Academic journal article Harvard Law Review

New Evidence on the Presumption against Preemption: An Empirical Study of Congressional Responses to Supreme Court Preemption Decisions

Academic journal article Harvard Law Review

New Evidence on the Presumption against Preemption: An Empirical Study of Congressional Responses to Supreme Court Preemption Decisions

Article excerpt

Cases regarding federal preemption of state law are among the most important decided by the Supreme Court, not only because they determine the fate of state laws that significantly impact people's lives, (1) but also because they substantially affect the balance of power between states and the federal government. (2) Unfortunately, although preemption decisions are very important, they are also remarkably inconsistent. (3) For decades, the Court has claimed to apply a presumption against finding federal preemption of state law. (4) However, the Court has not reliably applied this presumption, (5) and Justices frequently disagree about when the presumption applies (6) and what result it requires in any given case. (7) This inconsistency has led to accusations that the Court is simply imposing its substantive preferences in preemption cases. (8)

The importance and inconsistency of preemption doctrine have prompted many academics to suggest ways for the Court to improve its preemption jurisprudence. Some argue that the Court should apply a more robust presumption against preemption to better protect federalism values. (9) Others argue that the Court should do away with the presumption and simply do its best to interpret statutory preemption provisions using conventional tools of statutory interpretation. (10)

One thing both sides agree on is that the Supreme Court's preemption jurisprudence should be informed, at least to some extent, by how Congress responds to the Court's preemption decisions. That is, both sides make arguments that rely on assumptions about whether pro-preemption or anti-preemption forces can better protect themselves in Congress if the Supreme Court misinterprets how broadly preemptive Congress intended a statute to be. (11) In light of this agreement that congressional responses matter, there is a remarkable gap in scholarly writing about preemption issues: no study has looked at what Congress actually does after the Supreme Court decides preemption cases.

This Note begins the process of filling in this gap. It looks at Congress's responses to every Supreme Court preemption decision between the 1983 and 2003 Terms to see whether the facts support either side's argument. Ultimately, this Note concludes that neither side should make arguments based on likely congressional responses to the Court's preemption decisions. The data show that Congress almost never responds to the Court's preemption decisions, so mistaken interpretations for or against preemption are unlikely to be corrected.

Part I of this Note summarizes the ongoing debate over the presumption against preemption and explains the weight that academics on both sides place on Congress's likely response to preemption decisions. Part II provides the empirics: it describes congressional responses to Supreme Court preemption decisions between the 1983 and 2003 Terms. Part III offers some possible explanations for trends in congressional behavior uncovered in Part II. Part IV discusses the implications for courts of the findings in Parts II and III; it argues that in light of Congress's failure to respond to preemption decisions, the Court should adopt a pragmatic approach in preemption cases when traditional sources of statutory interpretation are ambiguous. Part V concludes.


A. Current Doctrine

Federal law can preempt state law either expressly or impliedly, and implied preemption can occur either because Congress has occupied the entire regulatory field a state seeks to enter or because state law conflicts with federal law. (12) While these varying types of preemption pose slightly different issues for courts, the Supreme Court has consistently said that "'[t]he purpose of Congress is the ultimate touchstone' in every preemption case." (13) The Court discerns Congress's purpose primarily by looking to the text and structure of the federal statute at issue. …

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