Academic journal article Harvard Law Review

Preemption as Purposivism's Last Refuge

Academic journal article Harvard Law Review

Preemption as Purposivism's Last Refuge

Article excerpt


Textualism has come to be the dominant theory of statutory interpretation in United States courts. As the primary academic proponent of textualism, Professor John Manning, has written, "the Court in the last two decades has mostly treated as uncontroversial its duty to adhere strictly to the terms of a clear statutory text, even when doing so produces results that fit poorly with the apparent purposes that inspired the enactment." (1) Textualism "ask[s] how a reasonable person, conversant with the relevant social and linguistic conventions, would read the text in context." (2) This theory has "produc[ed] a major transformation in the way the Supreme Court approaches statutory interpretation cases." (3) The majority of Justices now seem to agree at least that statutory interpretation "starts with [the statute's] text." (4) Even if some Justices may not otherwise choose to use textualism, the presence of committed textualists on the bench means that all of the Justices tend toward textualism in opinion writing to garner a majority. (5) Further, nontextualist Justices tend to be adherents of what Manning calls "the new purposivism": they take seriously the level of generality at which a statute is framed, but because of their "textually-structured approach to purposivism," the only real difference between these new purposivists and textualists is the former's "willingness to invoke legislative history in cases of genuine semantic ambiguity." (6)

Yet preemption doctrine has been left behind from this Textualist Revolution. (7) Professor Daniel Meltzer has pointed out that "one of the most striking features of the [Supreme Court's] preemption decisions is that all of the Justices appear to accept as common ground a broad judicial role in formulating rules of decision that are not tied to statutory text," (8) though Justice Thomas now rejects this approach as "inherently flawed." (9) This fundamental difference in interpretive approach is not justified by any difference between a statute's preemption command and its policy commands. After all, preemption represents a policy judgment. A statute's preemption command determines which policy demands obedience from citizens, that of the national government or that of state or local governments. Although preemption is a foundational policy choice, the Court often throws out its ordinary statutory approach when confronted with a decision on a statute's preemption policy. In particular, the Court's obstacle and field preemption doctrines encourage courts to exalt extratextual purpose above statutory text, (10) which violates the textualist command of giving effect to the text of laws enacted pursuant to Article I, Section 7 of the Constitution.

This Note argues that approaching preemption cases from a textualist perspective would be more consistent with the Court's general method of interpretation and that there is no reason to depart from this method in preemption cases. Part I shows that the Court presently deviates in preemption cases from its broadly textualist approach to interpretation generally. Defending textualism as its own doctrine is beyond the scope of this Note, but Part II demonstrates that the various rationales for textualism apply with equal force in the preemption context. Part III argues that there is no justification for departing from textualism in preemption cases by responding to defenses of current doctrine.


"A fundamental principle of the Constitution is that Congress has the power to preempt state law." (11) Congress can include an express preemption provision to address directly a statute's preemptive effect. (12) But an express preemption provision need not be included for the statute to have preemptive effect, and indeed, the Court has held that even an express provision or a saving clause does not bar the statute from implicitly preempting state law. (13) The Supreme Court commonly articulates two types of implied preemption. …

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