'Clarifying' Murphy’s Law: If Something Can Go Wrong (in Reconciling Commandeering and Conditional Preemption Doctrines), Did it?
42 Pages Posted: 2 Nov 2018
Date Written: October 24, 2018
Murphy v National Collegiate Athletic Association (NCAA) is perplexing. Not because the outcome was indecisive; the Court held 7-2 that key provisions of the federal Professional and Amateur Sports Protection Act (PASPA or Act) did not operate as permissible federal preemption but instead unconstitutionally commandeered state legislative processes in violation of federalism principles, and by a 6-3 margin ruled that no other part of the Act was severable. Yet observers sought more than a definitive outcome – they wanted a ruling that carefully explained how commandeering and preemption doctrines fit together, and in this respect they may feel disappointed.
Various aspects of Murphy may incline some analysts to conclude that the Court, in holding PASPA violates the anti-commandeering principle, simply goofed. Others might believe the Court wasn’t too concerned with edification or even the fate of a particular federal statute; it was merely sending a broadside message that the commandeering prohibition is alive and well. Others still might understand the Justices’ decision in almost opposite terms – as not about commandeering doctrine at all but as a visceral reaction against an awkward and turgid federal enactment. Under any of these readings, Murphy is a one-off ruling that won’t have much impact in future cases.
I think lower courts, commentators and the Court itself should, whenever reasonably possible, avoid treating any ruling as good for only one statute or one dispute. The Court’s job is to provide guidance on important and unsettled legal matters, and we should at least presume the Justices do their job.
What kinds of guidance are possible? Perhaps Murphy implicitly overrules seminal cases concerning conditional preemption. Or interjects new judicial scrutiny of congressional intent when Congress undertakes to partner with the states in “cooperative federalism,” the term often used to describe conditional federal funding and conditional preemption. Or maybe it introduces a new substantive limit on preemption by preventing Congress from imposing overly tough choices on states. These readings, while possible, attribute a lot of unarticulated ambition to the Court, and an ambition that, importantly, doesn’t fit well into preexisting federalism doctrine and that would create problems down the road.
The account I offer below, under which Congress’ conditional preemption powers remain intact but can be exercised only when Congress lays out its conditions with clarity – just as Congress must do in the companion strand of cooperative federalism doctrine of conditional funding – is one that explains the outcome of the case and that builds on the facts and language drawn from the entire majority opinion, relating both to the “merits” and to severability. Under my reading, Murphy’s result is defensible (because Congress did not lay out very clearly for states the conditions with which states had to comply to prevent preemptive federal law from coming into effect) and forges significant new federalism doctrine, but new doctrine that complements rather than upends existing federalism traditions. Because my reading does not disregard, insult or even minimize what the Court decided or said, yet neither does it ascribe to the Court a wish to dramatically, problematically and silently revamp the balance of state and federal power, I think it represents the most responsible path forward until the Court revisits matters.
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