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Pursley on Preemption in Congress

By Lawrence Solum

Garrick Pursely (University of Texas) has posted Preemption in Congress on SSRN. Here is the abstract:

Modern preemption is about more than courts following the Supremacy Clause?s command to apply federal law rather than state law where the two conflict. More and more, preemption is about courts enforcing Congress?s intent that there should be no state law on a subject, even where there is no conflicting substantive provision of federal law. Courts assume that this is a legitimate exercise of congressional power and confine their efforts to determining the categories of state law Congress intended to displace. Even as they bemoan the increasing frequency of preemption and its effects on state governments, commentators make the same assumption and limit their suggestions to fine-tuning the judicial method for determining the extent of Congress?s preemptive intent.

My approach is different. Rather than take for granted Congress?s power to displace state law in the absence of conflicting federal law, I examine the potential constitutional sources of that power. It simply will not do, after all, to have the government exercising power of uncertain constitutional origin to such profound effect. Judicial decisions that defer the question to Congress offer little guidance, so I suggest shifting the focus to Congress itself and lay out a method for discovering Congress?s views on the matter. After discussing the kinds of evidence that might legitimately disclose Congress?s understanding of the constitutional basis and scope of its preemptive authority, I begin a descriptive account of Congress?s understanding by looking at one category of relevant statutory evidence and sketching future research.

We cannot assess the legitimacy of judicial preemption doctrine without a better account of the constitutional norms the doctrine is supposed to implement. In its deferential posture on the basic question of legislative power, preemption doctrine resembles the approach courts take to the scope of Congress?s commerce power and other basic questions of the constitutional permissibility of national legislation. The methodology I map here for assessing Congress?s engagement with these important constitutional questions may provide a new approach to understanding and critically evaluating government compliance with fundamental legal norms.

Full post as published by Legal Theory Blog on December 09, 2009 (boomark / email).