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Why Does the Court Have Discretion to Define Statutes’ Preemptive Effect?
Before delving into the details of Roberts Court precedents, it is useful to take a step back and explain how, as a general matter, courts enjoy broad discretion to define a statute’s preemptive effect. That effect, of course, turns on the specific text and context peculiar to each statute, but there are recurrent ambiguities in preemption cases that cut across different statutes. These recurring ambiguities provide courts with the discretion to choose between preempting or permitting state law. Depending on how a judge addresses these ambiguities, decisions may adopt a presumption against or in favor of preemption, regardless of the particular statute that the judge happens to be construing.
Regardless of the particular statute, courts repeatedly confront the problem of defining what it means for a state law to conflict with a statutorily protected federal interest. Inclusion of a preemption clause typically does little to reduce this ambiguity of defining a forbidden conflict. Such clauses specify with reasonable clarity the federal interests protected from state law—for instance,
“employee benefit plan,” “price, route, or service of any motor carrier,” “[a] written provision ... to settle by arbitration a controversy,” “the safety or effectiveness of [a medical] device,” and so forth. These clauses, however, generally do not specify how a state law is prohibited from affecting the federally protected activity, beyond specifying that state laws may not affect that statutorily defined federal interest in some manner vaguely described by a prepositional phrase—for instance, prohibitions on state laws that “relate to,” are “based on,” are “requirements ... with respect to,” or are simply regulations “of” the federally protected activity. Squeezing much meaning from these parsimonious prepositions is, as Justice Scalia has noted with respect to the Employee Retirement Income Security Act’s (ERISA’s) preemption clause, “doomed to failure”: there simply is not enough text in these bare prepositions to fuel a persuasive argument about the precise relationship between state law and federally protected activities that is forbidden by the clause.
So-called express preemption, therefore, is hardly much of an improvement in clarity over “implied” preemption, which defines the statutorily protected federal activities through judicially inferred “purposes” that state law must not “frustrate” or “fields” into which state laws may not encroach. The interpretative difficulty with implied preemption, as with express preemption, is figuring out the scope of forbidden relationship between state laws and federal interests toward which terms like “conflicts,” “frustration,” and so forth, vaguely gesture: whether a court “interprets” judicially coined terms like frustration of purpose or the statutory prepositional phrases like related to, the scope of discretion is largely the same, because both terms are equally ambiguous.
In particular, both express and implied preemption are persistently ambiguous about whether or not state law must single out the federally protected interest in order for a court to infer that forbidden relationship. Should the Court presume that there is no preemption of state law absent discrimination by that law against the federally protected activity or topic, or is it sufficient that a generally applicable state law merely affect the federal interest in some judicially specified way? In the former case, generally applicable laws that treat federal interests evenhandedly would not be preempted, while, in the latter case, courts would have to carve out special exemptions to generally applicable state laws in order to protect federal interests from the judicially specified harmful effects.
The US Supreme Court’s preemption doctrine prior to the Roberts Court looked to some judicially inferred statutory purpose to resolve this ambiguity, but the Court’s analysis tended to be ad hoc and peremptory, allowing the Court to choose a sweeping or narrow version of preemption relatively unconfined by statutory language. In effect, the Court engaged in a sort of common-law policy making, attributing broad or narrow preemptive purposes to federal statutes in ways explicable (if rarely explicitly explained) as a judicial assessment of the relative importance of centralized enforcement and uniformity or decentralized subnational enforcement and diversity.
State hospital taxes, for instance, were held not to “relate to” ERISA benefit plans, despite their conceded effects on the rates charged, and services offered, by those plans. Yet a state probate code’s automatic revocation of a deceased employee’s designated insurance beneficiary was held to be preempted by ERISA, because it intruded on “an area of core ERISA concern”—the “uniform administrative scheme” for distributing employee benefits based on plan documents irrespective of variations in state laws. The Court asserted that ERISA was more concerned with reducing the costs of plan administrators’ interpreting employment documents than with reducing the tax burden of employee benefit plans, so generally applicable taxes did not require special exemptions to accommodate benefit plans, but generally applicable probate codes did. The judicial reasoning associated with these judicial distinctions between “nondiscrimination” and “special exemption” theories of preemption was often exceedingly slender, amounting to little more than an impatient “we-know-it-when-we-see-it” quality of hand- waving assertion. As a consequence, the Court has persistently enjoyed discretion unconstrained by text to narrowly construe a statute’s preemptive effect with a “nondiscrimination” theory of preemption or broadly construe it with a “special exemption” theory of preemption. How has the Roberts Court used this latitude?
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