Preemption and textualism

Michigan Law Review

Volumn 112, Issue 1, 2013, Pages 1-58

  Meltzer, Daniel J ^a  

^a HARVARD LAW SCHOOL   (United States)

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EID: 84885828212     PISSN: 00262234     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (466)

1. Thomas W. Merrill, Preemption in Environmental Law: Formalism, Federalism Theory, and Default Rules, in Federal Preemption 166-187 (Richard A. Epstein & Michael S. Greve eds., 2007).
2. Richard H. Fallon, Jr., The "Conservative" Paths of the Rehnquist Court's Federalism Decisions, 69 U. Chi. L. Rev. 429+446-52 (2002).
3. Ernest A. Young, "The Ordinary Diet of the Law": The Presumption Against Preemption in the Roberts Court, 2011 Sup. Ct. Rev. 253, 301-02
4. S. Candice Hoke, Preemption Pathologies and Civic Republican Values, 71 B.U. L. Rev. 685 (1991) (arguing, from a civic republican perspective, for confining the scope of federal preemption).
5. Samuel Issacharoff & Catherine M. Sharkey, Supreme Court Preemption: The Contested Middle Ground of Products Liability, in Federal Preemption, supra note 1, at 194 (noting the criticism).
6. See id. at 195 (discussing regulation of products liability)
7. Thomas W. Merrill, Preemption and Institutional Choice, 102 Nw. U. L. Rev. 727-732 (2008)
8. Alan Schwartz, Statutory Interpretation, Capture, and Tort Law: The Regulatory Compliance Defense, 2 Am. L. & Econ. Rev. 1 (2000). There is sometimes an associated criticism of the capacity of juries administering state law to reach sensible judgments that do not interfere with federal statutory regimes.
9. Wyeth v. Levine, 555 U.S. 555, 604 (2009) (Alito, J., dissenting).
10. Samuel Issacharoff & Catherine M. Sharkey, Backdoor Federalization, 53 UCLA L. Rev. 1353, 1353-54 (2006)
11. Merrill, supra note 1, at 167.
12. Memorandum on Preemption, 2009 Daily Comp. Pres. Doc. 1 (May 20, 2009), available at http://www.gpo.gov/fdsys/pkg/DCPD-200900384/pdf/DCPD-200900384.pdf.
13. Michael S. Greve & Jonathan Klick, Preemption in the Rehnquist Court: A Preliminary Empirical Assessment, 14 Sup. Ct. Econ. Rev. 43 (2006).
14. AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740, 1753-54 (2011) (Thomas, J., concurring) (reading a textual saving clause narrowly, without invoking a presumption against preemption); Altria Grp., Inc. v. Good, 555 U.S. 70, 91-107 (2008) (Thomas, J., dissenting).
15. Chamber of Commerce v. Whiting, 131 S. Ct. 1968 (2011) (declining to join those portions of the majority's opinion that discussed and rejected a claim of implied preemption).
16. Wyeth v. Levine, 555 U.S. 555, 582-604 (2009) (Thomas, J., concurring in the judgment).
17. Catherine M. Sharkey, Against Freewheeling Extratextual Obstacle Preemption: Is Justice Clarence Thomas the Lone Principled Federalist?, 5 N.Y.U. J.L. & Liberty 63-68 (2010).
18. Caleb Nelson, Preemption, 86 Va. L. Rev. 225+231-32 (2000) (calling for the end of obstacle preemption).
19. Sharkey, supra note 12.
20. Jonathan T. Molot, The Rise and Fall of Textualism, 106 Colum. L. Rev. 1, 30-36 (2006)
21. Nicholas S. Zeppos, The Use of Authority in Statutory Interpretation: An Empirical Analysis, 70 Tex. L. Rev. 1073 (1992).
22. William D. Popkin, Statutes in Court: The History and Theory of Statutory Interpretation 125-49 (1999).
23. See id. at 157-89
24. Molot, supra note 15, at 23-43.
25. Arizona v. United States, 132 S. Ct. 2492, 2522-24 (2012) (Thomas, J., concurring in part and dissenting in part).
26. See id. at 2501-10 (majority opinion).
27. Id. at 2524-25 (Alito, J., concurring in part and dissenting in part).
28. John F. Manning, Textualism and the Equity of the Statute, 101 Colum. L. Rev. 1 (2001)
29. Molot, supra note 15
30. Jonathan R. Siegel, The Inexorable Radicalization of Textualism, 158 U. Pa. L. Rev. 117 (2009).
31. 131 S. Ct. 2567 (2011) (plurality opinion in part).
32. PLIVA, 131 S. Ct. at 2580-81 (majority opinion).
33. See id. at 2579-80 (plurality opinion) (citing Nelson, supra note 13, at 238-40 & nn.43-45).
34. Id. at 2580. Justice Kennedy joined the Court's opinion except for the subsection in which the plurality both rejected the presumption against preemption and endorsed Professor Nelson's theory.
35. See id. at 2579-80.
36. The majority stated that an argument resting on obstacle preemption was presented in state court but was not pressed before the Supreme Court. Id. at 2581 n.7. In contrast to the dissent, however, the majority did not refer to obstacle preemption even as part of its recitation of standard preemption doctrine.
37. Id. at 2577 (quoting Freightliner Corp. v. Myrick, 514 U.S. 280, 287 (1995)).
38. Id. at 2577-78; accord Mut. Pharm. Co., Inc. v. Bartlett, No. 12-142, 2013 WL 3155230, at *6 (U.S. June 24, 2013) (in a case turning on impossibility, similarly limiting the opinion's description of preemption doctrine).
39. Williamson v. Mazda Motor of Am., Inc., 131 S. Ct. 1131, 1136 (2011) ("Under ordinary conflict pre-emption principles a state law that 'stands as an obstacle to the accomplishment and execution of the full purposes and objectives' of a federal law is preempted." (quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941))).
40. 555 U.S. 555 (2009).
41. Wyeth, 555 U.S. at 584-85 (Thomas, J., concurring in the judgment).
42. Id. at 586-88.
43. Id. at 604. That argument has been advanced by others.
44. Hoke, supra note 3, at 714-18.
45. E.g., Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2647-48 (2012) (Scalia, Kennedy, Thomas & Alito, JJ., dissenting); accord id. at 2593 (Roberts, C.J.).
46. Conn. Nat'l Bank v. Germain, 503 U.S. 249, 254 (1992).
47. E.g., Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 450 (2008).
48. Chamber of Commerce v. Whiting, 131 S. Ct. 1968, 1985 (2011) (plurality opinion) (quoting Gade v. Nat'l Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 111 (1992) (Kennedy, J., concurring in part and concurring in the judgment)).
49. For example, the Court's recent decision in Hillman v. Maretta, 133 S. Ct. 1943 (2013), rested squarely on obstacle preemption, see id. at 1949, and only Justice Thomas distanced himself from that reasoning, see id. at 1955-56 (Thomas, J., concurring in the judgment). As Professor Young has noted in reviewing recent preemption decisions, "even when... Justices sign on to a more theoretically ambitious opinion, they seem to feel relatively unconstrained to follow that theory in future cases." Young, supra note 3, at 305. Some commentators (including me) have suggested that the willingness of some justices who are generally sympathetic to state autonomy to find preemption may result from their sympathy for minimizing the state regulatory burdens to which businesses and others are subject.
50. Fallon, supra note 2, at 471, 488
51. Daniel J. Meltzer, The Supreme Court's Judicial Passivity, 2002 Sup. Ct. Rev. 343, 344, 363-67
52. Edward L. Rubin & Malcolm Feeley, Federalism: Some Notes on a National Neurosis, 41 UCLA L. Rev. 903-948 (1994) ("[C]laims of federalism are often nothing more than strategies to advance substantive positions ...; people declare themselves federalists when they oppose national policy, and abandon that commitment when they favor it.")
53. Sharkey, supra note 12, at 64-65. The pattern of results in preemption cases does not map perfectly, however, onto any ideological perspective.
54. Gillian E. Metzger, Federalism and Federal Agency Reform, 111 Colum. L. Rev. 1 (2011).
55. William N. Eskridge, Jr., The New Textualism, 37 UCLA L. Rev. 621 (1990)
56. John F. Manning, What Divides Textualists from Purposivists?, 106 Colum. L. Rev. 70 (2006)
57. Caleb Nelson, What Is Textualism?, 91 Va. L. Rev. 347 (2005)
58. Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation: Federal Courts and the Law 3 (Amy Gutmann ed., 1997).
59. Jamelle C. Sharpe, Legislating Preemption, 53 Wm. & Mary L. Rev. 163, 206-17 (2011).
60. Young, supra note 3, at 323.
61. Nelson, supra note 13, at 233.
62. William Blake, Blake's Marginalia, in Blake's Poetry and Designs 429-440 (Mary Lynn Johnson & John E. Grant eds., 1979).
63. Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996) (quoting Retail Clerks Int'l Ass'n, Local 1625 v. Schermerhorn, 375 U.S. 96, 103 (1963)); accord Wyeth v. Levine, 555 U.S. 555, 565 (2009)
64. Altria Group, Inc. v. Good, 555 U.S. 70, 76 (2008); Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516 (1992).
65. Stuart Minor Benjamin & Ernest A. Young, Essay, Tennis with the Net Down: Administrative Federalism Without Congress, 57 Duke L.J. 2111-2134 (2008).
66. See id. at 2139
67. Gillian E. Metzger, Administrative Law as the New Federalism, 57 Duke L.J. 2023-2094 (2008).
68. Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 372 (2000); Fid. Fed. Sav. & Loan Ass'n v. De la Cuesta, 458 U.S. 141, 152-53 (1982).
69. Sprietsma v. Mercury Marine, 537 U.S. 51, 64 (2002) (quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)) (internal quotation marks omitted).
70. Sharkey, supra note 12, at 68-69.
71. Wyeth v. Levine, 555 U.S. 555, 586 (2009) (Thomas, J., concurring in the judgment).
72. Id. at 587.
73. Id. at 604.
74. Others attack obstacle preemption from a somewhat different angle, that of constitutional federalism. For them, the key concern is less the division of responsibility between Congress and the courts, or the proper methodology for interpreting federal statutes, but rather the importance of preserving the states' autonomy and capacity for action. On this view, locating the power to preempt state law in Congress (in which the states have influence), rather than in courts or agencies, is less likely to result in unwarranted displacement of state regulatory authority. See generally Young, supra note 3. The separation of powers and federalism arguments, though distinct, are also overlapping.
75. Bradford R. Clark, Separation of Powers as a Safeguard of Federalism, 79 Tex. L. Rev. 1321, 1427-30 (2001).
76. Merrill, supra note 5, at 729.
77. 132 S. Ct. 2492 (2012).
78. Arizona, 132. S. Ct. at 2510. Justice Kagan did not participate in the case.
79. Id. At 2497.
80. Id. at 2522 (Thomas, J., concurring in part and dissenting in part).
81. Id. at 2510 (majority opinion).
82. Id. at 2529-30 (Alito, J., concurring in part and dissenting in part).
83. Id. at 2501 (majority opinion).
84. Id. at 2502-03.
85. Id. at 2524-25 (Alito, J., concurring in part and dissenting in part).
86. Id. at 2503 (majority opinion). The Court also noted that Arizona law (unlike federal law) barred probation as a sanction for a violation and also prevented the issuance of a pardon.
87. See id. at 2502.
88. See id. at 2522-24 (Thomas, J., concurring in part and dissenting in part)
89. id. At 2517-19 (Scalia, J., concurring in part and dissenting in part).
90. Both the majority and Justice Alito relied on the key precedent of Hines v. Davidowitz, 312 U.S. 52 (1941), in which the Court had found a Pennsylvania alien registration scheme preempted. But as Justice Scalia's dissent noted, Hines was ambiguous as to whether it rested broadly on field preemption (as the majority and Justice Alito found) or on the narrower view that Pennsylvania's law, which (unlike Arizona's law) imposed different requirements than those under federal law, conflicted with the federal scheme. See Arizona, 132 S. Ct. at 2518 (Scalia, J., concurring in part and dissenting in part). Justice Alito could point to the Hines opinion's emphasis on the predominant federal interest in this domain and on the comprehensiveness of federal regulation, while Justice Scalia could stress the opinion's detailed emphasis on the history and purpose of the federal law (and its limits), and in particular the Hines Court's discussion of how the state law did not square with Congress's purpose of protecting "the personal liberties of law-abiding aliens," Hines, 312 U.S. at 74
91. Jack Goldsmith, Statutory Foreign Affairs Preemption, 2000 Sup. Ct. Rev. 175-188 (reading Hines as an obstacle preemption case).
92. John F. Manning, Second-Generation Textualism, 98 Calif. L. Rev. 1287-1312 (2010).
93. 131 S. Ct. 2567 (2011).
94. PLIVA, 131 S. Ct. at 2573.
95. See id. at 2573-78.
96. Id. at 2577-78.
97. Id. at 2587-88 (Sotomayor, J., dissenting).
98. A similar decision, Mutual Pharmaceutical. Co., Inc. v. Bartlett, No. 12-142, 2013 WL 3155230 (U.S. June 24, 2013), also illustrates that even cases presenting claims of impossibility, which are thought to be rare but straightforward preemption questions, do not eliminate the possibility of interpretive disagreement. As in PLIVA, the Bartlett majority found that a drug manufacturer could not market its product consistently with both federal requirements and state tort law, and hence it found the state tort law (in this case relating to design defects) preempted. The dissenters did not disagree that the state and federal requirements conflicted but found that compliance with both was not impossible because the company could either withdraw the drug from the state's market or continue to sell and just pay damages for violating state tort law. See id. at *13 (Breyer, J., dissenting)
99. id. at *17 (Sotomayor, J., dissenting). Justice Sotomayor's dissent viewed the majority as having incorrectly interpreted the federal law as giving the company a right to be free from state liability when selling a drug in accordance with federal requirements.
100. Id. at *17 (Sotomayor, J., dissenting). In response, the majority said that the Court's preemption cases presume that the "ability to stop selling does not turn impossibility into possibility."
101. Id. at*10 n.3 (majority opinion). The Court also observed that it would welcome Congress's explicit resolution of the scope of preemption in the prescription- drug context but that here it was forced "to divine Congress' will." Id. at *12. As in PLIVA, the statutory text did not resolve the matter, and the justices differed on the scope of implied preemption based on impossibility.
102. 131 S. Ct. 1968 (2011) (plurality opinion in part).
103. Whiting, 131 S. Ct. at 1975 (majority opinion).
104. Id. at 1980 n.6.
105. Id. at 1985 (plurality opinion) (quoting Gade v. Nat'l Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 110 (1992) (Kennedy, J., concurring in part and concurring in the judgment)).
106. 131 S. Ct. 1740 (2011).
107. 9 U.S.C. § 2 (2006).
108. See Concepcion, 131 S. Ct. at 1748.
109. See id. at 1749-50.
110. For criticism both of the majority's implied-preemption ruling and of the lower courts' conclusion that the particular arbitration clause was unconscionable
111. Suzanna Sherry, Hogs Get Slaughtered at the Supreme Court, 2011 Sup. Ct. Rev. 1, 3-21. 84. 529 U.S. 861 (2000).
112. Geier, 529 U.S. at 864-65.
113. The case actually involved possible preemption of the tort law of the District of Columbia, but the Court treated the question as no different from the preemption of state tort law. See id. at 865.
114. 15 U.S.C. § 1392(d) (1988) (repealed 1994).
115. Id. at § 1397(k) (repealed 1994).
116. See Geier, 529 U.S. at 867-68. On this point, the dissent disagreed, arguing that the term "standard" should be understood, at least in light of the saving clause, as limited to legislative or administrative regulation rather than including common law actions that serve a compensatory function. Id. at 896 (Stevens, J., dissenting).
117. See id. at 870-71 (majority opinion).
118. See id. at 875-79.
119. Id. at 886.
120. 131 S. Ct. 1131 (2011).
121. Williamson, 131 S. Ct. at 1136-40.
122. Id. at 1137-39. Justice Thomas concurred in the judgment.
123. Id. at 1139.
124. Benjamin & Young, supra note 45, at 2139
125. Metzger, supra note 46, at 2094.
126. Rubin & Feeley, supra note 38.
127. Victoria F. Nourse & Jane S. Schacter, The Politics of Legislative Drafting: A Congressional Case Study, 77 N.Y.U. L. Rev. 575, 584-86 (2002) (reporting on results of a case study finding that staff members saw themselves as having principal responsibility for drafting legislation and that the participation of senators in drafting, as distinguished from articulating concepts, was very limited).
128. Robert A. Katzmann, Madison Lecture, Statutes, 87 N.Y.U. L. Rev. 637-653 (2012).
129. Meltzer, supra note 38, at 376-77.
130. The limited jurisdiction (and expertise) of particular legislative committees may prevent considered judgment about the arguments for or against preemption of a particular kind of state regulation. See Sharpe, supra note 40, at 181.
131. Geier v. Am. Honda Motor Co., 529 U.S. 861, 887 (2000) (Stevens, J., dissenting) (internal quotation marks omitted).
132. Williamson v. Mazda Motor of Am., Inc., 131 S. Ct. 1131, 1137-39 (2011).
133. 557 U.S. 519 (2009).
134. National Bank Act, ch. 106, 13 Stat. 99 (1864) (codified as amended in scattered sections of 12 U.S.C.).
135. N.Y. Exec. Law. § 296-a (McKinney 2013) (enacted 1974).
136. 12 U.S.C. § 484(a) (2006). The current version differs only slightly from the original 1864 language, which provided that a national bank association "shall not be subject to any other visitorial powers than such as are authorized by this act, except such as are vested in the several courts of law and chancery." National Bank Act § 54, 13 Stat. at 116.
137. Cuomo, 557 U.S. at 524-25.
138. Catherine M. Sharkey, Products Liability Preemption: An Institutional Approach, 76 Geo. Wash. L. Rev. 449, 450-51 & n.4 (2008) (quoting James A. Henderson, Jr. & Aaron D. Twerski, Products Liability: Problems and Process 424 (5th ed. 2004)).
139. Theodore J. Lowi, Two Roads to Serfdom: Liberalism, Conservatism and Administrative Power, 36 Am. U. L. Rev. 295 (1987).
140. John F. Manning, Continuity and the Legislative Design, 79 Notre Dame L. Rev. 1863, 1881-89 (2004).
141. Richard B. Stewart, Beyond Delegation Doctrine, 36 Am. U. L. Rev. 323-331 (1987).
142. The difficulty is aggravated by the difficulty of reassembling, in a new Congress, the coalition that originally succeeded in running the legislative gauntlet.
143. Jerry L. Mashaw, Greed, Chaos and Governance: Using Public Choice to Improve Public Law 103 (1997) (stating that because an initial decision "rearrange[s] the status quo," "it is most unlikely that [the legislature] will ever be able to reverse an interpretation such that it reinstates the precise policy that was adopted originally")
144. Victoria Nourse, Misunderstanding Congress: Statutory Interpretation, the Supermajoritarian Difficulty, and the Separation of Powers, 99 Geo. L. Rev. 1119-1165 (2011).
145. New Evidence on the Presumption Against Preemption: An Empirical Study of Congressional Responses to Supreme Court Preemption Decisions, 120 Harv. L. Rev. 1604, 1612-13 (2007)
146. William N. Eskridge, Jr., Vetogates, Chevron, Preemption, 83 Notre Dame L. Rev. 1441, 1458-59 (2008)
147. Sharpe, supra note 40. The general point is not impeached by the existence of some, occasionally significant, counterexamples.
148. Catherine M. Sharkey, Inside Agency Preemption, 110 Mich. L. Rev. 521, 555-58 (2012) (discussing the modification of the scope of preemption with respect to national banks and their subsidiaries included in the Dodd-Frank Wall Street Reform and Consumer Protection Act). In Mutual Pharmaceutical Co., Inc. v. Bartlett, No. 12-142, 2013 WL 3155230 (U.S. June 24, 2013), Justice Sotomayor's dissent contended that "Congress is perfectly capable of responding when it believes state tort law may compromise significant federal objectives under a scheme of premarket regulatory review for products it wants to make available." Id. at *27 (Sotomayor, J., dissenting). But the single example she provided-the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. § 300aa-22(b)(1) (2006), which conferred on drug manufacturers an immunity from tort suits they had not previously enjoyed, while substituting for tort law a no-fault federal compensation program funded by an excise tax-failed to establish her more general claim.
149. Eskridge, supra note 115, at 1458-59
150. Richard Hasen, End of the Dialogue? Political Polarization, the Supreme Court, and Congress, 86 S. Cal. L. Rev. (forthcoming 2013), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2130190 (finding (1) a sharp drop in the percent of Supreme Court statutory decisions that Congress overrides-a decline the author attributes primarily to the increasingly partisan character of Congress-and (2) that the rare recent instances of overrides have tended to be partisan actions taken during periods of unified government).
151. Katzmann, supra note 100, at 684-93.
152. Peter L. Strauss, Daniel J. Meador Lecture, Courts or Tribunals? Federal Courts and the Common Law, 53 Ala. L. Rev. 891, 894-95 (2002).
153. For a useful recent summary, see Katzmann, supra note 100, at 646-55.
154. Nourse & Schacter, supra note 99, at 592-93 (internal quotation marks omitted).
155. Id. at 594-95 & n. 38.
156. Catherine L. Fisk, The Last Article About the Language of ERISA Preemption? A Case Study of the Failure of Textualism, 33 Harv. J. on Legis. 35, 95-96 (1996) (making a similar argument in the context of ERISA).
157. ICC Termination Act of 1995 tit. 1, Pub. L. No. 104-88, 109 Stat. 803, 804 (codified as amended in scattered sections of 49 U.S.C.).
158. Id. § 103, 49 U.S.C. § 14501(c)(1) (2006). The clause includes some exceptions not relevant to the issue presented in Rowe.
159. Rowe v. N.H. Motor Transp. Ass'n, 552 U.S. 364, 368-71 (2008) (citing Morales v. Trans World Airlines, Inc., 504 U.S. 374, 378 (1992)).
160. Id. at 370-71.
161. Id. at 377-78 (Ginsburg, J., concurring).
162. There were more than 4,300 judicial opinions written on the subject over the course of a decade. See John H. Langbein et al., Pension and Employee Benefit Law 818-19 (5th ed. 2010).
163. 29 U.S.C. § 1144(a) (2006). The provision includes a few exemptions not relevant to the discussion in text.
164. Langbeinet al., supra note 128, at 830-35.
165. Leon E. Irish & Harrison J. Cohen, ERISA Preemption: Judicial Flexibility and Statutory Rigidity, 19 U. Mich. J.L. Reform 109-111 (1985).
166. N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 656 (1995). An account of the legislative history of the clause suggests that the language was drafted in the Conference Committee; that it represented a significant modification of earlier language; that leading legislators thereafter expressed quite different views about the significance of the revision; that "[c]ongressional staff and a few lobbyists made a major decision about employee benefits policy ...; as if it were a technical issue"; and that in the end, the preemption policy was made "neither by accident nor quite by design" but "was the result of a process which permitted only some of the implications of a proposed law to be known."
167. Daniel M. Fox & Daniel S. Schaffer, Semi-Preemption in ERISA: Legislative Process and Health Policy, 7 Am. J. Tax Pol'y 47, 48-52 (1988). In particular, in seeking to achieve the relatively narrow purpose of protecting prepaid legal service plans from hostile regulation by the organized bar, Congress framed a drastically overbroad preemption provision.
168. Langbeinet al., supra note 128, at 825.
169. John H. Langbein, What ERISA Means by "Equitable": The Supreme Court's Trail of Error in Russell, Mertens, and Great-West, 103 Colum. L. Rev. 1317, 1331-32 (2003).
170. Cal. Div. of Labor Standards Enforcement v. Dillingham Const., N.A., 519 U.S. 316, 335-36 (1997) (Scalia, J., concurring).
171. Langbein, supra note 133.
172. 536 U.S. 355, 388 (2002) (Thomas, J., dissenting).
173. Rush, 536 U.S. at 364 (majority opinion) (quoting 29 U.S.C. § 1144(b)(2)(A) (2000)) (internal quotation marks omitted).
174. Id. at 392-93 (Thomas, J., dissenting) (quoting John Hancock Mut. Life Ins. Co. v. Harris Trust & Sav. Bank, 510 U.S. 86, 99 (1993)).
175. Id. at 392 (quoting John Hancock Mut. Life Ins. Co. v. Harris Trust & Sav. Bank, 510 U.S. 86, 99 (1993)).
176. Wyeth v. Levine, 555 U.S. 555, 600 (2009) (Thomas, J., concurring in the judgment) (citing Jimenez v. Quarterman, 555 U.S. 113, 113 (2009); Dodd v. United States, 545 U.S. 353, 359 (2005); Lamie v. U.S. Tr., 540 U.S. 526, 534 (2004); and Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6 (2000)).
177. Sharkey, supra note 12, at 95.
178. Dan's City Used Cars, Inc. v. Pelkey, 133 S. Ct. 1769, 1778 (2013) (quoting N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 655-56 (1995) (internal quotation marks omitted)).
179. Antonin Scalia, Essay, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849, 863-64 (1989) (acknowledging that in a crunch, he may be a "faint-hearted originalist").
180. Langbeinet al., supra note 128, at 818-905.
181. 532 U.S. 141 (2001).
182. Egelhoff, 532 U.S. at 144.
183. Id. at 147 (quoting Cal. Div. of Labor Standards Enforcement v. Dillingham Constr., N.A., 519 U.S. 316, 325 (1997)).
184. Id. at 159-60 (Breyer, J., dissenting).
185. Id. at 152 (majority opinion).
186. Wyeth v. Levine, 555 U.S. 555, 601-02 (2009) (Thomas, J., concurring in the judgment) (quoting Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 93-94 (2002)).
187. The point holds quite apart from, but is reinforced by, what we know about the drafting history of ERISA.
188. Riggs v. Palmer, 22 N.E. 188 (N.Y. 1889); Restatement (Third) of Restitution & Unjust Enrichment § 45 cmt. b (2011) ("If a case is not covered by a particular statute, it must not be supposed that the enrichment of the slayer is therefore to be allowed.").
189. Egelhoff, 532 U.S. at 147 n.1.
190. For another situation in which it seems virtually certain that Congress would not have intended the preemptive effect of ERISA, see Meltzer A, supra note 38, at 346-51.
191. John H. Langbein, Essay, Trust Law as Regulatory Law: The Unum/Provident Scandal and Judicial Review of Benefit Denials Under ERISA, 101 Nw. U. L. Rev. 1315, 1334 (2007) (observing that the "related to" language threatens to suppress the state-law causes of action that existed for many such cases before ERISA).
192. 132 S. Ct. 965 (2012).
193. Nat'l Meat Ass'n, 132 S. Ct. at 968 (emphasis added).
194. 21 U.S.C. § 678 (2006) (emphasis added).
195. Nat'l Meat Ass'n, 132 S. Ct. at 974 n.10. The Court stated that "the Government acknowledges that state laws of general application (workplace safety regulations, building codes, etc.) will usually apply to slaughterhouses."
196. 21 U.S.C. § 678 (emphasis added).
197. Nat'l Meat Ass'n, 132 S. Ct. at 968.
198. Id. at 974 n.10.
199. Young, supra note 3, at 331
200. Clark, supra note 54, at 1427-30.
201. E.g., Riegel v. Medtronic, Inc., 552 U.S. 312, 316 (2008) (holding that absent exemption from the FDA, a state may not enforce, with respect to a medical device, "any requirement which is different from, or in addition to, any [federal] requirement applicable ...; to the device" (quoting 21 U.S.C. § 360k(a) (2006))).
202. Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 530 (1992) (applying § 5(b) of the Federal Cigarette Labeling and Advertising Act, which states that "[n]o requirement or prohibition [regarding cigarette advertising] shall be imposed under State law")
203. id. at 548-59 (Scalia, J., concurring in the judgment); see also Bates v. Dow Agrosciences LLC, 544 U.S. 431, 443 (2005) (reaching a similar result but adding that "the use of 'requirements' in a preemption clause may not invariably" preempt common law actions). In Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996), five justices treated such a formulation as having preemptive effect, but they differed on its scope. See id. at 503-05 (Breyer, J., concurring in part and concurring in the judgment); id. at 512-14 (O'Connor, J., concurring in part and dissenting in part).
204. CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 662 (1993) (quoting 45 U.S.C. § 434 (1988)).
205. Riegel, 552 U.S. at 324-35; Bates, 544 U.S. at 431, 443, 452 (construing a statute prohibiting the enforcement by states of "any requirements for labeling or packaging in addition to or different from those required under this subchapter" against inconsistent common law rules (quoting 7 U.S.C. § 136v(b) (2000))); Cipollone, 505 U.S. at 515, 530-31 (holding that a preemption clause providing that "[n]o requirement or prohibition ...; shall be imposed under State law with respect to the advertising or promotion of any cigarettes" preempted some common law claims presented by the plaintiff (quoting 15 U.S.C. § 1334(b) (1988)) (internal quotation marks omitted)).
206. Sprietsma v. Mercury Marine, 537 U.S. 51, 58-59, 62-63 (2002) (quoting 46 U.S.C. § 4306 (2000)) (internal quotation marks omitted).
207. Sharkey, supra note 111, at 459-71.
208. Medtronic, Inc. v. Lohr, 518 U.S. 470, 487 (1996) (plurality opinion); see also Mut. Pharm. Co., Inc. v. Bartlett, No. 12-142, 2013 WL 3155230, at *17 (U.S. June 24, 2013) (Sotomayor, J., dissenting) (arguing that a federal statute did not create a federal cause of action for damages because it assumed state tort law would remain in place, and asserting that the majority's finding that state tort law was preempted has the perverse effect of creating a shield from tort liability for an industry-pharmaceuticals-that, in Congress's judgment, required more stringent regulation); Riegel, 552 U.S. at 337 (Ginsburg, J., dissenting).
209. Williamson v. Mazda Motor of Am., Inc., 131 S. Ct. 1131, 1141-42 (2011) (Thomas, J., concurring in the judgment). Compare Lohr, 518 U.S. at 489 (plurality opinion) (finding that common law duty is not a requirement), with Cipollone, 505 U.S. at 524 (plurality opinion) (finding that common law duty is a requirement).
210. Sharkey, supra note 111, at 459-71.
211. David A. Dana, Democratizing the Law of Federal Preemption, 102 Nw. U. L. Rev. 507-509 n.9 (2008); see also Sprietsma, 537 U.S. at 62-63; Geier v. Am. Honda Motor Co., 529 U.S. 861, 867-68 (2000).
212. Geier, 529 U.S. at 867-68; accord Sprietsma, 537 U.S. at 59, 63 (holding that a preemption clause barring state enforcement of "a law or regulation establishing [an] equipment performance or other safety standard" did not preempt a tort claim in view of the statutory saving clause providing that compliance with federal law "does not relieve a person from liability at common law or under State law" (quoting 46 U.S.C. § 4306, 4311(g) (2000)) (internal quotation marks omitted)).
213. Williamson, 131 S. Ct. at 1141-42 (Thomas, J., concurring in the judgment); Geier, 529 U.S. at 887-88 (Stevens, J., dissenting).
214. Geier, 529 U.S. at 870 (majority opinion) (quoting United States v. Locke, 529 U.S. 89, 106 (2000)).
215. Compare Lohr, 518 U.S. at 505 (Breyer, J., concurring in part and concurring in the judgment) ("Congress could not have intended that the existence of one single federal rule, say, about a 2-inch hearing aid wire, would pre-empt every state law hearing aid rule, even a set of rules related only to the packaging or shipping of hearing aids."), with id. at 513-14 (O'Connor, J., concurring in part and dissenting in part).
216. id. at 484 (majority opinion); Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 517 (1992).
217. See Altria Grp., Inc. v. Good, 555 U.S. 70, 78-79 (2008) (quoting 15 U.S.C. § 1334(b) (2006)) (internal quotation marks omitted).
218. Bates v. Dow Agrosciences LLC, 544 U.S. 431, 436, 443-53 (2005) (quoting 7 U.S.C. § 136v(b) (2000)) (internal quotation marks omitted) (finding that fraud and ngligent failure-to-warn claims are preempted if they do not rely on standards that are equivalent to the federal standard, but that defective design, defective manufacture, negligent testing, and express breach-of-warranty claims are not preempted).
219. Compare CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 661 (1993) (finding preemption), with id. at 677 (Thomas, J., concurring in part and dissenting in part) (finding no preemption because "[s]peed limits based solely on track characteristics cannot be fairly described as 'substantially subsum[ing] the subject matter of ...; state law' regulating speed as a factor in grade crossing safety" (second and third alterations in original) (citation omitted) (quoting id. at 664 (majority opinion))). The Court has also wrestled with the question whether the breadth of a federal preemption clause affects the interpretation of its preemptive effect. In at least one case, the plurality found that preemption of common law actions was less plausible given the potential breadth of the displacement of state law (and the absence of a private federal damages action that could fill that gap). See Lohr, 518 U.S. at 486-92 (plurality opinion in part) (distinguishing Cipollone on this basis). A majority of the justices in Lohr may have disagreed with the plurality on this point. See id. at 504-05 (Breyer, J., concurring in part and concurring in the judgment); id. at 509 (O'Connor, J., concurring in part and dissenting in part).
220. Roderick M. Hills, Jr., Against Preemption: How Federalism Can Improve the National Legislative Process, 82 N.Y.U. L. Rev. 1, 67-68 (2007).
221. Sharkey, supra note 12, at 95-102.
222. Id. at 100; see also Cuomo v. Clearing House Ass'n, L.L.C., 557 U.S. 519, 537 (2009) (Thomas, J., concurring in part and dissenting in part). 186. 505 U.S. 504 (1992) (plurality opinion in part).
223. Cipollone, 505 U.S. at 517 (majority opinion) (quoting Malone v. White Motor Corp., 435 U.S. 497, 505 (1978)) (internal quotation marks omitted).
224. Sprietsma v. Mercury Marine, 537 U.S. 51, 64-66 (2002); Geier v. Am. Honda Motor Co., 529 U.S. 861, 869 (2000); Freightliner Corp. v. Myrick, 514 U.S. 280, 287-88 (1995)
225. Karen A. Jordan, The Shifting Preemption Paradigm: Conceptual and Interpretive Issues, 51 Vand. L. Rev. 1149+1158-65 (1998).
226. 531 U.S. 341 (2001).
227. Buckman Co., 531 U.S. at 343.
228. Id. at 347-48
229. id. at 353 n.1 (Stevens, J., concurring in the judgment).
230. 193. Id. at 348 n.2 (majority opinion). That provision stated that no State or political subdivision of a State may establish or continue in effect with respect to a device intended for human use any requirement-(1) which is different from, or in addition to, any requirement applicable under this chapter to the device, and (2) which relates to the safety or effectiveness of the device or to any other matter included in a requirement applicable to the device under this chapter. 21 U.S.C. § 360k(a) (2000).
231. The Court has taken a similarly purposive approach when the statutory text in question is not a preemption clause but a saving clause. See United States v. Locke, 529 U.S. 89, 106 (2000) ("We decline to give broad effect to saving clauses where doing so would upset the careful regulatory scheme established by federal law."); Int'l Paper Co. v. Ouellette, 479 U.S. 481, 493-94 (1987) (finding that a saving clause did not plainly preserve a state-law right of action and proceeding, in the absence of an express preemption clause, to consider and find implied preemption of state law).
232. Ernest A. Young, Two Cheers for Process Federalism, 46 Vill. L. Rev. 1349+1380-95 (2001).
233. Buckman, 531 U.S. at 348 n.2
234. id. at 353-55 (Stevens, J., concurring in the judgment).
235. Hillman v. Maretta, 133 S. Ct. 1943 (2013) (holding a state law impliedly preempted without addressing the reach of the federal statute's express preemption clause); Boggs v. Boggs, 520 U.S. 833, 841 (1997).
236. Kurns v. R.R. Friction Prods. Corp., 132 S. Ct. 1261, 1265-66 (2012); PLIVA, Inc. v. Mensing, 131 S. Ct. 2567, 2579 (2011).
237. Wyeth v. Levine, 555 U.S. 555, 590 (2009) (Thomas, J., concurring in the judgment) (quoting Nelson, supra note 13, at 260-61).
238. See id. at 588-90
239. Nelson, supra note 13, at 260-61.
240. Wyeth, 555 U.S. at 590 (Thomas, J., concurring in the judgment). I argue below that if logical contradiction provided the exclusive measure of preemption and obstacle preemption was otherwise abandoned, decisions under the "logical contradiction" standard would cover much of the abandoned territory and require similar kinds of discretionary judgments. To a more limited extent, something similar might well be true were the impossibility standard the sole measure of preemption. Thus, the narrowness of that standard in current practice may result from the existence of other bases on which state law can be displaced, and were they eliminated, the scope of the impossibility standard would likely expand in application.
241. 9 U.S.C. §§ 1-14 (2006).
242. Gade v. Nat'l Solid Wastes Mgmt. Ass'n, 505 U.S. 88+98 (1992)
243. Fla. Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132+142-43 (1963).
244. U.S. Const. art. VI, cl. 2.
245. A rare example of disagreement about what impossibility means was presented in PLIVA, Inc. v. Mensing, 131 S. Ct. 2567 (2011). There, it was possible for a generic drug manufacturer to propose to the FDA a label change that state law (if not preempted) would require and then to change the label if the FDA approved. See id. t 2576-77. But it was not possible for a generic manufacturer to comply with state law (insofar as it required a different label) and federal law without FDA approval. The dispute centered on whether the drug manufacturer had to try to comply with both state and federal law by seeking FDA approval (which it might or might not have obtained) or instead whether the manufacturer's inability to ensure that action consistent with state law would ultimately satisfy federal law demanded preemption of state law.
246. 517 U.S. 25 (1996).
247. Barnett Bank, 517 U.S. at 28-29.
248. 12 U.S.C. § 92 (2006).
249. 132 S. Ct. 2492 (2012).
250. Arizona, 132 S. Ct. at 2503.
251. Arizona, 132 S. Ct. at 2503Id. at 2504.
252. Arizona, 132 S. Ct id. at 2530 (Alito, J., concurring in part and dissenting in part).
253. id. at 2504-05 (majority opinion). There is a similar structure to the dispute between the majority and dissent about a distinct issue in the case: whether the federal statutory limitations on the authority of federal officials to make warrantless arrests were meant to apply only to those officials-in which case Arizona's uthorization of warrantless arrests in other circumstances would not conflict-or instead were also meant to preclude state officials from engaging in warrantless arrests in circumstances other than those specified in the statute.
254. Compare id. at 2531-35 (Alito, J., concurring in part and dissenting in part), with id. at 2507 (majority opinion).
255. Chamber of Commerce v. Whiting, 131 S. Ct. 1968+1975 (2011).
256. id. at 1995 (Breyer, J., dissenting).
257. Mut. Pharm. Co., Inc. v. Bartlett, No. 12-142, 2013 WL 3155230, at *25 (U.S. June 24, 2013) (Sotomayor, J., dissenting) (noting the need to determine whether a federal standard is both a floor and a ceiling-in Justice Sotomayor's words, a "maximum safety standard"-or merely a floor-in her words, a "minimal safety threshold"-and that resolving that question requires a highly contested policy judgment).
258. Sharkey, supra note 12, at 89
259. Kenneth W. Starr, Reflections on Hines v. Davidowitz: The Future of Obstacle Preemption, 33 Pepp. L. Rev. 1+5 (2005) (calling Geier a "muscular" application of the approach of Hines v. Davidowitz, 312 U.S. 52 (1941)).
260. Geier v. American Honda Motor Co., 529 U.S. 861+881-882 (2000).
261. Meltzer, supra note 38, at 365.
262. Empirical studies have cast doubt more broadly on whether particular approaches to statutory interpretation, and textualism in particular, can generate predictable or consistent results that are unaffected by a judge's attitudinal preferences.
263. James J. Brudney & Corey Ditslear, Canons of Construction and the Elusive Quest for Neutral Reasoning, 58 Vand. L. Rev. 1 (2005)
264. Frank B. Cross, Essay, The Significance of Statutory Interpretive Methodologies, 82 Notre Dame L. Rev. 1971+1991-1995 (2007).
265. Merrill, supra note 5, at 741-772
266. Ernest A. Young, The Rehnquist Court's Two Federalisms, 83 Tex. L. Rev. 1+132-133 (2004).
267. Hines v. Davidowitz, 312 U.S. 52+67 (1941).
268. Arizona v. United States, 132 S. Ct. 2492+2522-2524 (2012) (Thomas, J., concurring in part and dissenting in part); Wyeth v. Levine, 555 U.S. 555, 583 (2009) (Thomas, J., concurring in the judgment).
269. Wyeth, 555 U.S. at 583 (Thomas, J., concurring in the judgment).
270. id. at 586. See generally Clark, supra note 54.
271. Wyeth, 555 U.S. at 594-95 (Thomas, J., concurring in the judgment).
272. Id. at 601 (citing Manning, supra note 39, at 104).
273. Popkin, supra note 16
274. William N. Eskridge, Jr., All About Words: Early Understandings of the "Judicial Power" in Statutory Interpretation, 1776-1806, 101 Colum. L. Rev. 990 (2001)
275. John F. Manning, Textualism and the Equity of the Statute, 101 Colum. L. Rev. 1 (2001)
276. Manning, supra note 39
277. Molot, supra note 15
278. Jonathan R. Siegel, The Inexorable Radicalization of Textualism, 158 U. Pa. L. Rev. 117 (2009).
279. Kurns v. R.R. Friction Prods. Corp., 132 S. Ct. 1261+1265-66 (2012).
280. Cf. Scalia, supra note 142.
281. supra text accompanying notes 205-222. Indeed, in the PLIVA case, the dissenters suggested that Justice Thomas's rejection of obstacle preemption led him, as the author of the Court's opinion, to endorse an unwarranted expansion of the doctrine of impossibility. PLIVA, Inc. v. Mensing, 131 S. Ct. 2567, 2590 n.13 (2011) (Sotomayor, J., dissenting).
282. 530 U.S. 363 (2000).
283. Crosby, 530 U.S. at 366.
284. Crosby, 530 U.S.Id. at 379-380.
285. Crosby, 530 U.S.Id. at 376-380.
286. Crosby, 530 U.S. Id. at 380-381.
287. Crosby, 530 U.S.id. at 373-375.
288. Crosby, 530 U.S.Id. at 376-377.
289. Crosby, 530 U.S.Id. at 377+385.
290. Bradley W. Joondeph, Bush v. Gore, Federalism, and the Distrust of Politics, 62 Ohio St. L.J. 1781+1797-98 (2001)
291. Calvin Massey, Federalism and the Rehnquist Court, 53 Hastings L.J. 431+509-10 (2002)
292. Carlos M. V́azquez, W(h)ither Zschernig?, 46 Vill. L. Rev. 1259+1287-88 (2001)
293. Chang Derek Liu, Note, The Blank Page Before You: hould the Preemption Doctrine Apply to Unwritten Practices?, 109 Colum. L. Rev. 350+358 2009.
294. Professors Bressman and Gluck's empirical study of legislative drafting found little support for the proposition that staff members consciously deploy broad or ambiguous language in the hope that the courts will fill in the gaps, particularly as to "major" issues; rather, they found that drafters generally strive to use language that confines the courts as much as possible.
295. Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside-An Empirical Study of Congressional Drafting, Delegation and the Canons: Part I, 65 Stan. L. Rev. 901-910, 941, 943, 959, 996-97, 1015 (2013).
296. The comments they quote, however, recognize that sometimes, for a variety of reasons, statutory language is unclear, see id. at 943, in which case, when a court confronts the text, it has little choice but to resolve the ambiguity, whatever the wishes of the congressional drafters might be. Most fundamentally, the point here is not to question that members of Congress (or their staff members) prefer statutory resolution and generally try their best to provide textual specification. It is, rather, that when, for all of the reasons previously noted, such resolution is impossible or at least is not forthcoming, judicial interpretation helps to effectuate congressional aspirations. In this respect, as Professors Bressman and Gluck note, the argument that it is desirable for courts to play that role does not rest on the premise that congressional staff members (or members of Congress) would state, at some high level of abstraction, that they desire judicial resolution of legal issues. (While it is not clear from the comments Professors Bressman and Gluck quote what it is that staffers expect courts to do, the comments do indicate that staffers generally disfavor strictly textualist approaches to interpretation, see id. At 929, 965, 974.)
297. Henry M. Hart, Jr., The Relations Between State and Federal Law, 54 Colum. L. Rev. 489+492+497-98 (1954).
298. Alison L. LaCroix, What If Madison Had Won? Imagining a Constitutional World of Legislative Supremacy, 45 Ind. L. Rev. 41+41-42 (2011).
299. Merrill, supra note 5, at 735.
300. LaCroix, supra note 243, at 49-53.
301. 2 The Records of the Federal Convention of 1787, at 27 (Max Farrand ed., 1911).
302. Barry Friedman & Daniel T. Deacon, A Course Unbroken: The Constitutional Legitimacy of the Dormant Commerce Clause, 97 Va. L. Rev. 1877+1900 (2011).
303. Nelson, supra note 13, at 280.
304. Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363+373 (2000).
305. Merrill, supra note 5, at 743
306. Alan Untereiner, The Defense of Preemption: A View from the Trenches, 84 Tul. L. Rev. 1257+1260 (2010)
307. Young, supra note 3, at 275-76.
308. Wyeth v. Levine, 555 U.S. 555+587-88 (2009) (Thomas, J., concurring in the judgment).
309. Gade v. Nat'l Solid Wastes Mgmt. Ass'n, 505 U.S. 88+108 (1992)
310. Fid. Fed. Sav. & Loan Ass'n v. De la Cuesta, 458 U.S. 141+153 (1982).
311. Young, supra note 221, at 132 (explaining that preemption disputes often turn on identification of the purpose of a federal regime and the acceptable degree of conflict between federal purpose and state law).
312. Sharkey, supra note 111, at 466-471.
313. Wyeth, 555 U.S. at 626-628 (Alito, J., dissenting) (doubting the capacity of juries in a lawsuit alleging failure to warn by a pharmaceutical manufacturer).
314. Pharm. Research & Mfrs. of Am. v. Walsh, 538 U.S. 644+671 (2003) (Breyer, J., concurring in part and concurring in the judgment)
315. Young, supra note 3, at 275.
316. Merrill, supra note 5, at 733.
317. Greve & Klick, supra note 8, at 80-84
318. Metzger, supra note 46, at 37.
319. Sharkey, supra note 12, at 65-73.
320. Any focus on Supreme Court decisions will exaggerate the extent to which judges exercise broad discretion and to which outcomes depend on broad judicial attitudes. Cases in which the Court grants review, after all, are those on which judges can disagree and indeed ordinarily already have done so. But even in matters before the Supreme Court, one should not assume that the legal materials do not matter. Some decisions, after all, are unanimous, and as to others, there are reasons why the Court could find preemption of tort suits against generic drug manufacturers but not brand manufacturers, compare PLIVA, Inc. v. Mensing, 131 S. Ct. 2567 (2011), with Wyeth, 555 U.S. 555 (2009), or why Department of Transportation safety standards for cars preempt some tort suits but not others, compare Geier v. Am. Honda Motor Co., 529 U.S. 861 (2000), with Williamson v. Mazda Motor of Am., Inc., 131 S. Ct. 1131 (2011).
321. Thomas W. Merrill, Originalism, Stare Decisis and the Promotion of Judicial Restraint, 22 Const. Comment. 271+282-283 (2005)
322. Richard H. Pildes, Is the Supreme Court a "Majoritarian" Institution?, 2010 Sup. Ct. Rev. 103+142-144
323. Seth P. Waxman, Essay, Defending Congress, 79 N.C. L. Rev. 1073+1074 (2001) (noting the sharp increase in the Supreme Court's invalidation of federal statutes in the late 1990s)
324. David A. Strauss, Pop Con, Legal Aff., Mar./Apr. 2005, at 60, available at http://www.legalaffairs.org/issues/March-April-2005/review_strauss_marap r05.msp.
325. Richard A. Posner, The Rise and Fall of Judicial Self-Restraint, 100 Calif. L. Rev. 519 (2012).
326. Larry D. Kramer, Judicial Supremacy and the End of Judicial Restraint, 100 Calif. L. Rev. 621+633 (2012).
327. For a recent effort to articulate a theory of judicial restraint that would apply to both "liberal" and "conservative" outcomes, see J. Harvie Wilkinson III, Cosmic Constitutional Theory (2012).
328. Arizona v. United States, 132 S. Ct. 2492 (2012)
329. Chamber of Commerce v. Whiting, 131 S. Ct. 1968 (2011).
330. Daniel J. Meltzer, State Court Forfeitures of Federal Rights, 99 Harv. L. Rev. 1128+ 1172-73 (1986).
331. Nourse & Schacter, supra note 99, at 600-603 (reporting the limited extent to which committee and legislative drafting staff respond to judicial canons of construction).
332. Gluck & Bressman, supra note 241, at 943+1004.
333. Gluck & Bressman, Id. at 944.
334. Cannon v. Univ. of Chi., 441 U.S. 677+718 (1979) (Rehnquist, J., concurring).
335. Gluck & Bressman, supra note 241, at 946 n.141.
336. Hills, supra note 183, at 28.
337. Jesse H. Choper, Judicial Review and the National Political Process 178-81 (1980)
338. Larry D. Kramer, Putting the Politics Back into the Political Safeguards of Federalism, 100 Colum. L. Rev. 215 (2000)
339. Larry Kramer, Understanding Federalism, 47 Vand. L. Rev. 1485 (1994)
340. Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 Colum. L. Rev. 543 (1954).
341. An additional difficulty is that any Congress-forcing strategy is likely to succeed only if there is a high degree of coordination among federal and state judges, a circumstance hat is unlikely to arise.
342. Merrill, supra note 5, at 754 n.106 (discussing Adrian Vermeule, Judging Under Uncertainty: An Institutional Theory of Legal Interpretation 118-48 (2006)).
343. Cuomo v. Clearing House Ass'n, L.L.C., 557 U.S. 519 (2009).
344. Arizona v. United States, 132 S. Ct. 2492 (2012)
345. Chamber of Commerce v. Whiting, 131 S. Ct. 1968 (2011).
346. Meltzer, supra note 38. A thoughtful recent commentator has echoed Justice Thomas's concerns, noting the tension between the methodology in preemption cases and that followed more generally in cases of statutory interpretation, and urging that the proper resolution of that tension is to follow a textualist approach to preemption issues.
347. Note, Preemption as Purposivism's Last Refuge, 126 Harv. L. Rev. 1056 (2013). Beyond arguments that echo Justice Thomas's objections, the Note's author compares a sample of thirteen field and obstacle preemption cases decided since 2002 with statutory interpretation decisions in the same period and finds that in the former, the Supreme Court has been significantly less likely to be unanimous and that the average number of dissenting votes has been higher.
348. Id. at 1063. Quite apart from any statistical questions that observers more sophisticated than I might raise, several comments about this contention seem appropriate. First, although it is difficult to make a global statement about whether preemption cases are inherently more likely to generate division than other statutory interpretation cases, it surely is true, as already noted, that preemption decisions are full of recurrent divisions-notably between proponents and skeptics of regulation-that many commentators have associated with attitudinal differences among the justices. See supra note 38. It is far from clear that those differences would disappear were the Court to follow a different approach to deciding preemption cases. Indeed, insofar as the critique of obstacle preemption rests heavily on the claim that judges are aking policy and injecting their own ideological positions, I have noted that Professor Sharkey has found evidence of similar behavior in Justice Thomas's own decisions interpreting express preemption clauses. See supra notes 184-185 and accompanying text. Moreover, for those critical of a court's use of a purposivist approach to preemption decisions, the relevant comparison set is not statutory interpretation cases generally but rather preemption cases generally- or more specifically, if also more hypothetically-how decisions relying on obstacle preemption would be decided under some alternative approach. For example, I have argued that Justice Thomas's suggested substitution of a "logical contradiction" test for obstacle preemption analysis is far less likely to lead to clear-cut resolutions than might first seem to be the case. See supra Section I.E. Finally, a full assessment of the decisions and the methodologies underlying them would have to consider not only the relative degree of unanimity, but also, in a larger sense, the correctness the decisions generated under one approach or another. If all the justices agreed to interpret ERISA's preemption clause according to its literal meaning, perhaps there would be fewer dissenters in preemption decisions. But any such consensus that might result would, in Justice Scalia's words, "decree a degree of pre-emption that no sensible person could have intended." See supra note 134 and accompanying text.
349. As a case like Geier makes clear, state law is preempted when it conflicts not only with a federal statute but also with a valid federal administrative rule.
350. Geier v. Am. Honda Motor Co., 529 U.S. 861 (2000)
351. Fid. Fed. Sav. & Loan Ass'n v. De la Cuesta, 458 U.S. 141+153-154 (1982)
352. United States v. Shimer, 367 U.S. 374+382 (1961).
353. Brian Galle & Mark Seidenfeld, Administrative Law's Federalism: Preemption, Delegation, and Agencies at the Edge of Federal Power, 57 Duke L.J. 1933+1948-1983 (2008)
354. Nina A. Mendelson, A Presumption Against Agency Preemption, 102 Nw. U. L. Rev. 695 (2008)
355. Nina A. Mendelson, Chevron and Preemption, 102 Mich. L. Rev. 737 (2004)
356. Merrill, supra note 5
357. Metzger, supra note 46
358. Ernest A. Young, Executive Preemption, 102 Nw. U. L. Rev. 869 (2008).
359. Merrill, supra note 5, at 759.
360. Merrill id. at 775-777
361. Mut. Pharm. Co., Inc. v. Bartlett, No. 12-142, 2013 WL 3155230, at *14 (U.S. June 24, 2013) (Breyer, J., dissenting) (refusing to defer in part because the agency failed to hold hearings or to solicit the views of the public). There are, as the Court noted in Smiley v. Citibank (S.D.), N.A., 517 U.S. 735 (1996), two different issues of statutory interpretation that affect whether state law is preempted: "[T]he question of the substantive (as opposed to pre-emptive) meaning of a statute [and] the question of whether a statute is pre-emptive," id. at 744. Professor Young suggests that courts may defer to agency interpretations of "what the relevant statute does," but "Chevron should not be construed to require similar deference to agency conclusions about the law's preemptive effect." Young, supra note 277, at 870-72. That distinction, however, is often hard to maintain. To be sure, the interpretation of an express preemption clause ordinarily appears to be something other than what the statute does. But consider Fidelity Federal Savings & Loan Ass'n v. De la Cuesta, where a federal regulation effectively gave federally chartered savings and loan associations a right to enforce due-on-sale clauses in mortgages. 458 U.S. at 144. Had that case been decided after Chevron, presumably unless the statute spoke to the question, the agency's view would have been entitled to Chevron deference. But the regulation, if valid, necessarily preempted state laws that limit the enforceability of due-on-sale clauses, showing the difficulty of separating the question of preemption from the question of what the statute does. Indeed, in at least some cases, an agency might be able to circumvent any less deferential standard governing whether a statute preempts by simply taking a broad view of what a statute does. As Professor Merrill stresses, the suggested distinction would be certain to produce complexity and confusion. Merrill, supra note 5, at 773. Professor Merrill's approach of applying his Skidmore-like standard to issues both of substance and preemption creates a different conundrum. For while questions of statutory interpretation will generally be subject to strong deference under Chevron, the subset of interpretive questions that implicate preemption would be governed by a less deferential standard of review. Drawing that line and justifying it would be a challenge. Cf. City of Arlington v. FCC, 133 S. Ct. 1863, 1868-71 (2013) (in rejecting the argument that Chevron deference does not apply to questions of the agency's jurisdiction, stressing the difficulty of distinguishing jurisdictional from nonjurisdictional statutory provisions). Moreover, in some situations, a question of statutory meaning may arise in a setting-for example, in a dispute between a federal agency and a regulatee-that does not immediately involve the prospect of preemption; perhaps the relevant state has not (yet) enacted a law that intersects with the federal regime, or the regulatee has not (yet) been sued for a common law tort. In such a case, Chevron deference would presumably apply. But if the same question of substantive meaning were to arise in a later case where preemption was at issue, should a court give only Skidmore deference-and ignore the earlier decision applying Chevron deference? The simplest solution, of course, is to give Chevron deference to all agency determinations of statutory meaning, including whether a federal statute preempts. But if agencies are the most likely institution to find preemption, such an approach could dramatically expand the scope of preemption, at least with regard to some administrators in some administrations. That may be why the Supreme Court has yet to endorse that view.
362. Cuomo v. Clearing House Ass'n, L.L.C., 557 U.S. 519+523-25 (2009)
363. Watters v. Wachovia Bank, N.A., 550 U.S. 1+41 (2007) (Stevens, J., dissenting) (joined by Chief Justice Roberts and Justice Scalia in concluding that accepting Chevron deference on issues of preemption would too "easily disrupt the federal-state balance")
364. Medtronic, Inc. v. Lohr, 518 U.S. 470+495-496 (1996).
365. Mendelson, Chevron and Preemption, supra note 277
366. Sharkey, supra note 115
367. Young, supra note 277, at 890 (suggesting the convergence of views results from the chameleon-like quality of the Skidmore standard).
368. Young, supra note 277, at 892-893 (advocating, in addition, deference to state agency determinations as part of the application of Skidmore).
369. Professor Sunstein objects to Chevron deference on the ground that preemption decisions should be made politically, not bureaucratically.
370. Cass R. Sunstein, Nondelegation Canons, 67 U. Chi. L. Rev. 315+331 (2000). At least with respect to the interpretation of statutes (rather than the exercise of delegated authority), the burden of this Article is that it is unrealistic to expect that particular decisions will invariably be made politically (in the sense of being specifically resolved by Congress) and hence that realistically, the choice is often one between judges and agencies.
371. It is also worth noting that state courts may be less sympathetic than federal institutions to preemption.
372. Keith N. Hylton, Preemption and Products Liability: A Positive Theory, 16 Sup. Ct. Econ. Rev. 205 (2008) (finding that, in products liability cases, the lower federal courts are significantly more likely than state courts to find preemption).
373. 131 S. Ct. 2567 (2011).
374. PLIVA, 131 S. Ct. at 2579-2580 (plurality opinion)
375. Nelson, supra note 13, at 232+255-256.
376. Nelson, supra note 13, at 232.
377. U.S. Const. art. VI, cl. 2.
378. Nelson, supra note 13, at 250.
379. Nelson Id. at 254-260.
380. Nelson id. at 237-244.
381. U.S. Const. art. VI., cl. 2.
382. Nelson, supra note 13, at 255-260.
383. I say exclusively because I do not mean to deny that text and at least some forms of argument that might be viewed as originalist are often important elements in constitutional interpretation.
384. Richard H. Fallon, Jr., A Constructivist Coherence Theory of Constitutional Interpretation, 100 Harv. L. Rev. 1189 (1987).
385. There is a grammatical uncertainty whether the language that Professor Nelson views as a non obstante provision addresses only state judges or extends more broadly. For his arguments why it has the broader application, but also why it would not be odd for it to be limited to state judges, see Nelson, supra note 13, at 257-260.
386. In discussing "the common law," I am ignoring post-Erie federal common law.
387. William A. Fletcher, The General Common Law and Section 34 of the Judiciary Act of 1789: The Example of Marine Insurance, 97 Harv. L. Rev. 1513 (1984).
388. There has been an academic dispute about whether the Supremacy Clause's reference to the "laws" of the states includes the common law at all. Professor Clark argues that the description of supreme federal law in the first part of the Supremacy Clause refers only to the Constitution, federal statutes, and treaties, and hence that that Clause's text suggests limits on the preemptive effect of federal common law (as well as of federal administrative regulation). Clark, supra note 54, at 1331-38. In response, Professor Strauss argues that if Professor Clark's textual argument is correct, it suggests that the second part of the Supremacy Clause permits displacement only of state constitutions and statutes but not of state common law.
389. Peter L. Strauss, The Perils of Theory, 83 Notre Dame L. Rev. 1567+1570-1571 (2008). Professor Clark replies that the common law was a separate body of law that, at least in many states, had to be "received" in a state by a receiving statute, and so the Supremacy Clause's reference to the laws of the state encompassed, albeit indirectly, the common law by virtue of the reception statute.
390. Bradford R. Clark, The Procedural Safeguards of Federalism, 83 Notre Dame L. Rev. 1681+1685-1691 (2008).
391. The arguments back and forth are complex, as indeed are efforts to xcavate original understandings of the common law and its relationship to the New Republic.
392. Henry Paul Monaghan, Supremacy Clause Textualism, 110 Colum. L. Rev. 731+768-77 (2010). In any event, the lack of a clear textual reference to the common law in the Supremacy Clause, and the need for considerable intellectual gymnastics to try to deal with this omission, reinforces the point in text that Professor Nelson's interpretation of the Clause as implementing a statutory non obstante policy itself raises a difficult set of textual questions.
393. Professor Nelson notes several traditional reasons for this maxim. The first is that an earlier-enacted statute, "established with 'gravity, wisdom and universal consent of the whole realm,' " should not be displaced by general and ambiguous language in a later enactment.
394. Nelson, supra note 13, at 241 n.47 (quoting Dr. Foster's Case, 77 Eng. Rep. 1222, 1242 (K.B. 1614) (Coke, C.J.)). But in a federal system, a state law alleged to be preempted was not enacted by the "whole realm" or indeed necessarily with the interests of the whole realm in mind. Another traditional reason for the maxim is that courts should "resist the conclusion that [legislators] would either change their minds or show disrespect to the judgment of their predecessors." Id. But this reason, too, does not fit preemption because it is not the preceding federal legislators, but legislators of a separate, smaller jurisdiction whose judgment is "disrespected" by enactment of a preemptive federal statute that speaks for the nation as a whole. A final suggested reason for following the maxim is that "finding a repeal by implication would dishonor the later legislature, because it would indicate that the legislature had been either ignorant of the earlier statute or negligent in failing to include any express words of repeal." Id. Here, too, the point does not fully apply to federal preemption, for (as stressed above, see supra text accompanying note 10) there is no dishonor in recognizing that Congress cannot know all existing state and local law.
395. Nelson, supra note 13, at 255.
396. This is the ordinary rule, absent some form of contrary statutory specification. For discussion of a federal statute that, unusually, preempted past but not future state laws, see Hal S. Scott, Federalism and Financial Regulation, in Federal Preemption, supra note 1, at 139.
397. Arizona v. United States, 132 S. Ct. 2492 (2012).
398. 501 U.S. 452+460 (1991).
399. 451 U.S. 1+17 (1981).
400. A clear-statement rule that points in the other direction involves the presumption that a federal statute has not authorized state actions that, absent congressional authorization, would violate the dormant Commerce Clause. S.-Cent. Timber Dev., Inc. v. Wunnicke, 467 U.S. 82+91 (1984).
401. Hoke, supra note 3, at 755.
402. James B. Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv. L. Rev. 129+155-156 (1893).
403. Edward S. Corwin, The Passing of Dual Federalism, 36 Va. L. Rev. 1 (1950). Like many a discarded doctrine, however, its vestiges continue on occasion to haunt us.
404. Peter M. Shane, Reuschlein Lecture, Federalism's "Old Deal": What's Right and Wrong with Conservative Judicial Activism, 45 Vill. L. Rev. 201+215 (2000) (reading United States v. Lopez, 514 U.S. 549 (1995), as resuscitating dual federalism); see also Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2659 (2012) (Scalia, Kennedy, Thomas & Alito, JJ., dissenting) ("[T]he Spending Clause power, if wielded without concern for the federal balance, has the potential to obliterate distinctions between national and local spheres of interest and power by permitting the Federal Government to set policy in the most sensitive areas of traditional state concern, areas which otherwise would lie outside its reach." (quoting Davis ex rel. LaShonda D. v. Monroe Cnty. Bd. of Ed., 526 U.S. 629, 654-55 (1999) (Kennedy, J., dissenting)) (internal quotation marks omitted)); United States v. Morrison, 529 U.S. 598, 616 (2000) (suggesting that marriage is a domain of traditional state rather than federal regulation); United States v. Lopez, 514 U.S. 549, 580 (1995) (Kennedy, J., concurring); Massachusetts v. U.S. Dep't of Health & Human Servs., 682 F.3d 1, 13 (1st Cir. 2012).
405. Stephen A. Gardbaum, The Nature of Preemption, 79 Cornell L. Rev. 767+801-805 (1994)
406. Hoke, supra note 3, at 738-739.
407. Corwin, supra note 308, at 17-23
408. Young, supra note 3, at 259.
409. Nat'l Fed'n of Indep. Bus., 132 S. Ct. 2566
410. Morrison, 529 U.S. 598
411. City of Boerne v. Flores, 521 U.S. 507 (1997)
412. Lopez, 514 U.S. 549.
413. Young, supra note 3, at 321.
414. Gardbaum, supra note 309, at 801-06.
415. Young, supra note 3, at 257-69.
416. Hills, supra note 183, at 6 n.12.
417. Hoke, supra note 3, at 733
418. Merrill, supra note 5, at 741
419. Nelson, supra note 13, at 288-289
420. Sharkey, supra note 111, at 458
421. Young supra note 3, at 307.
422. Of ourse, in some cases the matter may be so clear that the presumption is simply beside the point.
423. Young supra note 3, at 308-309.
424. Arizona v. United States, 132 S. Ct. 2492, 2501 (2012) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)) (internal quotation marks omitted); see also Buckman Co. v. Plaintiffs' Legal Comm., 531 U.S. 341, 347 (2001) ("Policing fraud against federal agencies is hardly 'a field which the States have traditionally occupied.' " (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947))).
425. Maryland v. Louisiana, 451 U.S. 725, 746 (1981); see also Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 241 (1947) (Frankfurter, J., dissenting) (declaring that state authority over "matters that are the intimate concern of the state" should not be displaced "unless Congress has clearly swept the boards of all State authority, or the State's claim is in unmistakable conflict with what Congress has ordered").
426. Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996) (quoting Rice, 331 U.S. at 230 (majority opinion)).
427. Goldsmith, supra note 67
428. Ernest A. Young, Dual Federalism, Concurrent Jurisdiction, and the Foreign Affairs Exception, 69 Geo. Wash. L. Rev. 139+142-152 (2001).
429. Sharpe, supra note 40, at 213-218.
430. Viet D. Dinh, Reassessing the Law of Preemption, 88 Geo. L.J. 2085 (2000).
431. Galle & Seidenfeld, supra note 277, at 1941 & n.29 (labeling this "abstract federalism")
432. Ernest A. Young, Making Federalism Doctrine: Fidelity, Institutional Competence, and Compensating Adjustments, 46 Wm. & Mary L. Rev. 1733+1848-1850 (2005).
433. Regulatory Preemption: Are Federal Agencies Usurping Congressional and State Authority? Hearing Before the S. Comm. on the Judiciary, 110th Cong. (2007)
434. Metzger, supra note 46, at 2025 & n.3
435. Catherine M. Sharkey, Preemption by Preamble: Federal Agencies and the Federalization of Tort Law, 56 DePaul L. Rev. 227 (2007).
436. Lochner v. New York, 198 U.S. 45+75 (1905) (Holmes, J., dissenting).
437. Young, supra note 322, at 1848-1850.
438. Young, supra note 277, at 872
439. Young, supra note 322.
440. Goldsmith, supra note 67, at 187 (citing Michael Klarman, Antifidelity, 70 S. Cal. L. Rev. 381 (1997)).
441. David L. Shapiro, Federalism: A Dialogue (1995)
442. Lynn A. Baker, Putting the Safeguards Back into the Political Safeguards of Federalism, 46 Vill. L. Rev. 951+972-73 (2001)
443. Bradford R. Clark, Federal Lawmaking and the Role of Structure in Constitutional Interpretation, 96 Calif. L. Rev. 699+724 (2008)
444. Lewis B. Kaden, Politics, Money, and State Sovereignty: The Judicial Role, 79 Colum. L. Rev. 847 (1979)
445. Young, supra note 3, at 317.
446. Henry M. Hart, Jr. & Herbert Wechsler, The Federal Courts and the Federal System 435 (1st ed. 1953).
447. Henry M. Hart, Jr. & Herbert Wechsler, Hart and Wechsler's The Federal Courts and the Federal System 459-460 (Richard H. Fallon, Jr. et al. eds., 6th ed. 2009).
448. Some confirmation of this proposition is found in a recent study suggesting that congressional drafters are unaware of the Supreme Court's case law sharply curtailing, if not eliminating altogether, implied private rights of action for the violation of federal statutes.
449. Gluck & Bressman, supra note 241, at 945 n.141.
450. Paul J. Mishkin, The Variousness of "Federal Law": Competence and Discretion in the Choice of National and State Rules for Decision, 105 U. Pa. L. Rev. 797+828-832 (1957).
451. David L. Shapiro, Continuity and Change in Statutory Interpretation, 67 N.Y.U. L. Rev. 921+937 (1992)
452. Merrill, supra note 5, at 748-749 (stressing the importance of stability).
453. Young, supra note 3, at 271.
454. Gade v. Nat'l Solid Wastes Mgmt. Ass'n, 505 U.S. 88+108 (1992)
455. Fid. Fed. Sav. & Loan Ass'n v. De la Cuesta, 458 U.S. 141+153 (1982).
456. Pharm. Research & Mfrs. of Am. v. Walsh, 538 U.S. 644, 671 (2003) (Breyer, J., concurring in part and concurring in the judgment) (explaining that preemption must be grounded on more than a "modest" conflict).
457. Altria Grp., Inc. v. Good, 555 U.S. 70, 98 (2008) (Thomas, J., dissenting) (contending that the Court in recent decisions has, appropriately, frequently ignored the presumption when interpreting express preemption clauses, and suggesting that courts should not unreasonably interpret such clauses in light of congressional purpose).
458. Nelson, supra note 13, at 291-292.
459. As noted in text, the question whether any presumption against preemption should apply across the board has occasioned considerable controversy. Any suggestion that the scope of preemption should rest on a priori notions of what is for the states and what is federal (or international) is subject to the same criticism as the old doctrine of dual federalism. See Young, supra note 322, at 142-52. Indeed, any categories one might outline will prove to be highly malleable and overlapping; Crosby might be viewed as a case about foreign relations or about state procurement. And because states increasingly take action in areas with international repercussions, the effort to identify a category of foreign relations matters is a challenge. See Goldsmith, supra note 67, at 196. Despite the force of the critique, the sense that preemption varies depending on the nature of federal involvement seems stubbornly ingrained. There remains what Professor Merrill terms a "geography" of federal-state relations, in which, for example, the federal government exercises dominant (although not exclusive) authority in such areas as foreign relations, immigration, and Indian affairs, and the states exercise dominant (although not exclusive) authority in such areas of domestic relations and inheritance. Merrill, supra note 5, at 748. A key aspect of that intuition relates to the depth of the federal presence: if one important reason for the presumption against preemption is the notion that federal law is interstitial, that reason fades in force when federal law is more comprehensive. See Arizona v. United States, 132 S. Ct. 2492, 2501 (2012). Moreover, when Congress has legislated and there is an uncertain issue about whether the federal statute preempts state law, there are likely to be concerns about the externalities that one state's action imposes on other states and the nation and about the obstacles that state action poses to federal objectives; these concerns may be more salient in some areas than others. See Merrill, supra note 5, at 748-49. In my view, insofar as it is appropriate to have a variable preemption standard, the variable should be the nature of the federal presence rather than whether the subject of state regulation is thought to be traditional. A dispute over the applicability of the presumption against preemption arose late last term in Arizona v. Inter Tribal Council of Arizona, Inc., 133 S. Ct. 2247 (2013). The question there was whether the National Voter Registration Act's requirement that states "accept and use" a federally prescribed voter registration form preempts a state's requirement that persons submitting that form must also submit proof of U.S. citizenship. Id. at 2251. Acknowledging that the federal Act was ambiguous, Justice Scalia's opinion for the Court refused to apply the presumption against preemption on the ground that the Court had never applied that presumption to legislation enacted under the Elections Clause of Article I, section 4: "When Congress legislates with respect to the 'Times, Places and Manner' of holding congressional elections, it necessarily displaces some element of a pre-existing legal regime erected by the States."
460. Id. at 2256-2257. Both Justices Kennedy and Alito criticized that position.
461. id. At 2260-2261 (Kennedy, J., concurring in part and concurring in the judgment)
462. id. at 2271-2273 (Alito, J., dissenting).
463. Young, supra note 3, at 305.
464. Fallon, supra note 2, at 471+488
465. Meltzer, supra note 38, at 344+363-367. The pattern of results in preemption cases does not map perfectly, however, onto any ideological perspective.
466. Metzger, supra note 38, at 9-18.