Preemption of State and Local Laws

Hines v. Davidowitz

312 U.S. 52 (1941) · Westlaw

Pennsylvania’s Alien Registration Act of 1939 required every alien eighteen or older in the Commonwealth to register once each year, pay a fee, carry an identification card, and produce it on demand by a police officer or any agent of the Department of Labor and Industry. In 1940 Congress passed its own Alien Registration Act. A three-judge district court enjoined the Pennsylvania statute as a denial of equal protection. The Supreme Court affirmed the injunction — on a completely different ground, and in the course of doing so wrote the sentence the rest of this module turns on.

The famous sentence, at 67: “Our primary function is to determine whether, under the circumstances of this particular case, Pennsylvania’s law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”

Read it twice, because it is almost never quoted as written. It says “Pennsylvania’s law,” not “[state] law.” Later opinions and every casebook silently swap the subject to make it a general rule. And the Court calls this its “primary function” — it is describing the judicial inquiry, not announcing a rule of decision. Obstacle preemption enters the law as a sentence about what judges do.

The anti-formalist premise that immediately precedes it, same page, and it matters more than the famous sentence: “There is not — and from the very nature of the problem there cannot be — any rigid formula or rule which can be used as a universal pattern to determine the meaning and purpose of every act of Congress.” Black then lists the vocabulary the Court had been using — “conflicting; contrary to; occupying the field; repugnance; difference; irreconcilability; inconsistency; violation; curtailment; and interference” — and says that none of them “provides and infallible constitutional test or an exclusive constitutional yardstick.” (Sic; the reporter’s own slip for “an infallible.”) He closes: “In the final analysis, there can be no one crystal clear distinctly marked formula.” The taxonomy you will spend this module learning is a thing Hines expressly denies exists.

The reasoning that actually decides the case is not obstacle language at all; it is complete-scheme language, at 66–67: “And where the federal government, in the exercise of its superior authority in this field, has enacted a complete scheme of regulation and has therein provided a standard for the registration of aliens, states cannot, inconsistently with the purpose of Congress, conflict or interfere with, curtail or complement, the federal law, or enforce additional or auxiliary regulations.”

Subject matter does work here. At 68: “And it is also of importance that this legislation deals with the rights, liberties, and personal freedoms of human beings, and is in an entirely different category from state tax statutes or state pure food laws regulating the labels on cans.” Hold onto that sentence. Every case that follows in this module is about cans — avocados, warehouses, pesticide labels, nuclear plants — and the Court never again says that the subject matter of alien registration calls for a different preemption analysis than the subject matter of oil content in fruit.

The holding, at 74: Congress “provided a standard for alien registration in a single integrated and all-embracing system,” and “plainly manifested a purpose to do so in such a way as to protect the personal liberties of law-abiding aliens through one uniform national registration system… Under these circumstances, the Pennsylvania Act cannot be enforced.”

Stone, dissenting, makes the objection that Kennedy and Thomas will make sixty years later, and makes it better. At 75: “At a time when the exercise of the federal power is being rapidly expanded through Congressional action, it is difficult to overstate the importance of safeguarding against such diminution of state power by vague inferences as to what Congress might have intended if it had considered the matter or by reference to our own conceptions of a policy which Congress has not expressed and which is not plainly to be inferred from the legislation which it has enacted.” And at 74: “Assuming, as the Court holds, that Congress could constitutionally set up an exclusive registration system for aliens, I think it has not done so and that it is not the province of the courts to do that which Congress has failed to do.”

Commonly believed, not in the opinion. First, Hines did not invent the obstacle formulation. Footnote 20, attached to that very sentence, points to Savage v. Jones, 225 U.S. 501, 533 — “If the purpose of the act cannot otherwise be accomplished — if its operation within its chosen field else must be frustrated and its provisions be refused their natural effect — the state law must yield.” Hines crystallized a phrase already in the books. Second, the Court did not decide the equal protection question the district court had decided. At 62 it expressly declines appellees’ first three contentions and leaves open “the argument that the federal power in this field, whether exercised or unexercised, is exclusive.” The case is taught as an alienage case and is not one.

Two questions. If the operative reasoning at 66–67 is complete-scheme reasoning, on what authority do we treat Hines as the fountainhead of obstacle preemption — a category the opinion itself says cannot be reduced to a formula? And second: Black tells us the statute’s subject matter — human liberty rather than can labels — is “of importance.” Should it be? Notice that saying yes gives you a preemption doctrine whose intensity varies with how much the Court likes the underlying state policy.

A reporter note: no numerical vote is printed. The reporter’s entire notation is that Black delivered the opinion of the Court, that the judgment is “Affirmed,” and that Stone dissented, with “The CHIEF JUSTICE and MR. JUSTICE McREYNOLDS concur in this opinion.” The Chief Justice is Hughes. There is no “took no part” notation anywhere. “6–3” is arithmetic you perform on the Court’s composition; do not attribute it to the reporter.

Rice v. Santa Fe Elevator Corp.

331 U.S. 218 (1947) · Westlaw

Illinois had regulated grain warehouses since the era of Munn v. Illinois. The federal United States Warehouse Act licensed warehousemen too, and a 1931 amendment to § 29 provided that federal authority “shall be exclusive with respect to all persons securing a license hereunder.” Illinois grain producers and the Illinois Commerce Commission argued that the state scheme survived alongside the federal one. Twelve distinct matters of regulation were at issue. The Court held nine of them preempted and three not.

This is the case every preemption brief cites, and almost every brief cites it for a proposition it never states. Read the canonical passage, all of which sits on a single page, 230:

“Congress legislated here in a field which the States have traditionally occupied. So we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress. Such a purpose may be evidenced in several ways. The scheme of federal regulation may be so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it. Or the Act of Congress may touch a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject. Likewise, the object sought to be obtained by the federal law and the character of obligations imposed by it may reveal the same purpose. Or the state policy may produce a result inconsistent with the objective of the federal statute.”

The word “presumption” appears zero times in the opinion. The Court says assumption. “The presumption against preemption” is a label the profession attached later and then argued about as though the Court had coined it. When you see a brief write “the Rice presumption,” you are watching a citation to a word that is not in Rice.

Note also which factor Hines is cited for. In the reporter, each clause of that passage carries its own string cite, and Hines v. Davidowitz appears attached to the second factor — dominant federal interest — not to anything resembling obstacle preemption.

The candid qualifier that follows, spanning 230–231, is the honest sentence in the case and is never quoted: “It is often a perplexing question whether Congress has precluded state action or by the choice of selective regulatory measures has left the police power of the States undisturbed except as the state and federal regulations collide.”

The operative test as Rice itself states it, at 236 — this, not the four factors, is the sentence Pacific Gas & Electric will later quote back: “The test, therefore, is whether the matter on which the State asserts the right to act is in any way regulated by the Federal Act. If it is, the federal scheme prevails though it is a more modest, less pervasive regulatory plan than that of the State.”

Sit with that. A less demanding federal rule displaces a more demanding state rule, not because they conflict but because the federal government touched the subject at all. That is a very strong preemption rule, and the Court announces it four pages after announcing the assumption against preemption.

The holding, spanning 235–236: “Congress in effect said that the policy which it adopted in each of the nine was exclusive of all others; and that if a licensed warehouseman complied with each requirement, he did all that he need do. He could not be required by a State to do more or additional things or conform to added regulations, even though they in no way conflicted with what was demanded of him under the Federal Act.”

Rice lost. That is the thing to carry out of this case. The Court announced the pro-state canon and then found preemption on nine of the twelve matters, sweeping aside a large body of Illinois regulation that had been on the books for decades. The three survivors — approval of affiliate contracts, of contracts and leases with other utilities, and of securities issues — survived for a reason stated in four words at 237: “Into these fields it has not moved.”

Frankfurter, dissenting, with Rutledge, is complaining about exactly that. His closing sentence, at 247: “The Court displaces settled and fruitful State authority though it cannot replace it with federal authority.” A casebook that cites Rice only for the assumption has inverted the case.

Commonly believed, not in the opinion. Rice is not really a field-preemption decision in the modern taxonomy. The Court rested on express statutory text — the 1931 amendment making federal authority “exclusive with respect to all persons securing a license hereunder.” The four famous “factors” are dicta framing an express-preemption holding. And the vocabulary is not ours: the word “preempted” appears exactly once in the whole opinion, at 237, in the passage holding three matters not preempted. The Court’s own words are “superseded,” “precluded,” “displaced,” and “exclusive.”

Three questions. First, reconcile 230 and 236: how does an assumption that state police powers survive absent a “clear and manifest purpose” coexist with a test that asks only whether the matter “is in any way regulated by the Federal Act”? Second, if the canon did no work in the case that announced it, what work should it do in yours? Third — and this is the question Wyeth and Monsanto v. Durnell will make urgent — is an interpretive thumb on the scale a legitimate judicial tool, or is it a way of deciding a case without saying why?

A reporter note: no numerical vote is printed, and the line-up notation is unusual enough to quote exactly: “Opinion of the Court by MR. JUSTICE DOUGLAS, announced by MR. JUSTICE BLACK.” Douglas wrote it; Black read it from the bench because Douglas was absent. Frankfurter dissented, “with whom MR. JUSTICE RUTLEDGE concurs.” There is no “took no part” notation.

Florida Lime & Avocado Growers, Inc. v. Paul

373 U.S. 132 (1963) · Westlaw

California § 792 barred from the state any avocado containing less than 8% oil by weight. Federal marketing orders issued under the Agricultural Adjustment Act certified Florida avocados as mature by a different measure — picking dates keyed to variety and to the Gulf hurricane season — and some federally certified Florida fruit tested under 8% oil and was turned away at the California line. Florida growers sued. A three-judge district court ruled against them on the preemption claim. The Supreme Court affirmed in part, reversed in part, and remanded for a new trial on the dormant Commerce Clause claim alone.

The impossibility test, spanning 142–143 — the sentence Gade and Crosby will both quote:

“A holding of federal exclusion of state law is inescapable and requires no inquiry into congressional design where compliance with both federal and state regulations is a physical impossibility for one engaged in interstate commerce… That would be the situation here if, for example, the federal orders forbade the picking and marketing of any avocado testing more than 7% oil, while the California test excluded from the State any avocado measuring less than 8% oil content. No such impossibility of dual compliance is presented on this record, however.”

And the conclusion, same page: “Thus the present record demonstrates no inevitable collision between the two schemes of regulation, despite the dissimilarity of the standards.”

Notice what that passage is. It is not the holding, and the Court did not adopt impossibility as the test for conflict preemption. Impossibility, the Court says, makes exclusion “inescapable and requires no inquiry into congressional design” — a sufficient condition that lets a court skip the hard work. The Court then finds no impossibility and does the hard work anyway, across pages 143 to 152. The most-quoted sentence in the case is, strictly, an explanation of why a shortcut was unavailable. The hypothetical avocado — the one that would have to test both above 7% and below 8% — is the only place impossibility actually appears.

The general principle, at 142: “The principle to be derived from our decisions is that federal regulation of a field of commerce should not be deemed preemptive of state regulatory power in the absence of persuasive reasons — either that the nature of the regulated subject matter permits no other conclusion, or that the Congress has unmistakably so ordained.”

The overlooked sentence, also at 142, which answers an argument students make every year: “The test of whether both federal and state regulations may operate, or the state regulation must give way, is whether both regulations can be enforced without impairing the federal superintendence of the field, not whether they are aimed at similar or different objectives.” Shared purpose does not save a state law, and divergent purpose does not condemn it. (Monsanto v. Durnell will turn, sixty-three years later, on precisely this move — the Court there rejects a “same-standard” argument as operating “at far too high a level of generality.”)

Rice applied, at 146: the “settled mandate governing this inquiry, in deference to the fact that a state regulation of this kind is an exercise of the ‘historic police powers of the States,’ is not to decree such a federal displacement ‘unless that was the clear and manifest purpose of Congress,’ Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230.”

The holding, at 152: “It is enough to decide this aspect of the present case that we conclude that Congress has not attempted to oust or displace state powers to enact the regulations embodied in § 792. The most plausible inference from the legislative scheme is that the Congress contemplated that state power to enact such regulations should remain unimpaired.”

White, dissenting, joined by Black, Douglas and Clark, writes the obstacle-preemption opinion in this case — and he is in dissent. At 176–178: “We have, then, a case where the federal regulatory scheme is comprehensive, pervasive, and without a hiatus which the state regulations could fill. Both the subject matter and the statute call for uniformity. The conflict is substantial — at least six out of every 100 federally certified avocados are barred for failure to pass the California test — and it is located in a central portion of the federal scheme.” He closes, at 177–178, by deploying Hines against the majority: “The conclusion is inescapable that the California law is an obstacle to the accomplishment and execution of the congressional purposes and objectives.” Watch that. The impossibility test and the obstacle test are doing opposite work in the same case, in opposite opinions, and the case is filed under “impossibility.”

White’s opening quip, at 159, is also worth having: “In view of the Court’s disposition of the matter today, it is probable that this case like a revenant will return to us within another few Terms with a still more copious record.” He was right.

Commonly believed, not in the opinion. Three things. Brennan wrote the majority; he did not dissent — this is the most common misattribution about the case, and the dissent is White’s. The state law was not upheld outright: the Court reversed and remanded for a new trial on whether § 792 “unreasonably burdens or discriminates against interstate commerce,” expressly intimating no view. And the two standards were not in fact irreconcilable on this record — the Court noted that growers “might have avoided such rejections by leaving the fruit on the trees beyond the earliest picking date permitted by the federal regulations.” The case is routinely described as a head-on clash of standards. The record showed something softer.

Two questions. First, if impossibility is a sufficient condition that spares a court the inquiry into congressional design, is it a preemption doctrine at all, or is it a rule about when preemption analysis becomes unnecessary? Second: six of every hundred federally certified avocados were turned back. Is that a “physical impossibility,” an “obstacle,” or neither — and what in the opinion tells you how to choose?

A reporter note: no numerical vote is printed, and the dissent is limited by its own caption — “MR. JUSTICE WHITE, with whom MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS and MR. JUSTICE CLARK join, dissenting in No. 45,” that is, from the growers’ appeal only, not from the cross-appeal. There is no “took no part” notation. Four named dissenters out of nine yields 5–4 by arithmetic; the reporter says no such thing. One more caution: the decision date is May 13, 1963. CourtListener’s index reports June 17, 1963; the reporter’s own header and the U.S. Reports do not.

Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Commission

461 U.S. 190 (1983) · Westlaw

California conditioned the construction of new nuclear power plants on a finding by the State Energy Commission that the federal government had approved a means of permanent disposal of high-level nuclear waste. Utilities sued, arguing that the Atomic Energy Act occupies the field of nuclear regulation and that a state may not put itself in the way of nuclear construction. The Ninth Circuit upheld the moratorium. The Supreme Court affirmed — and did so by drawing a line that has organized nuclear federalism ever since.

The canonical sentence, spanning 211–212: “Congress has preserved the dual regulation of nuclear-powered electricity generation: the Federal Government maintains complete control of the safety and ‘nuclear’ aspects of energy generation; the States exercise their traditional authority over the need for additional generating capacity, the type of generating facilities to be licensed, land use, ratemaking, and the like.”

The field holding, at 212: “State safety regulation is not pre-empted only when it conflicts with federal law. Rather, the Federal Government has occupied the entire field of nuclear safety concerns, except the limited powers expressly ceded to the States.”

And the test, spanning 212–213, which is Rice at 236 quoted back verbatim: “When the Federal Government completely occupies a given field or an identifiable portion of it, as it has done here, the test of pre-emption is whether ‘the matter on which the State asserts the right to act is in any way regulated by the Federal Act.’ Rice v. Santa Fe Elevator Corp., 331 U.S., at 236. A state moratorium on nuclear construction grounded in safety concerns falls squarely within the prohibited field.”

The statutory hinge is § 274(k), at 210, and the Court’s handling of it is a small lesson in how to read a savings clause: “Section 274(k), by itself, limits only the pre-emptive effect of ‘this section,’ that is, § 274, and does not represent an affirmative grant of power to the States. But Congress, by permitting regulation ‘for purposes other than protection against radiation hazards’ underscored the distinction drawn in 1954 between the spheres of activity left respectively to the Federal Government and the States.” The clause does not give the states anything. It reveals the line Congress had already drawn.

Then the move that decides the case: the Court refuses to ask whether California was really worried about safety. At 216: “[T]here are two further reasons why we should not become embroiled in attempting to ascertain California’s true motive. First, inquiry into legislative motive is often an unsatisfactory venture. What motivates one legislator to vote for a statute is not necessarily what motivates scores of others to enact it. Second, it would be particularly pointless for us to engage in such inquiry here when it is clear that the States have been allowed to retain authority over the need for electrical generating facilities easily sufficient to permit a State so inclined to halt the construction of new nuclear plants by refusing on economic grounds to issue certificates of public convenience in individual proceedings. In these circumstances, it should be up to Congress to determine whether a State has misused the authority left in its hands.”

And so: “we accept California’s avowed economic purpose as the rationale for enacting § 25524.2. Accordingly, the statute lies outside the occupied field of nuclear safety regulation.”

Obstacle preemption is raised and rejected, at 220 (quoting Hines at 67) and resolved at 222–223: “The Court of Appeals is right, however, that the promotion of nuclear power is not to be accomplished ‘at all costs.’… [T]he legal reality remains that Congress has left sufficient authority in the States to allow the development of nuclear power to be slowed or even stopped for economic reasons. Given this statutory scheme, it is for Congress to rethink the division of regulatory authority in light of its possible exercise by the States to undercut a federal objective. The courts should not assume the role which our system assigns to Congress.”

Blackmun, joined by Stevens, concurring in part and in the judgment, refuses to join the very proposition the case is famous for. At 223: “I join the Court’s opinion, except to the extent it suggests that a State may not prohibit the construction of nuclear powerplants if the State is motivated by concerns about the safety of such plants. Since the Court finds that California was not so motivated, this suggestion is unnecessary to the Court’s holding. More important, I believe the Court’s dictum is wrong in several respects.”

His reasons, at 225: “Congress has occupied not the broad field of ‘nuclear safety concerns,’ but only the narrower area of how a nuclear plant should be constructed and operated to protect against radiation hazards… There is, in short, no evidence that Congress had a ‘clear and manifest purpose,’ Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947), to force States to be blind to whatever special dangers are posed by nuclear plants.” And the practical point: “Federal pre-emption of the States’ authority to decide against nuclear power would create a regulatory vacuum.”

Commonly believed, not in the opinion. Any statement that PG&E held a state may not ban nuclear plants on safety grounds is, on the opinion’s own terms, contested dictum — two Justices said so inside the U.S. Reports. The Court did not find California economically motivated; it declined to inquire into motive at all and accepted the avowed purpose. So the case is weak authority for smoking out pretextual safety regulation; it holds the opposite, that courts should not try. And the occupied field is “nuclear safety concerns,” not nuclear power — need, type, land use and ratemaking stay with the states. This is as much a federalism-preserving decision as a preemptive one.

Two questions. First, if a state may stop nuclear construction on economic grounds but not on safety grounds, and the Court will not inquire into which it meant, what is the safety limit doing? Is it a rule, or an instruction about how to write a preamble? Second, the Court says it is “for Congress to rethink the division of regulatory authority” when a state uses retained power to undercut a federal objective. Compare that to Crosby, seventeen years later, where the Court decides for itself that state law “stands as an obstacle.” What distinguishes the two?

A reporter note: no numerical vote is printed. The reporter’s entire notation is two lines — White delivered the opinion of the Court, and Blackmun, with Stevens, concurred in part and in the judgment. There is no dissent and no “took no part” notation; the cluster record lists no non-participating Justices. “9–0” is a defensible inference and a misleading one: it hides the fact that two Justices declined to join the opinion’s most-quoted proposition.

Gade v. National Solid Wastes Management Association

505 U.S. 88 (1992) · Westlaw

Illinois enacted two licensing acts for workers who handle hazardous waste, requiring training and certification. OSHA had already promulgated federal standards for the same workers. Section 18 of the Occupational Safety and Health Act lets a state regulate an occupational safety and health issue covered by a federal standard only under a state plan approved by the Secretary of Labor. Illinois had no approved plan. The Seventh Circuit held the acts preempted to the extent they regulate occupational safety; the Supreme Court affirmed.

Before anything else, read the line-up, because this case is not what its reputation says it is. From the reporter’s notation at 90:

“O’Connor, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, III, and IV, in which Rehnquist, C. J., and White, Scalia, and Kennedy, JJ., joined, and an opinion with respect to Part II, in which Rehnquist, C. J., and White and Scalia, JJ., joined. Kennedy, J., filed an opinion concurring in part and concurring in the judgment… Souter, J., filed a dissenting opinion, in which Blackmun, Stevens, and Thomas, JJ., joined.”

So: Parts I, III and IV are the opinion of the Court — five votes. Part II is a four-Justice plurality. And Part II is where the famous preemption taxonomy sits, and where the implied-obstacle-preemption holding sits. Five Justices — Kennedy plus the four dissenters — refused that route.

The taxonomy, at 98, in Part II, plurality only: “Pre-emption may be either expressed or implied, and ‘is compelled whether Congress’ command is explicitly stated in the statute’s language or implicitly contained in its structure and purpose.’… Absent explicit pre-emptive language, we have recognized at least two types of implied pre-emption: field pre-emption, where the scheme of federal regulation is ‘so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it,’ … and conflict pre-emption, where ‘compliance with both federal and state regulations is a physical impossibility,’ Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142–143 (1963), or where state law ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,’ Hines v. Davidowitz, 312 U.S. 52, 67 (1941).”

Every case you have read this week is in that sentence. That is why it is the passage the profession quotes. It is also four votes, and it does not say what it is usually said to say — it does not announce three categories; it announces express preemption plus “at least two types of implied pre-emption.” The tidy three-box version in this case comes from Kennedy at 109–110 and Souter at 115, both quoting English v. General Electric Co. Cite them, not the plurality, if you want three boxes.

The plurality’s holding, at 98–99: “[W]e hold that nonapproved state regulation of occupational safety and health issues for which a federal standard is in effect is impliedly pre-empted as in conflict with the full purposes and objectives of the OSH Act… The design of the statute persuades us that Congress intended to subject employers and employees to only one set of regulations, be it federal or state.”

The five-vote holding is in Part III, at 107, and it is a different kind of rule altogether — a test about what counts as an occupational standard: “In sum, a state law requirement that directly, substantially, and specifically regulates occupational safety and health is an occupational safety and health standard within the meaning of the Act. That such a law may also have a nonoccupational impact does not render it any less of an occupational standard for purposes of pre-emption analysis.”

With the carve-out, same page: “state laws of general applicability (such as laws regarding traffic safety or fire safety) that do not conflict with OSHA standards and that regulate the conduct of workers and nonworkers alike would generally not be pre-empted… because they regulate workers simply as members of the general public.”

Kennedy, concurring in part and in the judgment, is the reason this case matters beyond OSHA. At 110: “This is not an application of our pre-emption standards, it is but a conclusory statement of pre-emption, as it assumes that Congress intended exclusive federal jurisdiction. I do not see how such a mode of analysis advances our consideration of the case.”

He would have found express preemption, and he sets a threshold for the implied kind, same page: “Our decisions establish that a high threshold must be met if a state law is to be pre-empted for conflicting with the purposes of a federal Act. Any conflict must be ‘irreconcilable… The existence of a hypothetical or potential conflict is insufficient to warrant the pre-emption of the state statute.’… In my view, this type of pre-emption should be limited to state laws which impose prohibitions or obligations which are in direct contradiction to Congress’ primary objectives, as conveyed with clarity in the federal legislation.”

And then, at 111, the sentence that will be quoted back at the Court seventeen years later by Thomas in Wyeth: “A freewheeling judicial inquiry into whether a state statute is in tension with federal objectives would undercut the principle that it is Congress rather than the courts that pre-empts state law.” He closes at 114: “I therefore join all but Part II of the Court’s opinion, and concur in the judgment of the Court.”

Souter, dissenting with Blackmun, Stevens and Thomas, at 114, frames what he takes the Court to have done: § 18 “pre-empts state regulation of any occupational safety or health issue as to which there is a federal standard, whether or not the state regulation conflicts with the federal standard in the sense that enforcement of one would preclude application of the other. With respect, I dissent.”

Commonly believed, not in the opinion. Gade did not hold the OSH Act expressly preempts state law — footnote 2 at 104 says the statutory language “cannot… rise[] to the level of express pre-emption” and that the Court “prefer[s] to place this case in the category of implied pre-emption.” Only Kennedy found express preemption. That same footnote adds a candid line worth teaching: “Frequently, the pre-emptive ‘label’ we choose will carry with it substantive implications for the scope of pre-emption. In this case, however, it does not.” And the Court struck down nothing: at 109, “we do not specifically consider which of the licensing acts’ provisions will stand or fall under the pre-emption analysis set forth above.”

Three questions. First, if the taxonomy has four votes and the dual-impact test has five, which is Gade’s holding — and why does the profession cite the part that lost? Second, Kennedy would require a conflict that is “irreconcilable” and a congressional objective “conveyed with clarity in the federal legislation.” Is that a workable standard, or has he simply renamed express preemption? Third, hold Kennedy’s sentence at 111 in your hand for the rest of the module. Ask, in each remaining case, whether the Court is doing the inquiry he describes.

A reporter note: no numerical vote is printed. The judgment split 5–4 in effect; the rationale split 4–1–4. Say that, rather than “5–4.”

Crosby v. National Foreign Trade Council

530 U.S. 363 (2000) · Westlaw

In June 1996 Massachusetts enacted “An Act Regulating State Contracts with Companies Doing Business with or in Burma (Myanmar).” It barred state entities from buying goods or services from anyone on a “restricted purchase list” of companies doing business with Burma, with narrow exemptions for news reporting, international telecommunications, and medical supplies, and no general provision for waiver or termination. Three months later Congress enacted its own Burma sanctions in § 570 of the Foreign Operations Appropriations Act, 1997. The National Foreign Trade Council sued. The First Circuit affirmed an injunction on three independent grounds. The Supreme Court affirmed on one of them.

The holding, at 366: “The issue is whether the Burma law of the Commonwealth of Massachusetts, restricting the authority of its agencies to purchase goods or services from companies doing business with Burma, is invalid under the Supremacy Clause of the National Constitution owing to its threat of frustrating federal statutory objectives. We hold that it is.”

The doctrinal formula, at 373 — and read the last sentence carefully, because it is the most candid statement of what obstacle preemption is that you will find in the U.S. Reports: “We will find preemption where it is impossible for a private party to comply with both state and federal law, see, e.g., Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142–143 (1963), and where ‘under the circumstances of [a] particular case, [the challenged state law] stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’ Hines, supra, at 67. What is a sufficient obstacle is a matter of judgment, to be informed by examining the federal statute as a whole and identifying its purpose and intended effects.”

A matter of judgment. Kennedy in Gade had called that a “freewheeling judicial inquiry.” Souter answers by conceding the character of the exercise and defending it.

The holding applied, spanning 373–374: “we see the state Burma law as an obstacle to the accomplishment of Congress’s full objectives under the federal Act. We find that the state law undermines the intended purpose and ‘natural effect’ of at least three provisions of the federal Act, that is, its delegation of effective discretion to the President to control economic sanctions against Burma, its limitation of sanctions solely to United States persons and new investment, and its directive to the President to proceed diplomatically in developing a comprehensive, multilateral strategy toward Burma.”

The “one voice” passage, at 381 — note the hedge in the middle, which is the most important clause in the opinion: “It is not merely that the differences between the state and federal Acts in scope and type of sanctions threaten to complicate discussions; they compromise the very capacity of the President to speak for the Nation with one voice in dealing with other governments. We need not get into any general consideration of limits of state action affecting foreign affairs to realize that the President’s maximum power to persuade rests on his capacity to bargain for the benefits of access to the entire national economy without exception for enclaves fenced off willy-nilly by inconsistent political tactics.”

The conclusion, at 388: “Because the state Act’s provisions conflict with Congress’s specific delegation to the President of flexible discretion, with limitation of sanctions to a limited scope of actions and actors, and with direction to develop a comprehensive, multilateral strategy under the federal Act, it is preempted, and its application is unconstitutional, under the Supremacy Clause.”

Commonly believed, not in the opinion — and this one is worth a minute. Crosby is taught, cited, and briefed as a foreign affairs preemption case, a dormant Foreign Commerce Clause case, and a field preemption case. It is none of the three, by the Court’s own express refusal. Footnote 8, at 374: “Because our conclusion that the state Act conflicts with federal law is sufficient to affirm the judgment below, we decline to speak to field preemption as a separate issue, … or to pass on the First Circuit’s rulings addressing the foreign affairs power or the dormant Foreign Commerce Clause. See Ashwander v. TVA, 297 U.S. 288, 346–347 (1936) (concurring opinion).”

The First Circuit had affirmed on all three grounds, including Zschernig v. Miller. The Supreme Court affirmed on statutory obstacle preemption alone and disclaimed the other two in a footnote most readers never reach. If you cite Crosby for Zschernig, you are citing the First Circuit.

The Court also reserved the Rice question, at 374 n.7: “We leave for another day a consideration in this context of a presumption against preemption… Assuming, arguendo, that some presumption against preemption is appropriate, we conclude … that the state Act presents a sufficient obstacle.”

Two further corrections. “Unanimous, 9–0” is true of the judgment and false of the opinion: Souter wrote for seven, and Scalia, joined by Thomas, concurred in the judgment only. But their disagreement is entirely about legislative history — Scalia’s position is that the statute’s meaning is obvious on its face without committee reports — so it is misleading to describe the case as doctrinally fractured. His best line, at 391, on the majority’s needless recourse to legislative history: “in a way, this utter lack of necessity makes it even worse — calling to mind St. Augustine’s enormous remorse at stealing pears when he was not even hungry, and just for the devil of it.” He closes: “For this reason, I join only the judgment of the Court.”

And the holding is narrower than “states may not impose their own sanctions.” It follows from three identified features of this federal Act. Along the way the Court rejected a market-participant or spending-power exemption (374 n.6, citing Wisconsin Dept. of Industry v. Gould Inc.) and rejected congressional silence as implied approval, at 387–388: “the silence of Congress is ambiguous.”

Three questions. First, Crosby is the case in this module where obstacle preemption does all the work and draws no dissent on that score at all — Scalia and Thomas object only to the footnotes. Eight years before Wyeth, and eight years after Kennedy’s objection in Gade, why does obstacle preemption go unchallenged here? Is it the subject matter? Second, if “what is a sufficient obstacle is a matter of judgment,” whose judgment, constrained by what? Third: the federal Act delegated discretion to the President. Massachusetts narrowed his room to bargain. Is the preempting federal “law” the statute, or the President’s discretion under it? Keep that question — Monsanto v. Durnell asks it again about an agency.

A reporter note: the line-up at 365 reads that Souter delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, O’Connor, Kennedy, Ginsburg, and Breyer joined; Scalia filed an opinion concurring in the judgment, in which Thomas joined. No numerical vote is printed.

Lorillard Tobacco Co. v. Reilly

533 U.S. 525 (2001) · Westlaw

In 1999 the Attorney General of Massachusetts issued regulations aimed at underage smoking. Two of them are the ones that matter for this module: a ban on outdoor tobacco advertising within 1,000 feet of a school or playground, and a rule that point-of-sale advertising in stores near schools be placed at least five feet off the floor. Cigarette makers argued that federal law preempted both rules as applied to cigarettes. The Court agreed, five to four. The rules on smokeless tobacco and cigars fell too, but on a different ground — the First Amendment — because the federal statute covers cigarettes only. This note is about the preemption half. The advertising half belongs to First Amendment Law.

The statute. The Federal Cigarette Labeling and Advertising Act, as amended in 1969, provides: “No requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this chapter.” 15 U.S.C. § 1334(b). This is express preemption. The task, the Court said, was “to identify the domain expressly pre-empted.” 533 U.S. at 541.

Two phrases, and the Court read both broadly.

• “With respect to the advertising or promotion.” The court of appeals had read this to reach only rules about what cigarette ads say. The Supreme Court rejected that. A rule about where an ad may appear is still a rule “with respect to” advertising, because these rules “expressly target cigarette advertising.” Id. at 547.
• “Based on smoking and health.” Massachusetts argued that its rules were about keeping children from seeing ads, not about health. The Court was not persuaded: “At bottom, the concern about youth exposure to cigarette advertising is intertwined with the concern about cigarette smoking and health.” Id. at 548. Congress, it held, “prohibited state cigarette advertising regulations motivated by concerns about smoking and health.” Ibid.

The holding, at 551: “Congress pre-empted state cigarette advertising regulations like the Attorney General’s because they would upset federal legislative choices to require specific warnings and to impose the ban on cigarette advertising in electronic media in order to address concerns about smoking and health. Accordingly, we hold that the Attorney General’s outdoor and point-of-sale advertising regulations targeting cigarettes are pre-empted by the FCLAA.”

The limit the Court drew for itself, and it matters as much as the holding. At 550: “we hold only that the FCLAA pre-empts state regulations targeting cigarette advertising. States remain free to enact generally applicable zoning regulations, and to regulate conduct with respect to cigarette use and sales.” And at 551–52: “Restrictions on the location and size of advertisements that apply to cigarettes on equal terms with other products appear to be outside the ambit of the pre-emption provision. Such restrictions are not ‘based on smoking and health.’” The test that survives is one question: does the rule single out cigarettes? A billboard ordinance for every product is fine. A billboard ordinance for cigarettes is preempted.

Justice Stevens, dissenting on preemption, joined by Justices Ginsburg, Breyer and Souter, began where this module begins, with Rice: courts must “‘start with the assumption that the historic police powers of the States [are] not to be superseded by … Federal Act unless that [is] the clear and manifest purpose of Congress.’” Id. at 591 (Stevens, J., concurring in part, concurring in the judgment in part, and dissenting in part) (quoting Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516 (1992)). Two such powers were at stake here: land use and the protection of children. Congress wanted a national standard for what cigarette ads say, so that manufacturers would not face fifty different warning requirements. It had no reason to care where ads appear, and “[l]aws prohibiting a cigarette company from hanging a billboard near a school in Boston in no way conflict with laws permitting the hanging of such a billboard in other jurisdictions.” Id. at 594. On his reading, the 1969 amendment was “intended to expand the provision to capture a narrow set of content regulations,” “not to fundamentally reorder the division of regulatory authority between the Federal and State Governments.” Id. at 595.

Where this sits in the module. Put Lorillard beside the others:

• Rice supplies the presumption against preemption.
• Gade and Crosby show implied preemption doing the work.
• Lorillard is express preemption, and the majority barely uses the presumption. It recites the assumption once, at 541–42, and then reads both phrases of the clause for their full breadth.
• Wyeth v. Levine, which comes next, goes the other way: the presumption returns, and a state failure-to-warn claim survives.

Watch how much turns on whether the Court treats the words of the clause as the whole answer or as the start of one. Justice Stevens’s complaint is that the majority read a clause written to prevent inconsistent labels as though it displaced the States’ ordinary power over land.

Two questions. First, the Court says a general zoning rule survives but a cigarette-specific one does not. Suppose a city bans all billboards within 1,000 feet of a school, and 90 percent of the billboards it removes are cigarette ads. Preempted? What does the answer tell you about whether the test is about text, purpose, or effect? Second, Lopez (Module 3) held that Congress could not ban guns near schools under the Commerce Clause. Lorillard holds that a State cannot ban cigarette billboards near schools because Congress displaced it. Justice Stevens thought the pairing ironic; the Court said it was “inapposite.” Id. at 550. Is it?

A note on the reporter. No numerical vote is printed, and the five change from Part to Part. On preemption (Parts II–A and II–B) the Court is Justice O’Connor, joined by Chief Justice Rehnquist and Justices Scalia, Kennedy and Thomas. The Part holding that zoning and conduct rules survive (II–C) is unanimous. The full reading of the case, with the line-up printed verbatim, remains on the course website.

Wyeth v. Levine

555 U.S. 555 (2009) · Westlaw

Diana Levine, a musician, was given Phenergan for nausea by the IV-push method. The drug entered an artery, gangrene followed, and her forearm was amputated. Phenergan’s FDA-approved label warned about intra-arterial injection but permitted IV push. A Vermont jury found the warning inadequate under state tort law. Wyeth argued that it could not have changed the label without FDA permission and that a state jury may not second-guess the FDA. The Vermont Supreme Court affirmed the verdict; so did the Supreme Court of the United States.

The two cornerstones, at 565: “First, ‘the purpose of Congress is the ultimate touchstone in every pre-emption case.’ Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996)… Second, ‘[i]n all pre-emption cases, and particularly in those in which Congress has “legislated … in a field which the States have traditionally occupied,” … we “start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.”’” That is Rice at 230, sixty-two years on, quoted through an intermediary and still called an assumption.

The sentence the next fifteen years of pharmaceutical litigation were fought over, at 571: “Of course, the FDA retains authority to reject labeling changes made pursuant to the CBE regulation in its review of the manufacturer’s supplemental application, just as it retains such authority in reviewing all supplemental applications. But absent clear evidence that the FDA would not have approved a change to Phenergan’s label, we will not conclude that it was impossible for Wyeth to comply with both federal and state requirements.”

The phrase “clear evidence” appears exactly once in this case. Once, in that sentence, across all four opinions. It is never defined, no standard of proof is attached, and no burden is allocated. PLIVA v. Mensing, Mutual Pharmaceutical v. Bartlett, an eventual circuit split, and Merck Sharp & Dohme Corp. v. Albrecht a decade later all grew out of a phrase the Court used once and did not explain. When a student asks you what standard a court applies, the honest answer for ten years was: nobody knew, because the Court had not said.

The premise the standard rests on, spanning 570–571: “Wyeth suggests that the FDA, rather than the manufacturer, bears primary responsibility for drug labeling. Yet through many amendments to the FDCA and to FDA regulations, it has remained a central premise of federal drug regulation that the manufacturer bears responsibility for the content of its label at all times. It is charged both with crafting an adequate label and with ensuring that its warnings remain adequate as long as the drug is on the market.” Mark that sentence. It is the load-bearing premise of the whole opinion, and it is exactly the premise the Court reverses course on in Monsanto v. Durnell for pesticide labels under FIFRA, where approval locks the label in place.

The conclusion, at 581: “In short, Wyeth has not persuaded us that failure-to-warn claims like Levine’s obstruct the federal regulation of drug labeling. Congress has repeatedly declined to pre-empt state law, and the FDA’s recently adopted position that state tort suits interfere with its statutory mandate is entitled to no weight. Although we recognize that some state-law claims might well frustrate the achievement of congressional objectives, this is not such a case.”

Thomas, concurring in the judgment, is why this case closes the module. His thesis, at 583: “I write separately, however, because I cannot join the majority’s implicit endorsement of far-reaching implied pre-emption doctrines. In particular, I have become increasingly skeptical of this Court’s ‘purposes and objectives’ pre-emption jurisprudence. Under this approach, the Court routinely invalidates state laws based on perceived conflicts with broad federal policy objectives, legislative history, or generalized notions of congressional purposes that are not embodied within the text of federal law. Because implied pre-emption doctrines that wander far from the statutory text are inconsistent with the Constitution, I concur only in the judgment.”

At 588 he quotes Kennedy’s Gade concurrence back at the Court: preemption analysis should not be “[a] freewheeling judicial inquiry into whether a state statute is in tension with federal objectives, but an inquiry into whether the ordinary meanings of state and federal law conflict.” At 585 he anchors it in text: “in order to protect the delicate balance of power mandated by the Constitution, the Supremacy Clause must operate only in accordance with its terms” — and quotes the Clause, emphasizing “made in Pursuance thereof.”

And the close, at 604: “[T]his brand of the Court’s pre-emption jurisprudence facilitates freewheeling, extra-textual, and broad evaluations of the ‘purposes and objectives’ embodied within federal law. This, in turn, leads to decisions giving improperly broad pre-emptive effect to judicially manufactured policies… Because such a sweeping approach to pre-emption leads to the illegitimate — and thus, unconstitutional — invalidation of state laws, I can no longer assent to a doctrine that pre-empts state laws merely because they ‘stan[d] as an obstacle to the accomplishment and execution of the full purposes and objectives’ of federal law, Hines, 312 U.S., at 67, as perceived by this Court.”

That is the arc of this module in three opinions. Kennedy states the objection in Gade as a matter of prudence in 1992. Crosby in 2000 does the thing objected to, with no dissent on that ground. Thomas restates the objection in 2009 as a violation of the Supremacy Clause. Then watch him supply the seventh vote in Monsanto v. Durnell to an express preemption holding — and write separately to doubt whether agency action can preempt at all.

Alito, dissenting, with Roberts, C. J., and Scalia, opens at 604: “This case illustrates that tragic facts make bad law. The Court holds that a state tort jury, rather than the Food and Drug Administration (FDA), is ultimately responsible for regulating warning labels for prescription drugs. That result cannot be reconciled with Geier v. American Honda Motor Co., 529 U.S. 861 (2000), or general principles of conflict pre-emption.” His reframing, at 605: “the real issue is whether a state tort jury can countermand the FDA’s considered judgment that Phenergan’s FDA-mandated warning label renders its intravenous (IV) use ‘safe.’” And at 628: “The FDA told Wyeth that Phenergan’s label renders its use ‘safe.’ But the State of Vermont, through its tort law, said: ‘Not so.’”

Commonly believed, not in the opinion. Wyeth did not reject obstacle preemption for drug labeling — at 581 the Court says some state claims “might well frustrate the achievement of congressional objectives,” but “this is not such a case.” It did not hold that FDA regulations cannot preempt: at 580, “we have no occasion in this case to consider the pre-emptive effect of a specific agency regulation bearing the force of law,” which is the entire reason Breyer wrote separately. It did not defer to the FDA — the agency’s 2006 preamble claiming preemption got “no weight” because it was adopted without notice and comment and “reverses the FDA’s own longstanding position without providing a reasoned explanation” (577). And the question was narrow, at 565: whether the label “did not contain an adequate warning about using the IV-push method,” not whether a state could ban IV push.

Two questions. First, if “clear evidence” is not an evidentiary standard the Court defined, what was it — and is a court entitled to decide a preemption case on a phrase it does not explain? Second: Thomas concurs in the judgment for Levine while rejecting the framework that gets her there. Is his position stable? Ask it again after Monsanto v. Durnell, where he joins an express-preemption majority in full and then questions whether agency action can preempt at all.

A reporter note: the judgment was 6–3; the opinion of the Court commanded five votes. Stevens wrote for himself, Kennedy, Souter, Ginsburg and Breyer. Breyer concurred; Thomas concurred in the judgment; Alito dissented with Roberts, C. J., and Scalia. Saying “6–3 for Levine” hides that the reasoning had a bare majority and that the sixth vote rejected it.