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'The Ordinary Diet of the Law': The Presumption Against Preemption in the Roberts Court

92 Pages Posted: 27 Jun 2012  

Ernest A. Young

Duke University School of Law

Date Written: June 27, 2012


In a preemption case decided over a decade ago, Justice Breyer wrote that “in today’s world, filled with legal complexity, the true test of federalist principle may lie . . . in those many statutory cases where courts interpret the mass of technical detail that is the ordinary diet of the law.” This article surveys the Roberts Court’s preemption jurisprudence, focusing on five cases decided in OT 2010. I argue that Justice Breyer was right — that is, that because current federalism jurisprudence largely eschews any effort to define exclusive spheres of state and federal regulatory jurisdiction, the most important federalism cases involve efforts to determine the preemptive scope of federal legislation.

The key doctrinal tool in preemption cases is the “presumption against preemption” — a canon of statutory construction recognized by the Court in the 1947 case of Rice v. Santa Fe Elevator Corp. The Rice presumption is under nearly constant siege today from both litigants and commentators. This article explores the Roberts Court’s use (and non-use) of the presumption and defends the presumption against its academic critics. In particular, I address Caleb Nelson’s important argument that Rice’s presumption is inconsistent with the original meaning of the Supremacy Clause, concluding that Professor Nelson’s historical argument does not rule out the presumption as it is presently applied. Even if the original history did disfavor the presumption, Rice is a necessary doctrinal innovation that balances other developments in federalism doctrine, such as the contemporary Court’s unwillingness to enforce a robust enumerated powers doctrine. Nelson’s argument has a second aspect, however, which would considerably raise the bar for conflict preemption. In a series of separate opinions, Justice Thomas has adopted this approach and rejected the contemporary notion of “purposes and objects” preemption. I argue that this approach can and should coexist with Rice’s presumption against preemption in express preemption cases, and that in any event one cannot consistently cite Nelson’s historical argument to reject Rice and, at the same time, maintain broad notions of implied preemption.

The article concludes with a discussion of the politics of preemption cases, which frequently find conservative and liberal justices reversing their usual stances on federalism. Although a number of factors contribute to this ironic reversal, the fact that federal preemption is generally de-regulatory in its effect. I suggest that a libertarian theory of federalism favoring widespread preemption is shortsighted, because robust state institutions remain necessary to our system of vertical checks and balances.

Keywords: Supremacy Clause, preemption, federalism

Suggested Citation

Young, Ernest A., 'The Ordinary Diet of the Law': The Presumption Against Preemption in the Roberts Court (June 27, 2012). Supreme Court Review, Vol. 2011, 2012. Available at SSRN: or

Ernest A. Young (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States
919-613-8506 (Phone)

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