We read a brief from the other side recently that claimed that Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), abolished implied preemption altogether. We kid you not. Under the heading, “Implied preemption is an unconstitutional intrusion into the dual sovereignty of the States,” plaintiffs made the following pitch:
The Supreme Court elucidated the contours of judicial deference and statutory construction in Loper Bright v. Raimondo, 144 S. Ct. 2244 (2024). A reading of Wyeth[ v. Levine, 555 U.S. 555 (2009)], in the framework of Loper Bright, together with deference to the police powers of the States recognized in both Wyeth and Dobbs v. Jackson Women’s Health Organization, affirms [plaintiff’s] position: if Congress wants to make a law, or to displace a State law, it must explicitly say so.
In re Suboxone (Buprenorphine/Naloxone) Film Products Liability Litigation, PLC’S Response to Partial Motion to Dismiss for Failure to State a Claim (ECF No. 126), Br. at pp. 41-51 (filed Aug. 23, 2024).
In our latest Loper Bright post, back in November, we predicted p-side “attempts to use Loper Bright for nefarious purposes,” but we expected something more nuanced than this sort of meat-axe approach. But that kind of extreme position only makes our job easier.
Implied preemption stems directly from the Constitution’s Supremacy Clause, which holds that “the Laws of the United States” and other federal enactments “shall be the supreme Law of the Land, and the Judges in every State shall be bound thereby” regardless of “any Thing in the Constitution or Laws of any State.” U.S. Const, Art, IV. Implied preemption – that federal enactments overturn conflicting state law without any express language to that effect − has been recognized for over 200 years, since McCulloch v. Maryland, 17 U.S. 316 (1819). In McColloch, as any first-year law student should have learned, a federal statute establishing a national bank with a Maryland branch impliedly preempted due to conflict – “repugnant,” id. at 425 – a state law seeking to tax that federal institution. Preemption by conflict stemmed directly from the Supremacy Clause, without the need for any statutory clause to that effect:
This great principle is, that the constitution and the laws made in pursuance thereof are supreme; that they control the constitution and laws of the respective States, and cannot be controlled by them. From this, which may be almost termed an axiom, other propositions are deduced as corollaries. . . . These are, first that a power to create implies a power to preserve. Second. That a power to destroy, if wielded by a different hand, is hostile to, and incompatible with these powers to create and to preserve. Third. That where this repugnancy exists, that authority which is supreme must control, not yield to that over which it is supreme.
McColloch, 17 U.S. at 426 (emphasis added). Thus, the Supremacy Clause alone can be sufficient for preemption in a case of “repugnancy” (the modern term being “conflict”) between federal and state law. McColloch made no mention of any preemptive language in the relevant federal statute. To the extent, as plaintiffs argued in Suboxone (Br. at 48) that Dobbs stands for the general proposition that “courts must ground decisions in ‘text, history, or precedent,’” 597 U.S. at 270, McColloch, and its two centuries of extensive, preemptive progeny, demonstrate that implied preemption is on firm ground, and that plaintiffs’ arguments are not.
Taking the timeline in the other direction, Loper Bright was only decided last June, at the end of the Supreme Court term, so there haven’t been many Supreme Court preemption (or any) decisions since then. But in Moyle v. United States, 603 U.S. 324 (2024), three justices concurring in the dismissal of a petition as improvidently granted also invoked implied preemption principles, “[a federal statute] requires hospitals to provide abortions that [state] law prohibits. When that is so, [state] law is preempted.” Id. at 328. Just as in McColloch, over 200 years before, there was no mention in Moyle of any preemptive language in the federal statute.
The notion that Loper Bright, either alone or together with the other two (Levine and Dobbs) of the other side’s suddenly favorite Supreme Court cases, somehow sub silentio overruled 200+ years of implied preemption precedent is, as our title indicates, absurd. Loper Bright was about one thing – statutory interpretation – and the only mention of preemption in Loper Bright was a fleeting reference in a concurring opinion. Even that reference specifically contrasted “traditional canon[s] of construction” with the Chevron doctrine, specifically because those traditional propositions were “centuries old[].” 603 U.S. at 435 n.5. “Centuries old” describes McColloch to a T.
Plaintiff’s anti-preemption argument also contends, citing nothing, that “[u]nder the Tenth Amendment, Congressional silence cannot serve as a basis to invalidate State laws under the Supremacy Clause.” Br. at 41. First, neither Loper Bright, nor Levine − nor even Dobbs − relies at any point, or even cites to, the Tenth Amendment. Second, the Tenth Amendment is a residuary clause, dealing with rights and powers not mentioned elsewhere in the Constitution:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
U.S. Const. Amdt. 10 (emphasis added). The Supremacy Clause specifically provides that federal statutes (and other enactments) are “supreme” and that “Judges in every State shall be bound thereby.” Since supremacy is a power specifically delegated to federal law elsewhere in the constitution itself, the Tenth Amendment facially does not apply to preemption, express or implied.
Indeed, the only appellate decision that we’re aware of (at least during the 17 years that this Blog has existed) that ever purported to interpose the Tenth Amendment against federal preemption, is Gustafson v. Springfield, Inc., 2020 Pa. Super. Lexis 843 (Pa. Super. Sept. 28, 2020) (discussed here), which no longer exists. Reconsideration in Gustafson was granted and the original opinion withdrawn. When reconsidered by the full en banc court, a majority of the nine judges expressly rejected the kooky Tenth Amendment argument embraced by the prior panel. Gustafson v. Springfield, Inc., 282 A.3d 739, 763, 772-74, 783 Pa. Super. 2022), appeal pending, 296 A.3d 560 (Pa. 2023).
Plaintiff’s Loper Bright argument went off the rails almost immediately, when it attempted to go beyond that decision’s focus on statutory interpretation. It describes Loper Bright as “signal[ing] a full embrace of the Framers’ understanding of the judicial function: to interpret acts of Congress to ascertain the parties’ rights.” Br. at 44.
Umm. . . . No. That is way overbroad. Loper Bright is a significant decision, but not about preemption. Rather, Loper Bright relied on the Administrative Procedures Act, 5 U.S.C. §701, et seq. (“APA”), to reject the proposition that administrative agencies were better positioned to interpret their organic statutes than the courts.
[The APA] specifies that courts, not agencies, will decide “all relevant questions of law” . . . − even those involving ambiguous laws − and set aside any such action inconsistent with the law as they interpret it. And it prescribes...
