots with the dormant commerce clause doctrine. See Gardbaum, Nature, supra note 15, at 801-05.
99. Thus, Congress may consent to state regulation the Court has previously found preempted or to violate the dormant commerce clause. See, e.g., Prudential Ins. Co. v. Benjamin, 328 U.S. 408 (1946).
100. See, e.g., Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 92-93 (1824).
101. U.S. CONST. art. VI, cl. 2; see also supra text accompanying notes 24-32.
102. Henry M. Hart, Jr., The Relations Between State and Federal Law, 54 COLUM. L. REV. 489, 499-515 (1954).
103. See, e.g., United States v. Lopez, 514 U.S. 549,584-602 (1995) (Thomas, J., concurring).
104. See, e.g., Am. Ins. Ass'n v. Garamendi, 539 U.S. 396, 413-15 (2003) (foreign relations); Boggs v. Boggs, 520 U.S. 833, 840 (1997) (laws of inheritance); New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 333-34 (1983) (Indian law); Hisquierdo v. Hisquierdo, 439 U.S. 572, 581 (1979) (domestic relations); Hines v. Davidowitz, 312 U.S. 52, 66 (1941) (immigration law).
105. Lawrence Lessig, Translating Federalism: United States v. Lopez, 1995 SUP. CT. REV. 125, 127;
106. cf. Bradford R. Clark, Translating Federalism: A Structural Approach, 66 GEO. WASH. L. REV. 1161, 1171 (1998) (stressing that any translation must be "consistent with the constitutional text").
107. A variety of commentators have recognized the importance of promoting stability in determining the allocation of authority among legal institutions. See, e.g., Larry Alexander & Frederick Schauer, On Extrajudicial Constitutional Interpretation, 110 HARV. L. REV. 1359, 1372-81 (1997);
108. Jonathan T. Molot, Reexamining Marbury in the Administrative State: A Structural and Institutional Defense of Judicial Power over Statutory Interpretation, 96 NW. U. L. REV. 1239, 1292-1320 (2002).
109. Mendelson, supra note 7, at 759-78; Sharkey, supra note 7, at 251-56; Ernest A. Young, Two Cheers for Process Federalism, 46 VILL. L. REV. 1349, 1352-66 (2001).
110. See, e.g., Larry D. Kramer, Putting the Politics Back into the Political Safeguards of Federalism, 100 COLUM. L. REV. 215 (2000);
111. Saikrishna B. Prakash & John C. Yoo, The Puzzling Persistence of Process-Based Federalism Theories, 79 TEX. L. REV. 1459 (2001).
112. See, e.g., United States v. Mead Corp., 533 U.S. 218, 229-30 (2001).
113. See Young, Compensating Adjustments, supra note 3.
114. If the baseline is the written Constitution, then this variable is redundant of the first.
115. My point is not that agencies are systematically biased in favor of preemption, although some commentators believe this is a concern and I address this possibility briefly below, infra notes 110-12 and accompanying text. The point here is only that agencies have the capacity to process more preemption controversies at greater speed than courts or Congress.
116. William M. Landes & Richard A. Posner, The Independent Judiciary in an Interest-Group Perspective, 18 J.L. & ECON. 875, 885 (1975);
117. John F. Manning, Textualism and the Equity of the Statute, 101 COLUM. L. REV. 1, 105-26 (2001);
118. Richard A. Posner, Statutory Interpretation - In the Classroom and in the Courtroom, 50 U. CHI. L. REV. 800, 817-22 (1983).
119. See WILLIAM N. ESKRIDGE, JR., DYNAMIC STATUTORY INTERPRETATION (1994).
120. RONALD DWORKIN, LAW'S EMPIRE 225-75, 313-54 (1986); RICHARD A. POSNER, LAW, PRAGMATISM, AND DEMOCRACY 57-96 (2003).
121. For a sensible and subtle analysis that provides an example of what I mean by principled interpretation, see HART & SACKS, supra note 1, at 1111-1380, noting particularly pages 1374-80.
122. For overviews of the policy factors bearing on the choice between diversity and uniformity in regulation, see DAVID L. SHAPIRO, FEDERALISM: A DIALOGUE (1995);
123. Steven G. Calabresi, "A Government of Limited and Enumerated Powers ": In Defense of United States v. Lopez, 94 MICH. L. REV. 752, 774-84 (1995);
124. Jacques LeBoeuf, The Economics of Federalism and the Proper Scope of the Federal Commerce Power, 31 SAN DIEGO L. REV. 555 (1994);
125. Michael W. McConnell, Federalism: Evaluating the Founders' Design, 54 U. CHI. L. REV. 1484 (1987).
126. Larry Kramer, Understanding Federalism, 47 VAND. L. REV. 1485, 1542-46, 1551-59 (1994).
127. On the general problem of evisceration of congressional engagement with constitutional values, see MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS (1999).
128. See Daniel J. Meltzer, The Supreme Court 's Judicial Passivity, 2002 SUP. CT. REV. 343, 376-77.
129. See Spence & Murray, supra note 19, at 1190-91 (arguing that congressional resolution of preemption questions would result either in very general provisions that would require extensive interpretation by courts, making courts the de facto institution of decision, or very specific provisions that would produce unintended consequences).
130. In addition to the problem of capacity constraints on congressional action, commentators have disagreed about what type of decisional rule is more likely to force Congress to act. Rick Hills has recently argued that a strong presumption against preemption is more likely to induce a congressional response because business interests will lobby to overturn rules that inefficiently disrupt economies of scope and scale. See Hills, supra note 19, at 16-39. Alan Schwartz, focusing more narrowly on preemption of tort causes of action, argues that a rule of broad preemption is more likely to elicit a congressional response, at least when Congress prefers that federal law set only a floor rather than a ceiling. See Alan Schwartz, Statutory Interpretation, Capture, and Tort Law: The Regulatory Compliance Defense, 2 AM. L. & ECON. REV. 1 (2000). However one resolves this dispute, Adrian Vermeule has recently offered an additional reason why any strategy predicated on forcing Congress to act is unlikely to succeed. VERMEULE, supra note 1, at 118-48. Such a strategy will work only if judges achieve a high degree of coordination, such that they send a uniform signal to Congress that decisional responsibility has been shifted upstream to the legislative branch. Id. at 123-29. Given the independence and diversity of views among Supreme Court Justices and the inability of the Justices to police any more than a fraction of lower federal court and state court decisions, it is unrealistic to expect that any such degree of coordination can be achieved. Id. at 131-32.
131. See Spence & Murray, supra note 19, at 1191-93 (concluding that the preferred solution for resolving preemption controversies on a basis that reflects sound policy analysis would be for Congress to delegate authority to make such decisions to expert federal agencies).
132. See, e.g., infra sources cited note 110.
133. JOHN DICKINSON, ADMINISTRATIVE JUSTICE AND THE SUPREMACY OF LAW IN THE UNITED STATES 124 (1927).
134. See Mendelson, supra note 7, at 794-97. Courts have long worried about trusting agencies to determine the scope of their own jurisdiction. See Timothy K. Armstrong, Chevron Deference and Agency Self-Interest, 13 CORNELL J.L. & PUB. POL'Y 203, 209-11 (2004);
135. Ernest Gellhorn & Paul Verkuil, Controlling Chevron-Based Delegations, 20 CARDOZO L. REV. 989, 992-94 (1999).
136. As Nina Mendelson notes: The rate of federalism impact statements . . . appears to be quite low. In 1999, the General Accounting Office reported that only five federalism impact statements had been prepared for the over 11,000 final rules agencies issued between April 1996 and December 1998. A sampling of 600 proposed and final rules during one quarter in 2003 revealed six federalism impact statements prepared by agencies. Mendelson, supra note 7, at 783.
137. Id. at 784-85.
138. See Sharkey, supra note 7, at 229-42.
139. See, e.g., Solid Waste Agency of N. Cook County v. U.S. Army Corps of Eng'rs, 531 U.S. 159, 174 (2001) (holding that the definition of "navigable waters" in the Clean Water Act should not be interpreted to include intrastate waters because such an interpretation would unnecessarily invoke the outer limits of Congress's power under the Commerce Clause); Gregory v. Ashcroft, 501 U.S. 452, 470 (1991) (concluding that given federalism concerns, the Federal Age Discrimination in Employment Act should not be interpreted as including state judges).
140. Molot, supra note 90, at 1310 ("Whereas interpretation by political officials is likely to vary with the political climate, interpretation by judges tends to be comparatively more stable and consistent over time."); David L. Shapiro, Courts, Legislatures, and Paternalism, 74 VA. L. REV. 519, 551-56 (1988) (detailing constraints that make judicial decisions more predictable than legislative decisions).
141. See Thomas W. Merrill, Originalism, Stare Decisis and the Promotion of Judicial Restraint, 22 CONST. COMMENT. 271, 284-85 (2005) ("The Court generally follows a weak theory of precedent in constitutional cases, but at least purports to follow a strong theory of precedent with respect to statutory decisions.").
142. See Greve & Klick, supra note 19, at 69-74.
143. Adrian Vermeule is especially harsh in his assessment of the shortcomings of courts on this dimension. See, e.g., VERMEULE, supra note 1, at 158 ("[J]udges must make interpretative choices in the face of impoverished information, have only limited capacity to generate the needed information by postponing interpretative choices or by conducting experiments, and have limited capacity to accurately process the information they do obtain.").
144. See Spence & Murray, supra note 19, at 1189-90 (suggesting, based on an empirical survey of federal preemption decisions, that judges do a poor job of distinguishing between cost-exporting and cost-internalizing regulations).
145. 127 S. Ct. 1559, 1570-71 (2007).
146. See, e.g., Geier v. Am. Honda Motor Co., 529 U.S. 861, 867-68 (2000) (holding that a regulation mandating the phase-in of passive restraints in automobiles impliedly preempts a state tort law claim predicated on the proposition that installation of air bags was mandatory); CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 674-75 (1993) (holding that a federal regulation governing maximum train speed preempts a negligence claim that a speed under the federal maximum was excessive); City of New York v. FCC, 486 U.S. 57, 66-67 (1988) (holding that an FCC regulation establishing technical standards to govern the quality of cable television signals preempts a more stringent state regulation); Hillsborough County v. Automated Med. Labs., Inc., 471 U.S. 707, 713 (1985) ("We have held repeatedly that state laws can be pre-empted by federal regulations as well as by federal statutes."); Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 698-711 (1984) (holding that an FCC regulation prohibiting the deletion or alteration of out-of-state television broadcast signals preempts a state ban on television advertisements for alcoholic beverages); Fid. Fed. Sav. & Loan Ass'n v. de la Cuesta, 458 U.S. 141, 170 (1982) (holding that the Federal Home Loan Bank Board's regulation permitting federally chartered savings and loan associations to exercise the due-on-sale clause of mortgages preempts a contrary state common law rule); United States v. Shimer, 367 U.S. 374, 381-85 (1961) (holding that a Veterans' Administration regulation governing the calculation of deficiency judgments upon foreclosure of a government-insured mortgage preempts a contrary state rule).
147. U.S. CONST. art. VI, cl. 2.
148. See Printz v. United States, 521 U.S. 898, 922-25 (1997);
149. Bradford R. Clark, The Supremacy Clause as a Constraint on Federal Power, 71 GEO. WASH. L. REV. 91, 109-11 (2003) (noting that earlier versions of the Supremacy Clause unambiguously referred to congressional legislation rather than "Laws").
150. See Clark, supra note 30, at 1355-67.
151. City of New York, 486 U.S. at 63.
152. Peter L. Strauss, The Perils of Theory, 83 NOTRE DAME L. REV. (forthcoming 2008) (manuscript at 2-3, on file with the Northwestern University Law Review), available at http://ssrn.com/abstract=1018982.
153. Unless one argues that state common law has legal force only because of the enactment of state laws receiving the common law of England as the law of the state. See Thomas W. Merrill, The Judicial Prerogative, 12 PACE L. REV. 327, 346 (1992).
154. U.S. CONST. art. III, § 2 ("The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority" (emphasis added)); see Akhil Reed Amar, Intratextualism, 112 HARV. L. REV. 747, 766 (1999).
155. See Illinois v. City of Milwaukee, 406 U.S. 91, 99-100 (1972) (holding that the "laws of the United States" for purposes of arising under jurisdiction include federal common law); see also Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78-80 (1938) (holding that "law" as used in the Rules of Decision Act includes state common law).
156. See City of Milwaukee v. Illinois, 451 U.S. 304, 312-14 (1981); Thomas W. Merrill, The Common Law Powers of Federal Courts, 52 U. CHI. L. REV. 1, 36-39 (1985). The Court has construed judicial judgments as being included within the scope of the Supremacy Clause. Chesapeake & Ohio Ry. Co. v. Martin, 283 U.S. 209, 220-21 (1931).
157. U.S. CONST. art. II, § 3.
158. The President's duty to enforce final judicial judgments was acknowledged by President Lincoln in his first Inaugural Address in attacking the decision in Dred Scott v. Sandford. 4 COLLECTED WORKS OF ABRAHAM LINCOLN 268 (Roy P. Basler ed., 1953); see also Frank H. Easterbrook, Presidential Review, 40 CASE W. RES. L. REV. 905, 926 (1990). For an extreme view to the contrary, see Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 GEO. L.J. 217, 276-84 (1994).
159. See United States v. Nixon, 418 U.S. 683, 696 (1974); Thomas W. Merrill, The Accardi Principle, 74 GEO. WASH. L. REV. 569 (2006).
160. For some preliminary thoughts about what sorts of decisional rules have the force of law, see Merrill, supra note 133, at 596-99.
161. For details, see Merrill, supra note 38, at 2120-39.
162. An express delegation of authority from Congress to make binding adjudications and the exercise of this power would also satisfy the "in Pursuance" requirement.
163. See, e.g., Am. Postal Workers Union, AFL-CIO v. U.S. Postal Serv., 707 F.2d 548, 558 (D.C. Cir. 1983) ("A rule can be legislative only if Congress has delegated legislative power to the agency and if the agency intended to use that power in promulgating the rule at issue."); see also Gonzales v. Oregon, 546 U.S. 243, 255-56 (2006); Nat'l Cable & Telecomm. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 980-81 (2005); United States v. Mead Corp., 533 U.S. 218, 226-27 (2001). For a recognition of the need for a delegation of legislative authority in the preemption context, see Louisiana Public Service Commission v. FCC, 476 U.S. 355, 374 (1986). See also New York v. Fed. Energy Regulatory Comm'n, 535 U.S. 1, 18 (2001) (reaffirming that courts must "interpret the statute to determine whether Congress has given [the agency] the power to act as it has" before upholding regulation that intrudes into areas traditionally regulated by the states).
164. See Thomas W. Merrill & Kristin E. Hickman, Chevron's Domain, 89 GEO. L.J. 833, 890-92, 901-02 (2001).
165. Id. at 901-02.
166. 5 U.S.C. §§ 553(b), (c) (2000); cf. 5 U.S.C. § 553(a)(2); Mead, 533 U.S. at 244 (Scalia, J., dissenting).
167. See 5 U.S.C. §§ 556-557; Mathews v. Eldridge, 424 U.S. 319 (1976).
168. See, e.g., Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42-44 (1983); Small Refiner Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 519-21 (D.C. Cir. 1983); Greater Boston Television Corp. v. FCC, 444 F.2d 841, 850-53 (D.C. Cir. 1970).
169. See, e.g., Exec. Order No. 12,988, 61 Fed. Reg. 4729, 4731 (Feb. 5, 1996), supplemented by Exec. Order No. 13,132, 64 Fed Reg. 43,255 (Aug. 4, 1999).
170. See Mendelson, supra note 7, at 782-86 (providing data suggesting low levels of compliance with these requirements).
171. For examples of agency regulations held to have preemptive effect, see cases cited supra note 121; for some agency orders held to be preemptive, see Entergy Louisiana, Inc. v. Louisiana Public Service Commission, 539 U.S. 39, 49-50 (2002) (holding that an order of a state utility commission adopting an allocation of wholesale power different from the allocation permitted by an order of the Federal Energy Regulatory Commission is preempted); Mississippi Power & Light Co. v. Mississippi ex rel. Moore, 487 U.S. 354, 369-70 (1988) (similar); and Nantahala Power & Light Co. v. Thornburg, 476 U.S. 953, 966 (1986) (similar).
172. See Thomas W. Merrill & Kathryn Tongue Watts, Agency Rules with the Force of Law: The Original Convention, 116 HARV. L. REV. 467, 545-70 (2002) (noting the casual attitude of courts about whether regulations are legislative or nonlegislative); see also Am. Hosp. Ass'n v. NLRB, 499 U.S. 606, 609-10 (1991).
173. City of New York v. FCC, 486 U.S. 57, 63-64 (1988) ('"[A] federal agency acting within the scope of its congressionally delegated authority may pre-empt state regulation' . . . ." (quoting La. Pub. Serv. Comm'n v. FCC, 476 U.S. 355, 369 (1986))); Hillsborough County v. Automated Med. Labs., 471 U.S. 707, 713 (1985) ("[S]tate laws can be pre-empted by federal regulations as well as by federal statutes.").
174. See 30 U.S.C. § 1254(g) (2000) (authorizing the Secretary of the Interior to identify state laws and regulations preempted by the Surface Mining Control and Reclamation Act); 47 U.S.C § 253(d) (2000) (authorizing the Federal Communications Commission to preempt the enforcement of state and local statutes, regulations, or legal requirements interfering with the development of competitive telecommunications services); 49 U.S.C. § 5125(d) (2000) (authorizing the Secretary of Transportation to determine whether particular state, local, or tribal requirements respecting the transportation of hazardous materials are preempted).
175. See supra text accompanying note 40.
176. See supra text immediately following note 37.
177. See William N. Eskridge, Jr. & Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 VAND. L. REV. 593, 619-29 (1992) (describing an array of clear statement rules and super-strong clear statement rules developed by the Court between 1981 and 1991). On the general utility of requiring clear statement rules to enforce federalism values, see generally Thomas W. Merrill, Rescuing Federalism After Raich: The Case for Clear Statement Rules, 9 LEWIS & CLARK L. REV. 823 (2005), and the sources therein cited.
178. 458 U.S. 141 (1982).
179. Id. at 151.
180. Id. at 154 (citation omitted).
181. See supra note 137 and accompanying text.
182. 546 U.S. 243 (2006).
183. Id. at 263. The Court's exact words were more opaque, but I believe I have translated their meaning correctly. The Court said that a general delegation of authority to an agency does not entail "the authority to decide the pre-emptive scope of the federal statute because '[n]o such delegation regarding [the statute's] enforcement provisions is evident in the statute." Id. (quoting Adams Fruit Co. v. Barrett, 494 U.S. 638, 649-50 (1990)).
184. Justice Stevens observed that "Congress knows how to authorize executive agencies to preempt state laws," citing three statutes in which the power to preempt had been expressly delegated. Watters v. Wachovia Bank, N.A., 127 S. Ct. 1559, 1582 & n.21 (2007) (Stevens, J., dissenting). He further observed that "there is a vast and obvious difference between rules authorizing or regulating conduct and rules granting immunity from regulation." Id. at 1583. After reviewing the statutes delegating authority to the OCC to authorize or regulate the conduct of national banks, he concluded that these should not be read as "expressly or implicitly grant[ing] the OCC the power to immunize banks or their subsidiaries from state regulation." Id. at 1582-83.
185. Several decisions in the 1980s influenced by de la Cuesta contain language suggesting that agencies have authority to preempt under their general rulemaking authority. See, e.g., City of New York v. FCC, 486 U.S. 57, 64 (1988) ("[I]n proper circumstances the agency may determine that its authority is exclusive and pre-empts any state efforts to regulate in the forbidden area."); Hillsborough County v. Automated Med. Labs., Inc., 471 U.S. 707, 714-16 (1985) (implicitly assuming that the FDA can legitimately declare its regulations preemptive); Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 699 (1984) ("When the administrator promulgates regulations intended to pre-empt state law , . . . [i]f [h]is choice represents a reasonable accommodation of conflicting policies that were committed to the agency's care by the statute, we should not disturb it unless it appears from the statute or its legislative history that the accommodation is not one that Congress would have sanctioned." (citations omitted)). But in one case the statement was dicta (the Court found no agency intention to preempt), see Hillsborough County, 471 U.S. at 716, and in the others the Court indicated that Congress had ratified the agency's power to preempt by subsequent legislation, see City of New York, 486 U.S. at 66-69. The ratifying statute in City of New York, the Cable Communications Policy Act of 1984, also applied to the authority exercised in Crisp. Most importantly, in none of these cases did the Court address the question whether an express delegation of preemptive authority is required. So none of these decisions should bar a decision by the Court holding that agencies have authority to preempt on their own authority only if they are expressly delegated such power by Congress.
186. See generally United States v. Mead Corp., 533 U.S. 218, 227-28, 234-35 (2001).
187. Adams Fruit Co. v. Barrett, 494 U.S. 638, 649 (1990); see Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44 (1984) (stating that deference rests on either express or implied delegation of power to an agency).
188. See Dunn v. Commodity Futures Trading Comm'n, 519 U.S. 465, 479 n.14 (1997) (noting that Chevron deference "arises out of background assumptions of congressional intent" (citing Smiley v. Citibank (S.D.), N.A., 517 U.S. 735, 740-41 (1996))); Smiley, 517 U.S. at 740-41 (noting that Chevron rests on the "presumption" that Congress meant for the agency to "possess whatever degree of discretion" statutory ambiguity allows).
189. Skidmore v. Swift & Co., 323 U.S. 134,139-40 (1944).
190. Id. at 139.
191. Id. at 140.
192. Chevron, 467 U.S. at 844 (holding that a reasonable agency interpretation is given "controlling weight").
193. Skidmore, 323 U.S. at 140.
194. United States v. Mead Corp., 533 U.S. 218, 235 (2001).
195. See Merrill & Watts, supra note 146, at 493-526; cf. Chrysler Corp. v. Brown, 441 U.S. 281, 309-10 (1979) (holding that 5 U.S.C. § 301, which confers authority on the heads of executive departments to prescribe regulations for the "government of his department," does not confer authority to make legislative rules); ICC v. Cincinnati, New Orleans & Tex. Pac. Ry., 167 U.S. 479, 494-95 (1897) (holding that an agency cannot be given legislative rulemaking authority by implication, only by express grant).
196. See, e.g., 1 RICHARD J. PIERCE, JR., ADMINISTRATIVE LAW TREATISE § 6.4 (4th ed. 2002).
197. See Mead, 533 U.S. at 234; Christensen v. Harris County, 529 U.S. 576, 587 (2000).
198. Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-45 (1984); Richard J. Pierce, Jr., Chevron and its Aftermath: Judicial Review of Agency Interpretations of Statutory Provisions, 41 VAND. L. REV. 301, 307-08 (1988).
199. See supra text accompanying notes 114-17.
200. Cf. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 838 (1995) (Kennedy, J., concurring) (observing that in adopting federalism the "Framers split the atom of sovereignty").
201. 517 U.S. 735 (1995).
202. Id. at 744.
203. Id.
204. See VERMEULE, supra note 1, at 215-23; see also Thomas W. Merrill, The Mead Doctrine: Rules and Standards, Meta-Rules and Meta-Standards, 54 ADMIN. L. REV. 807 (2002).
205. Watters v. Wachovia Bank, N.A., 127 S. Ct. 1559 (2007).
206. Id. at 1572-73; 12 C.F.R. § 7.4006 (2007).
207. Watters, 127 S. Ct. at 1569-72; 12 C.F.R. § 5.34(e)(3).
208. Nor did the OCC suggest that this regulation had preemptive effect when it was adopted; the OCC did not even see the need to provide a federalism summary impact statement. See Financial Subsidiaries and Operating Subsidiaries, 65 Fed. Reg. 12,905 (Mar. 10, 2000) (codified at 12 C.F.R. pt. 5 (2001)).
209. See 12 U.S.C. § 484 (2000) (expressly preempting state visitorial powers as applied to national banks). Similarly, the OCC argued that preemption follows from its Rule 34.4(a), which provides that "a national bank may make real estate loans" without regard to state law requirements for "licensing" and "registration," 12 C.F.R. § 34.4(a), in combination with Rule 34.1(b), which provides that "[t]his part applies to national banks and their operating subsidiaries as provided in 12 CFR 5.34," 12 C.F.R. § 34.1(b). Watters, 127 S. Ct. at 1571. Again, by equating operating subsidiaries with national banks, the rule in effect mandates that operating subsidiaries enjoy the same preemption status as national banks. Id.
210. Other commentators have advocated adoption of the Skidmore standard for reviewing agency preemption decisions. See Mendelson, supra note 7; Sharkey, supra note 7. This was also the position urged in the amicus brief I filed on behalf of the Center for State Enforcement of Antitrust and Consumer Protections Laws in Watters. See supra note 8.
211. Skidmore v. Swift & Co., 323 U.S. 134, 139-40 (1944); see also United States v. Mead Corp., 533 U.S. 218, 234-35 (2001). See generally Kristin E. Hickman & Matthew D. Kraeger, In Search of the Modern Skidmore Standard, 107 COLUM. L. REV. 1235, 1250-59 (2007).
212. This is analogous to the puzzles created by the possibility of courts interpreting statutes in original proceedings (where de novo review or Skidmore deference applies), followed by agencies construing the same statute in agency proceedings (where Chevron applies). See Nat'l Cable & Telecomm. Ass'n v. Brand X Internet Servs., 545 U.S. 967 (2005); Watts, supra note 72.
213. The convolutions would be avoided in my proposed approach because judicial preemption rulings would be a species of de novo review, which would supersede or pretermit any agency interpretation otherwise entitled to Chevron deference.
214. Mead, 533 U.S. at 245-46 (Scalia, J., dissenting).
215. See City of New York v. FCC, 486 U.S. 57, 64 (1988).
216. See Geier v. Am. Honda Motor Co., 529 U.S. 861, 883 (2000).
217. See La. Pub. Serv. Comm'n v. FCC, 476 U.S. 355, 369 (1986).
218. 529 U.S. 861.
219. Id. at 883.
220. Id. (citations omitted).
221. Id.
222. Id.
223. 518 U.S. 470 (1996).
224. 21 U.S.C. § 360k(a)-(b) (2000).
225. Medtronic, 518 U.S. at 486-91.
226. Id. at 496.
227. Id. at 495.
228. Watters v. Wachovia Bank, N.A., 127 S. Ct. 1559, 1584 (2007) (Stevens, J., dissenting).
229. Id. (quoting Geier v. Am. Honda Motor Co., 529 U.S. 861, 883 (2000)).
230. Greve & Klick, supra note 19, at 82.
231. See VERMEULE, supra note 1 ; Merrill, supra note 3.
232. I have set forth one proposal for such a recasting in Merrill, supra note 68, which argues for the adoption of area-specific default rules in lieu of the current set of categories and presumptions.