The Supremacy Clause

Just as television coverage of breaking news can “preempt” the programs that would otherwise be airing, so too valid federal statutes can preempt state law that would otherwise apply. That is a consequence of the Supremacy Clause, which makes valid federal statutes part of “the supreme Law of the Land” and says that “the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” But exactly what does it mean to say that federal statutes are “supreme” over state law? Under what circumstances does the Supremacy Clause require judges to disregard otherwise applicable state law because it is contrary to federal law?

The Supremacy Clause definitely does not mean that each state must base all of its own laws on the same policy judgments reflected in federal statutes. For instance, the fact that Congress has chosen to establish federal income taxes, but has mostly refrained from establishing federal sales taxes, does not mean that state legislatures have to make the same choice as a matter of state law. Of course, states cannot exempt people from having to pay federal income taxes as required by federal law. But states do not have to structure their own state tax systems on the same model; if state lawmakers think that sales taxes are better than income taxes, states can fund their state governments that way. Similarly, the fact that Congress has made the possession of certain drugs a federal crime does not prevent states from following a different policy as a matter of state law. While states are not in charge of whether drug possession is a federal crime, they are in charge of whether it is also a state crime.

In these examples, though, the relevant state law does not interfere with the operation of the federal statute. Federal authorities can enforce the federal income tax or federal drug laws without regard to whether state law imposes a state income tax or criminalizes possession of the same drugs.

When application of state law would interfere with the operation of a valid federal statute, modern courts are more likely to conclude that the state law is preempted. Ever since Hines v. Davidowitz (1941), the Supreme Court has sometimes articulated a broad version of this idea.  The majority opinion in Hines arguably suggested that state law is preempted whenever its application “stands as an obstacle to the accomplishment and execution of the full purposes and objectives” behind a valid federal statute, and later cases have repeated this formulation.

I do not think that the Supremacy Clause itself compels this understanding of the preemptive effect of federal statutes. In my view, the fact that valid federal statutes are “the supreme Law of the Land” and “the Judges in every State shall be bound thereby” means that the judges in every state must follow all legal directives validly supplied by those statutes. In any case where following some aspect of state law would require disregarding a legal directive validly supplied by a federal statute, judges should conclude that the state law is preempted; if judges have to choose between applying state law and applying a legal directive validly supplied by a federal statute, the Supremacy Clause gives priority to the federal law. But unless state law contradicts federal law in this sense (so that judges must choose which one to follow), nothing in the Supremacy Clause prevents judges from following both.

When the Supremacy Clause was adopted, judges had long been using an analogous test to decide whether one law repeals another. Ordinarily, statutes enacted by the same legislative body are cumulative: if a legislature enacts two statutes at different times, and if Statute #2 does not say that it repeals Statute #1, courts normally will apply both. But that is not possible if the two statutes supply contradictory instructions for the same issue. With respect to statutes enacted by a single legislature, courts traditionally have handled such contradictions by giving priority to the more recent statute. With respect to conflicts between state and federal law, the Supremacy Clause establishes a different hierarchy: federal law wins regardless of the order of enactment. But this hierarchy matters only if the two laws do indeed contradict each other, such that applying one would require disregarding the other. In my view, then, the trigger for preemption under the Supremacy Clause is identical to the traditional trigger for repeals. In support of this conclusion, there is evidence that the Supremacy Clause was drafted and discussed in light of existing legal doctrines about repeals.

Even if I am right about the Supremacy Clause’s test for preemption, though, applying that test in particular cases requires courts to interpret the relevant federal statutes to identify all the legal directives that those statutes establish. That is a more contentious project than nonlawyers might assume. Federal statutes often are understood to imply some things that they do not say on their face, and legal directives that are established by implication can be just as valid as other legal directives. Different judges, however, have different views about the circumstances in which courts can properly read things into federal statutes (and, perhaps, about the extent to which courts can properly articulate subsidiary rules designed to help implement those statutes). The competing schools of thought include one approach called “textualism” and another called “purposivism.”

The Supreme Court issued its opinion in Hines during the heyday of purposivism, and there is reason to think that Hines’s emphasis on Congress’s “purposes and objectives” was more about statutory interpretation than about the basic test for preemption established by the Supremacy Clause. In keeping with that idea, the modern Supreme Court tends to portray the Hines formulation as a guide to the “pre-emptive intent” that courts should attribute to particular federal statutes. On this way of thinking, the Hines formulation reflects a presumption about Congress’s likely desires. The idea is that when Congress enacts a federal statute, Congress presumably wants to preempt state laws that would “stand[] as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,” and courts should give effect to this presumed intention.

If, as a matter of statutory interpretation, a particular federal statute implicitly forbids states to enact or enforce laws that would interfere with specified federal purposes, and if Congress has the constitutional power to impose this restriction on state law, then the Supremacy Clause would require courts to pay attention. After all, if a federal statute validly strips states of the power to enact or enforce certain kinds of laws, a court that gave effect to such a state law would be disregarding a valid federal directive, in violation of the Supremacy Clause. Considered as a principle of statutory interpretation, then, the Hines formulation can co-exist with my understanding of the Supremacy Clause.

Still, the Hines formulation may not be a very good principle of statutory interpretation. To begin with, many textualists doubt that courts are in a good position to identify the full purposes and objectives behind any particular federal statute. In any event, members of Congress would not necessarily want to run roughshod over all state laws that serve competing goals. To take a simple example, a federal statute that exempts multinational companies from certain federal taxes might have the purpose of luring business to the United States, but courts should not automatically infer that Congress is forbidding states to enforce their own generally applicable tax laws against such companies. Likewise, a federal statute that gets rid of prior federal regulations in a particular area might be designed to reap the benefits of the free market, but courts should not automatically infer that Congress must have wanted to prevent individual states from enacting any regulations of their own in the same area.

In the past few decades, the Supreme Court has become somewhat more sensitive to these points. As early as 1992, Justice Kennedy wrote that “[o]ur decisions establish that a high threshold must be met if a state law is to be pre-empted for conflicting with the purposes of a federal Act.” More recently, Chief Justice Roberts has quoted this statement approvingly, and Justices Alito and Sotomayor have both quoted Chief Justice Roberts’s quotation. Meanwhile, Justice Thomas has rejected the Hines formulation entirely.

At the very least, the Supremacy Clause does not itself require judges to conduct the analysis described in Hines and its progeny. In my view, that analysis is appropriate only to the extent that individual federal statutes are properly interpreted to call for it.

 Some of the arguments presented here initially appeared in Preemption, 86 Virginia Law Review 225 (2000).

Which comes first, the nation or the states? Who is the ultimate sovereign in our American system—a national people represented by the federal government, or the several states considered as distinct political entities?

This is perhaps the most basic question about the U.S. Constitution and the system it created. The relationship between the states and the federal government is one of the most fundamental fault lines of constitutional theory. In many of its aspects, the relationship is deeply contested, and no settled answer exists. There are two very different ways of understanding America. The nationalist vision imagines a single national people—We the People—coming together to create a government that represents all of them and is superior to—in a real sense, more American than—the individual states. The federalist vision imagines states delegating some of their powers to a federal government created to act as their agent in certain matters.

Some of the questions thrown up by the tension between these two visions have been resolved. It is settled now that the U.S. Supreme Court has the power to reverse the decisions of state supreme courts in appropriate cases, and that state courts must accept U.S. Supreme Court interpretations of the Constitution and federal law. It is settled that states cannot nullify federal laws—though constitutional amendments giving them such power have been proposed.

In other areas of law, though, the struggle persists. The Supreme Court is deeply divided over questions about the limits on Congress’ legislative powers and about the extent to which states can assert sovereign immunity as a defense to claims under federal law. In these areas, and others, the two visions continue to clash.

Each can point to some support in the revered figures of history and our founding documents. Abraham Lincoln, in the Gettysburg address, dated the birth of the nation to 1776 and the Declaration of Independence, not 1788 and the Constitution. He consistently argued that the nation preceded the states, writing to Congress in 1861 that “The Union is older than any of the States and, in fact, it created them as States.”

But was Lincoln right? It is true that the states acted collectively through a Congress before independence, but the Declaration of Independence talks of States taking their rightful place in the world, not of a single nation. Both the title and the last paragraph refer to “united States”—with the lowercase U suggesting that the phrase is not the name of a nation but simply a collection of, in the Declaration’s words, “Free and Independent States.”

The Constitution, likewise, tantalizes the supporters of each vision. The Preamble speaks of “We the People of the United States.” The U is capitalized, and that sounds like a single national body—until you dig deeper and learn that the original draft listed all thirteen states (“We the People of the States of New-Hampshire, Massachusetts, Rhode Island and Providence Plantations . . . ”) with the list eventually omitted for reasons of style and to avoid embarrassment if some states rejected the Constitution (as, indeed, Rhode Island initially did). Federalists, meanwhile, can point to the fact that in the Constitution, the phrase “United States” is always treated as a plural noun.

History gives us an answer of a sort. It shows a consistent flow of power from the states to the federal government—episodically, and typically in the face of at least temporary resistance by the Supreme Court, but consistently. This happens as a result of constitutional amendments—most notably the Reconstruction Amendments (the Thirteenth, Fourteenth, and Fifteenth), which both granted the federal government new powers and imposed new limits on the states, but also the Progressive-era amendments (the Sixteenth, Seventeenth, Eighteenth, and Nineteenth). And it happens as a result of Supreme Court acquiescence to expansive congressional claims of power, as happened during the time of the New Deal and also the Warren Court era.

Americans, in response, have generally changed their minds about the relative significance of the nation and the states. Most people consider their status as American citizens to be much more important than their state citizenship, and we now use “United States” as a singular noun. Still, even if the battle lines have shifted, the conflict between federalism and nationalism continues.

How does the Supremacy Clause relate to this persistent tension at the heart of the Constitution? It gives us at least one clear instance where nationalist values prevail. Within the scope of its powers, the federal government is supreme over the states. (Even here, though, people disagree—both about what the scope of those powers is, and about how to decide when an exercise of federal authority should displace state law.) But does the Supremacy Clause hold a general lesson about the respective status of the states and the federal government, pointing to broader federal supremacy? Or does it suggest to the contrary that whenever federal supremacy is not explicitly noted it does not exist? As always, the Constitution leaves some questions unanswered, open for debate and resolution by the American people.