Strange Bedfellows: The Politics of Preemption


Linda S Mullenix

59 Case Western Reserve Law Review 837


Since the Court's 1992 decision in Cipollone v. Liggett Group, Inc., federal preemption has been a doctrine of especial scholarly focus, bearing as it does on constitutional questions concerning the allocation of power between the federal and state governments and among the states themselves.

Consequently, an entire cottage industry of constitutional law and federal courts scholars have produced a sizeable library relating to preemption doctrine, and in recent years the academic literature has experienced a veritable tsunami of scholarship on federal preemption. Much of this scholarship focuses on purported justifications for the two types of preemption ― express and implied preemption ― and further close parsing of the rationales for conflict and field preemption.

Several commonly-held generalizations about the Rehnquist and Roberts Courts are implicated in the discussion of preemption doctrine. One sweeping generalization is that the conservative shift in the Court's personnel has resulted in limiting access to justice, a theme that implicitly underlies this symposium. Another generalization posits that the Court during the past two decades has consistently favored states-rights claims, illustrated for example by the Court's robust enforcement of Eleventh Amendment sovereign immunity defenses.

Preemption doctrine, however, is in tension with these trends, because preemption cuts off a claimant's ability to pursue state-based claims. Thus, federal courts' application of preemption doctrine both restricts access to justice while undermining state sovereignty.The focus of this Article is on the politics of preemption, exploring the political and policy bases undergirding the doctrine.

This Article attempts to illustrate how preemption doctrine is at war with itself and consequently has engendered strange political bedfellows, arrayed along interesting political fault lines. Moreover, the Article suggests that the preemption landscape is now more complex and uncertain, given the Court's opinions in Riegel, Altria, and Wyeth, complemented by the shift in national political control evidenced by the November 2008 elections.

Preemption doctrine has engendered at least three sets of strange bedfellows. First, preemption doctrine has united the pro-business, states' rights, and libertarian wings of the conservative movement. Second ― and more unusual ― preemption doctrine has allied some conservative business interests with some liberal advocates of consumer protection. And, third, preemption doctrine has fractured the plaintiffs' bar, inspiring a division between advocates of aggregate versus individual litigation. How these doctrinal schisms and shifting ideological alliances have developed is an interesting story.

As the concluding discussion suggests, while conservative attitudes towards preemption seem at least doctrinally and politically consistent, the liberal approaches to preemption do not. Moreover, support for a robust preemption doctrine has resulted in ideological costs to both conservatives and liberals. For conservatives, robust enforcement of preemption doctrine is in derogation of states' rights, local police powers, and the ability of state courts to adjudicate the claims of their own citizens.

Robust enforcement of preemption also frustrates the ability of state courts to serve as laboratories for experimentation and change.For liberals, robust enforcement of preemption doctrine has the consequence of depriving claimants' access to justice in state court forums. While conservatives may comfortably embrace the diminution of stales' rights implicit in preemption doctrine precisely because it does limit access to justice, liberals ought to be uncomfortable with the consequent restrictions on the ability of injured people to obtain compensatory state law tort relief against a background of weak federal or insufficient administrative regulatory oversight.

Thus, the debate over preemption has exposed interesting political alliances and fault lines among advocates for justice. How these political alignments and schisms will play out in ensuing years remains an open question. Nonetheless, as important as it is to engage in close doctrinal and textual analyses over constitutional federalism, it is perhaps equally important to understand the political alliances influencing the evolution of preemption doctrine.

Full Citation

Linda S. Mullenix, Strange Bedfellows: The Politics of Preemption [Symposium: Access to the Courts in the Roberts Era], 59 Case Western Reserve Law Review 837 (2009).