April 7, 1987

April 7, 1987 | Lecture on

Preemptive Strikes on State Autonomy: The Role of Congress

(Archived document, may contain errors)


by The Honorable Roger J. Miner Exactly two hundred ye@rs a, @o this week, on February 21, 1787, the Continental Congress adopted a resolution c ling for a Convention to revise the Articles of Confederation. The work of the Convention was completed at Philadelphia seven months later, on September 17, 1787. On that day, the Framers signed the enduring document we celebrate and re-examine during this Bicentennial Year. It was no easy task to convince the citizens of the several states, during the ratific a tion process, that the new Constitution did not pose a threat to their newly won independence. Fearing that a powerful central government merely would replicate the arbitrary ways of the British Crowq, many saw greater detriment than benefit in the format ion of a "more perfect Union."" One of the provisions of the proposed Constitution that caused the citizenry some concern was the portion of Article VI that has come to be known as the Supremacy Clause:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof, and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the land; and the Judges in every State shall be bound thereby, any Thing in the CoTtitution or Law of any State to the Contrary notwithstanding.

1 blius in No. 33 of the Federalist Papers, Alexander Hamilton sought to dis el e e le's fears that the Supremacy Clause would lead to an erosion of their rights citize of e several states. Hamilton wrote t hat a larger political society composed of a number of smaller political societies would amount to nothing if its laws were not supreme; he pointed out, however, that the larger society should be treated as a usurper when it acts in exfess of its constitu tional powers and invades the residuary authority of the smaller societies. According to Hamilton, only those laws based on "the enumerated and legitimate objects" of federal jurisdiction would be accorded the dignity of "SUPREME LAW of the land.'"

Obviously, Hamilton's assurances were based on his concept that the national government was to be one of limited powers, that all other governmental authority remained in the states, and that any incursion into the residual authority of the states would

Roger J. Miner is a U.S. Circuit Court Judge, Second Circuit Court of Appeals.

He spoke at The Heritage Foundation on February 18,1987.

ISSN 0272-1155. Copyright 1987 by The Heritage Foundation.

1. U.S. Constitution Preamble.

2. U.S. Constitution art. V1, cl.2.

3. The Federalist No. 33, at 204 (A. Hamilton) (C. Rossiter ed. 1961).

4. The Federalist No. 27, at 177 (A. Hamilton) (C. Rossiter ed. 1961). Writ ng as Pu p th p ns

be considered an illegal encroachment.: James Mad ison used these words to describe his view of the division of responsibili 'Me vers delegated by the proposed Constitution ty f; ow to the federal government are -few and de ed- Those which are to remain in the State governments are numerous and indefinit e .' e Federalists clearly were confident that the enumerated powers, specific and defined, would serve as a significant limitation on the exercise of federal jurisdiction. What they did not foresee, of course, was the expansive interpretation of the enumer a ted powers that would be provided by the third branch of government. It was in fact the Anti-Federalists who anticipated that the'Judiciary would be called upon to referee the frequent disputes that inevitably would arise under the Supremacy Clause. The A n ti-Federalists predicted that the federal courts, by reason of their authority to decide when state law is preempted by federal law under the Supremacy Clause, would be the instruments by which state power would be reduced to naught. An article in the Ess a ys of Brutus series published on February 14, 1788, urging rejection of the proposed Constitution, anticipated that ratification would spawn the following developments: adoption of federal laws duplicative of state laws in areas where state and federal d * risdiction is concurrent; extension of central government operations into those areas; an luederal court condonation of these enlarged activities by liberal construction of the powers of the central government. As a result, according to Brutus, the right s of the states to act would be dimipished to the point of "becoming so trifling and unimportant as not to be worth having." It is generally thought that Brutus wa@ Robert Yates, a New York judge who was a delegate to the Constitutional Convention. Yates l e ft the convention before the Constitution was completed and later wrote to Governor Clinton that he opposed "the consolidation of the United States into one goverment.118 Although the dire predictions of the Anti-Federalists have not entirely come to pass , some of the problems they foresaw two hundred years ago are with us today. Certainly, the Supreme Court has approved the exercise of broad-ranging federal authority, despite the limited powers envisioned by the Framers. This, of course, has allowed the c e ntral government to act in many areas originally thought to be primarily of state concern. Accordingly, the Supreme Court increasingly has been called upon, in cases where state and federal legislation affect the same subject matter, to decide whether the state activity has been preempted under the Supremacy Clause. I pro) ose in this lecture to reveal the confusion and inconsistency of the courts when faced Witt issues of statutory preemption. I also propose to show the consequent need for Congress to pla y a more active role in defining the scope of permissible state activity and in preserving the constitutional framework of federalism. It seems to me that the obligation of Congress to assure the states a proper range of governmental operations is implicat ed in the duty of the legislative branch recently described by the Attorney Gene5al--the duty to interpret the Constitution in the course of performing its official functions. Actually, the Attorney General said that

5. The Federalist No. 45, at 292 (J. Madison) (C. Rossiter ed. 1961).

6. The Ess= of Brutus, N.Y. Journal, Feb. 14,1788, reprinted in The Complete Anti-Federalist 427 (HJ. Storing ed. 1981).

7. &LC. Drinker Bowen, Miracle at Philadelphia 426 n.*(1966).

8. Ld . at 311; see id . at 225.

9. See Lecture by Attorney General Edwin Meese H1, The Law of the Constitution.,- Tulane University Citizens' Forum on the Bicentennial of the Constitution 11 (Oct. 21, 1986); \u223\'a7 gg al*o Meese, The Tulane Speech: What I Meant Wash. Post, Nov. 13, 1986, at A21, col. 3.


this interpretive function is vested in all three branches, and I certainly do not mean to say. that the executive and judicial branches have nopart to play in the preservation in our federal system. My contention is that Congress, by be ing alert to preemption problems, can play a vitally important- role in the protection of state autonomy. indeed as the branch of government closest to the people, Congress has a iti @ duty in this regard. I shall have _posi ve some suggestions and recomm e ndations on how that duty can best be fulfilled at the conclusion of this discussion. The Supremacy Clause was tested early on in a case arising out of the War of 1812. The State of Pennsylvania had enacted a statute providin for a state court-martial of m embers of the militia who failed to obey a call to service by t e President of the United States. Tle penalties provided were those prescribed by federal aw for the same offense. In upholding the jurisdiction of the state court-martial, Justice Bushrod Wa s hington, writin& for the Supreme Court majority, found it sufficient that the concurrent exercise of jurisdiction by the state and federal governments was authQPZed by the laws of the state and not prohibited by the laws of the United States.' Although he found no repugnance between the two statutes in the case before him, he speculated that the will of Congress gDul-d-be "thwarted and opposed" even if it werf possible to comply with state law without violating the requirements of a federal statute. Justic e Story, in dissent, declared the narrower rule that in cases of concurrent authority, state laws would yield to federal laws on the same subject only in cases of "direct and manifest collision!' and then only to the extent that they L2 were incompatible. C uriously, Story found the Pennsylvania Militia Act wholly incompatible with federal statutes relating to the same subject. When,Aaron Ogden sued 717homas Gibbons to enjoin the operation of steamboat service,-- between Elizabethtown,. New Jersey, and New Y o rk City, he relied upon his ownership by.. assignment of the exclusive rights of navigation originally granted to Robert R. Livingston, and Robert Fulton by the New York legislature. In defensei Gibbons contended that his ships were duly enrolled and lice n sed ifor the coastal trade under an Act of Congress adopted in 1793, and that his ri hts to navigate the waters in question overrode the exclusive franchise granted by tte state legislature. The Supreme Court agreed with Gibbons and reversed a judgment by New York's highest court in favor of Ogden. In an opinion written by John Marshall in 1824 echoing the Story dissent in the militia case, the Court held that its in uiry was limited to the question of "whether the laws of New York, as expounded by the hi e st tribunal of that state, have, in their application to this case, come into collision with an Act of Congress, and deprived a citizen of a right to which that act entitles him."13 Having found such a collision, the Court perceived no difficulty in concl u ding that the Act of Congress was supreme and that "the I w of the state, though enacted in the exercise of powers not controverted, must yield to it.,, 4In the the great Chief Justice wrote that "the framers of our constitution foresaw this= things, and provided 5 for it, by declaring the supremacy not only of itself, but of the laws made in pursuance of it."'

10. Houston v. Moore, 18 U.S. (5 Wheat.) 1, 29 (1820).

11. Id . at 22.

12. Id at 49-50 (Story, J., dissenting).

13. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1,-210(1824)..

14. Id. at 211.

15. id . at 210.


There you have it--a succinct statement of the doctrine of preemption as dictated by the Supre macy Clause. The elements necessary to invoke the doctrine were made clear: a state law enacted in the exercise of the sovereign powers reserved to the states; a federal law enacted b egis ative aut ont y Congress within the enumerated I i I i h i_ y gran t ed by the Constitution; and an actual, not theoretical, collision between tile two. Simply put, state and federal statutes, though both be otherwise valid, cannot occupy the same space at the same time and the state provision must yield. Despite the elega n ce and lucidity of the Gibbons opinion and the clear rule it established, some actual collision cases continue to be litigated and to find their way to the Supreme@ Court. In 1962, the Court was presented with a clear collision between a state commq .Tty p roperty rule and federal provisions governing joint ownership of U.S. Savings Bonds.' The federal provisions of course prevailed. And in 1977, one hundred fifty-three years after Gibbons, in a case involving issues virtually identical to those confronted i n Gibbons federal licenses covering mackerel fisheg were held to prevail over Virginia statutes limiting the fishing rights of non-residents. These later cases may be more of a tribute to the fact that nothing can forestall litigation or impair the tenaci t y of lawyers in our nation than to the enigmatic nature of the precedent. Unhap fly, preemption j@risp@udence no longer is confined to questions of actual collision. T@ie wide-rangin inquiry proposed by Justice Washington now has become the standard. In t h e name - lie Supremacy Clause, the Supreme Court now examines state law to determine whether it is somehow inconsistent with the purposes of federal law or is incompatible with a federal regulatory scheme or interferes in some way with federal policy. In a case holding that the Pennsylvania Alien Registration Act of 1939 was preempted by the Federal Alien Registration Act of 1940, the Court described the expanded scope of its inquiry as follows: This Court, in considering the validity of state laws in the l ight of ... federal laws touching the same subject, has made use of the following expressions: conflicting; contrary to; occupying the field; repugnance; difference; irreconcilability; inconsistency; violation; curtailment and interference. But none of th ese expressions provides an infallible constitutional test or an exclusive constitutional yardstick. In the final analysis, there ca\u190\'5f no one crystal clear distinctly marked formula.

The lack of a clear yardstick or formula has fostered the development of p reemption i unsprudence on a case @y case, statute by statute basis, devoid of analytic consistency and acking in doctrinal intelligibility. It is difficult to disagree with the commentators who ave written that the Supreme Court's preemption decisions "h ave often produced

16. See ,Free v. Bland, 369 U.S. 663 (1962).

17. S_ee Douglas v. Seacoast Prods., Inc., 431 U.S. 265 (1977).

18. Hines v. Davidowitz, 312 U.S. 52,67(1941)(footnotes omitted).

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considerable confusion and criticism!'19 and tha t "[p]erhaps the most troublesome aspect of the doctrine of federal preemption has been its historically inconsistent application." The confusion and inconsistency are especially troublesome in light of the fact that reemption litigation has involved so m a ny diverse areas of law and therefore has resulted the displacement of numerous state regulations clearly adopted in the pursuit of egitimate state objectives. In the Alien Registration case I referred to earlier, the Court ield that a state statute req@n r ing aliens to register and.-to carry a card. to exhibit to police )n demand was preempted by a federal statute requiring registration but not the carrying of a card. While there obviously was no collision in the QJibons v. Oaden sense, or even an actual c o riflict between the two statutes, the Court held that Congress had occupied the field of alien registration, adverting to the supremacy of national power 2in the general area of foreign affairs, including power over immigration and naturalization. Tle Cou r t saw the state law as an obstacle blocking the achievement of congressional goals, although it is difficult to see how this was so. At any rate, there was no question that the state statute represented a proper exercise of the state's police power. The o c cupation of the field test, as applied in the Alien Registration case and in other cases, has been criticized for leaving open a number of questions: What standards should be applied in determining whether Congress has in fact occupied a fleld? Are there g ood reasons for flnding excluslye federal occupancy? What are the boundaries of the specific field under examination?" It seems to me that in applying the occupation of the field test and some of the other tests it developed to decide preemption issues, t he Supreme Court has involved itself unnecessarily with policy problems whose solution is best left to the other branches. Whether it is preferable that there be national uniformity in one area or another is not for a court to determine.

It seems quite une xceptional to say that when it is not physically impossible for one engaged in interstate commerce to comply with both state and federal regulations, the state regulation is not preempted. This, in fact, was the principle underlying the decision upholding different maturity standards established by the state of California and the federal government to keep prematurely harvested avocados from the market. T'he Court found that there was no preemption because there was "no inevitablesollision between the two schemes of regulation, despite the dissimilarity of the standards."' The fact that the two schemes had the same objectives was not held to be controlling.

1 9. Note, A Framework for Preem2tion Anall %is 88 Yale I.J. 363, 363(1978).

20.. Catz & Leonard, The Demise of the Implied Federal PreemRtion Doctrine 4 Hastings Constitution L.Q. 295, 295(1977)_

21. Hines 312 U.S. at 62. 22. See gcneralli Hirsch, Towatd a New View of Federal Preemption. 1972 U. M. L.F. 515, 530.

23. Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132,143(1963).


Yet a California labelling statute, imposing requirements more stringent than those 'm osed by federal law gith respect to weight variations due to moisture loss in flour, was found to be preempted. Tle rationale there was that the purposes and objectives of Congress could not be accomplished and executed unless packages bearing the same indicated weight contained the same q@antity of the product. The purp9se of the federal statute, according to Justice Thurgood Marshall, who authored the opinion, was to f a cilitate value comp i ons b consumers throughout.the country. It is difficult to discern ans just how there would be a pirlem with value comparisons when the state regulation was more strict than the feder . It is especially difficult to reconcile this ca s e with the avocado case, since compliance wil both flour labelling schemes was not a ",physical impossibility." Despite the dissimilarity of standards, there was no inevitable collision between them because flour manufacturers, knowing where the roduct is to be shipped, could pack and label to comply with state law as well as federal. Ue physical impossibility test, certainly, has not been consistent in its application. According to another test developed by the Supreme Court, state regulation is preempted where Congress has le islated so comprehensively that no room remains for the states to supplement federal law.Yu-s rule controlled the disposition of a case known as Rice v. Santa Fe Elevator Co1p . and later Supreme Court cases have cited E Lice as auth o rity of the rule. A close examination of Rice , however, reveals that there was perhaps-some room the Court overlooked and that the displacement of state re I ti ori a ion there was another instance of policy choice. The case involved the regulation 4rain warehouses under the Federal Warehouse Act and under certain provisions of Illinois law governing gralji@,torage and storage charges. Although the federal regulatory scheme was a generalized one;crevolving around the authority ofthe Secretary of Agricultu r e to issue and suspend wareho4se. licenses, and the state scheme was a rarticularized one, establishing specific warehouse standards and providing for rate regu ation, the federal scheme was held to displace the state's entirely. The Court found that the f ederal Act had been amended specifically to remedy past roblems arising from a system of dual regulation. Having so found, the Court ignored t9e areas apparently open to state regulation and leaped to the conclusion that "the federal schemqprevails though it is a more modest, less pervasive regulatory plan than that of the State."' Justice Frankfurter, 'in a compelling dissent, disagreed with t'he proposition that Congress could, by merely touching a subject matter, render it untouchable by a state "though thge is neither paper nor operating conflict between federal and State spheres of authority." Accordingly, he re ected the Court's conclusion that the federal Act inferentially deprived Illinois o@ a rate-fixing authority exercised over a period of sevent y years while not conferring such authority on any federal agency. Frankfurter declared that the authority of states under the reserved powers always should survive "unless Congress has clearly swept the Boards of all State aithority, or the State's claim is in unmistakable conflict with what Congress has ordered. " It seems that the "no room available" test is open to interpretation as well.

24. SeeJonesv. RathPackingCo., 430U.S. 519(1977).

25. 331U.S. 218(1947).

26. id . at 236.

7 27. Id. at 242 (Frankfurter, J., dissenting).

28. Id. at 241.


The Supreme Court has taught us that "[t]he critical question in any pre-emption 29 analysis is always whether Congress intended that federal regulation s@ipersede state aw. The confusing the inconsistent rules and tests I have been discussing all were designed to d e n essional intent, express or implied. The word "divine" seems appropriate here, usc it gr ict *?a co s d ionary definitions include: to guess- to know by inspiration, intuition or be 50 ref l ection; and to locate water with a divining rod. All these synonyms are applicable to the manner in which the Court attempts to ascertain congressional intent to preeTpt. An expression of intent in explicit statutory language, however, should be conclusiv e . Unfortunately, it is -not. An express provision tyr the maintenance of state jurisdiction was defeated in Pefla5ylvania v. Nelson, 'a celebrated case in preemption jurisprudence. In that case a state's Sedition Act was held to be displaced by the federa l Smith Act,which prohibited the overthrow of the United States government by force or violence. That determination was made in the face of a sTecific savings clause prohibiting the * airment of the criminal A'Mp jurisdiction establishe under the laws of t h e several states. It is also noteworthy that Congressman Howard Smith, sponsor of the Smith Act, wrote a vehement denial "that Congress ever had the faintut notion of nullifying the concurrent jurisdiction of the respective sovereign states." The preempti o n determination in lle-Ison was boSt4omed on the conclusion that the Smith Act was intended to "occupy the field of sedition." 1pying previously written of my apprehensions regarding the nationalization of criminal law, I pause here to note that, in addit i on to the general savings provision ignored in Nelson, seygral statutes defining federal.crimes include their own provisions sa *ng state jurisdiction. One commentator expressing a concern for doubleprosecution a@d punishment, suggests that unless the Sup r eme Court decision holding double js9pardy inapplicable in the case of state and federal prosecutions for the -same conduct is re-examined, or legislation is adopted to provide that a state or federal trial bars prosecution in the other jurisdiction, "a f inding of congressional intent togre-empt is the only way to protect the defendant from the rigors of double prosecution." I do not know'

29. Louisiana Pub. Serv. Comm'n v. FCC, 106 S. Ct. 1890, 1899 (1986).

30. The American Heritage Dictionary of the English Language 385 (1976).

31. 350 U.S. 497 (1956).

32. 18 U.S.C., Section 3231 (1982).

33. Letter from Congressman Howard W. Smith to Pennsylvania Attorney General Frank Truscott (February 5, 1954), reprint ed in Commonwealth v. Nelson, 377 Pa. 58, 90 n.8, 104 A.2d 133, 148 n.8 (1954) (Bell, J., dissenting), affd 350 U.S. 497 (1956); &ee Note, PreemRtion as a Preferential Ground: A New canon of Construction 12 Stan. L Rev. 208, 208 (1959) (citing Smith lette r).

34. Nelson 350 U.S. at 504.

35. &LMiner, Federal Courts. Federal Crimes. and Federalism 10 Harv. J.L. & Pub. Pol'y 1301 (1987).

36. 18 U.S.C., Section 896 (1982) (extortionate' credit transactions); id . Section 927 (firearms offenses); Ld . Section 1084(c) (transmissions of wagering information); 21 U.S.C. S 903 (1982) (drug abuse prevention and control).

37. &eq.United States v. Lanza, 260 U.S. 377 (1922).

38. Note, Pre-emRtion by Federal Criminal Statutes. 55 Colum. L. Rev. 83 (1955).


how such a finding is possible when there is an express savin&s_clause, although the Supreme Court certainly overcame that problem in Nelson. Mv own view is that the federal government generally. should get out of the business of definin& and prosecuting cri m es primarily of state and local concern. Federal criminal prosecution should be limited to misconduct affecting clearly defined national interests. Just as there are explicit savings clauses in federal le islatio in gi n exp ess the intent of Congress to p reserve state jurisdiction, so are there -explicit superse . e c auses expressing the intent to preempt state jurisdiction. I have given an exammnple of ow the former has been ignored, and I now present an example of the disregFd of the atter. The Employe e Retirement Income Security Act of 1974 includes a provision that the Act "shall supersede any and all sAte laws insofar as they may now or hereafter relate to any employment benefit Ian' described in the Act. There was no dispute that "employee benefit p l an" includeg any plan, fund or program established to provide vacation -benefits. The plaintiffs inf a case known as California Hospital Association v. Hennin SOUE;ht a declaration that the clear preemption provision superseded a California state olicy ba r ring forfeiture of vacation benefits and requiring payment of a pro rata share T;uch benefits upon termination of employment. The plaintiffs maintained benefit plans in contravention of the California policy. In denying preemption, the Ninth Circuit Court of Appeals interpreted the Act to apply only to funded vacation plans and not to traditional payr .oll payments of vacation wa&es from general funds. The decision has been criticized, of course, on the 41 ground that it was for Congress, not the courts, t o restrict the coverage provided by the Act. Clear expressions of intent found in the legisl Wtive history also have been ignored by the courts. In Burbank v. Lockheed Air Terminal the Court found that a city ordinance prohibiting the take-off of pure jet a ircraft during certain hours was preempted by federal s atutes regulating aircraft noise. The Court jelied upon what it referred to as the of 4 ervasive nature" of the regulatory scheme. The dissenting opinion, however, referred to s ecific I 'slative his t ory demonstrating congressional intent to restrict the applicability of ' le e federaflegislation to overflying,&ircraft and to permit local control of the type established by the City of Burbank. T'he legislative history argument in the dissent was bolst e red by the required assumption that the historic police powers of the states are not to be supersede@ by a federal Act, unless such displacement is the clear and manifest purpose of Congress! It never has been contended that noise control is not encompass ed within the traditional police powers.

3 9. 29 U.S.C. Section 1144(a)(1982).

40. 770 F.2d 856 (9th Cir. 19&5), amended 783 F.2d 946 (9th Cir.), &=. denied 106 S. Ct. 3273 (1986).

41. See. ej, Casciani@ ERISA Regulation of Em&3Lee "PWoll Practices": California HoIgital Association v. Henning, 17 L&M U. Chi, LJ. 585, 615 (128J6 .

42. 411 U.S. 624 (1223).

43. Id . at 633.

44. Ld . at 649 (Rehnquist, J., dissenting).

45. Ld-. at 643 (citing Rice v. Santa Fe Elevator Corp., 331 U.S. 218,2W (1947). our h

t p

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Legislative history also was ignored in the determination of'an action brought by franchisees of 7-Eleven convenience stores against their franchisor for violation of the C alifornia Franchise Investment Act. The action was commenced in the California Superior Court, and the franchisor sought arbitration of the controversies under the terms of an arbitration clause in the franchise agreements. The Supreme Court ultimately ma d e a determination of preemption, holding that the Federal Arbitration Act established a national policy favoring arbitration and derived the states of the authon _,y to provide a judicial forum when the parties had agree to arbitrate their differences. T1 1 e dissenting opinion, however, provided persuasive historical evide@,ce that the Federal Arbitrat on Act was intended to be enforced only in the federal courts. The majority found such a direct and irreconcilable conflict between state and federal law tha t the Supremacy Clause was needed to resolve it. The dissent, relying on legislative history, found the federal law wholly inapplicable. Tliat's what I call a difference of opinion! Courts have emp!oyed many strange modes of analysis, as we have seen, in p u rsuit of the elusive congressional intent. I think that the outer limits of preemption analysis were reached last Decemb ir, when a court found that the ahLenqLof federal gasoline regulation manifested the intention of Congress to leave the field unregula t ed. The court was the Temporary Emergency Court of Appeals, which is charged with the enforcement of the Emergency Petroleum Allocation Act of 1973. When Congress decided to deregulate gasoline prices and to permit free market forces to control7, Puerto R ico reinstated it\u223\'a7 .own = gulations. Several oil companies challenged these regulations and prevailed.' ne f Appeals drew its rationale for a finding of implied intent to preempt from a Supreme Court case in which the following statement was made: "[Al feder al decision to forgR regulation in a given area may imply an authoritative federal determination that the area is best left un regulated, and in that event would have as much preemptive force as a decision to regulate." Ile logical dissenter in the Puerto Rico case found it "paradoxical" that the expiration of temporary emergency federal measures should have the eqAct of permanently constraining the exercise of the lice powers of state governments. Preemption jurisprudence indeed has entereNothe twilight z one! As the shadow of federal regulation has lengthened, supremag problem have fouRd 5 _ A their way into such diverse legal fields as torts, civil procedure, antitrust, patents, and

46. Southland Corp. v. Keating, 465 U.S. 1 (1984).

47. Ld . at 26-27 (O'Connor, J., dissenting).

48. Isla Petroleum Corp. v. Puerto Rico Dept. of Consumer Affairs, No. 1-16 (Temp. Emer. Ct. App. Dec. 29, 1986) (LEXIS, Genfed Library, USApp rile).

49. Transcontinental Gas Pipe Line Corp. v. State Oil & Gas Bd., 106 S. Ct. 709, 717 (1986) [quoting Arkansas Elec. Coop. Corp. v. Arkansas Pub. Serv. Comm'n, 461 U.S. 375,384 (1983)].

50. Isla Petrole=, No. 1-16 (Christensen, J., dissenting).

51. See, e.e. Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984).

52. See generally te, Federal Preem2tion, Removal Jurisdiction, and the Well-Pleaded Complaint Rule .51 U. Chi. L Rev. 634 (1984).

53. See generally te, Preemption of Anticompetit State Statutes by Section 1 of the Sherman Act: Is An Agreement Required ?, 54 Fordham L. Rev. 247 (1985).

54. See, e.g. Kewane Corp., 416 U.S. 470 (1974).


environmental law.55 Supremacy questions have affected cases involvingAe regulation of public utilities, transportation, labor, navigation, securities and banking. Pr eemption issues are on the calendar at every Supreme Court Term. During the 1985-1986 Term, the CoV found that a Florida tax on aviation fuel was not preempted by the Federal Aviation Act, that North Carolina could impose an ad valorem tax on tobacco rtho u t contravening the 8 federal statutory scheme governing customs-bonded warehouses, 8 that Federal Energy Regulatory Commission -power,ptes prevailed in a- collision: with rates fixed by the North Carolina Utilities C IIIIIIIssion, and that states may esta b lish telephone plant and equipment depreciation rules applicable to intrastate telephonToservice even thouO those rules conflict with federal rules applicable to interstate service. The 1986-1987 Term already has brought us an important decision holding t hat a California law requiring pregnancy leave and subseq@ent reinstatement to employment is not preempted by tpe Federal Pregnancy Act, which only forbids discrimination on the basis of pregnancy.

It cannot be denied that the Supreme Court has taken on a major share of the burden of adjusting and monitoring federal-state relations by an ad hoc process of decision making in K reemption cases. In MY opinion, the results have been mixed and state interests often ave suffered in the process. There are those w h o are all too willing to leave the question of societal neegs for federal intervention to the federal courts as a function of preemption jurisprudence. This is judicial policy-making at its worst, and I re&ard the concept as dangerous, undemocratic and vi o lative of basic constitutional principles. Those who contend that the courts have a duty to apply the prepiption doctrine to promote cooperation between state and federal governments mistake the judicial function as fully as those wh&look to the doctrine as a vehicle for reconciling competing state and federal interests. The judicial role in applying the Supremacy Clause should be a limited one-to

5 5. See generally Note, Federal PreemRtion: Minois v. Ci!y of Milwaukee , 60 Tul. L. Rev. 407 (1985).

56. See generall j 1 R. Rotunda, J. Nowak & J. N. Young, Treatise on Constitutional Law. Substance and Procedure S 12.1, at 624 n.9 (1986); Note, Labor Law Preemption: Allis-Chalmers CoM, y, Lueck., 60 Tul. L Rev. 1077 (1986).

57. Wardair Canada, Inc. v. Florida Dept. of_Revenue, 106 S. Ct. 2369 (1986).

58. R. J. Reynolds Tobacco Co. v. Durham County, 107 S. Ct. 499 (1986).

59. Nantahala Power & Light Co. v. Thornbury, 106 S. Ct. 2349 (1986).

60. Louisiana Pub. Serv. Comm'n v. FCC@ 106 S. Ct. 1890 (1986).

61. California Fed. Sav. & Loan Ass'n v. Guerra, 55 U.S.L.W. 4077 (U.S. Jan. 13,1987).

62. See. e.g. Freeman, Dynamic Federalism. and the ConceRt of Preemntion 21 DePaul L Rev. 630, 648 (1972): see also. e.g. Comment, A ConceRtual Refinement of the Doctrine of Federal Preemption 22 J. Pub. L. 391, 404 (1973).

63. See. e.g. Note, The Preeml?tion Doctrine: Shifting Perggectives on Federalism and the Burger Court, 75 Colum. L. Rev. 623, 654 (1975). 64. See. e.g, Note, The Burir&r Court and the P@reemption Do ctrine: Federalism in the Balance 60 Notre Dame L. Rev. 1233 (1985).


declare federal legislation adopted under the powers *ranted to Congress by the Constitution supreme over any state law in actual collision with it. I suggest that a clear defini tion by Congress of the areas of regulation remaining to the states will in large part eliminate the confusion, inconsistency and burdensome caseloads that have been the hallmarks of preemption jurisprudence. I recommend the following: 1. There should be e stablished in each chamber of Congress a Stand ne Committee on State-Federal Relations. Te excellent report. entitled '.'The Status of Federalisin *in America" by the Working Group on Federalism of the Domestic Policy Council"' silgests the establishment o f federalism subcommittees of the judiciary committees in each House to review all proposed legislation with potentially adverse implications for state sovereignty. I believe that the dignity of federalism issues requires the a nt of a ppointme Standing C o mmittee to be charged, among other things, with the duty of reviewing all legislation that might in any way touch upon areas of state concern. Included would be the responsibill7 for coordinating state and federal legislation and for maintaining an awaren e ss 0 the constitutional limitations of congressional power. 2. The Standing Committee would be required to solicit the views of the states. those representing state interests and other concerned citizens. In the course of reviewing each piece o le slation involving areas of state concern and preemption possibilities, the spotlight o public opinion would be focused on the effect of the exercise of con&ressional om diverse sectors wou ' full consideration by the Committees of power. ut fr Id assure the matte r s under review. Although this process may be criticized for being slow and cumbersome, it will serve to deter hastily drawn and ill-conceived legislation affecting state interests. It may also reveal that existing state regulation is adequate and that ent ry of Congress into the field is unnecessary.

3. A detailed Renort of the findings and recommendations of the Committees would be filed for each 12iece of legislation reviewed. The Domestic Policy Council calls for a "federalism assessment," but I think th at the Committees can go much further. Their Reports should include the results of their research into existing and contemplated state legislation in the area under review and a compendium of the, views expressed to the Committees through hearings and com m unications. Included in each Re ort would be specific language to be included in the legislation relative to the followin matters: statement of the outer limits of federal reaulation in the area or field subject of tbe leizislation: a clear delineation of that which remains subiect to state regulations: and. if aDDlicable. a desm:ption of sDecifi Wes of existing state legislation to be displaced. The general savings clauses and the general supersedure clauses, as I have demonstrated, do not always work, an d these suggestions will go a long way toward eliminating preemption problems. 4. The Committee should undertake a review of all 12ast SuRreme Court decisions applying the Supremaa Clause . Such a review will enable Congress to determine whether 1-d - - i h iption decision, and is not a difficult project in these t isa ees wit any revious preen days olfconaputerizeTlegal research. The process should follow that recommended for a study of new legislation. It is an advantage of the Supremacy Clause that Congr e ss can overrule a Supreme Court decision on preemption by amending or rep@aling the federal legislation. The states, of course, have no such authority. In my own view, many of the decisions displacing state regulation were wrongly decided and have led to the extension of federal law into areas better regulated by the states. (Perhaps many of these areas are best left unregulated entirely.) Congress can do much to rectify the errors of the past.

6 5. Working Group on Federalism, Domestic Policy Council, the Status of Federalism in America (Oct. 15, 1986).

5. Laislation should be enacte deDrive federal agcncies gf their abilitV to Dreempt: slate authori1y by r lation.. The Supreme Court has held that a federal agency acting -M= within the scope of its congre ssionally delegated authority may preempt state regulation." Aside from the constitutional questions posed by reemption by administrative regulation, sound policy dictates that go-called inde endent ?ederal agencies, having diverse interests and agendas, s hould not be allowed to usplace state law. I cannot agree that administrative agencies have an role in balancing state and federal interests.67 Congress must reclaim its exclusive preroiative of deciding-when state law is-to.be preempted. If ny suggestion s are adopted and greater responsibility for the preservation of federalism is shifted to Congress, I am confident that the states wilf once again be 68 permitted to operate without interference in the areas in which they are most competent. sincerely beli e ve that Congress can assist in restoring the balance envisioned by the Founding Fathers when they created our federal system of overnment. By reducing the role of the courts in preemption litigation, Congress certai can help to overcome preemptive strikes on state autonomy. It could thereby e le us to return to the Supremacy Clause interpretations of John Marshall. He was, after all, a pretty good judge. But then, all he really had to go on was the written text of the United States Constitution.

6 6. Sr& Fidelity Fed. Sav. & Loan Ass'n v. De la Cuesta, 458 U.S. 141 (1982).

67. &ee Foote, Administrative Preemption: An Eneriement in RegglatM Federalism 70 Va. L. Rev. 1429, 1466 (1984).

68. Fein, Let the States Decide World & 1, Jan. 1987, at 183.

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