Modern Doctrine on Supremacy Clause

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Article VI, Clause 2:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Since the mid-twentieth century, the Supreme Court has channeled its Supremacy Clause jurisprudence into the language of “federal preemption.” 1 The Court’s cases identify several types of preemption. At the highest level of generality, federal law can preempt state law either expressly or impliedly. Federal law expressly preempts state law when it contains explicit language to that effect.2 By contrast, federal law impliedly preempts state law when that intent is implicit in its structure and purpose.3

The Court has also distinguished between different forms of implied preemption. As noted, field preemption occurs where federal law is “so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it,” or where “the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.” 4 In contrast, conflict preemption occurs where compliance with federal and state law is impossible ( “impossibility preemption” ) or where state law poses an obstacle to federal objectives ( “obstacle preemption” ).5

In all preemption cases, “the purpose of Congress is the ultimate touchstone” of the Court’s statutory analysis.6 In analyzing congressional purpose, the Court continues to invoke the presumption against preemption from Mintz and Rice—albeit in limited circumstances. While the Court regularly employed this presumption in the 1980s and 1990s,7 it has invoked it less consistently in recent years.8 Moreover, in a 2016 decision, the Court departed from prior case law9 when it explained that the presumption does not apply in express-preemption cases.10 The Court has also acknowledged exceptions to the presumption in cases involving subjects that the states have not traditionally regulated,11 and cases involving subjects in which the federal government has historically had a significant regulatory presence.12 Accordingly, while the presumption remains relevant in certain implied-preemption disputes,13 the Court has narrowed the circumstances in which it applies.

As the federal government’s regulatory role has expanded, preemption has become a ubiquitous feature of the modern administrative state. Preemptive federal statutes now shape the regulatory environment for most major industries, including pharmaceutical drugs, securities, nuclear safety, medical devices, air transportation, banking, automobiles, and telecommunications.14 While preemption is thus a pervasive feature of the contemporary legal landscape, the Supremacy Clause’s role in modern legal doctrine differs from that of many other constitutional provisions. Preemption cases are primarily exercises in statutory interpretation—not constitutional analysis. Generally, litigants do not dispute the Supremacy Clause’s meaning or advance conflicting theories on its scope. The basic principle enshrined in the Clause—federal supremacy—is now well-settled. As a result, the Supremacy Clause does not play a central role in modern debates over federalism; those battles are instead typically fought on the terrain of the Commerce Clause, the Spending Clause, and the Fourteenth Amendment.15 Today, preemption cases ordinarily turn on the same types of issues—like the textualist/purposivist divide and administrative deference—that recur in all manner of statutory litigation.16 But the Supremacy Clause’s modern role as a background principle hardly negates its importance. Federal supremacy remains a foundational doctrine of constitutional law that undergirds much of the modern regulatory state.

1: See Stephen A. Gardbaum, The Nature of Preemption, 49 Cornell L. Rev. 767, 789 n.65 (1994) (noting that the term “preemption” first appeared in the U.S. Reports in 1917, but was not generally used until the 1940s).
2: See Hillsborough Cnty. v. Automated Med. Labs., Inc., 471 U.S. 707, 713 (1985).
3: See id.
4: Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 98 (1992) (internal quotation marks and citation omitted).
5: See id.
6: Wyeth v. Levine, 555 U.S. 555, 565 (2009) (internal quotation marks and citation omitted).
7: See, e.g., De Buono v. NYSA-ILA Med. & Clinical Servs. Fund, 520 U.S. 806, 814 (1997); N.Y. State Conf. of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 654 (1995); Bldg. & Const. Trades Council v. Assoc. Builders & Contractors, 507 U.S. 218, 224 (1993); Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 518 (1992); Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 116 (1992); Metro. Life Ins. Co. v. Mass., 471 U.S. 724, 740 (1985); Hillsborough Cnty. v. Automated Med. Labs., Inc., 471 U.S. 707, 715 (1985); Maryland v. Louisiana, 451 U.S. 725, 746 (1981).
8: See, e.g., Mutual Pharm. Co., Inc. v. Bartlett, 133 S. Ct. 2466 (2013) (holding that federal law preempted state law without mentioning the presumption against preemption); Kurns v. R.R. Friction Prods. Corp., 565 U.S. 625 (2012) (similar); PLIVA, Inc. v. Mensing, 564 U.S. 604, 622 (2011) (similar); Bruesewitz v. Wyeth LLC, 562 U.S. 223 (2011) (similar); Rowe v. N.H. Motor Transp. Ass’n, 552 U.S. 364 (2008) (similar); Geier v. Am. Honda Motor Co., Inc., 529 U.S. 861 (2000) (similar).
9: See, e.g., CTS Corp. v. Waldburger, 134 S. Ct. 2175, 2188–89 (2014) ( “When the text of a pre-emption clause is susceptible of more than one plausible reading, courts ordinarily accept the reading that disfavors preemption.” ) (internal quotation marks and citations omitted); Wyeth v. Levine, 555 U.S. 555, 565 (2009) (explaining that the presumption against preemption applies “[i]n all preemption cases” ); Altria Grp., Inc. v. Good, 555 U.S. 70, 77 (2008) (explaining that the Court “begin[s its] analysis” with a presumption against preemption “[w]hen addressing questions of express or implied pre-emption” ) (emphasis added); Bates v. Dow Agrosciences, LLC, 544 U.S. 431, 449 (2005) ( “Even if [the defendant] had offered us a plausible alternative reading of [the relevant preemption clause]—indeed, even if its alternative were just as plausible as our reading of the text—we would nevertheless have a duty to accept the reading that disfavors preemption.” ); Egelhoff v. Egelhoff ex rel. Breiner, 532 U.S. 141, 151 (2001) (invoking the presumption against preemption in interpreting ERISA’s preemption clause); Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996) (explaining that the presumption against preemption applies “[i]n all preemption cases” ); De Buono v. NYSA-ILA Med. & Clinical Servs. Fund, 520 U.S. 806, 814 (1997) (invoking the presumption against preemption in interpreting ERISA’s preemption clause); Travelers, 514 U.S. at 654 (same); Cipollone, 505 U.S. at 518 (invoking the presumption against preemption in interpreting the Federal Cigarette Labeling and Advertising Act’s preemption clause).
10: Puerto Rico v. Franklin Cal. Tax-Free Tr., 136 S. Ct. 1938, 1946 (2016) (explaining that in express-preemption cases, the Court “do[es] not invoke any presumption against pre-emption but instead focus[es] on the plain wording of the [preemption] clause, which necessarily contains the best evidence of Congress’s pre-emptive intent” ).
11: See Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341, 347–48 (2001).
12: See United States v. Locke, 529 U.S. 89, 108 (2000).
13: See, e.g., Wyeth v. Levine, 555 U.S. 555, 565 (2009).
14: See generally Jay B. Sykes & Nicole Vanatko, Cong. Rsch. Serv., R45825, Federal Preemption: A Legal Primer (2019), https://crsreports.congress.gov/product/pdf/R/R45825.
15: That the Supremacy Clause is not the locus for most modern federalism disputes is attributable to its basic function in the structural Constitution. Unlike the Commerce Clause, the Spending Clause, and the Fourteenth Amendment, the Supremacy Clause is not an independent source of federal authority. Instead, the Supreme Court has explained that the Supremacy Clause is a “rule of decision” for resolving conflicts between federal and state law. Murphy v. NCAA, 138 S. Ct. 1461, 1479 (2018). Because the basic principle underlying this “rule of decision” is now well-established, contemporary federalism cases typically hinge on disagreements over the scope of provisions granting the federal government various powers.
16: See, e.g., Va. Uranium, Inc. v. Warren, 139 S. Ct. 1894, 1906 (2019) (Gorsuch, J., lead op.) (rejecting a field-preemption argument on textualist grounds); id. at 1909 (Ginsburg, J., concurring in the judgment) (concurring with Justice Gorsuch’s conclusion, but declining to join his “discussion of the perils of inquiring into legislative motive” ); id. at 1917 (Roberts, J., dissenting) (arguing that a state law fell within a federally preempted field because of its purpose); Nina A. Mendelson, Chevron and Preemption, 102 Mich. L. Rev. 737 (2004) (reviewing the case law on judicial deference to agency determinations that federal law preempts state law).