Supreme Court of Texas 

══════════ 

No. 21-0769 

══════════ 

Angela Horton and Kevin Houser, 

Petitioners, 

v. 

The Kansas City Southern Railway Company, 

Respondent

═══════════════════════════════════════ 

On Petition for Review from the 

Court of Appeals for the Fifth District of Texas 

═══════════════════════════════════════ 

JUSTICE BUSBY, joined by Justice Devine, Justice Blacklock, and 

Justice Young, concurring. 

The heart of this case should be decided as a straightforward 

question of statutory interpretation: when both chambers of the United 

States Congress passed and the President signed the Interstate 

Commerce Commission Termination Act (ICCTA) in 1995, did they 

actually delegate to the Surface Transportation Board (STB) exclusive 

jurisdiction over humped railroad crossings, preempting state commonlaw negligence suits concerning accidents at such crossings? I join the 

Court’s opinion holding that the answer to this question is no. 
2 

In addition to deciding this question of express preemption, 

United States Supreme Court precedent requires us to consider implied 

obstacle preemption. Under Hines v. Davidowitz and its progeny, we 

must analyze whether allowing the plaintiffs to bring their claim in 

court would stand as an “obstacle to the accomplishment and execution 

of the full purposes and objectives of Congress.” 312 U.S. 52, 67 (1941). 

Although I agree with my colleagues that the claim before us 

presents no such obstacle, I am concerned that this doctrine has 

developed in a manner that poses questions judges are neither 

authorized to ask under our Constitution nor able to answer in a 

consistent and principled manner. As Justice Clarence Thomas has 

observed for two decades, “implied pre-emption doctrines that wander 

far from the statutory text are inconsistent with the Constitution.” 

Wyeth v. Levine, 555 U.S. 555, 583 (2009) (Thomas, J., concurring in 

judgment). In particular, implied obstacle preemption invites judges to 

imagine what the unexpressed “purposes and objectives” of Congress 

might have been and speculate about whether there is tension between 

those purposes and state law that rises to the level of an “obstacle.” Such 

creativity seems especially misplaced when (as here) the statute 

includes an express preemption clause, which “necessarily contains the 

best evidence of Congress’ pre-emptive intent.” CSX Transp., Inc. v. 

Easterwood, 507 U.S. 658, 664 (1993). 

Justice Thomas has urged the Court to abandon its “purposes and 

objectives” approach to implied preemption in favor of a test that asks 

whether state law stands in “logical contradiction” to federal law. Merck 

Sharp & Dohme Corp. v. Albrecht, 139 S. Ct. 1668, 1681 (2019) (Thomas, 
3 

J., concurring). This test, which draws on the research of Professor 

Caleb Nelson,1 commendably seeks to refocus the Court’s preemption 

precedent on the original public meaning of the Supremacy Clause. In 

its lack of originalist provenance, empirical unworkability, 

encouragement of standards-less judicial discretion, and 

constitutionally illegitimate aggregation of federal power, the Supreme 

Court’s “purposes and objectives” preemption jurisprudence bears flaws 

akin to those that recently led the Court to repudiate the Lemon test. 

See Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2427 (2022) 

(overruling Lemon v. Kurtzman, 403 U.S. 602 (1971)). 

Moreover, because ICCTA’s preemption clause is coupled with a 

delegation of exclusive jurisdiction to the STB, administrative law 

principles should inform the proper preemption analysis. The 

presumption underlying the U.S. Supreme Court’s implied obstacle 

preemption jurisprudence is exactly contrary to that underlying its 

recent federal administrative law jurisprudence—particularly the major 

questions doctrine and the principle that clear statutory direction is 

required to transfer core state power to a federal agency. Instead of the 

statutorily prescribed scope of an agency’s powers giving rise to a 

presumption that Congress did not mean to delegate major questions 

outside that scope exclusively to the agency, implied obstacle 

preemption presumes that matters outside that scope are also 

withdrawn from other decisionmakers as necessary to fulfill Congress’s 

“purposes and objectives.” 

1

 Caleb Nelson, Preemption, 86 VA. L. REV. 225 (2000). 
4 

These two approaches to federalism, the separation of powers, 

and statutory interpretation are irreconcilable. Because this case 

painfully illustrates the failures of implied obstacle preemption’s 

“‘ambitiou[s]’, abstract, and ahistorical”2 approach to what is one of the 

“most frequently used doctrine[s] of constitutional law in practice,”3 I 

write separately to urge the U.S. Supreme Court to reconsider Hines and 

its progeny. 

I. ICCTA does not expressly preempt ordinary state 

common-law claims. 

ICCTA provides that “[t]he jurisdiction of the [STB] . . . is 

exclusive” over (1) “transportation by rail carriers” and the “remedies 

provided by this part [of the Act] with respect to” matters including 

carriers’ rates, operating rules, routes, services, and facilities, and 

(2) “the construction, acquisition, operation, abandonment, or 

discontinuance of” tracks or facilities. 49 U.S.C. § 10501(b). The next 

sentence goes on to say that “the remedies provided under this part with 

respect to regulation of rail transportation are exclusive and preempt 

the remedies provided under Federal or State law.” Id. 

The text and context of Section 10501(b) make clear that ordinary 

state common-law claims regarding rail crossing safety are not 

expressly preempted by this second sentence. Instead, as I explain 

below, state- and federal-law remedies “with respect to regulation of rail 

2 Kennedy, 142 S. Ct. at 2427 (quoting Am. Legion v. Am. Humanist 

Ass’n, 139 S. Ct. 2067, 2087 (2019)). 

3

 Steven A. Gardbaum, The Nature of Preemption, 79 CORNELL L. REV. 

767, 768 (1994). 
5 

transportation” include only laws that are specifically directed toward 

managing or governing the aspects of rail transportation that the 

statute gives the STB exclusive jurisdiction to regulate. And the state 

and federal “remedies” Congress preempted in Section 10501(b) are 

those that Congress granted the STB exclusive jurisdiction to provide 

regarding economic and operational aspects of rail transportation. 

Throughout this case, respondent KCSR has emphasized the 

wrong question. The central issue Congress sought to address in ICCTA 

generally, and within Section 10501(b) in particular, was not the scope 

of federal preemption of state-law claims. Rather, Congress was focused 

on specifying the parameters of exclusive regulatory power being 

delegated to an executive branch agency, and Congress provided for 

preemption of state and federal “remedies” to ensure that the agency’s 

jurisdiction within the specified range of its expertise was exclusive. 

Thus, instead of asking whether Congress deprived state courts of the 

ability to address common-law negligence claims such as the ones at 

issue here, we should be asking whether Congress clearly delegated to 

the STB the exclusive authority to provide a remedy. 

The answer to that question is no. Like generally applicable 

“state property laws and rules of civil procedure that” on their face 

“‘have nothing to do with railroad crossings,’ . . . state negligence law” 

typically has “effects . . . on rail operations [that] are merely incidental”; 

thus, ordinary negligence claims do not qualify as preempted “regulation 

of rail transportation.” Elam v. Kan. City S. Ry., 635 F.3d 796, 813 (5th 

Cir. 2011) (quoting Franks Inv. Co. v. Union Pac. R.R., 593 F.3d 404, 
6 

411 (5th Cir. 2010) (en banc)).4 Instead, “State law[s]” that provide 

remedies “with respect to regulation of rail transportation” are laws—

generally positive laws—that are specifically directed toward managing 

or governing such transportation.5 This statutory phrase “necessarily 

means something qualitatively different from laws ‘with respect to rail 

transportation.’” Fla. E. Coast Ry. v. City of W. Palm Beach, 266 F.3d 

1324, 1331 (11th Cir. 2001). An overly broad reading of Section 

10501(b)’s express preemption provision would deprive the word 

“regulation” of independent meaning,6 and the Court appropriately 

declines to follow KCSR down that path. 

4

 Under this rule, the only common-law claims expressly preempted by 

ICCTA will typically be negligence per se claims based on statutes, regulations, 

or ordinances that directly regulate an aspect of rail transportation over which 

the STB has exclusive jurisdiction. See also Friberg v. Kan. City S. Ry., 

267 F.3d 439, 444 (5th Cir. 2001). I express no view regarding whether a state 

court could recognize a particular common-law negligence duty so specifically 

tailored to rail transportation that it would qualify as preempted “regulation.” 

5 Elam, 635 F.3d at 805-07; Franks Inv. Co., 593 F.3d at 411; Emerson 

v. Kan. City S. Ry., 503 F.3d 1126, 1130-31 (10th Cir. 2007) (McConnell, J.); 

see also Dan’s City Used Cars, Inc. v. Pelkey, 569 U.S. 251, 260-62 (2013) 

(observing that phrase “with respect to” limits preemptive scope to laws that 

directly “concern” or “involve” the matter described); Pilot Life Ins. Co. v. 

Dedeaux, 481 U.S. 41, 50 (1987) (explaining that “[a] common-sense view of the 

word ‘regulates’ would lead to the conclusion” that a law regulates a subject if 

it is “specifically directed toward that” subject). 

6 Cf. Sprietsma v. Mercury Marine, 537 U.S. 51, 63 (2002) (“[T]he terms 

‘law’ and ‘regulation’ used together in the pre-emption clause indicate that 

Congress pre-empted only positive enactments. If ‘law’ were read broadly so 

as to include the common law, it might also be interpreted to include 

regulations, which would render the express reference to ‘regulation’ in the 

pre-emption clause superfluous.”). As in Sprietsma, the word “regulation” here 

must be given a meaning different from “law,” though “regulation” is used 

somewhat differently in each statute. The statute at issue in Sprietsma 
7 

In addition, although this section gives the STB exclusive 

jurisdiction to regulate certain economic and operational aspects of rail 

transportation and provide remedies with respect to that regulation, it 

does not preempt “all other law” regarding those aspects of rail 

transportation—a phrase Congress used elsewhere to preempt laws that 

would limit the STB’s exclusive authority to permit railroad mergers 

and acquisitions.7 49 U.S.C. § 11321. Instead, Section 10501(b) focuses 

its preemptive force more narrowly on state- and federal-law “remedies” 

that Congress granted the STB exclusive jurisdiction to “provid[e] under 

this part” of ICCTA. Here, KCSR identifies no “remedies provided under 

this part” that would bear on plaintiffs’ common-law negligence claim 

regarding crossing safety, so it is not preempted. 

Section 10501(b) is “unlike a typical preemption provision.”8

Rather, it is a jurisdictional provision designed to establish an exclusive 

zone of jurisdiction9 for the STB in areas within its defined range of 

generally preempts (among other things) a state or local “law or regulation” 

establishing boating safety standards or equipment requirements not identical 

to federal regulations, 46 U.S.C. § 4306, while the statute at issue here 

preempts “remedies provided under Federal or State law” “with respect to 

regulation of rail transportation.” 49 U.S.C. § 10501(b). 

7

 See United Sav. Ass’n of Tex. v. Timbers of Inwood Forest Assocs., 

484 U.S. 365, 371 (1988) (Scalia, J.) (“A provision that may seem ambiguous in 

isolation is often clarified by the remainder of the statutory scheme.”). 

8 Kansas v. Garcia, 140 S. Ct. 791, 802 (2020) (discussing 8 U.S.C. 

§ 1324a). 

9

 Because Section 10501(b) is a jurisdictional statute that delegates 

power from Congress to a federal administrative agency, we must also read it 

with a careful eye toward the capaciousness of the power, as we assume that 

Congress did not intend to “hide elephants in mouseholes.” Whitman v. Am. 

Trucking Ass’ns, Inc., 531 U.S. 457, 468 (2001). 
8 

economic and operational expertise, under which it provides parties 

with “remedies” that are different from those offered by other federal 

agencies that regulate railroad safety: the Federal Railroad 

Administration (FRA), Federal Transit Administration (FTA), and 

National Transportation Safety Board (NTSB).10 By ensuring that the 

various federal agencies regulating railroads stay in their proverbial 

lanes, Section 10501(b) is designed (for example) to prevent the FRA 

from setting railroad rates while preserving its authority to establish 

“metrics and minimum standards for measuring the performance and 

service quality of intercity passenger train operations.”11 

This backdrop of multiple federal agencies with different zones of 

jurisdiction confirms that the STB’s professed expertise in the economic 

and non-safety operational regulation of railroads—namely “railroad 

rate, practice, and service issues and rail restructuring transactions, 

including mergers, line sales, line construction, and line 

abandonments”12—would not be implicated by suits under generally 

applicable tort law. The Federal Railroad Safety Act (FRSA) expressly 

recognizes as much, including savings clauses to clarify that state laws 

and causes of action relating to railroad safety are not preempted unless 

10 Federal administrative law emphasizes a close relationship between 

an agency’s substantive policy expertise and the scope and nature of its 

authority. “When the agency has no comparative expertise in resolving a 

regulatory ambiguity, Congress presumably would not grant it that authority.” 

Kisor v. Wilkie, 139 S. Ct. 2400, 2417 (2019). 

11 49 C.F.R. § 273.1. 

12 About STB, SURFACE TRANSP. BD., https://www.stb.gov/about-stb/

(last visited June 30, 2023). 
9 

they are incompatible with federal rules on the subject. 49 U.S.C. 

§ 20106(a)(2), (b)(1). 

Nothing about the claim at issue here, or common-law negligence 

claims in general, implicates the STB’s expertise. Indeed, the STB has 

firmly declined to exercise jurisdiction over such cases, stating its view 

that common-law negligence claims involving rail crossing accidents are 

regulated by FRSA, not ICCTA.13 “[J]ust as established practice may 

shed light on the extent of power conveyed by general statutory 

language, so the want of assertation of power by those who presumably 

would be alert to exercise it, is equally significant in determining 

whether such power was actually conferred.” West Virginia v. EPA, 

142 S. Ct. 2587, 2610 (2022) (quoting FTC v. Bunte Bros., Inc., 312 U.S. 

349, 352 (1941) (Frankfurter, J.)). 

Given the STB’s view, holding that ICCTA preempts plaintiffs’ 

common-law negligence theory regarding the humped crossing would 

likely leave them without a forum to adjudicate that theory, effectively 

granting the railroad immunity from any negligence regarding the 

hump. “[U]nlike most administrative and legislative regulations,” statelaw tort claims “necessarily perform an important remedial role.” 

Sprietsma v. Mercury Marine, 537 U.S. 51, 64 (2002). As the Supreme 

13 See, e.g., Waneck, Fed Carr. Cas. P 37399 (S.T.B. May 23, 2018) (pet. 

for declaratory order); Waneck et al. Pet. for Declaratory Order and on Motion 

for Reconsideration, No. FD 36167, 2018 WL 5723286 (S.T.B. Oct. 31, 2018) 

(denying reconsideration). Cf. Tubbs, No. FD 35792, 2014 WL 5508153, at *4 

(S.T.B. Oct. 29, 2014) (pet. for declaratory order) (holding that plaintiffs’ 

common-law tort claims, arising from railroad’s failure to provide adequate 

drainage on tracks that damaged adjacent property during flood, were 

preempted under ICCTA). 
10 

Court has observed, “[i]t is difficult to believe that Congress would, 

without comment, remove all means of judicial recourse for those 

injured by” conduct contrary to law. Silkwood v. Kerr-McGee Corp., 

464 U.S. 238, 251 (1984). In addition, such a holding would be difficult 

to reconcile with the FRSA savings clauses as well as the U.S. Supreme 

Court’s longstanding view that “[t]he care of grade crossings is 

peculiarly within the police power of the States.” Lehigh Valley R.R. Co. 

v. Bd. of Pub. Util. Comm’rs, 278 U.S. 24, 35 (1928). 

For over half a century, our Court has adhered to the principle 

that “if a statute . . . deprives a person of a common law right, the statute 

will be strictly construed in the sense that it will not be extended beyond 

its plain meaning or applied to cases not clearly within its purview.” 

Satterfield v. Satterfield, 448 S.W.2d 456, 459 (Tex. 1969).14 The U.S. 

Supreme Court has adopted a similar presumption, holding that “[i]n 

order to abrogate a common-law principle, the statute must speak 

directly to the question addressed by the common law.” United States v. 

Texas, 507 U.S. 529, 534 (1993) (internal quotation marks omitted). In 

addition, “Congress should make its intention clear and manifest if it 

intends to pre-empt the historic powers of the States.” Will v. Mich. Dep’t 

of State Police, 491 U.S. 58, 65 (1989) (internal quotation marks 

omitted). And courts “would not expect Congress to take . . . [the] 

extraordinary step” of “stripping state courts of jurisdiction to hear their 

14 Just a few months ago, we re-affirmed this principle in American 

National Insurance Co. v. Arce, where we refused to hold that a statutory 

scheme had the effect of destabilizing more than a hundred years of commonlaw precedent because the two could be read in harmony with each other. See 

__ S.W.3d __, 2023 WL 3134718, at *9 (Tex. Apr. 28, 2023) (No. 21-0843). 
11 

own state claims” without a “clear statement.” Atl. Richfield Co. v. 

Christian, 140 S. Ct. 1335, 1351 (2020). 

Section 10501(b) does not satisfy any of these clear-statement 

rules. Thus, KCSR continues to be subject to the Texas common law of 

torts. 

In sum, the words “regulation” and “remedies” in Section 10501(b) 

mean that ICCTA expressly preempts statutes, ordinances, and 

regulations passed or promulgated by any body other than the STB or 

Congress that directly regulate an aspect of rail transportation safety or 

operations for which ICCTA provides a remedy. Because ordinary 

common-law tort claims like those at issue here are not included in this 

category, they are not expressly preempted by ICCTA’s exclusive 

jurisdiction provision. 

II. Implied obstacle preemption is inconsistent with the 

Supremacy Clause. 

In addition to express preemption, the U.S. Supreme Court has 

held that federal law impliedly preempts state law in two circumstances: 

(1) when a “pervasive” framework of regulation supports the inference 

that “Congress, acting within its proper authority, has determined [that 

a field] must be regulated by its exclusive governance,” and (2) when 

state law “conflict[s] with federal law,” either because compliance with 

both “is a physical impossibility” or state law “stands as an obstacle to 

the accomplishment and execution of the full purposes and objectives of 

Congress.” Arizona v. United States, 567 U.S. 387, 399 (2012) (internal 

quotation marks and citations omitted). KCSR contends that this last 
12 

variety of preemption—implied obstacle preemption—also applies to 

plaintiffs’ humped-crossing negligence claim.15

KCSR’s contention requires us to apply a body of U.S. Supreme 

Court jurisprudence that has been criticized as unconstrained, 

unworkable, and “completely unmoored from the original understanding 

of the Constitution.” Josh Blackman, Originalism and Stare Decisis in 

the Lower Courts, 13 N.Y.U. J.L. & LIBERTY 44, 54 (2019). The process 

of applying the “purposes and objectives” preemption doctrine to these 

facts amply illustrates why that doctrine ought to be reexamined by the 

Supreme Court. Instead of asking judges to engage in a purposivist 

analysis that relies on guesswork and innuendo and yields 

unpredictable results, the implied preemption inquiry could focus on 

whether federal and state law “are in logical contradiction.” Merck, 139 

S. Ct. at 1681 (Thomas, J., concurring). Only when this conflict is 

concrete and unavoidable, rather than merely abstract and 

hypothetical, would judges hold that state law is preempted by operation 

of the Supremacy Clause. 

15 Implied “obstacle” preemption is the only variety of implied 

preemption that could possibly be implicated by this case. Congress did not 

intend to wholly occupy the field of railroad safety, as FRSA’s savings clauses 

demonstrate. See 49 U.S.C. § 20106(a)-(b). In addition, it is not actually 

impossible to comply with both Texas common-law negligence standards and 

relevant federal law, as there are no federal statutes or regulations prescribing 

standards for humped railroad crossings. 
13 

A. The Supremacy Clause is a non obstante provision 

allowing federal laws to “repeal” contradictory state 

laws. 

The Supremacy Clause provides that our federal Constitution, 

laws, and treaties “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 or any State to the Contrary notwithstanding.” 

U.S. CONST. art. VI, cl. 2. An originalist analysis reveals that this text 

adopts a straightforward rule: federal law repeals contradictory state 

law by implication.16 As Professor Caleb Nelson has explained: 

Taken as a whole, the Supremacy Clause says that courts 

must apply all valid rules of federal law. To the extent that 

applying state law would keep them from doing so, the 

Supremacy Clause requires courts to disregard the state 

rule and follow the federal one. But this is the extent of the 

preemption it requires. Under the Supremacy Clause, any 

obligation to disregard state law flows entirely from the 

obligation to follow federal law. 

To put the same point slightly differently, the Supremacy 

Clause’s rules of applicability and priority mean that 

courts are always bound to apply the federal portion of “instate law.” But if it is possible for courts simultaneously to 

follow the state portion of “in-state law,” then the 

Supremacy Clause’s demand that courts apply federal law 

does not prevent them from applying state law too. The 

constitutional test for preemption is thus the same as the 

16 As understood by the founding generation, “repeal” in this context 

refers to Congress’s ability—by passing a statute or ratifying a treaty—to 

supersede contradictory state law. Of course, the state law is not literally 

removed from the statute books. Throughout my discussion, I also use repeal 

in this functional, non-literal sense. 
14 

traditional test for repeal: Can state and federal law stand 

together, or do they establish contradictory rules?

17

As Professor Nelson notes, the final phrase of the Supremacy 

Clause—which operationalizes the superiority of federal law over state 

law when the two are contradictory—is a non obstante clause. Such 

clauses were “ubiquitous in the session laws of every state”18 in late 

eighteenth century America, and were used 

to acknowledge that a statute might contradict some other 

laws and to instruct courts not to apply the traditional 

presumption against implied repeals. When a statute 

contained a non obstante clause, courts did not have to 

struggle to harmonize the statute with prior laws; they 

could give the statute its natural meaning and let it 

displace whatever law it contradicted.19

17 Nelson, Preemption, 86 VA. L. REV. at 252 (emphasis added). 

18 Id. at 240. 

19 Id. at 232. See also Opinion of the Mayor’s Court (August 27, 1784) 

in 1 THE LAW PRACTICE OF ALEXANDER HAMILTON 417 (Julius Goebel Jr., ed., 

1964) (In this case litigated by Alexander Hamilton, the court applied the 

presumption against implied repeals to reconcile New York’s Trespass Act, 

which allowed property owners to seek damages for trespass from those who 

had lived in their homes during the British occupation of New York, with the 

Treaty of Paris. As its opinion explains, the Trespass Act “doth not contain 

even the common non obstante clause, tho’ it is so frequent in our statute book,” 

and thus the “established maxim” applies: “where two laws are seemingly 

repugnant, and there be no clause of non obstante in the latter, they shall, if 

possible, have such construction, that the latter may not repeal the former by 

implication.”); 4 M. BACON, A NEW ABRIDGEMENT OF THE LAW 639 (4th ed. 

1778) (“Although two Acts of Parliament are seemingly repugnant, yet if there 

be no Clause of non Obstante in the latter, they shall if possible have such 

Construction, that the latter may not be a Repeal of the former by 

Implication.”) (cited in PLIVA, Inc. v. Mensing, 564 U.S. 604, 622 (2011) 

(plurality op. of Thomas, J.)). 
15 

The use of non obstante language in the Supremacy Clause—

which only speaks explicitly to the obligations of state court judges—is 

important because it clarifies that the natural meaning of federal 

statutes would “take effect automatically within each state and form 

part of the same body of jurisprudence as state statutes,”20 thus 

becoming “in-state law.”21 Absent this clarifying provision, the Framers 

of our federal Constitution feared that state court judges, consistent 

with “prevailing conceptions of the law of nations,” would treat federal 

law as the law of a foreign sovereign and refuse to apply it.22 Nowhere 

was this fear more acute than in the foreign affairs context, as numerous 

sources from the founding era raised fears of state legislation displacing 

federally ratified treaties.23

20 Nelson, Preemption, 86 VA. L. REV. at 246. 

21 Evan Caminker, State Sovereignty and Subordinacy: May Congress 

Commandeer State Officers to Implement Federal Law?, 95 COLUM. L. REV. 

1001, 1023 (1995). 

22 Nelson, Preemption, 86 VA. L. REV. at 246-47. Indeed, the Framers 

were familiar with this problem in multiple dimensions, as they had seen the 

states openly defy national laws passed under the Articles of Confederation 

with impunity. As Alexander Hamilton put it, “[t]he measures of the union 

have not been executed: the delinquencies of the States have, step by step, 

matured themselves to an extreme, which has at length arrested all the wheels 

of the national government, and brought them to an awful stand.” THE 

FEDERALIST NO. 15 (Alexander Hamilton) (Gideon ed., 2001) [hereinafter 

FEDERALIST]. 

23 See, e.g., 4 DEBATES IN THE SEVERAL STATE CONVENTIONS, ON THE 

ADOPTION OF THE FEDERAL CONSTITUTION 188 (Jonathan Elliot 2d ed., 1836) 

[hereinafter ELLIOT] (reporting Governor Johnston’s remarks in the North 

Carolina ratifying convention, including the Governor’s statement that 

“[w]ithout this [Supremacy] clause, the whole Constitution would be a piece of 

blank paper. Every treaty should be the supreme law of the land; without this, 
16 

Most important for our purposes, both supporters and opponents 

of the Supremacy Clause discussed preemption in terms of “repeal,” as 

the extensive debate over the clause in the North Carolina ratifying 

convention and other contemporary fora reveals.24 This framework for 

any one state might involve the whole Union in war.”); id. at 278-80 (reporting 

Gen. Charles Cotesworth Pinckney’s statement at the South Carolina ratifying 

convention that the Supremacy Clause would prevent states from undermining 

treaties entered into by the federal government). See also 3 JOSEPH STORY,

COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 1832, 696 

(1833) (“[T]reaty stipulations (especially those of the treaty of peace of 1783) 

were deemed by the states, not as laws, but like requisitions, of mere moral 

obligation, and dependent upon the good will of the states for their 

execution . . . . It was probably to obviate this very difficulty, that this 

[Supremacy] clause was inserted in the constitution.”) 

24 Opponents of the Supremacy Clause described it as “a total repeal of 

every act and constitution of the states” that “[t]he judges are sworn to uphold,” 

4 ELLIOT at 179-180 (remarks of Mr. Bloodworth), under which state laws 

“could be repealed entirely by those of Congress,” id. at 188 (remarks of Mr. J. 

M’Dowall), and treaties that are “the supreme law of the land . . . may repeal 

the laws of different states, and render nugatory our bill of rights,” id. at 215 

(remarks of Mr. Lancaster). To this, Governor Johnston, a supporter of 

ratification, responded by clarifying that “[t]he laws made in pursuance [of the 

Constitution] by Congress ought to be the supreme law of the land; otherwise 

any one state might repeal the laws of the Union at large,” and “it would be in 

the power of any one state to counteract the law of other states, and withdraw 

itself from the Union.” Id. at 187-88. Consistent with the trend at the North 

Carolina ratifying convention, the Anti-Federalist Papers are replete with 

references to the Supremacy Clause as “repealing” state law. See, e.g., 221 

Brutus II, N.Y. JOURNAL (Nov. 1, 1787), reprinted in 13 DOCUMENTARY 

HISTORY OF THE RATIFICATION OF THE CONSTITUTION 529 (John P. Kaminski 

& Gaspere J. Saladino eds., 1981) [hereinafter DHRC] (“It is therefore not only 

necessarily implied thereby [by the Supremacy Clause and the General Oath 

or Affirmation Clause], but positively expressed, that the different state 

constitutions are repealed and entirely done away, so far as they are 

inconsistent with this, with the laws which shall be made in pursuance thereof, 

or with treaties made, or which shall be made, under the authority of the 

United States; of what avail will the constitutions of the respective states be to 

preserve the rights of its citizens?”); An Old Whig VI, PHILA. INDEP.
17 

thinking about preemption continued to dominate in the early days of 

the Republic. For instance, the Judiciary Act of 1789 only gave the U.S. 

Supreme Court appellate jurisdiction over final judgments of state high 

courts “where is drawn in question the validity of a statute of, or an 

authority exercised under any State, on the ground of their being 

repugnant to the constitution, treaties or laws of the United States,” and 

the decision was “in favour of . . . their validity.”25 By the same token, 

the Bankruptcy Act of 1800 included a savings clause providing that 

“this act shall not repeal or annul, or be construed to repeal or annul the 

laws of any state . . . for the relief of insolvent debtors, except so far as 

the same may respect persons who are, or may be clearly within the 

purview of this act . . . .”26 

Early American jurists—including Chief Justice Oliver 

GAZETTEER (Nov. 24, 1787), reprinted in 14 DHRC 216 (1983) (“Congress, being 

the supreme legislatures, may annul or repeal the laws of the individual states, 

whenever they please.”). See also Andrew S. Oldham, The Anti-Federalists: 

Past as Prologue, 12 N.Y.U. J.L. & LIBERTY 451, 456 (2019) (“[W]e should read 

the Federalists’ papers together with the Anti-Federalists’ papers to elucidate 

the original public understanding of the Constitution.”). But the AntiFederalists’ campaign against the Supremacy Clause “repealing” state law was 

not limited to publishing political propaganda. In Maryland, William Paca 

proposed to amend the Constitution to include a savings clause for state 

constitutions and bills of rights: “No Law of Congress, or Treaties, shall be 

effectual to repeal or abrogate the Constitutions, or Bills of Rights, of the 

States, or any of them, or any Part of the said Constitutions or Bills of Rights.” 

Amendments Proposed by William Paca in the Maryland Convention, MD. J. 

(Apr. 29, 1788), reprinted in 17 DHRC 241 (1995). 

25 Judiciary Act of 1789, ch. 20, § 25, 1 Stat 73, 85-86 (emphasis added). 

26 An Act to establish a uniform System of Bankruptcy throughout the 

United States, ch. 19, § 61, 2 Stat 19, 36 (1800) (emphasis added). 
18 

Ellsworth,27 Chief Justice John Marshall,28 and Justice Joseph Story29—

also understood the Supremacy Clause as repealing state laws that were 

“repugnant” to the federal Constitution, federal statutes, and treaties. 

In requiring actual “repugnancy” or irreconcilability between state and 

federal law before applying preemption, early American jurisprudence 

understood the Supremacy Clause’s nature as a product of compromise 

between proponents and opponents of James Madison’s failed proposal 

at the Philadelphia Convention for a national veto over state laws.30 

The “repugnancy” or irreconcilability standard is also consistent 

with the original understanding of the Constitution as a document that 

27 See Hamilton v. Eaton, 11 F. Cas. 336, 340 (C.C.D.N.C. 1792) 

(No. 5,980) (opinion of Ellsworth, Circuit Justice). 

28 McCullough v. Maryland, 17 U.S. (4 Wheat.) 316, 425-26 (1819) 

(declaring that preemption under the Supremacy Clause meant that “[a] law, 

absolutely repugnant to another, as entirely repeals that other as if express 

terms of repeal were used.”). 

29 3 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE 

UNITED STATES § 1836, 701 (“[T]he judiciary of the United States has no 

general jurisdiction to declare acts of the several states void, unless they are 

repugnant to the constitution of the United States, notwithstanding they are 

repugnant to the state constitution.”). 

30 See 4 THE FOUNDERS CONSTITUTION 592-97 (Phillip B. Kurland & 

Ralph Lerner eds., 1987); compare Alison L. LaCroix, What if Madison Had 

Won? Imagining A Constitutional World of Legislative Supremacy, 45 IND. L.

REV. 41, 50 (2011) (observing that had the negative actually succeeded, “[t]he 

potential scope of Congress’s power in a world with the negative would have 

been far broader than the actual scope of Congress’s power when it preempts 

state law”), with Thomas W. Merrill, Preemption and Institutional Choice, 

102 NW. U.L. REV. 727, 735 (2008) (“[S]ince the Supremacy Clause was 

expressly adopted as a substitute for Madison’s sweeping ‘negative,’ it is 

doubtful that the Clause was regarded as being limited to cases of mutual 

exclusivity or trumping. The Framers must have also contemplated some 

degree of displacement power.”). 
19 

transferred sovereign rights from the states to the federal government 

against the backdrop of the late eighteenth century law of nations. See 

Anthony J. Bellia, Jr. & Bradford R. Clark, The International Law 

Origins of American Federalism, 120 COLUM. L. REV. 835, 878 (2020); 

Anthony J. Bellia, Jr. & Bradford R. Clark, The Constitutional Law of 

Interpretation, 98 NOTRE DAME L. REV. 519, 536 (2022). Under these 

legal principles, an “instrument could alienate sovereign rights and 

powers in two ways. It could either transfer the right or power 

expressly, or grant one party an express right or power that by 

unavoidable implication divested the other party of a corresponding 

right. In both cases, the clear and express terms of the instrument were 

to be given their ordinary and customary meaning as of the time of 

adoption.” 98 NOTRE DAME L. REV. at 530-31.31 As Professors Bellia and 

31 See FEDERALIST NO. 32 (Alexander Hamilton) (“[T]he plan of the 

convention aims only at a partial union or consolidation, the state governments 

would clearly retain all the rights of sovereignty which they before had, and 

which were not, by that act, exclusively delegated to the United States. This 

exclusive delegation, or rather this alienation of state sovereignty, would only 

exist in three cases: where the Constitution in express terms granted an 

exclusive authority to the union; where it granted in one instance an authority 

to the union, and in another, prohibited the states from exercising the like 

authority; and where it granted an authority to the union, to which a similar 

authority in the States would be absolutely and totally contradictory and

repugnant.”). Further elaborating on this last category, Hamilton wrote that 

actual contradiction or repugnancy between state and federal law had to 

involve “direct contradiction of power,” and not just “mutual[] questions of 

prudence.” Id. For instance, both the State and federal government taxing the 

same item would not fall under the umbrella of actual contradiction or 

repugnancy, as “[t]he particular policy of the national and of the state system 

of finance might now and then not exactly coincide, and might require 

reciprocal forbearances. It is not however a mere possibility of inconvenience 

in the exercise of powers, but an immediate constitutional repugnancy, that can 
20 

Clark have explained, “[t]o find preemption of state authority consistent 

with the background rules governing the transfer of sovereign rights, 

the States’ exercise of a given power assigned to federal officials must be 

fundamentally incompatible—or irreconcilable—with its exercise by the 

federal government.” Id. at 613 n.440 (internal quotation marks 

omitted). 

Justice Thomas has advocated the adoption of a “logical 

contradiction” test that is consistent with these understandings of the 

Supremacy Clause’s text. As he has written, “[e]vidence from the 

founding suggests that, under the original meaning of the Supremacy 

Clause, federal law pre-empts state law only if the two are in logical 

contradiction.” Merck, 139 S. Ct. at 1681 (Thomas, J., concurring).32 

This approach is grounded in the Supremacy Clause’s history as 

a non obstante clause of the type used by “[e]ighteenth-century 

by implication alienate and extinguish a pre-existing right of sovereignty.” Id.

(emphasis added). 

32 Consistent with the text of the Supremacy Clause, Justice Thomas’s 

approach requires that “Federal laws ‘made in Pursuance’ of the Constitution 

must comply with two key structural limitations in the Constitution that 

ensure that the Federal Government does not amass too much power at the 

expense of the States”: the enumeration of limited federal powers, and the 

requirement “that pre-emptive effect be given only to those federal standards 

and policies that are set forth in, or necessarily follow from, the statutory text 

that was produced through the constitutionally required bicameral and 

presentment procedures.” Wyeth, 555 U.S. at 585-86 (Thomas, J., concurring 

in judgment). See also 3 JOSEPH STORY, COMMENTARIES ON THE 

CONSTITUTION OF THE UNITED STATES § 1831, 694 (“[I]t will not follow, that 

acts of the larger society [the federal government], which are not pursuant to 

its constitutional powers, but which are invasions of the residuary authorities 

of the smaller societies [the States], will become the supreme law of the land. 

They will be merely acts of usurpation, and will deserve to be treated as such.”) 
21 

legislatures . . . to specify the degree to which a new statute was meant 

to repeal older, potentially conflicting statutes in the same field.” 

PLIVA, Inc. v. Mensing, 564 U.S. 604, 621-22 (2011) (plurality op. of 

Thomas, J.). As discussed above, “a non-obstante provision in a new 

statute acknowledged that the statute might contradict prior law and 

instructed courts not to apply the general presumption against implied 

repeals.” Id. at 622 (internal citations omitted). Thus, “if we interpret 

the Supremacy Clause as the founding generation did, our task is 

straightforward. We must use the accepted method of interpretation to 

ascertain whether the ordinary meaning of federal and state law 

‘directly conflict.’” Kansas v. Garcia, 140 S. Ct. 791, 807-08 (2020) 

(Thomas, J., concurring). “[P]re-emptive effect is to be given to 

congressionally enacted laws, not to judicially divined legislative 

purposes.” Arizona, 567 U.S. at 440 (Thomas, J., concurring in in part 

and dissenting in part).33

When two laws are asserted to be in conflict, the “logical 

contradiction” test replaces the traditional recency-based rule of priority 

with a rule that gives priority to federal law. “Under this new rule of 

33 Of course, Professor Nelson’s and Justice Thomas’s approach is not 

without its critiques. See, e.g., Daniel J. Meltzer, Preemption and Textualism, 

112 MICH. L. REV. 1 (2013); John David Ohlendorf, Textualism and Obstacle 

Preemption, 47 GA. L. REV. 369 (2013). These criticisms, however, tend to go 

to the technical implementation of this approach without substantively 

critiquing its originalist bona fides, and according to at least one scholar have 

been overstated. See Jesse Merriam, Preemption as a Consistency Doctrine, 

25 WM. & MARY BILL RTS. J. 981, 1044 (2017). More importantly, there 

appears to be no evidence that the “purposes and objectives” test for evaluating 

implied obstacle preemption has any foundation in the original meaning of the 

Supremacy Clause whatsoever. 
22 

priority, when courts had to choose between following a valid federal law 

and following a state law, the federal law would prevail even if the state 

law had been enacted more recently.” Nelson, Preemption, 86 VA. L.

REV. at 250. This rule is broader than—and effectively subsumes—the 

Court’s “narrow ‘physical impossibility’ standard” that Justice Thomas 

has criticized. Wyeth, 555 U.S. at 590 (Thomas, J., concurring in 

judgment).34 Instead, the logical contradiction test ensures that states 

cannot enforce obligations on parties that compete with federal law.35 

Thus, a federal law protecting one’s right to engage in certain behaviors 

34 As Justice Thomas has correctly noted, the overly broad sweep of 

“purposes and objectives” implied obstacle preemption has rendered it 

unnecessary for the Court to rely on its overly narrow “impossibility” 

preemption doctrine. Wyeth, 555 U.S. at 589-90 (Thomas, J., concurring in 

judgment). See also Mut. Pharm. Co. v. Bartlett, 570 U.S. 472, 488 (2013) (“Our 

pre-emption cases presume that an actor seeking to satisfy both his federaland state-law obligations is not required to cease acting altogether in order to 

avoid liability.”); PLIVA, 564 U.S. at 621 (plurality op. of Thomas, J.) (“We do 

not read the Supremacy Clause to permit an approach to pre-emption that 

renders conflict pre-emption all but meaningless. The Supremacy Clause, on 

its face, makes federal law ‘the supreme Law of the Land’ even absent an 

express statement by Congress.”). 

35 As one commentator on Justice Thomas’s view of logical contradiction 

has pointed out, “only actual conflict leads to preemption. Imposing an 

obstacle to achievement of federal purposes or objectives does not create 

preemption unless those purposes are based in the statutory language.” E. 

Travis Ramey, Congress Hatches the Egg: Justice Thomas’s Textual Mandate 

Test for Preemption, 62 ALA. L. REV. 1119, 1125 (2011). “When analyzing the 

pre-emptive effect of federal statutes or regulations validly promulgated 

thereunder, evidence of pre-emptive purpose must be sought in the text and 

structure of the provision at issue to comply with the Constitution.” Wyeth, 

555 U.S. at 588 (Thomas, J., concurring in judgment) (citing Easterwood, 507 

U.S. at 664 (internal quotation marks and brackets omitted)). 
23 

trumps a state law that prohibits those behaviors. Wyeth, 555 U.S. at 

590 (Thomas, J., concurring in judgment).36 

B. Implied obstacle preemption is unmoored from 

constitutional and statutory text and damages 

federalism and the separation of powers. 

Unfortunately, the current standard for implied obstacle 

preemption is far removed from the original meaning of the Supremacy 

Clause. By grounding the inquiry in Congress’s “purposes and 

objectives” in passing a statute, Hines, 312 U.S. at 67, implied obstacle 

preemption allows courts to “improperly rely on legislative history, 

broad atextual notions of congressional purpose, and even congressional 

inaction in order to pre-empt state law.” Wyeth, 555 U.S. at 594 

(Thomas, J., concurring in judgment). In practice, this approach allows 

judges to “wad[e] into a sea of agency musings and Government 

litigation positions” in a search for what Congress or federal 

administrative agencies “may have been thinking” when relevant 

provisions were drafted. Williamson v. Mazda Motor of Am., Inc., 

36 For example, Justice Thomas has explained that the “general express 

statutory goal” of the Motor Vehicle Safety Act, which was “to reduce traffic 

accidents and deaths and injuries to persons resulting from traffic accidents,” 

did not logically contradict allowing the plaintiff’s common-law tort suit to go 

forward in Geier v. American Honda Motor Co. See Wyeth, 555 U.S. 600 

(Thomas, J., concurring in judgment) (citing Geier, 529 U.S. 888-89, 903 (2000) 

(Stevens, J., dissenting)). “With text that allowed state actions like the one at 

issue in Geier, the Court had no authority to comb through agency 

commentaries to find a basis for an alternative conclusion.” Id. at 599-600 

(citing 15 U.S.C. § 1381(k) (1988)). “Because the ‘requirement’ imposed by 

state tort liability would have actually served the stated statutory purpose, 

and compliance with both state and federal guidelines was possible, the action 

should not have been preempted.” Ramey, Congress Hatches the Egg, 62 ALA.

L. REV. at 1127. 
24 

562 U.S. 323, 341 (2011) (Thomas, J., concurring in judgment). And the 

“impossibility of defining ‘purposes’ in complex statutes at such a high 

level of abstraction” results in the “danger of invoking obstacle preemption based on the arbitrary selection of one purpose to the exclusion 

of others.” Pharm. Rsch. & Mfrs. of Am. v. Walsh, 538 U.S. 644, 678 

(2003) (Thomas, J., concurring in judgment). 

Such “freeranging speculation about what the purposes of the 

[law or] regulation must have been is not constitutionally proper in any 

case.” Williamson, 562 U.S. at 343 (Thomas, J., concurring in judgment) 

(cleaned up). This speculation undermines federalism by overreading 

the Supremacy Clause’s command to give preemptive effect only to the 

“Laws of the United States,” and it erodes the separation of powers by 

empowering judges to act with “potentially boundless” discretion. Geier 

v. Am. Honda Motor Co., 529 U.S. 861, 908 (2000) (Stevens, J., 

dissenting). 

Put simply, implied obstacle preemption is a doctrine of 

“freewheeling judicial inquiry”37 that invites courts—including state 

courts—to become federal legislators, “wander[ing] far from the . . . text” 

of the supposedly preempting federal law. Wyeth, 555 U.S. at 583 

(Thomas, J., concurring in judgment).38 Not only is the “evidence courts 

37 Bates v. Dow Agrosciences LLC, 544 U.S. 431, 459 (2005) (Thomas, J., 

concurring in judgment in part and dissenting in part) (quoting Gade v. Nat’l 

Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 111 (1992) (Kennedy, J., concurring in 

part and concurring in judgment)). 

38 Gregory M. Dickinson, An Empirical Study of Obstacle Preemption in 

the Supreme Court, 89 NEB. L. REV. 682, 701 (2011) (“[T]he key factor in Justice 

Thomas’s preemption analysis is the explicitness of congressional action. 

Absent clear action by Congress to preempt state law, states should be 
25 

employ to discern congressional intent” dubious, the entire exercise of 

courts trying to “tease out single purposes or aims of federal legislation 

and regulations” is fraught with unsubstantiated assumptions about 

lawmaking and is inherently inconsistent with the separation of powers. 

Catherine M. Sharkey, Against Freewheeling, Extratextual Obstacle 

Preemption: Is Justice Clarence Thomas the Lone Principled Federalist?, 

5 N.Y.U. J.L. & LIBERTY 63, 91 (2010). By its very nature, this “judicial 

guesswork about broad federal policy objectives, legislative history, or 

generalized notions of congressional purposes that are not contained 

within the text of federal law”39 encourages sharp, policy-based 

disagreements between judges that have little relation to actual 

statutory text—thus “undercut[ting] the principle that it is Congress 

rather than the courts that pre-empts state law.”40

Moreover, the purposivist nature of implied obstacle preemption 

jurisprudence upsets the “delicate balance” of state versus federal power 

presumed to retain their sovereignty. Any other approach would aggrandize 

the judiciary at the expense of the legislature and violate the principle of dual 

sovereignty enshrined in the Constitution.”). 

39 Garcia, 140 S. Ct. at 808 (Thomas, J., concurring) (internal quotation 

marks omitted). 

40 Gade, 505 U.S. at 111 (Kennedy, J., concurring in part and concurring 

in judgment); see also Walsh, 538 U.S. at 682 (Thomas, J., concurring in 

judgment). Recent empirical research by Professor Jesse Merriam confirms 

this is the case. “The most sharply divided implied preemption cases on the 

Roberts Court have arisen under conflict preemption. Of the seven Roberts 

Court decisions [prior to 2017] finding conflict (impossibility or obstacle) 

preemption, four rested on razor-thin five-Justice majorities. By contrast, of 

the eleven cases [prior to 2017] finding express preemption, only one rested on 

a five-Justice majority, and that was likely a result of Justice Thomas not 

participating.” Merriam, Preemption as a Consistency Doctrine, 25 WM. &

MARY BILL RTS. J. at 1011 (footnotes omitted).
26 

“mandated by the Constitution” by encouraging an overly preemptive 

reading of statutory text. Wyeth, 555 U.S. at 585 (Thomas, J., 

concurring in judgment). Empowering courts to “divine the broader 

purposes of the statute before [them] inevitably leads [them] to assume 

that Congress wanted to pursue those policies ‘at all costs’—even when 

the text reflects a different balance.” Id. at 601 (Thomas, J., concurring 

in judgment) (citing Geier, 529 U.S. at 904 (Stevens, J., dissenting)); 

Nelson, Preemption, 86 VA. L. REV. at 279-80). “As this Court has 

repeatedly noted, it frustrates rather than effectuates legislative intent 

simplistically to assume that whatever furthers the statute’s primary 

objectives must be the law.” Wyeth, 555 U.S. at 601 (Thomas, J., 

concurring in judgment) (citing Norfolk So. R. Co. v. Sorrell, 549 U.S. 

158, 171 (2007); Rodriguez v. United States, 480 U.S. 522, 526 (1987) 

(internal quotation marks omitted)). In doing so, courts distort the text 

of statutes and stray from the actual command of the Supremacy Clause, 

which gives priority to the “Laws of the United States,” not “agency 

musings, . . . Government litigating positions,” or “the unenacted hopes 

and dreams” of executive branch agencies. Williamson, 562 U.S. at 341, 

343 (Thomas, J., concurring in judgment). 

On the other side of the coin, there is a notable lack of discussion 

in the jurisprudence regarding why the imaginative enterprise of 

implied “purposes and objectives” preemption is even necessary. The 

search for unspoken purposes certainly seems out of place regarding 

statutes like ICCTA, in which Congress chose to speak directly to its 

“pre-emptive intent” with the “best evidence” available: an express 

preemption clause. Easterwood, 507 U.S. at 664. And the field, 
27 

impossibility, and logical contradiction varieties of implied preemption 

amply guard federal law against state interference.41

Moreover, the current doctrine of implied obstacle preemption 

leaves many victims in its wake, indiscriminately preventing resort to 

claims, defenses, and enforcement actions provided by state and local 

law. The inconsistent application of obstacle preemption—which, as 

described above, is a near inevitability given its arbitrary and atextual 

nature—means that “[a]ll sides of the political spectrum have suffered 

as a result of the incoherence. Plaintiffs have been denied rightful 

remedies, businesses have operated in unpredictable legal 

environments, and most importantly for constitutional purposes, states 

have been arbitrarily deprived of their regulatory authority.” Merriam, 

Preemption as a Consistency Doctrine, 25 WM. & MARY BILL RTS. J. at 

1044. 

For example, broad applications of implied obstacle preemption 

have affected plaintiffs and defendants of all kinds—individuals, 

business entities, and government agencies alike, including: a recording 

artist denied the right to assert state-law right-of-publicity claims;42a 

state agency stripped of its immunity defense;43 a municipality left 

unable to fully enforce an ordinance designed to remedy hazardous 

41 As discussed above, the logical contradiction approach includes 

impossibility preemption. See supra at 21-22 and accompanying notes. 

42 Jackson v. Roberts (In re Jackson), 972 F.3d 25, 37-42 (2d Cir. 2020). 

43 Deweese v. Nat’l R.R. Passenger Corp., 590 F.3d 239, 246-47 (3d Cir. 

2009). 
28 

waste contamination;44 individuals denied a remedy for improper 

scoring of their broker qualification exams;45 a dismissed supervisory 

employee blocked from pursuing tortious interference claims against a 

union;46 an employer prevented from pursuing claims for breach of 

contract, fraud, unauthorized use of property, and unjust enrichment 

against a former employee who falsified his employment application;47 

and ICU nurses deprived of claims under the Texas Whistleblower Act 

and employment discrimination laws.48 These cases illustrate that 

continuing to use current implied obstacle preemption precedents when 

we apply one of the “most frequently used doctrine[s] of constitutional 

44 Fireman’s Fund Ins. Co. v. City of Lodi, 302 F.3d 928, 947-49 (9th Cir. 

2002). 

45 In re Series 7 Broker Qual. Exam Scoring Litig., 548 F.3d 110, 114-15 

(D.C. Cir. 2008). 

46 Local 926 International Union of Operating Engineers v. Jones, 460 

U.S. 669, 676-78, 684 (1983). The examples in this and the next two footnotes 

concern the broadest implied preemption regime in American law, which 

currently governs labor relations under San Diego Building Trades Council v. 

Garmon, 359 U.S. 236, 245 (1959). Under this regime, the National Labor 

Relations Act “preempts state law even when the two only arguably conflict,” 

in which case the National Labor Relations Board “resol[ves] . . . the legal 

status of the relevant conduct.” Glacier Nw., Inc. v. International Brotherhood 

of Teamsters Local Union No. 174, 143 S. Ct. 1404, 1411 (2023). 

47 Wright Elec., Inc. v. Ouellette, 686 N.W.2d 313, 322, 325 (Minn. Ct. 

App. 2004). 

48 Castillo v. Brownsville-Valley Reg’l Med. Ctr., Inc., 421 S.W.3d 263, 

272-73 (Tex. App.—Corpus Christi-Edinburg 2013, no pet.). 
29 

law in practice”49 presents a substantial threat to our Constitutional 

system of federalism and separation of powers.50 

Done right, implied preemption requires neither a “penumbral” 

reading of federal law, in which state-court jurisdiction over state claims 

is defined by the atextual whims of judges or federal administrative 

agencies, nor artificially narrow constructions of federal law that allow 

for overzealous protection of state law at all costs. Instead, it calls for a 

straightforward analysis of statutory text, amendment history, and 

structure—including applicable interpretive presumptions and clearstatement rules—to determine whether state and federal law establish 

irreconcilable standards that are in “logical contradiction” with each 

other. 

III. ICCTA obstacle preemption is inconsistent with the major 

questions doctrine. 

Because ICCTA’s preemption clause is coupled together with a 

delegation of exclusive jurisdiction to the STB, the proper scope of 

implied ICCTA preemption should also be informed by relevant 

principles of administrative law. As explained above, the statutory 

interpretation question before us is not really about what state courts 

can do, but what Congress—which the federal Constitution vests only 

49 Gardbaum, The Nature of Preemption, 79 CORNELL L. REV. at 768. 

50 See Antonin Scalia, Foreword: The Importance of Structure in 

Constitutional Interpretation, 83 NOTRE DAME L. REV. 1417, 1418 (2008) (“The 

constitutional structure of the United States has two main features: 

(1) separation and equilibration of powers and (2) federalism. Each functions 

to safeguard individual liberty in isolation, but they provide even greater 

protection working together.”). 
30 

with specifically enumerated powers—has actually delegated 

exclusively to an executive branch agency: the STB. Thus, I turn next 

to precedent and scholarship concerning the nature and power of the 

federal administrative state, which sheds substantial light on whether 

Section 10501(b) impliedly preempts Texas common-law. 

Applying current federal precedent on implied obstacle 

preemption in the ICCTA context makes little sense given developments 

in the Supreme Court’s federal administrative law jurisprudence. In 

recent years, the Court has shown greater reticence to find legislative 

delegations of authority over “major questions” or matters of core state 

power to executive branch agencies absent “clear congressional 

authorization.” West Virginia, 142 S. Ct. at 2609 (citing Util. Air Regul. 

Grp. v. EPA, 573 U.S. 302, 324 (2014)). But implied obstacle preemption 

takes the opposite view, concluding that any state-law obstacle to the 

“purposes and objectives” of Congress in passing a statute, including 

those Congress did not speak to at all, is preempted by the statute—no 

matter how “major” the displacement of state law. 

In the case of ICCTA preemption, these conflicting positions come 

to a head. While federalism principles underlying the major questions 

doctrine counsel that Congress must “enact exceedingly clear language 

if it wishes to significantly alter the balance between federal and state 

power,” Ala. Ass’n of Realtors v. Dep’t of Health & Hum. Servs., 141 S. 

Ct. 2485, 2489 (2021) (quoting United States Forest Serv. v. Cowpasture 

River Pres. Ass’n, 140 S. Ct. 1837, 1850 (2020)), current implied obstacle 

preemption precedent eschews statutory text and clear statements in 

favor of “penumbras that wax and wane.” Glacier Nw., Inc. v. 
31 

International Brotherhood of Teamsters Local Union No. 174, 143 S. Ct. 

1404, 1417 (2023) (Thomas, J., concurring in judgment) (internal 

quotation marks omitted). 

Here, KCSR asserts that the STB has exclusive jurisdiction to 

provide a remedy any time the application of state or other federal law 

would unreasonably burden or interfere with rail transportation. In 

other words, the STB has almost plenary power over rail transportation 

under KCSR’s view of Section 10501(b), meaning that any action taken 

under state or other federal law that unreasonably impacts a railroad’s 

bottom line impliedly falls within the STB’s exclusive jurisdiction and is 

preempted by ICCTA. Because KCSR frames ICCTA’s preemptive scope 

at such a high level of generality, adopting its position would undermine 

the federalism and separation of powers values that inform the 

nondelegation doctrine and its corollary, the major questions doctrine.51 

In particular, KCSR’s position should be rejected because it 

(1) implicates the major questions doctrine and (2) does not meet its 

clear-statement requirement. The Supreme Court’s major questions 

and nondelegation cases teach us that “[e]xtraordinary grants of 

51 In his West Virginia concurrence, Justice Gorsuch noted that the 

Supreme Court “has applied the major questions doctrine for the same reason 

it has applied other similar clear-statement rules—to ensure that the 

government does not inadvertently cross constitutional lines. And the 

constitutional lines at stake here are surely no less important than those this 

Court has long held sufficient to justify parallel clear-statement rules. At stake 

is not just a question of retroactive liability or sovereign immunity, but basic 

questions about self-government, equality, fair notice, federalism, and the 

separation of powers. The major questions doctrine seeks to protect against 

unintentional, oblique, or otherwise unlikely intrusions on these interests.” 

142 S. Ct. at 2620 (Gorsuch, J., concurring) (internal quotation marks and 

citations omitted). 
32 

regulatory authority are rarely accomplished through modest words, 

vague terms, or subtle devices.” West Virginia, 142 S. Ct. at 2609 

(internal quotation marks omitted). “We presume that ‘Congress 

intends to make major policy decisions itself, not leave those decisions 

to agencies.’” Id. (quoting United States Telecom Ass’n v. FCC, 855 F.3d 

381, 419 (D.C. Cir. 2017) (Kavanaugh, J., dissenting from denial of reh’g 

en banc)). Thus, when a litigant argues that a statute grants an agency 

“sweeping” authority over matters of “economic” or “political 

significance,” it must point to “clear congressional authorization for the 

power” claimed. Id. at 2608-09 (internal quotation marks omitted). 

Supreme Court precedent indicates that whether an agency 

possesses exclusive power to regulate everything that unreasonably 

burdens or interferes with rail transportation qualifies as a major 

question, and relatedly as a question on which Congress must speak 

clearly if it wishes to displace core state power. Indeed, one of the 

earliest cases in which the Supreme Court applied what has come to be 

known as the major questions doctrine involved whether the STB’s 

predecessor—the ICC—could set carriage prices for railroads. The 

Court observed that transferring such a “power of supreme delicacy and 

importance” to “any administrative body is not to be presumed or 

implied from any doubtful and uncertain language.” ICC v. Cincinnati, 

N.O. & T.P.R. Co., 167 U.S. 479, 505 (1897). If Congress “had intended 

to grant the power to establish rates, it would have said so in 

unmistakable terms.” Id. at 509. Because Congress “did not give [that] 

express power to the commission,” the Court concluded “it did not intend 

to secure the same result indirectly . . . .” Id. at 511. 
33 

KCSR’s view of Section 10501(b) would similarly vest the STB 

with a “breathtaking amount of authority.” Ala. Ass’n of Realtors, 141 

S. Ct. at 2489. “It is hard to see what [“remedies”] this interpretation 

would place outside the [STB’s] reach, and [KCSR] has identified no 

limit in [Section 10501(b)] beyond the requirement” that the state-law 

claim have the effect of regulating or interfering with rail 

transportation. Id. 

KCSR’s attempt to downplay that vague and far-reaching 

standard by arguing that ICCTA only preempts “unreasonabl[e] 

interfere[nce] with its operations” fares no better than the CDC’s 

argument that its authority under the Public Health Service Act52 was 

limited to actions that were “necessary” to curb the spread of COVID19. Id.53 The Supreme Court rejected the CDC’s reading of a statute 

that would vest it with authority to “mandate free grocery delivery to 

the homes of the sick or vulnerable,” “[r]equire manufacturers to provide 

free computers to enable people to work from home,” or “[o]rder 

telecommunications companies to provide free high-speed Internet 

service to facilitate remote work.” Id. Similarly, we should reject 

52 42 U.S.C. § 264. 

53 Indeed, KCSR’s argument here arguably fares even worse than the 

CDC’s argument in Alabama Association of Realtors, as the word “necessary” 

actually appeared in the relevant statutory provision. In contrast, 

“unreasonable interference with operations,” “allocat[ion] [of] capital 

resources,” and the other phrases KCSR argues define the scope of the STB’s 

powers under Section 10501(b) are nowhere to be found in the text of that 

Section. The concept of an “unreasonable burden” does appear in other parts 

of ICCTA, confirming that Congress deliberately chose to use a different 

standard in this general preemption provision. See, e.g., 49 U.S.C. 

§§ 10909(a)(1), 10910, 11501. 
34 

KCSR’s reading of a statute that would, for example, grant the STB 

exclusive jurisdiction to adjudicate contractual disputes between 

railroads and their energy suppliers, resolve labor disputes between 

railroads and their employees, or regulate the securities issued by 

railroads.54 

There is no doubt that a railroad with no fuel, no workers, or no 

access to capital markets would be facing “unreasonable interference 

with its operations” and vast impacts on its bottom line. But no one 

seriously contends that the STB actually could—or would—attempt to 

govern any of these things, lest it upset separate statutory schemes.55 

And rightfully so, as neither the STB’s expertise nor its statutory 

mandate actually implicates any of these potential legal disputes, even 

though they are related to a railroad’s “operations” and its financial 

health. 

54 That these arguments are being advanced by a party other than the 

agency administering a particular statute makes no difference for purposes of 

the major questions doctrine, which seeks to define the scope of an agency’s 

powers under that statute. Indeed, the U.S. Supreme Court’s decision in West 

Virginia involved rejecting the arguments of the EPA, several power 

companies, and various states in defense of the Clean Power Plan—with all of 

these parties arguing for a broader reading of the EPA’s powers under the 

Clean Air Act. 

55 For instance, allowing the STB to resolve labor disputes between 

railroads and their workers would undermine the statutory scheme laid out in 

the Railway Labor Act, 45 U.S.C. §§ 151 et seq., which is administered by the 

National Mediation Board, another independent federal agency. Similarly, 

allowing the STB to regulate the securities issued by KCSR would intrude on 

the Securities and Exchange Commission’s authority under federal securities 

laws. See, e.g., 15 U.S.C. §§ 77a et seq., (Securities Act of 1933); 15 U.S.C. §§ 

78a et seq. (Securities Exchange Act of 1934). 
35 

The same is true of routine, common-law negligence disputes of 

the type at issue here. KCSR concedes that several types of negligence 

claims—such as failure to sound a whistle, keep a lookout, apply brakes, 

or maintain a yield sign—would not be preempted. This concession 

highlights that there is no coherent limiting principle to KCSR’s view of 

implied ICCTA preemption, as the impact of these claims on railroad 

operations is not different in kind from the plaintiffs’ humped-crossing 

negligence claim, and we have only KCSR’s unsupported assertion that 

they differ in degree. 

KCSR’s position also meets two of the three major questions 

doctrine “triggers” that Justice Gorsuch identified in his West Virginia

concurrence. 142 S. Ct. at 2620-22. KCSR’s reading of Section 10501(b) 

to give the STB exclusive jurisdiction over any actions that 

unreasonably burden or interfere with rail transportation would vest 

the STB with almost unlimited authority to regulate the railroad 

industry, boxing out all other “regulation of rail transportation”—no 

matter how indirect—under state and other federal laws. Thus, KCSR’s 

interpretation of ICCTA would empower the STB to “regulate a 

significant portion of the American economy” from under the shield of 

Chevron deference.56 Id. at 2621 (Gorsuch, J., concurring) (internal 

quotation marks omitted). 

And it would do so in a manner that “intrude[s] into an area that 

is the particular domain of state law”: the care of grade crossings. Id.; 

56 Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843-

44 (1984) (holding that where statute is “silent or ambiguous with respect to 

[a] specific issue,” courts must grant deference to reasonable interpretation 

advanced by federal administrative agency administering that statute). 
36 

see Lehigh Valley R.R., 278 U.S. at 35. The STB’s assertion of exclusive 

jurisdiction over ordinary common-law claims, such as the one at issue 

here, would not amount to an “‘everyday exercise of federal power,’” as 

it would dramatically displace the role of state courts and state 

common law in an area they have traditionally governed and that falls 

squarely within their function and expertise. Nat’l Fed’n of Indep. Bus. 

v. Occupational Safety & Health Admin., 142 S. Ct. 661, 665 (2022) 

(quoting In re MCP No. 165, 20 F.4th 264, 272 (6th Cir. 2021) (Sutton, 

C.J., dissenting from denial of initial hearing en banc)); see also Ala. 

Ass’n of Realtors, 141 S. Ct. at 2489 (holding CDC’s eviction moratorium 

“intrude[d] into an area that is the particular domain of state law: the 

landlord-tenant relationship”). 

KCSR’s assertions to the contrary conflict with the 

longstanding—and constitutionally protected—norm that “the States, 

not the Federal Government, are the traditional source of authority over 

safety, health, and public welfare. In the context of a vast attempt to 

assume these police powers by the Federal Government, Congress must 

speak unequivocally.” In re MCP No. 165, 20 F.4th at 273 (Sutton, C.J., 

dissenting from initial hearing en banc). For these reasons, KCSR’s 

position would yield a significant expansion in the powers of the federal 

administrative state with severe consequences for federalism and the 

separation of powers. 

As the dissent in the court of appeals correctly pointed out, the 

importance of this issue is especially apparent in Texas. 666 S.W.3d 1, 

19 (Tex. App.—Dallas 2021) (Carlyle, J., dissenting). According to 

preliminary data provided by the FRA, Texas led the country in 
37 

highway–rail grade crossing collisions in 2022—with 242 of the 

country’s 2,193 collisions happening in our state.57 We also had the most 

injuries of any state (76 out of 803 nationally), and reported the secondlargest number of fatalities (31 out of 276 nationally).58 Texas also has 

the most miles of freight railroad in the United States, with rail 

transportation directly impacting almost 18,000 jobs in the state and 0.5 

percent of our state’s economy.59 Making state law inapplicable to all 

this activity would have substantial consequences for Texas’s 

sovereignty and economy. 

In sum, the “sheer scope” of the STB’s jurisdiction under KCSR’s 

position invokes the major questions doctrine, as it would vest the STB 

with a “breathtaking amount of authority,” Ala. Ass’n of Realtors, 141 S. 

Ct. at 2489, to assert exclusive jurisdiction over anything that could be 

viewed as unreasonably burdening rail transportation. As the Supreme 

Court has held, such sweeping administrative power requires clear 

congressional authorization. West Virginia, 142 S. Ct. at 2614. 

Turning to the doctrine’s second step (its clear-statement 

requirement), ICCTA expressly grants the STB exclusive jurisdiction 

only over transportation by rail carriers, remedies with respect to 

57 See Collisions & Fatalities by State, Highway-Rail Grade Crossing 

Collisions—Top 25 States, OPERATION LIFESAVER (updated June 19, 2023), 

https://oli.org/track-statistics/collisions-fatalities-state (last visited June 30, 

2023). 

58 Id. 

59 Texas Rail Plan Executive Summary, TEX. DEP’T OF TRANSP (Dec. 

2019), https://ftp.dot.state.tx.us/pub/txdot-info/rail/texas-rail-plan-executivesummary.pdf. 
38 

specified carrier actions, and uses of railroad facilities. See 49 U.S.C. 

§ 10501(b). Yet KCSR asks us to implicitly delegate more power to the 

STB through an ancillary preemption provision that does not directly 

address the nature or scope of its exclusive jurisdiction and that we have 

held is inapplicable to this case by its own terms. And KCSR does so 

despite the FRSA provision saving state laws and suits regarding 

railroad safety as well as the STB’s own view that it has no such 

jurisdiction. This “oblique” approach to jurisdiction is insufficient to 

satisfy the major questions doctrine. West Virginia, 142 S. Ct. at 2609. 

For this additional reason, I disagree with KCSR that any action taken 

under state or other federal law that unreasonably burdens or interferes 

with rail transportation impliedly falls within the STB’s exclusive 

jurisdiction and is preempted by ICCTA. 

IV. ICCTA obstacle preemption is inconsistently applied and 

unworkable in practice. 

Finally, ICCTA obstacle preemption analysis is fundamentally 

broken and unworkable, as the deep split among lower courts makes 

clear. Rather than asking judges to evaluate structural relationships 

between state and federal law, obstacle preemption asks judges to do 

nothing short of reading legislators’ minds. That enterprise is foreign to 

the judicial role, which requires us to read text in context—not tea 

leaves, tarot cards, or the unspoken thoughts, feelings, and trepidations 

of individual legislators. 

Arguments for ICCTA obstacle preemption of state common-law 

claims often turn on technical, fact-intensive disputes that require 

courts to decide when the aggregate effects of state tort suits generate 
39 

an “unreasonable” burden on rail transportation. This approach gives 

courts almost boundless judicial discretion while placing a thumb on the 

scale in favor of preemption, as it enables railroads to argue that almost 

anything has some “effect” on their profits. See Hall v. United States, 

371 F.3d 969, 977 (7th Cir. 2004) (Easterbrook, J., dissenting) (“Effects 

are ubiquitous. A koala’s choice among tasty eucalyptus leaves in 

Australia could change the weather in Alaska.”). In addition, some 

circuits finding ICCTA obstacle preemption rely on the same sort of 

speculation about hypothetical future consequences that the Supreme 

Court has rejected in the FDA preemption context.60 

At its core, the current obstacle preemption approach includes no 

meaningful limits other than a judge’s willingness to ask what the 

impact of a legal claim on a railroad might be—which in turn requires a 

review of abstract congressional “purposes.” The resulting 

jurisprudence has been predictably bumpy, as the Court summarizes in 

Part II.C. of today’s opinion. For example, while some circuits have been 

willing to reject obstacle preemption when particularized evidence of an 

60 Compare Union Pac. R.R. Co. v. Chi. Transit Auth., 647 F.3d 675, 681 

(7th Cir. 2011) (concluding that Chicago Transit Authority’s attempted 

condemnation of property owned by Union Pacific was impliedly preempted 

because “[e]ven if the property was not being used and Union Pacific had no 

immediate plans to use this property, a taking of this property would still 

prevent Union Pacific from using it for railroad transportation in the future”), 

with Merck, 139 S. Ct. at 1682-83 (Thomas, J., concurring) (“Merck’s primary 

argument, based on various agency communications, is that the FDA would 

have rejected a hypothetical labeling change . . . . But . . . hypothetical future 

rejections [do not] constitute pre-emptive ‘Laws’ under the Supremacy 

Clause.”). 
40 

unreasonable burden is lacking,61 others have simply declared that 

state-law claims would impact construction or maintenance of a rail line 

and are therefore preempted.62 

This complexity and inconsistency also exists within circuits. 

Compare, e.g., Adrian & Blissfield R.R. Co. v. Village of Blissfield, 

550 F.3d 533, 541-42 (6th Cir. 2008) (holding Michigan statute requiring 

railroads to construct, or compensate municipalities for construction of, 

sidewalks across railway crossings was not impliedly preempted by 

ICCTA) with CSX Transp., Inc. v. City of Sebree, 924 F.3d 276, 283-84 

(6th Cir. 2019) (holding municipal ordinance requiring railroad to obtain 

city council approval before changing grade at any crossing was 

61 See Franks, 593 F.3d at 414-15 (holding “state law actions can be 

preempted as applied if they have the effect of unreasonably burdening or 

interfering with rail transportation,” but ICCTA did not impliedly preempt 

state-law action for use of private railroad crossings because testimony was not 

specific to crossings at issue); Adrian & Blissfield R.R. Co. v. Vill. of Blissfield, 

550 F.3d 533, 541-42 (6th Cir. 2008) (holding Michigan statute requiring 

railroads to construct, or compensate municipalities for constructing, 

sidewalks across railway crossings was not impliedly preempted because it was 

not “unreasonably burdensome and d[id] not discriminate against railroads” 

even though it might prevent them from maximizing profits); Emerson, 

503 F.3d at 1133-34 (holding no preemption of state-law tort claims for 

railroad’s failure to dispose of old railroad ties properly or maintain vegetation 

along right-of-way because record did not clearly address how railroad would 

fix problem). 

62 See Tubbs v. Surface Transp. Bd., 812 F.3d 1141, 1145-46 (8th Cir. 

2015) (concluding common-law negligence suit would “subject construction of 

elevated railroad embankments to state regulation . . . via negligence”); Chi. 

Transit Auth., 647 F.3d at 681; cf. Edwards v. CSX Transp., Inc., 983 F.3d 112, 

122-23 (4th Cir. 2020) (holding common-law tort claims seeking damages for 

flood-related losses caused by railroad’s unwillingness to allow sandbagging 

along right-of-way were expressly preempted as “direct attempts to ‘regulate’ 

railroading”).
41 

impliedly preempted because it was not “settled and definite enough to 

avoid open-ended delays” and forced railroad to use certain maintenance 

methods to correct fouled ballast). Under the plain text of ICCTA, there 

is no discernible difference between these forms of “regulation,” and it is 

hard to see how requiring a railroad to build sidewalks at crossings is 

not in “logical contradiction” to ICCTA’s statutory scheme while 

requiring it to use certain maintenance methods at crossings is. In a 

legal regime this chaotic, nobody wins. 

V. Plaintiffs’ claims against KCSR are not impliedly 

preempted by ICCTA. 

Because implied obstacle preemption of any state law that 

unreasonably burdens rail transportation is unworkable and 

inconsistent with the Supremacy Clause and the major questions 

doctrine, I conclude by explaining how an ICCTA implied preemption 

analysis should proceed consistent with those principles. Because there 

is no “direct conflict”63 or “logical contradiction”64 between plaintiffs’ 

common-law tort claims and ICCTA’s grant of exclusive jurisdiction to 

the STB under Section 10501(b), their claims should not be impliedly 

preempted. 

Allowing plaintiffs’ claims to proceed in state court does not 

contradict ICCTA’s statutory scheme, which centralizes and simplifies 

the economic and operational regulation of railroads without intruding 

on state regulation of railroad safety allowed by FRSA. By proceeding 

63 Wyeth, 555 U.S. at 590 (Thomas, J., concurring in judgment). 

64 Merck, 139 S. Ct. at 1681 (Thomas, J., concurring). 
42 

with their state-court suit, plaintiffs are not seeking to prevent KCSR 

from engaging in conduct that federal law expressly protects. See Wyeth, 

555 U.S. at 590 (Thomas, J., concurring in judgment). And as noted 

above, neither the STB—which has no expertise in railroad safety—nor 

any other federal agency has promulgated standards governing humped 

crossings. Instead, FRSA’s savings clauses and a century of 

jurisprudence demonstrate that railroad safety is governed by a regime 

of cooperative federalism, not top-down federal uniformity as with the 

economic regulation of railroads (particularly mergers and acquisitions). 

Moreover, as the dissenting justice in the court of appeals pointed out, 

Congress expressly delegated relevant duties to the states in 2015, 

requiring them to develop state-specific safety plans for highway-rail 

grade crossings.65 

By using the logical contradiction test to review the textual 

details of federal and state law regulating railroad crossings, as well as 

KCSR’s legal obligations to both sets of sovereigns, a factually intensive 

ICCTA obstacle preemption inquiry could be avoided. But regardless of 

which implied preemption test is used, KCSR’s implied preemption 

argument is wholly unsatisfying. KCSR maintains that if this commonlaw negligence suit is allowed, it will face inconsistent legal liabilities in 

various courtrooms around the state—and the costs of this legal 

uncertainty, anticipatory compliance measures, and possibly a few 

unfavorable verdicts in future cases will aggregate into a substantial 

65 666 S.W.3d at 21 n.5 (Carlyle, J., dissenting) (citing Fixing America’s 

Surface Transportation Act, Pub. L. 114-94, § 11401, 129 Stat 1312, 1679-81 

(2015)). 
43 

sum. Perhaps. But even if the STB decided at some point to regulate 

humped crossings under the jurisdiction KCSR asserts it has (despite 

not doing so in the last 28 years), it is difficult to see how giving the fivemember STB exclusive jurisdiction over thousands of routine, factintensive claims of common-law negligence at rail crossings would make 

the legal picture any more consistent for KCSR or, for that matter, any 

cheaper. 

In short, because there is no textual evidence of a “direct conflict” 

or a “logical contradiction” between KCSR’s obligations under state and 

federal law, as well as ample evidence that Congress had no desire to 

establish such a conflict, ICCTA does not impliedly preempt plaintiffs’ 

humped-crossing negligence claim according to the original public 

meaning of the Supremacy Clause. 

CONCLUSION

In FEDERALIST 51, James Madison laid out the nature and 

purpose of our federal constitutional structure: 

In the compound republic of America, the power 

surrendered by the people is first divided between two 

distinct governments, and then the portion allotted to each 

subdivided among distinct and separate departments. 

Hence a double security arises to the rights of the people. 

The different governments will control each other, at the 

same time that each will be controlled by itself.66

66 FEDERALIST NO. 51 (James Madison). 
44 

Commenting on this passage, Justice Antonin Scalia observed that 

“[t]hose who seek to protect individual liberty ignore threats to this 

constitutional structure at their peril.”67 

The current doctrine of implied obstacle preemption presents 

such a peril because it allows courts to seize power for themselves (and 

often for federal executive branch agencies), undercutting the norm that 

Congress must speak clearly when it seeks to delegate powers to other 

branches or displace the traditional police powers of the States. Just as 

Congress “cannot give the Judiciary uncut marble with instructions to 

chip away all that does not resemble David,” Percoco v. United States, 

143 S. Ct. 1130, 1142 (2023) (Gorsuch, J., concurring in judgment), the 

Judiciary cannot glue new pieces of marble onto Congress’s David 

whenever it thinks Congress’s aesthetic “purposes and objectives” would 

be advanced. “[T]hat is not a path the Constitution tolerates.” Id. 

(Gorsuch, J., concurring in judgment). Although recent decades’ debates 

about federal structural constitutionalism have been most vigorous in 

other arenas,68 the Supremacy Clause and implied preemption doctrine 

67 Scalia, Foreword: The Importance of Structure in Constitutional 

Interpretation, 83 NOTRE DAME L. REV. at 1418. See also Morrison v. Olson, 

487 U.S. 654, 697 (1988) (Scalia, J., dissenting) (“The Framers of the Federal 

Constitution . . . viewed the principle of separation of powers as the absolutely 

central guarantee of a just Government . . . . Without a secure structure of 

separated powers, our Bill of Rights would be worthless, as are the bills of 

rights of many nations of the world that have adopted, or even improved upon, 

the mere words of ours.”) 

68 See, e.g., Gundy v. United States, 139 S. Ct. 2116 (2019); Nat’l Pork 

Producers Council v. Ross, 143 S. Ct. 1142 (2023), New York v. United States, 

505 U.S. 144 (1992); Printz v. United States, 521 U.S. 898 (1997); Seminole 

Tribe of Fla. v. Florida, 517 U.S. 44 (1996); Franchise Tax Bd. of Cal. v. Hyatt, 
45 

implicate the very same questions about the Framers’ choice to diffuse 

power across the federal government and the states and among the 

different branches, lest a concentration of those powers undermine the 

people’s liberty. 

Because preemption issues are so frequently litigated, implied 

obstacle preemption’s distorted application of the Supremacy Clause is 

perhaps one of the most damaging constitutional doctrines of modern 

times. It has undermined the “double security” the Framers sought to 

guarantee Americans, replacing it with judicial arbitrariness, confusion, 

and the substantive loss of rights. It is unmoored from the original 

public meaning of the Constitution, and it is in irreconcilable tension 

with the Supreme Court’s administrative law jurisprudence protecting 

federalism and the separation of powers through the major questions 

doctrine. I urge the Supreme Court to reexamine its implied obstacle 

preemption jurisprudence and adopt an approach consistent with the 

original public meaning of the Supremacy Clause. 

With these concurring thoughts, I join the Court’s opinion. 

 

J. Brett Busby 

 Justice 

OPINION FILED: June 30, 2023 

139 S. Ct. 1485 (2019); Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519 

(2012).