In the category of getting small things right, last week’s Supreme Court decision in Kansas v. Garcia is a good step toward getting preemption doctrine right (or at least not making it worse). The question was whether the federal Immigration Reform and Control Act of 1986 preempts Kansas statutes criminalizing identity theft, as applied to persons not lawfully present in the United States who used false documents to obtain employment. The Court (5-4, per Justice Alito) found no preemption.
The majority first rejected the argument that the federal law expressly preempted state prosecutions (obviously it didn’t), rejected field preemption (an unstable and rightly rare doctrine) and on the central point concluded that the possibility of interference with federal prosecutorial decisions resulting from overlapping state and federal enforcement was not enough for preemption. The key passage:
The mere fact that state laws like the Kansas provisions at issue overlap to some degree with federal criminal provisions does not even begin to make a case for conflict preemption. From the beginning of our country, criminal law enforcement has been primarily a responsibility of the States, and that remains true today. In recent times, the reach of federal criminal law has expanded, and there are now many instances in which a prosecution for a particular course of conduct could be brought by either federal or state prosecutors. Our federal system would be turned upside down if we were to hold that federal criminal law preempts state law whenever they overlap, and there is no basis for inferring that federal criminal statutes preempt state laws whenever they overlap. Indeed, in the vast majority of cases where federal and state laws overlap, allowing the States to prosecute is entirely consistent with federal interests.
In the present cases, there is certainly no suggestion that the Kansas prosecutions frustrated any federal interests. Federal authorities played a role in all three cases, and the Federal Government fully supports Kansas’s position in this Court. In the end, however, the possibility that federal enforcement priorities might be upset is not enough to provide a basis for preemption. The Supremacy Clause gives priority to “the Laws of the United States,” not the criminal law enforcement priorities or preferences of federal officers. Art. VI, cl. 2.
This conclusion goes a fair ways in getting preemption doctrine back on track after the unfortunate decision in Arizona v. United States, 567 U. S. 387, 403–407 (2012) , which might be read to say that prosecutorial discretion of the federal executive branch could preempt state criminal law. (The majority describes Arizona more narrowly).
Justice Thomas, joined by Justice Gorsuch, concurred, calling for a more sweeping overhaul of preemption doctrine on originalist grounds:
The founding generation treated conflicts between federal and state laws as implied repeals. PLIVA, Inc. v. Mensing, 564 U. S. 604, 622 (2011) (plurality opinion). Then, as now, courts disfavored repeals by implication. See, e.g., Warder v. Arell, 2 Va. 282, 299 (1796) (opinion of President Judge); 2 T. Cunningham, A New and Complete Law Dictionary (2d ed. 1771) (defining “Statute”); 4 M. Bacon, A New Abridgment of the Law 638 (3d ed. 1768). To overcome this disfavor, legislatures included non obstante clauses in statutes. See Nelson, Preemption, 86 Va. L. Rev. 225, 237–240, and nn. 42–44 (2000) (collecting examples). Courts understood non obstante provisions to mean that, “[r]ather than straining the new statute in order to harmonize it with prior law, [they] were supposed to give the new statute its natural meaning and to let the chips fall where they may.” Id., at 242.
The Founders included a non obstante provision in the Supremacy Clause. It directs that “the Judges in every State shall be bound” by the “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, . . . any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.” Art. VI, cl. 2. If we interpret the Supremacy Clause as the founding generation did, our task is straightforward. We must use the accepted methods of interpretation to ascertain whether the ordinary meaning of federal and state law “directly conflict.” Wyeth v. Levine, 555 U. S. 555, 590 (2009) (THOMAS, J., concurring in judgment). “[F]ederal law pre-empts state law only if the two are in logical contradiction.” Merck Sharp & Dohme Corp. v. Albrecht, 587 U. S. ___, ___ (2019) (THOMAS, J., concurring) (slip op., at 2); see also Nelson, supra, at 236–237.
The doctrine of “purposes and objectives” pre-emption impermissibly rests on judicial guesswork about “broad federal policy objectives, legislative history, or generalized notions of congressional purposes that are not contained within the text of federal law.” Wyeth, supra, at 587 (opinion of THOMAS, J.); see also Arizona v. United States, 567 U. S. 387, 440 (2012) (THOMAS, J., concurring in part and dissenting in part). I therefore cannot apply “purposes and objectives” pre-emption doctrine, as it is contrary to the Supremacy Clause.
Justice Thomas has been pushing this argument for some time; with Justice Gorsuch solidly on board as well, preemption arguments are going to be increasingly difficult to win at the Court (as they should be). Narrowing and formalizing preemption doctrine reduces judicial discretion and thus reduces the opportunity for policy-driven decisions; in that sense it is like the cutback of federal common law (again, per yesterday’s post) and a small step toward decreasing the politicization of the courts.
NOTE: This post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.
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