Avoiding the Preemption Muddle: Reading Professor Bickel and Judge Garland

Abstract

Although preemption cases require courts to apply a broad range of statutory regimes, the underlying question in each is the same: Does federal law oust state law? Thus, it is reasonable to expect that the analytic framework courts use in these cases should be consistent. In all preemption cases the analysis requires four steps: the court must construe a federal law, construe a state law, determine whether any overlap or tension between the two laws may be tolerated, and identify the basis for Congress’s authority to displace state law. The Supreme Court has been fractured over the basic rules for performing each of these steps. The law in this area is indeed a “muddle.” Counter to the long-held view of the Court as the arbiter of conflicts between federal and state regulatory authority, this Article argues that as long as no stable majority of the Justices has established a position on the basic analytic framework, the Court should exercise its certiorari discretion not to review most preemption cases.

Even if the Supreme Court were to do so, lower courts would remain in a bind. These courts lack the discretionary authority to refuse to hear preemption cases yet are tasked with implementing the muddle of contemporary preemption doctrine. One way in which lower courts might avoid this bind is by applying a variety of techniques that Alexander Bickel and other have referred to as “passive virtues.” This Article finds in the on- and off-bench writings by Judge Merrick Garland an illustration of how a judge with an aversion to preemption decisions that broadly and unpredictably displace state law might apply some of these techniques in order to avoid preemption decisions. The Article concludes by examining two questions. First, does the use by appellate judges of standing and other doctrines to avoid the far-reaching and unpredictable results of deciding preemption questions risk distorting the former out of proportion to the benefits of the latter? And second, is an approach premised on avoiding preemption cases a desirable one for the Supreme Court over the long term? Using Judge Garland’s judicial output as a case study, this Article suggests that while there are risks, avoidance may be preferable to the application of the current, muddled doctrine of preemption.

Keywords: preemption, Supreme Court, regulation, Merrick Garland

JEL Classification: K10, K20