Federal Preemption: James Madison, Call Your Office

Abstract

Erwin Chemerinsky has highlighted the crucial problem and, as it turns out, the central point of our disagreement with respect to preemption and its federalism dimension. Federalism, Chemerinsky says, is (or ought to be) about empowering government at all levels. This perspective implies preemption doctrines that ensure, so far as possible, that the strictest regulator-whether that is the federal government or a single state-shall dominate the entire universe of transactions. In other words, more regulation is ipsofacto better regulation. Chemerinsky is not alone in taking this view. Of late, a growing band of scholars, advocates, and Supreme Court Justices have embraced similar "empowerment" theories of federalism. But those theories are antithetical to the constitutional logic and architecture.

A constitution, or at any rate the Constitution we have, is not about empowering but about disciplining government, and federalism is a large part of that enterprise. As James Madison famously wrote, "you must first enable the government to control the governed; and in the next place oblige it to control itself." For the purpose of controlling the governed, one central empowered sovereign is quite enough and (as the examples of France and of most authoritarian regimes teach) probably more efficient than a more decentralized and fragmented arrangement. The point of endowing subordinate (state) sovereigns with authority over the same citizens and territory-while limiting the central authority's sphere of authority-is to create rival centers of power, to make "[a]mbition ... counteract ambition," and in that fashion to make government control and discipline itself. The constitutional structure-not, as Chemerinsky would have it, the Bill of Rights exclusively—is supposed to do the work here.

From this constitutional vantage, the preemption landscape will look very different from Chemerinsky's universe. His empowerment federalism produces an exceedingly robust presumption against preemption. The constitutional perspective, in contrast, suggests that a judicial presumption for or against preemption should depend on the congruence of federal regulation with the core purposes of enumerated federal powers-foremost, the protection of interstate commerce. For reasons suggested below,'° I am somewhat skeptical about the extent to which constitutional presumptions can yield a coherent "preemption jurisprudence." But to the extent that we can approximate that objective, we can do a whole lot better than Chemerinskian empowerment federalism-and probably, somewhat better than the Rehnquist Court.