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 shift in 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

Legislative Courts, Legislative Power, and the Constitution

Symposium: Paul Bator: Legislative and Administrative Courts Under Article II

Executive Defense of Congressional Acts

This Article explores the appropriate role of the executive branch in enforcing and defending federal statutes that the president, or executive-branch officials, believe may well be unconstitutional, but for whose constitutional validity reasonable arguments can be advanced. The Article first locates the question of the scope of the executive branch’s responsibility to enforce and defend federal statutes in the larger debate about the extent to which political branches of government are authorized—or even obligated—to make determinations of constitutionality independently of the views of the judiciary. It then reviews the historical practice of the executive branch in defending federal statutes—both the very strong presumption that statutes will be enforced and in turn defended if challenged in court and the departures from that general practice. The Article then considers a range of institutional practices and norms that are significant in considering the question. A number of considerations—including the distinctive capacities of the executive branch, the relationship between career lawyers and political appointees in the executive branch, the virtues of institutional continuity within the executive branch, and the relationship between the executive branch and Congress—reinforce the wisdom of the conventional practice of defending even those statutes that an incumbent administration views as offensive and possibly invalid. Moreover, a regime in which each administration views itself as having significant latitude to refuse to enforce and defend acts of Congress would be considerably less attractive than particular decisions or theories, given that different administrations are likely to have sharply different views about the appropriate occasions for, and the appropriate theories underlying, a refusal to enforce or defend federal statutes. In a world featuring an extremely broad range of views about proper constitutional interpretation, partisan correlates to those views, a powerful temptation to equate what is misguided or immoral with what is unconstitutional, increased polarization of the political parties, and a lack of commitment to the idea of judicial restraint, decisions not to defend or enforce have the capacity to contribute significantly to the unraveling of the executive branch’s practice of defending federal statutes. This Article also examines the responsibility of the judiciary to provide the executive branch with the operating room that it needs to be able to defend, candidly and with integrity, statutes with whose premises the president and his administration strongly disagree. In the end, the question of the executive branch’s responsibility to enforce and defend statutes is not governed by a legal rule derivable from the Constitution itself, but is a matter of judgment, informed by a welter of historical and institutional concerns

Legislative Courts, Legislative Power, and the Constitution

Symposium: Paul Bator: Legislative and Administrative Courts Under Article II