Process-Based Preemption

The question of preemption arises because the Constitution establishes a federal system with two governments (one federal and one state) that have overlapping power to regulate the same matters involving the same parties in the same territory. To succeed, such a system requires a means of deciding when federal law displaces state law. The Founders chose the Supremacy Clause (reinforced by Article III) to perform this function. Although seemingly one-sided, the Clause actually incorporates several important political and procedural safeguards designed to preserve the proper balance between the governance prerogatives of the federal government and the states. It does this by recognizing only three sources of law as the supreme Law of the Land – the Constitution, Laws, and Treaties of the United States. Elsewhere, the Constitution prescribes precise and cumbersome procedures to govern the adoption of each source of supreme federal law. These procedures establish the exclusive means of adopting the supreme Law of the Land. By requiring the participation and assent of multiple actors subject to the political safeguards of federalism, these procedures make supreme federal law relatively difficult to adopt. More importantly, these procedures suggest exclusivity because the Constitution guarantees states (regardless of size or population) equal suffrage in the Senate and gives the Senate (or the states) an absolute veto over the adoption of each and every source of law recognized by the Supremacy Clause. This means that courts must identify an applicable provision of the Constitution, Laws, and Treaties of the United States adopted pursuant to specified procedures before they may preempt state law. By operation of the Supremacy Clause, these three sources override contrary state law. The negative implication of the Clause, however, is that state law continues to govern in the absence of the supreme Law of the Land. This process-based understanding of preemption has potential implications for two related federalism doctrines: the presumption against preemption and the more controversial clear statement requirement. The traditional presumption against preemption maintains that the historic police powers of the States [are] not to be superseded by [a] Federal Act unless that was the clear and manifest purpose of Congress. A clear statement rule is similar in function but requires that Congress make its intent to preempt state law clear on the face of the statute. In addition, some formulations go farther by suggesting that if Congress intends to alter the usual constitutional balance between the States and the Federal Government, it must make its intention to do so unmistakably clear in the language of the statute. Critics of these doctrines argue that the presumption against preemption contradicts the Supremacy Clause, and that clear statement rules amount to a ‘backdoor’ version of the constitutional activism. Although certainly subject to abuse, this paper suggests that both doctrines – if properly limited – may play a useful role in implementing the Constitution’s political and procedural safeguards of federalism

The Political Branches and The Law of Nations

In the late eighteenth and early nineteenth centuries, the U.S. Supreme Court went out of its way to follow background rules of the law of nations, particularly the law of state-state relations. As we have recently argued, the Court followed the law of nations because adherence to such law preserved the constitutional prerogatives of the political branches to conduct foreign relations and decide momentous questions of war and peace. Although we focused primarily on the extent to which the Constitution obligated courts to follow the law of nations in the early republic, the explanation we offered rested on an important, but largely overlooked, predicate - that the political branches were free to make law in derogation of the law of nations, and that such law would bind U.S. courts as the supreme law of the land. In this Article, we explain how Supreme Court decisions applying the law of nations necessarily presupposed that the political branches may depart from the law of nations in their respective constitutional powers. Because decisions regarding when and whether to adhere to - or depart from - the law of nations “are rather questions of policy than of law,” the Constitution’s allocation of powers assigned such decisions to the political branches of the federal government. In addition, we offer a separation of powers rationale for why the Court has sometimes limited executive power according to the law of nations while leaving Congress free to depart from such law. On this account, judicial enforcement of the law of nations against the Executive Branch appears to track the Court’s understanding of the Constitution’s allocation of powers between Congress and the President. Because the Constitution assigns all foreign affairs powers to Congress and the President, however, the Court has never suggested that courts could enforce the law of nations to constrain the collective constitutional power of the political branches

The Eleventh Amendment and the Nature of the Union

Leading theories of the Eleventh Amendment start from the premise that its text makes no sense. These theories regard the Amendment as either under-inclusive, over-inclusive, or an incoherent compromise because it prohibits federal courts from hearing any suit against a state by out-of-state citizens, but does not prohibit suits against a state by its own citizens. Two of these theories would either expand or contract the immunity conferred by the text of the Amendment in order to avoid this absurd or anomalous result. This Article suggests that the Eleventh Amendment made sense as written when understood in its full historical context. In particular, the Articles of Confederation empowered Congress to require states to supply men, money, and supplies, but gave Congress no power to enforce its own commands. Prominent Founders initially argued that the only way to fix the Articles was to give Congress coercive power over states. But the Convention, and the ratifiers, ultimately rejected this idea because they feared that the introduction of such power would lead to a civil war. To avoid this danger, the Founders designed the Constitution to give Congress legislative power over individuals rather than states. This novel approach eliminated the need for coercive power over states, and provided Federalists with a key argument for adopting the Constitution rather than amending the Articles. Anti-federalists threatened to undermine this case for the Constitution by arguing that the state-citizen diversity provisions of Article III - authorizing suits between states and out-of-state citizens - could be construed to permit suits against states (and thus imply federal power to enforce any resulting judgments against states). Although Federalists denied this construction, the Supreme Court proceeded to read Article III to permit out-of-state citizens to sue states. Federalists and Anti-federalists quickly joined forces to restore their preferred construction of Article III. In adopting the Eleventh Amendment, they saw no anomaly in prohibiting any suit against a state by out-of-state citizens because they did not understand the Constitution to authorize any suits against states by in-state citizens. Federal question jurisdiction did not expressly authorize such suits, and the Founders likely would not have perceived any real need for such jurisdiction given their understanding that the Constitution conferred neither legislative nor coercive power over states. Because the Eleventh Amendment, as written, made sense in light of the nature of the Union, the absurdity doctrine cannot justify departing from the terms of the Amendment

Honoring Dan Meltzer

Dan Meltzer was a giant in the field of Federal Courts, and it is hard to overstate his influence on its development. He taught Federal Courts at Harvard Law School and was a long-time co-author of Hart & Wechsler’s The Federal Courts and the Federal System (“Hart & Wechsler ”), the casebook that created the field and shaped how generations of judges, lawyers, and scholars think about complex questions of federal jurisdiction. In addition, Dan enriched the field immeasurably by writing seminal articles on a wide range of Federal Courts topics. His work was characterized by deep knowledge of the law, the relevant history, and the surrounding literature. After reading one of Dan’s articles, one always came away with a deeper understanding of the problems he examined and the potential solutions to them. Because of his efforts to link doctrine with theory, Dan’s influence has extended well beyond the academy. His work has been cited dozens of times by the Supreme Court and hundreds of times by lower federal courts. Dan also taught thousands of Federal Courts students at Harvard Law School for nearly three decades—students who went on to become, among other things, law clerks, legal scholars, and judges. As I learned early in my career, Dan was very generous in giving comments and advice to young scholars who sent him drafts or reprints of their work. In all of these ways and more, Dan profoundly impacted every aspect of the field of Federal Courts. He will be greatly missed by all who knew him or were familiar with his work

Unitary Judicial Review

Two hundred years have passed since the Supreme Court\u27s decision in Marbury v. Madison, yet debate continues over the origins and legitimacy of judicial review. Although modern commentators generally accept judicial review with little or no reservation, some remain skeptical. One of the strongest and most sustained challenges comes from Larry Kramer, who has recently argued that the Founders did not authorize judicial review of the scope of federal powers under the original Constitution. At the same time, Kramer maintains that the Founders expected judicial review both to prevent states from undermining federal supremacy and to enforce individual rights. Such attempts to divide judicial review, however, are inconsistent with the constitutional text and contradict key assumptions held by the Founders. The relevant materials suggest that judicial review is a unitary doctrine under the Supremacy Clause that requires courts to treat all parts of the Constitution as the supreme Law of the Land and to disregard both state and federal law to the contrary. There are at least two difficulties with Professor Kramer\u27s proposed dichotomy. First, Kramer\u27s attempt to separate judicial review of state law from judicial review of federal statutes is inconsistent with the text of the Supremacy Clause. The Clause recognizes only three forms of federal law as the supreme Law of the Land: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States. By its terms, therefore, the Clause requires courts to prefer federal statutes to contrary state law only if the federal statute is consistent with this Constitution. In other words, courts have no warrant to enforce unconstitutional federal statutes over contrary state law. This is true whether the federal statute in question violates the Constitution\u27s provisions delegating powers or its rights-bearing provisions. Thus, in such cases, the Supremacy Clause explicitly conditions judicial review of state law on judicial review of federal statutes. Second, Professor Kramer\u27s further attempt to distinguish judicial review under the rights-bearing provisions of the Constitution from judicial review under the provisions delegating powers contradicts widespread assumptions at the Founding about the nature and source of individual rights vis-a-vis the federal government. Federalists and Antifederalists agreed that individual rights would be secured - at least in part - by the Constitution\u27s limited delegation of powers to the federal government. Their disagreement was whether this feature alone would suffice to protect individual liberty. The Antifederalists argued that a Bill of Rights was necessary to guarantee essential rights. The Federalists countered that a Bill of Rights was both unnecessary and dangerous. It was unnecessary because the federal government lacked power to interfere with the rights at issue. It was dangerous because it might erroneously imply that the federal government had power to invade other rights retained by the people. The Founders compromised by including the Ninth and Tenth Amendments in the Bill of Rights. As discussed below, these amendments negated any suggestion that the enumeration of rights implied the availability of federal power to invade other rights, and thus confirm that the Founders equated individual rights with the limited scope of federal powers. From this perspective, Professor Kramer\u27s suggestion that courts enforce the rights-bearing provisions of the Constitution but not the provisions delegating powers is anachronistic because it ignores the common purpose of these provisions and would create the very danger that the Founders sought to avoid. The Founders\u27 understanding that the Constitution secures individual rights by limiting federal power has important implications for judicial review. Courts cannot - as some commentators urge - simply enforce the Bill of Rights but decline to police the limits of federal power. Given the Founders\u27 understanding of the source of individual rights vis-a-vis the federal government, courts should take a unitary approach to judicial review under the Supremacy Clause and enforce both the Bill of Rights and the limits of federal power. Only then could courts uphold all of the rights retained by the people

Kiobel, Subject Matter Jurisdiction, and the Alien Tort Statute

The Supreme Court is currently reviewing the Second Circuit’s decision in Kiobel v. Royal Dutch Petroleum, a case holding that federal courts lack jurisdiction under the Alien Tort Statute (“ATS”) over claims against corporations. Although the parties have focused on issues of corporate liability under the ATS, there is a logically antecedent question of subject matter jurisdiction that the Court should decide before considering corporate liability. All of the parties in Kiobel — whether corporate or individual — are aliens. Understood in its full legal and historical context, the ATS was a jurisdictional statute that did not apply to suits between aliens. The First Congress enacted the ATS as a species of foreign diversity jurisdiction to satisfy the United States’ obligation under international law to redress violence by U.S. citizens against foreign citizens. Accordingly, the ATS was originally understood to give federal courts jurisdiction only over claims by aliens against U.S. citizens for intentional torts to person or personal property. In Sosa v. Alvarez-Machain, the Supreme Court sought to interpret the ATS in accordance with the expectations of the First Congress. If the Court adheres to this goal in Kiobel, then it should conclude that it lacks statutory subject matter jurisdiction over the case. If the Court decides that the ATS does not apply to suits between aliens, then the Court likely will never have occasion to decide the thorny question of corporate liability under the ATS. Under the express terms of 28 U.S.C. §1332, federal courts already have jurisdiction over suits by aliens against U.S. corporations provided that the amount in controversy is greater than $75,000.00 — a condition easily met in cases against large corporations

The Political Branches and The Law of Nations

In the late eighteenth and early nineteenth centuries, the U.S. Supreme Court went out of its way to follow background rules of the law of nations, particularly the law of state-state relations. As we have recently argued, the Court followed the law of nations because adherence to such law preserved the constitutional prerogatives of the political branches to conduct foreign relations and decide momentous questions of war and peace. Although we focused primarily on the extent to which the Constitution obligated courts to follow the law of nations in the early republic, the explanation we offered rested on an important, but largely overlooked, predicate - that the political branches were free to make law in derogation of the law of nations, and that such law would bind U.S. courts as the supreme law of the land. In this Article, we explain how Supreme Court decisions applying the law of nations necessarily presupposed that the political branches may depart from the law of nations in their respective constitutional powers. Because decisions regarding when and whether to adhere to - or depart from - the law of nations “are rather questions of policy than of law,” the Constitution’s allocation of powers assigned such decisions to the political branches of the federal government. In addition, we offer a separation of powers rationale for why the Court has sometimes limited executive power according to the law of nations while leaving Congress free to depart from such law. On this account, judicial enforcement of the law of nations against the Executive Branch appears to track the Court’s understanding of the Constitution’s allocation of powers between Congress and the President. Because the Constitution assigns all foreign affairs powers to Congress and the President, however, the Court has never suggested that courts could enforce the law of nations to constrain the collective constitutional power of the political branches

Process-Based Preemption

The question of preemption arises because the Constitution establishes a federal system with two governments (one federal and one state) that have overlapping power to regulate the same matters involving the same parties in the same territory. To succeed, such a system requires a means of deciding when federal law displaces state law. The Founders chose the Supremacy Clause (reinforced by Article III) to perform this function. Although seemingly one-sided, the Clause actually incorporates several important political and procedural safeguards designed to preserve the proper balance between the governance prerogatives of the federal government and the states. It does this by recognizing only three sources of law as the supreme Law of the Land – the Constitution, Laws, and Treaties of the United States. Elsewhere, the Constitution prescribes precise and cumbersome procedures to govern the adoption of each source of supreme federal law. These procedures establish the exclusive means of adopting the supreme Law of the Land. By requiring the participation and assent of multiple actors subject to the political safeguards of federalism, these procedures make supreme federal law relatively difficult to adopt. More importantly, these procedures suggest exclusivity because the Constitution guarantees states (regardless of size or population) equal suffrage in the Senate and gives the Senate (or the states) an absolute veto over the adoption of each and every source of law recognized by the Supremacy Clause. This means that courts must identify an applicable provision of the Constitution, Laws, and Treaties of the United States adopted pursuant to specified procedures before they may preempt state law. By operation of the Supremacy Clause, these three sources override contrary state law. The negative implication of the Clause, however, is that state law continues to govern in the absence of the supreme Law of the Land. This process-based understanding of preemption has potential implications for two related federalism doctrines: the presumption against preemption and the more controversial clear statement requirement. The traditional presumption against preemption maintains that the historic police powers of the States [are] not to be superseded by [a] Federal Act unless that was the clear and manifest purpose of Congress. A clear statement rule is similar in function but requires that Congress make its intent to preempt state law clear on the face of the statute. In addition, some formulations go farther by suggesting that if Congress intends to alter the usual constitutional balance between the States and the Federal Government, it must make its intention to do so unmistakably clear in the language of the statute. Critics of these doctrines argue that the presumption against preemption contradicts the Supremacy Clause, and that clear statement rules amount to a ‘backdoor’ version of the constitutional activism. Although certainly subject to abuse, this paper suggests that both doctrines – if properly limited – may play a useful role in implementing the Constitution’s political and procedural safeguards of federalism