Against Freewheeling, Extratextual Obstacle Preemption: Is Justice Thomas the Lone Principled Federalist?

53 Pages Posted: 24 Mar 2010 Last revised: 27 Apr 2010

Date Written: March 23, 2010


The assessment of Justice Clarence Thomas as the lone principled federalist - supported on its face by his concurrence in Wyeth v. Levine, which solidifies his rejection of implied obstacle preemption, coupled with his resolute rejection of the dormant Commerce Clause - is far more complicated, due to the chimerical nature of abstract federalism arguments in preemption and statutory interpretation cases. Preemption jurisprudence is notably variegated. One dimension of the analysis is akin to statutory interpretation - how best to read and interpret the precise words used or implied by Congress in the statutes it enacts. Another layer consists of federalism-based presumptions, driven by a vision of the appropriate constitutional balance of power and authority between the federal and state governments. Embedded within this doctrinal edifice is another valence of political or policy predilections including affinities for regulation writ large and preferences toward bureaucratic versus common law jury enforced norms. And finally, an oft-overlooked piece of the puzzle is the interpretive and regulatory role assumed by the underlying federal agency. From these various dimensions of preemption analysis one might construct a series of representative matrices of institutional actors along which one could classify judicial philosophies: Congress vs. courts; courts vs. agencies; courts vs. states; agencies vs. states. Something like a rotating tetrahedron might be necessary to capture variation along each of these dimensions simultaneously.

Understanding Justice Thomas’s worldview of preemption along these dimensions provides a window into larger debates about how theories of statutory interpretation should intersect with and inform debates about preemption. Thomas’s position rests far more on fidelity to statutory text and preference for Congress over courts and agencies as a constitutional and institutional matter than it does on principles of abstract federalism or states’ rights. Thomas is guided by an overarching principle: a judge should refrain from acting unless constitutionally commanded to do something by Congress or an agency - in which case, text provides the roadmap for action. A core principle emerges: as between Congress, federal agencies, and courts, the decision rests with Congress. This proposition covers Thomas’s embrace of express preemption where Congress has definitively spoken, and concomitant rejection of implied obstacle preemption and the dormant Commerce Clause, each of which involves judicial assertion of a decision-making prerogative. But a second principle - a formalistic separation of the spheres of statutory interpretation and preemption - is key to reconciling Thomas’s views. This proposition makes sense of Thomas’s steadfast embrace of Chevron deference to agencies in statutory interpretation contexts that seem to be at odds with federalist principles, as well as his aversion to agency deference in preemption matters. The most significant strain in Thomas’s jurisprudence may be above all, a principled aversion to courts, and their “judicially manufactured policies.”

Keywords: Obstacle Preemption, Implied Preemption, Express Preemption, Wyeth V. Levine, Chevron, Preemption, Dormant Commerce Clause, Federalism

JEL Classification: K13, K41

Suggested Citation

Sharkey, Catherine M., Against Freewheeling, Extratextual Obstacle Preemption: Is Justice Thomas the Lone Principled Federalist? (March 23, 2010). NYU Journal of Law & Liberty, Vol. 5, No. 1, 2010, NYU School of Law, Public Law Research Paper No. 10-20, Available at SSRN:

Catherine M. Sharkey (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States
212-998-6729 (Phone)


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