Empowering States: The Need to Limit Federal Preemption

Abstract

I want to focus my remarks on how the Rehnquist Court has treated federalism in preemption cases. I want to argue the same hypocrisies are present there. And I want to make two points. First, I am going to argue the Rehnquist Court has been inconsistent with regard to federalism, using states' rights to narrow Congress's power, but not using a concern over states' rights to narrow preemption. One would think that a Supreme Court that cared about states' rights would want a narrowed preemption doctrine. One way of empowering the states is by restricting the scope of federal preemption. But that has not happened at all. In almost every preemption case, the Rehnquist Court has come down on the side of preemption.5 And second, I want to offer an alternate vision with regard to federalism that is about empowering government at all levels. One that sees the genius of federalism is having multiple levels of government to deal with social problems. This view broadly construes the scope of federal power, but it greatly narrows the reach of preemption.