The Problem of Federal Preemption: Reformulating the Black Letter Rules

Abstract

The Supreme Court's current preemption jurisprudence can be neatly summarized in three black letter rules that cannot easily be applied in a manner that protects federal policies from intrusions by the fifty States. The first rule is that the touchstone of preemption analysis is Congress's intention to permit or proscribe state regulatory activity.' Rule two says that preemption analysis, meaning the sources of federal preemptive authority, revolves around four distinct doctrinal categories - express preemption, conflict preemption, obstacle preemption, and field preemption. Rule three says that there should be a presumption against preemption where the relevant state regulatory activity falls within a field of traditional state authority. All three rules are landmarks of Supreme Court jurisprudence. All three were inherited by the Rehnquist Court from post-New Deal precedents. As currently formulated and applied, however, none of the three captures the constitutional calculus that should - and in the bestreasoned cases actually does - drive decisional outcomes. This article suggests reformulating the preemption rules, by reinforcing the best analysis from the best-reasoned cases, in order to achieve greater clarity and constitutional integrity in this important area of law.