Preemption and Textualism

In the critically important area of preemption, the Supreme Court's approach to statutory interpretation differs from the approach it follows elsewhere. Whether in politically salient matters, like challenges to Arizona's immigration laws, or in more conventional cases, such as those in which state tort liability overlaps with federal regulation, the Court's preemption decisions reflect a highly purposive approach to reading statutes, most notably through the application of "obstacle preemption" analysis. Recently, however, Justice Thomas has objected to the Court's failure in preemption cases to respect its more textualist approach to issues of statutory interpretation, and he has urged that obstacle preemption be abandoned. Although three other justices have endorsed some aspects of Justice Thomas's approach, no dramatic shiftin the Court's approach has yet occurred.This Article examines recent preemption decisions and seeks to explain why textualist premises have so little grip in this domain. One might therefore view this Article as, in part, a case study of the feasibility of textualism. I argue that Congress lacks the capacity, foresight, and linguistic tools to be able adequately to specify in statutory text the proper resolution of the range of preemption issues that invariably arise under regulatory statutes of any complexity. Consequently, the task of fashioning a workable legal system that integrates state and federal law necessarily falls to courts (with assistance in some instances from federal administrative agencies). This Article concludes by examining recent challenges to the presumption against preemption that Professor Nelson posed and Justice Thomas endorsed. It criticizes the Nelson/Thomas understanding that the Supremacy Clause calls for rejection of the presumption against preemption and explains the significant role that that presumption continues to play.INTRODUCTIONFederal preemption doctrine has few fans,1 and critics attack it from many different directions. Proponents of state sovereignty-a viewpoint often associated with political conservatives2-view the doctrine and its application as threatening to the federal structure,3 a point that can embrace multiple concerns, from abstract questions of sovereignty to the claimed virtues of experimentation to protection against the risk that an exclusively federal regime will be subject to regulatory capture. As evidence that the politics of preemption make strange bedfellows, proponents of regulation, who are generally viewed as political progressives, also criticize preemption doctrine as too often deployed in service of an antiregulatory, laissez-faire agenda.4On the other side, skeptics about regulation, or about the viability of subjecting multistate actors to differing state regulatory requirements,5 are often enthusiastic about preemption of state law. Enthusiasts include those who see it as one means to preclude states from imposing the external costs of their regulatory schemes on the nation as a whole.6With a plethora of cases known for their lack of consistency, a complex set of crosscurrents, a broad set of subject matters, and a recent significant shiftin the stance of the executive branch (represented by a 2009 presidential memorandum issued by President Obama),7 generalizations about the direction of preemption law are hazardous; it is not easy to say who is winning the war.8 But in the midst of these developments, Justice Thomas has emerged with a clear, strong, and reasonably consistent message. In a series of recent opinions, he has presented an agenda that takes on the prevailing orthodoxy. First, he suggests that interpretation of an express preemption clause should not be informed by a presumption against preemption.9 And second, he advocates a sharp retrenchment in the doctrine of implied preemption, 10 particularly in so-called "obstacle preemption" cases.11 These positions flow from a methodological approach that emphasizes textual interpretation and seeks to limit the decisionmaking authority of courts. …