The Unambiguous Supremacy Clause

INTRODUCTIONThe premise of federal supremacy (or preemption) is elementary.1 When a state law conflicts with a federal law, the Supremacy Clause provides a resolution: federal law trumps state law.2 For nearly three decades, however, the alluring simplicity of Supremacy Clause conflicts masks what is actually a confused doctrine.3 No unequivocal answer exists to the question of whether the Supremacy Clause provides an independent cause of action.4 Rather than offering clarity, the U.S. Supreme Court recently injected even more uncertainty into the arena when it passed on an opportunity to answer the question that has long simmered in the background of certain preemption cases.5The confusion does not arise in all preemption contexts.6 For instance, a defendant asserting preemption as a defense need not rely on a cause of action, whether located in the Supremacy Clause or elsewhere.7 A plaintiff who relies on a federal statute that creates a cause of action or a constitutional provision that creates a federal right (such as the Commerce Clause) likewise is not affected by the abstract question of whether the Supremacy Clause confers a cause of action.8 Instead, the question that remains unanswered comes up in a narrow but important class of cases in which a federal law alleged to preempt a state law does not contain a private cause of action.9 In those cases, plaintiffs swing preemption as a sword to seek prospective relief in the form of injunctions against state action and declaratory judgments of unconstitutionality.10These preemption plaintiffs arrive at the courthouse in one of two vehicles: they either explicitly allege federal preemption of state law,11 or they imply federal preemption of state law.12 The different treatment afforded such plaintiffs in preemption cases has not only led to the question of whether the Supremacy Clause confers a cause of action, but also defined the contours of a tentative answer.13This Note examines that preemption doctrine and its incongruity: different classes of plaintiffs are burdened with different cause of action requirements in the shadow of the Supremacy Clause.14 The evolution of constitutional law has produced various doctrines-cause of action,15 jurisdiction,16 and standing17-to ensure that federal courts properly adjudicate valid "cases or controversies" pursuant to Article III of the Constitution.18 Notwithstanding the command of Article III, federal courts, including the Supreme Court, have permitted some types of preemption plaintiffs to pursue claims without demonstrating a valid cause of action.19 The implication for these plaintiffs who prospectively assert preemption is that the Supremacy Clause provides not only federal court jurisdiction but also a cause of action where one does not otherwise exist in the federal law alleged to preempt the conflicting state law or action.20Jurisdiction, or the power of a federal court to hear a case, has long been found to exist in Supremacy Clause cases.21 In February 2012, the Supreme Court declined to define the extent to which the Supremacy Clause also provides a cause of action.22 After initially granting certiorari to review the specific question of whether the Supremacy Clause provided a cause of action for certain preemption plaintiffs, a 5-4 Court remanded the case to the lower court for further argument on the same question, leaving the state of the doctrine particularly uncertain.23This Note argues that unless and until the Supreme Court holds that the Supremacy Clause confers a cause of action, a distinction among plaintiffs in which some are and others are not found to have a valid cause of action is without merit.24 All preemption plaintiffs should be required to establish a valid cause of action independent of the Supremacy Clause to satisfy the adjudicatory principles of the federal judiciary.25 The current doctrine that affords varying cause of action requirements for different plaintiffs harms principles of fairness,26 infringes on the Constitution's separation-of-powers structure,27 and undermines federalism goals. …