Although the Commerce Clause steals all the thunder, the Supremacy Clause plays an even more important role in maintaining the balance between federal and state power. Under the Supremacy Clause, federal law (including federal regulations) can preempt state laws that interfere or conflict with it. So it is not that surprising that preemption — often described as a technical and somewhat obscure legal concept — is now taking up a great deal of the Court’s time. The Court decided five preemption cases in the 2010 Term, and four in 2011. Arizona v. United States, one of the Court’s final decisions this Term, addressed the states’ hotly debated role in enforcing federal immigration law in an opinion that might have gotten even more attention had it not been drowned out by the health care ruling issued a few days later. Professor Ernest Young, an expert on preemption, has just published an article analyzing the Roberts Court’s preemption jurisprudence in The Supreme Court Review, in which he concludes that the “Roberts Court’s record to date strongly suggests . . . that preemption will be an important part of its doctrinal legacy.”
As Professor Young observes, “preemption cases make up the functional heart of the Court’s federalism doctrine.” Because both state and federal governments now regulate so many diverse areas of our lives – from the air we breathe to food we eat – the relationship between these sovereigns often comes down to the question whether federal law displaces or complements its state counterparts. Although Young admits this area of the law is a bit of a “muddle,” he argues that the divergent case law is due to the diverse contexts in which preemption cases arise, rather than doctrinal confusion. His article concludes with a defense of the presumption against preemption of state law, a presumption he contends is particularly important in preserving state power at a time in which Congress has broad authority to regulate matters that were once thought exclusively the province of the states. Young’s article provides both a useful analysis of the Court’s preemption jurisprudence and a guide to where the Court might be going as it continues to tackle preemption cases in the years to come.
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