It is inescapable: there is a presumption in favor of preemption. Historically, the Supreme Court has said differently-that, rather, there is a presumption against preemption. There is no such presumption any longer, if, indeed, there ever really was one. Preemption doctrine has been exceedingly puzzling in the last decade, but when one recognizes that the Court's doctrine not only favors preemption, but presumes it, preemption doctrine is not a puzzle at all.
This Article argues that the Supreme Court's recent preemption decisions compel the conclusion that the Court's preemption analysis has, in effect, created a presumption in favor of preemption, contrary to the Court's oft-quoted dicta that there is a presumption against preemption of historic state police powers. Indeed, there is no presumption against preemption: the Court has found preemption of state law tort actions when Congress has, in no uncertain terms, expressly stated the contrary. Express preemption provisions, today, are read narrowly; implied preemption doctrine is applied broadly against the silent backdrop of presumed preemptive intent.
Part II of this Article provides a history of the Court's primary preemption cases since the early part of the twentieth century, focusing on the way in which the doctrine has evolved and opining about the reasons for the evolutionary shifts as they occurred. The application of preemption doctrine to common law damages actions is highlighted given the particular difficulty the Court has had with such cases and the importance that preemption of such actions has to products liability matters.
Part III takes preemption doctrine into the twenty-first century by first explaining the Court's most recent struggles with preemption's focus on congressional intent. Part III explores how the Court has resolved that struggle, by refocusing on implied preemption with a presumption in favor of preemption. Further, this Part summarizes the Court's preemption doctrine and makes clear that the Court's modem preemption doctrine looks very much like its early preemption doctrine, which broadly presumed preemption when it suited the Court to do so.
Part IV explains the current preemption doctrine, applying the presumption in favor of preemption, and seeks to justify it. Without agreeing that the current doctrine strikes the proper balance between congressional and state control over the historic police powers, this Part explains the benefits that may ensue from having a broadly applied preemption doctrine. Clarity of doctrine, ease of application, and certainty of result all increase efficiency in the operation of the legal system. Compensation of injured tort claimants, in the case of products liability preemption, will surely decrease as liability is preempted. When compensation decreases not only is the victim irretrievably affected, the tortfeasor's incentive to modify its tortious behavior is significantly lessened to the extent that tort liability motivates behavior. Clarifying this result of preemption doctrine may enable legislators to confront directly the effect of their legislation under the Court's doctrine. Congress will be able to see, if it chooses, the effect of the Court's preemption doctrine without the shroud of veiled attempts to discern congressional intent.
Part V uses a federal regulatory scheme that the Court has not yet analyzed under the current preemption doctrine to illustrate how the Court's preemption doctrine may apply to it. The federal Boat Safety Act has been the subject of a number of lower court preemption cases in recent years and is poised to be the next victim of the Court's presumption in favor of preemption.
Many have called for Congress to speak its intent to preempt clearly, I join that chorus but with no anticipation that the song will be heard. By exposing the Court's presumption in favor of preemption, this Article applauds the increase in clarity of congressional intent that may be obtained. That clarity will be forthcoming only if Congress is really disposed against preemption. It may not be. If not, so be it. But it is at least possible that the increasing number of persons who are affected by the federal preemption of state common law damages actions might be motivated to act on their federal legislators to defeat the presumption of preemption that the Supreme Court has created. In our federalist system, the Supreme Court should not be permitted to continue to affect the traditional operation of state law in the stealth manner that it has by hiding behind a presumption that does not exist. This Article seeks to unmask the presumption in favor of preemption that, indeed, operates.
Mary J. Davis, Unmasking the Presumption in Favor of Preemption, 53 S. C. L. Rev. 963 (2002).