John Marshall, Living Constitutionalist

At the originalism blog, Mike Ramsey has a number of thoughtful posts on the Arizona immigration case and its central preemption question. His April 24 post rejects the contention that Arizona’s law is preempted because it “conflicts with the generalized purposes of federal law or with executive branch enforcement policies.” In support of that position, Mike cites and discusses Justice Thomas’s important concurring opinion in Wyeth v. Levine (2009).

I agree that “generalized (statutory) purposes” in and of themselves don’t preempt (although in the Arizona case, the feds have additional, more persuasive preemption claims). And I certainly agree that Justice Thomas’s Wyeth opinion is the most forceful and fully developed statement to date of the originalist-textualist position on federal preemption.

That opinion, however, goes well beyond the common-sense proposition that courts shouldn’t make up legislative purposes, preemptive or other. Unmistakably, the Wyeth opinion means (although it does not say) that Chief Justice Marshall’s celebrated decision in Gibbons v. Ogden  was wrong—because it was anti-originalist and extra-textualist. For discussion see The Upside-Down Constitution, pp. 369-372 (excerpted below).

This conflict between Marshall’s jurisprudence and modern-day, clause-bound and textualist originalism isn’t a fluke; it’s part of a pattern. By strict originalist standards, the second holding of M’Culloch (states can’t tax the Bank of the United States) was surely wrong: if Congress wants to protect its instruments against state interference, it should and must say so. Brown v. Maryland, holding that a license tax on importers was the equivalent of a constitutionally prohibited tax on imports and therefore preempted, was wrong. So was Marshall’s expansive riff on the Contracts Clause, or on corporations and diversity jurisdiction. Truth be told, I can’t think of a single Marshall opinion (let alone a Story opinion—Martin v. Hunter’s Lessee or Swift v. Tyson, anyone?) that would pass muster on the originalism blog. The reason is no great mystery: every notable Marshall opinion either starts with or soon turns on the purpose of the statute or constitutional clause at issue. And by the lights of (positivist, clause-bound, textualist) originalism, that is verboten.

Forced to choose between clause-bound originalism and John Marshall’s jurisprudence, I’m inclined to hang with Marshall. Still, I remain open to the suggestion that the Chief was a rogue. What strikes me as overdue is a candid acknowledgment of the conflict.

Wyeth v. Gibbons

[Wyeth v. Levine arose over a tragic injury to a patient whose doctor and nurse, in an act of flagrant malpractice, had administered a drug in direct contravention of the federally approved warning label. The wording of that label conformed with — in fact, was practically dictated by — FDA requirements under the Food, Drug and Cosmetics Act (FDCA). The question in Wyeth was whether the patient could still sue the manufacturer under a “failure to warn” theory under state law or whether the federal act and the FDA-approved label preempted the imposition of state-law liability. But by a 6-3 majority, the court decided against preemption. (Justice Alito dissented, joined by Chief Justice Roberts and Justice Scalia.) Justice Thomas submitted an opinion concurring with the majority.]

[Justice Thomas’s Wyeth concurrence] strikes a high constitutional note. It quotes Madison’s “double security” passage and the “few and defined” federal powers passage from Federalist 45; rehearses federalism’s “numerous advantages” and characterizes the Supremacy Clause as an “extraordinary power in a federalist system”; and concludes that “in order to protect the delicate balance of power mandated by the Constitution, the Supremacy Clause must operate only in accordance with its terms.” […] [P]reemption must either be express, or else “turn on whether state law conflicts with the text of the relevant federal statute or with the federal regulations authorized by that text.” It must not turn on creative judicial constructions of generalized congressional “purposes” or “tensions” with supposed federal “objectives.” The “Court’s entire body of ‘purposes and objectives’ pre-emption jurisprudence,” Justice Thomas insists, “is inherently flawed.” […]

Much of Justice Thomas’s discussion is right and constructive. In preemption as in other statutory contexts, the notion that a federal statute should entail whatever might promote its generalized “purposes” (as divined by a reviewing court) “is the slogan of the enthusiast, not the analytical tool of the arbiter.” Moreover, Justice Thomas’s push to abandon “obstacle preemption” and to put in its place a single “conflicts” test can be understood as a proposal to merge those supposedly distinct strands of preemption analysis—a step that would indeed simplify preemption analysis and, if done right, lead it back into safer doctrinal waters. That result, however, depends on a sensible understanding of preemption doctrine’s constitutional context. Wrenched from that context, Justice Thomas’s approach actually threatens to compromise any plausible preemption analysis.


Justice Thomas’s Wyeth opinion acknowledges that federal law will still impliedly trump state law in cases of direct conflict. However, the initial presumption that Congress could and should have said what it failed to say invariably shades the implied preemption analysis. A “direct conflict” entailing preemption, Justice Thomas acknowledges, must encompass more than sheer physical inability to comply with both federal and state law; following an influential and powerfully argued law review article, he suggests that it may mean something like “logical-contradiction.” Justice Thomas’s opinion is strangely diffident, though, on whether that is actually the right test and on what it might mean—yet highly confident that a case that pits federal drug-labeling requirements against state juries’ liability verdicts does not present a direct conflict. That position suggests an exceptionally narrow conception of conflict. If any federal policy “necessarily follows from” a statutory text, it is the Food, Drug, and Cosmetics Act’s attempt to strike an optimum balance among risks. Every medicine has side effects and can be misused. What is the point of the federal drug-approval process if not to balance these risks against the benefits of a drug that would save lives? What is the point of labeling standards if not to guard against the twin dangers of under- and overwarning? And what remains of the FDA’s mission when juries can hold any pharmaceutical company liable for any reason or, as far as federal law is concerned, for no reason at all?

Those questions, to be sure, go to the purpose of the federal statute, not its strict text. However, a textualism that would dismiss them for that reason alone is unsustainable even on its own ground. Express preemption provisions (“we hereby preempt any state law ‘relating to’ stuff we care about”) demand a purpose analysis—not with respect to the whether of preemption (the text answers that question) but with respect to their scope. There is no way of conducting that analysis without recourse to what an originalist implied preemption analysis would forbid—an inquiry into the purpose of the statute. To give wide berth to purposes in express preemption cases while declining to revert to them in implied preemption cases is to put far too much weight on legislative magic words.

The purpose inquiry must not be “freewheeling”; it has to remain tethered to the statutory text and structure. However, implied preemption analysis cannot make do without some such inquiry; and in truth, it never has. […] To see the point, and to recognize how far Justice Thomas’s approach differs from the traditional understanding, recall Gibbons v. Ogden, the Supreme Court’s famous first engagement with preemption and the Commerce Clause: although John Marshall’s opinion spoke the language of “conflict,” Gibbons is plainly a case of the implied “purposes” preemption against which Justice Thomas inveighs. The federal statute at issue (which contained no express preemption clause) conferred on American ships an advantage vis-à-vis foreign ships. It is difficult to perceive any direct conflict, physical or logical, between that policy and New York’s preference for one flag carrier over another. Marshall considered the argument that the coastal trading license “gives no right to trade; and that its sole purpose is to confer the American character” on ships and their owners—and rejected it. Wyeth presents a closely analogous problem, and Justice Thomas responds very differently. The federal approval process, he writes, creates no “unfettered right, for all time, to market [a] drug with the specific label that was federally approved.” If that is right, Gibbons was wrong, or else should have been decided under the dormant Commerce Clause (if, pace Justice Thomas, it exists). If the statutory text in Gibbons created a “conflict” in a preemption-relevant sense, then so, a fortiori, does the FDCA. And if the perfunctory licensing approval in Gibbons has preemptive force, then so, and again a fortiori, should the FDA’s painstaking, one-drug-at-a-time, one-label-sentence-at-a-time approval process.

What does the work in Gibbons, and what drops by the wayside in Justice Thomas’s inquiry, is a purpose-based analysis that rests on the three premises identified earlier: one problem (navigation), one sovereign; acute awareness of the “horizontal” risk of state interference with interstate commerce; a rule against circumvention that extends the federal protection into each state’s harbor and against exclusion by means of monopoly grant as well as direct exclusion. In any given case, it is hard to say how far the rule against circumvention should reach—what constitutes a “conflict” for purposes of the Supremacy Clause or, as we have come to say, preemption. The difficulty is reflected in judicial synonyms and circumlocutions (“repugnance,” “obstacle,” “impediment”). All those nineteenth-century formulations rest on a recognition that the operative test must reach beyond incontrovertible conflicts (and yet have a limit); all are driven by a purpose analysis that is informed by constitutionally derived background assumptions. Here as under the dormant Commerce Clause, the doctrinal work is hard and messy—but also necessary.