Don\u27t Bury the Competition: The Growth of Occupational Licensing and a Toolbox for Reform

In recent years, states have subjected more occupations to burdensome regulatory requirements that are often imposed to fetter competition. There is broad agreement that many such restrictions reduce consumer welfare and impose particular burdens on economically disadvantaged groups. This Note examines why existing tools have failed to constrain this protectionist trend. Drawing upon U.S. and foreign experiences, it proposes a statutory reform that would preserve states\u27 roles as primary regulators of occupations subject only to limited FTC oversight to prevent protectionism and that includes numerous procedural protections to avoid excessive preemption

Righting \u3cem\u3eLechmere\u3c/em\u3e\u27s Drift: NLRA Preemption of State Property Law of Easements and Leases

Has the Supreme Court\u27s concern that employers can envelop themselves in a “cordon sanitaire” of parking lots, berms, and strip malls to insulate themselves from employees\u27 lawful union organizing activities finally come true? In the seminal Lechmere, Inc. v. National Labor Relations Board, the Supreme Court interpreted workers\u27 § 7 organizing rights as being inherently limited by state property laws. However, this ruling was effectively limited by the Court\u27s policy concern of not suborning trespass through national labor policy. However, since Lechmere was decided, courts have expressed deference to state property rights, defining easements and related property interests to a degree that have begun to implicate two doctrines of federal labor law preemption, known as Garmon and Machinists preemption. The Seventh Circuit in Roundy\u27s v. National Labor Relations Board had an opportunity to correct this drift by explicitly rejecting the premise of the employer\u27s defense to a charge of unlawful exclusion of union organizers from a shopping center easement. The Board won its case, but the employer\u27s raised defense—reliance on a state statute defining the cause of action of those with injured property interests—is emblematic of the Lechmere drift and presented the court with an opportunity to definitively correct this expansion. This Note explores the Seventh Circuit\u27s decision in Roundy\u27s v. NLRB in light of National Labor Relations Act preemption and state property laws defining the rights of property interest holders, particularly in easements. It suggests that, except for state laws defining trespass, any law that gives non-possessors an interest sufficient to exclude lawful § 7 union organizing activity is preempted under the Machinists doctrine

Preemption of State Spam Laws by the Federal Can-Spam Act

Unsolicited bulk commercial email is an increasing problem, and though many states have passed laws aimed at curbing its use and abuse, for several years the federal government took no action. In 2003 that changed when Congress passed the CAN-SPAM Act. Though the law contains many different restrictions on spam messages, including some restriction of nearly every type that states had adopted, the Act was widely criticized as weak. Many of the CAN-SPAM Act\u27s provisions are weaker than corresponding provisions of state law, and the Act preempts most state spam laws that would go farther, including two state laws that would have banned all spam. Despite these weaknesses, this Comment argues that when properly interpreted the CAN-SPAM Act leaves key state law provisions in force, and accordingly is stronger than many spam opponents first thought. First, the law explicitly preserves state laws to the extent that they prohibit falsity or deception in any portion of a commercial electronic mail message or information attached thereto. Though Congress was primarily concerned with saving state consumer protection laws, this language can be applied much more broadly. Second, the law is silent on the question of state law enforcement methods. State enforcement can be, and frequently is, substantially stronger than federal enforcement, which is largely limited to actions by the federal government, internet service providers, and state agencies. The Comment concludes by arguing that this narrow interpretation of its preemption clause is most consistent with the CAN-SPAM Act\u27s twin policy goals. By limiting the substantive provisions states may adopt, the Act prevents states from enacting inconsistent laws and enforces a uniform national spam policy. At the same time, narrowly interpreting the preemption clause permits states to experiment within the limits of that policy, in hopes of finding the most effective set of spam regulations

Crossed Signals in a Wireless World: The Seventh Circuit’s Misapplication of the Complete Preemption Doctrine

As the number of wireless telephone users continues to proliferate, so does the number of lawsuits against wireless service providers. While consumers seek to utilize various consumer-friendly state law causes of action, the wireless industry continues to push for a uniform federal regulatory regime. Ambiguous language in the Federal Communications Act of 1934 ( FCA ) and disagreement among the federal circuits has led to much confusion over whether state law claims affecting wireless rates and market entry are removable to federal court by way of complete preemption. This iBrief argues that FCA\u27s preemption power is limited by its savings clause, failure to establish a comprehensive regulatory scheme, and provision of a significant role for state regulation. Accordingly, the Seventh Circuit erred in Bastien v. AT&T Wireless Services, Inc. when it concluded that the FCA completely preempts certain state law claims against wireless service providers and thereby requires their removal to federal court

Executive Preemption

Preemption of state regulatory authority by national law is the central federalism issue of our time. Most analysis of this issue has focused on the preemptive effects of federal statutes. But as Justice White observed in INS v. Chadha,“[f]or some time, the sheer amount of law . . . made by the [administrative] agencies has far outnumbered the lawmaking engaged in by Congress through the traditional process.” Whether one views this development as a “bloodless constitutional revolution” or as a necessary “renovation” of the constitutional structure in response to the complexity of modern society, the advent of the administrative state has profound implications for the Constitution’s core commitments to federalism and separation of powers in general and for preemption doctrine in particular. Specifically, preemption doctrine has yet to resolve the extent to which executive action should be treated differently from legislation, or to grapple with the considerable range of diverse governmental activities that march under the banner of executive agency action. Federal administrative action is, in important ways, considerably more threatening to state autonomy than legislation is. As the constitutional limits on national action fade into history, the primary remaining safeguards for state autonomy are political, stemming from the representation of the states in Congress, and procedural, arising from the sheer difficulty of navigating the federal legislative process. These safeguards have little purchase on executive action. The states have no direct role in the “composition and selection” of federal administrative agencies, and much of the point of such agencies is to be more efficient lawmakers than Congress. Agency action thus evades both the political and the procedural safeguards of federalism. It remains true, of course, that “an agency literally has no power to act, let alone pre-empt the validly enacted legislation of a sovereign State, unless and until Congress confers power upon it.” But as Colin Diver observes, “a defining characteristic of the administrative state [is] that most statutes are not direct commands to the public enforced exclusively by courts, but are delegations to administrative agencies to issue and enforce such commands.” Preemption doctrine has developed primarily as a doctrine of statutory construction, focused on the intent of Congress, and transporting that doctrine into the administrative law context raises a number of difficult problems of translation. The Supreme Court’s preemption jurisprudence, unfortunately, has tended to ignore these problems. Instead of structuring preemption doctrine to account for the distinct position and characteristics of administrative agencies, the Court has tended to say simply that “[f]ederal regulations have no less pre-emptive effect than federal statutes.” I try to do a little better than that in this Article by addressing two basic sets of problems. The first involves questions of interpretation arising from an agency’s determination that congressional action has preemptive effect. The most prominent issue here is whether, where Congress’s own preemptive intent is ambiguous, courts should defer to the agency’s conclusion that a statute preempts state law under Chevron U.S.A. Inc. v. National Resources Defense Council. Such deference would create an important exception to the normal presumption articulated most famously in Rice v. Santa Fe Elevator Corp. that statutory ambiguity is resolved in favor of preserving state regulatory authority. I argue that although courts may continue to defer to agency interpretations of what the relevant statute does,Chevron should not be construed to require similar deference to agency conclusions about the law’s preemptive effect. The second set of issues arises when preemption is asserted on the basis of regulations, orders, or other agency activity, rather than grounded in the relevant statute itself. These instances of preemption are problematic because they seem to shift preemptive authority from Congress to the agency—a result that contravenes both the text of the Supremacy Clause and the structural safeguards of federalism and separation of powers. As a result, I suggest that we may wish to restrict the agencies’ role in preemption to interpreting what Congress has done. Failing that, however, I suggest a series of possible limiting principles, each of which would restrict administrative preemption to at least some extent beyond present law. My discussion proceeds in three parts. Part I offers a brief account of preemption doctrine and situates the issue of executive preemption within that account. Part II addresses the question of statutory interpretation and deference. Part III then turns to the independent preemptive force of agency action

Reverse-Commandeering

Although the anti-commandeering doctrine was developed by the Supreme Court to protect state sovereignty from federal overreach, nothing prohibits flipping the doctrine in the opposite direction to protect federal sovereignty from state overreach. Federalism preserves a balance of power between two sovereigns. Thus, the reversibility of the anti-commandeering doctrine appears inherent in the reasoning offered by the Court for the doctrine’s creation and application. In this Article, I contend that reversing the anti-commandeering doctrine is appropriate in the context of contemporary immigration federalism laws. Specifically, I explore how an unconstitutional incursion into federal sovereignty can be seen in state immigration laws such as Arizona’s controversial Senate Bill 1070 (SB 1070), the subject of the Court’s recent decision in Arizona v.United States, and also in the Legal Arizona Workers Act (LAWA), the subject of the Court’s consideration in Chamber of Commerce v. Whiting during the prior term. The Court upheld Section 2(B) of SB 1070 in Arizona, and upheld LAWA in Whiting, finding these state laws were not preempted by federal immigration law. Yet, in this Article, I conclude that these laws nonetheless interfere with the federal government’s exclusive power to control immigration policy at the national level. Thus, the constitutionality of state immigration laws such as SB 1070 and LAWA should be interpreted within an anti-commandeering framework. This doctrinal shift, from the preemption doctrine to the anti-commandeering doctrine, allows federal courts to examine the constitutionality of state immigration laws through a more explicit federalist lens

Omnipresent Chemicals: TSCA Preemption in the Wake of PFAS Contamination

Over the past few decades, studies addressing the harms of PFAS have gradually progressed, and now scientists believe increased exposure could lead to reproductive defects and a higher risk of cancer. Given the amplified concern surrounding these pervasive chemicals, states are proactively filing lawsuits on behalf of their citizens and enacting legislation to combat this nation-wide contamination epidemic. However, given the 2016 Amendment to the Toxic Substances Control Act of 1976, states looking to regulate the manufacturing or looking to ratify a state- wide ban on the manufacturing of such chemicals may face preemption under actions taken by the United States Environmental Protection Agency. This Note focuses on the possible loss of state autonomy with regards to PFAS regulation. It addresses the issues states might face given the restrictive nature of the newly enacted preemption provisions of the Toxic Substances Control Act, while also examining the Act’s possible deficiencies. Ultimately, recognizing a need for creative solutions outside the scope of manufacturing regulations may provide the best solutions for states to combat these ubiquitous chemicals