Abstract

http://ssrn.com/abstract=2313114
 


 



Preemption and Textualism


Daniel J. Meltzer


Harvard Law School

August 20, 2013

Michigan Law Review, Forthcoming
Harvard Public Law Working Paper No. 13-31

Abstract:     
In the critically important area of preemption, the Supreme Court’s approach to statutory interpretation differs from the approach it follows elsewhere. Whether in politically salient matters, like challenges to Arizona’s immigration laws, or in more conventional cases, such as those in which state tort liability overlaps with federal regulation, the Court’s preemption decisions reflect a highly purposive approach to reading statutes, most notably through the application of “obstacle preemption” analysis. Recently, however, Justice Thomas has objected to the Court’s failure in preemption cases to respect its more textualist approach to issues of statutory interpretation, and he has urged that obstacle preemption be abandoned. Although three other justices have endorsed some aspects of Justice Thomas’s approach, no dramatic shift in the Court’s approach has yet occurred.

This Article examines recent preemption decisions and seeks to explain why textualist premises have so little grip in this domain. One might therefore view this Article as, in part, a case study of the feasibility of textualism. I argue that Congress lacks the capacity, foresight, and linguistic tools to be able adequately to specify in statutory text the proper resolution of the range of preemption issues that invariably arise under regulatory statutes of any complexity. Consequently, the task of fashioning a workable legal system that integrates state and federal law necessarily falls to courts (with assistance in some instances from federal administrative agencies). This Article concludes by examining recent challenges to the presumption against preemption that Professor Nelson posed and Justice Thomas endorsed. It criticizes the Nelson/Thomas understanding that the Supremacy Clause calls for rejection of the presumption against preemption and explains the significant role that that presumption continues to play.

Number of Pages in PDF File: 63

Keywords: preemption, statutory interpretation, textualism, federalism, legislation, judicial lawmaking

Accepted Paper Series


Download This Paper

Date posted: August 21, 2013 ; Last revised: November 1, 2013

Suggested Citation

Meltzer, Daniel J., Preemption and Textualism (August 20, 2013). Michigan Law Review, Forthcoming; Harvard Public Law Working Paper No. 13-31. Available at SSRN: http://ssrn.com/abstract=2313114

Contact Information

Daniel J. Meltzer (Contact Author)
Harvard Law School ( email )
1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States
617-495-4659 (Phone)
617-496-4865 (Fax)
Feedback to SSRN


Paper statistics
Abstract Views: 176
Downloads: 59
Download Rank: 212,484

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo5 in 0.406 seconds