Preemption Doctrine in the Roberts Court. Constitutional Dual Federalism by Another Name?



It is a familiar paradox of collective action that a multimember body can achieve a stable pattern of decisions that none of its members individually endorses. In the first six years of its existence, the Roberts Court has established a pattern of decisions regarding preemption of state by federal law that illustrate this paradox. The decisions follow a pattern that few of the opinions expressly acknowledge and that some justices expressly reject. Looking at what the Court does rather than at what it says, there are grounds for believing that the Court enforces judicially fashioned norms of enumerated powers and state autonomy in preemption doctrine that it refuses to enforce directly in constitutional doctrine. These norms are effectively judicially crafted common law with no obvious home in constitutional text but they might yet be functionally sensible ways of dividing powers in a federal regime all the same. They also appear to guide the Court’s preemption decisions more than any ideological commitment or sympathy for business or other interests.

What does this statutory doctrine of enumerated powers look like? In very rough and summary form, the Court treats “commercial” and “regulatory” contexts differently. As I use these terms, commercial contexts involve federal and state laws having the purpose of defining the rules for bargaining and remedies for breach of bargains, while regulatory contexts involve state and federal laws defining the baseline entitlements over which the parties bargain. I suggest that, in commercial contexts so defined, the Court’s decisions seem to favor preemption; in regulatory contexts, the decisions lean against preemption. In both contexts, the Court enforces the independence of each level of government from the other.

Put simply, the Roberts Court’s decisions seem to follow a traditional script of dual federalism—that is, carving out separate spheres for state and federal governments and enforcing norms of mutual noninterference between these spheres. Since Edwin Corwin’s early-twentieth-century attacks on this idea of separate spheres, scholars (including myself) have generally attacked such judicial efforts to delineate spheres. But the rough-and-ready category of “traditional state concerns” that the Court deploys but never clearly defines might map onto functionally sensible principles of federalism. In particular, when the Court enforces federal statutes having the purpose of breaking down regulatory barriers to freedom of contract, then the Court plays a historically familiar and, therefore, judicially congenial role of protecting a national market from state burdens on commerce. One might also argue that preemption is less costly when the state and federal rules in question define the framework for bargaining as opposed to the assignment of entitlements. By contrast, preemption of state laws defining entitlements to health, safety, bodily integrity, and property more generally tend to raise culturally and politically divisive issues that are best handled subnationally in a federal regime. This categorization, more than any reductionist label, best explains the Roberts Court’s preemption decisions to date.

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