Today’s oral argument in Arizona v. U.S., arising over Arizona’s immigration law (“S.B. 1070”), provides occasion to address what I believe to be a fateful confusion in federal preemption law. I’ll keep mum about the merits and nuances of this particular (and to my mind quite difficult) case; instead, a few remarks on the broader conceptual and institutional questions that lurk behind it:

S.B. 1070 features several provisions to reduce illegal immigration through a policy of “attrition.” The provisions don’t directly contravene federal immigration law, but they are tougher. Should we then say that S.B. 1070 “conflicts” with and is therefore preempted by federal (statutory) law and its objectives, as the government insists? Or should we say something along these lines: “The feds are against illegal immigration, and they have statutes and policies to curb it. Arizona, too, is against illegal immigration, except more so. Thus, far from conflicting with federal law, S.B. 1070 complements it. Besides, the feds have completely fallen down on the job of enforcing their own laws. Our need to enforce our own laws is dire, and it’s hard to see how it can conflict with a virtually non-existent federal scheme and policy.”

This is a gross oversimplification of the arguments, but it helps to settle intuitions on preemption and, in particular, on the basic proposition against a robust preemption doctrine. That proposition is that a state’s doing “more,” in furtherance of federal objectives, cannot (without more) create a conflict with federal law—unless, of course, federal law specifically prohibits states from doing the “more” at issue.

To paraphrase Ara Parseghian (as quoted in Rudy): we just summed up our entire sorry preemption law in one sentence.

Against the backdrop of the feds’ feckless immigration policy, it’s easy to sympathize with Arizona’s position in this case—but not with anti-preemption crowd’s general  “we’re here to help the feds” proposition. That’s what state AGs say when they gang up on federal chartered and supervised financial institutions. It’s what trial lawyers say when they file “failure to warn” cases over drugs and devices that are sold and used in conformity with federally approved (actually, mandated) warning labels. It’s what California says when it sets global warming policies for the nation. And in each case, the claim is pernicious nonsense.

Every regulatory statute reflects an implicit balance and interest group compromise: we (Congress) decided to regulate this far, and no further. Thus, unless a federal statute explicitly provides otherwise, it ought to be read as preempting any deviating state law. Very roughly, this was the framework prior to the New Deal. Among its many attractions is what one could call regulatory neutrality: states may not depart from the federal compromise either way. Without that baseline, preemption law creates a profound pro-regulatory bias and a one-way ratchet. State laws below the federal level of stringency, while not strictly preempted, are effectively a dead letter because private parties must comply with the federal standard in any event. Stricter state standards, in contrast, are allowed to stand and to govern private conduct. (The same reasoning applies, mutatis mutandis, to claims regarding supposedly inadequate federal enforcement levels.) The only premise that supports a preemption regime of that description is that more regulation is ipso facto better regulation.

Alas, since the New Deal, preemption law has rested on precisely that premise.  Frankfurter & Co created this regime to ensure that (1) no one would ever go unregulated and (2) firms in interstate commerce would be governed by the rules of the strictest among one-plus-fifty regulators. Over time, the statist purpose became clouded by a lot of “states’ rights” and “textualism” dust, but it remains unmistakable.

To state the pre-/post-New Deal contrast differently: pre-New Deal preemption law operated against a baseline of exclusive federal (and state) powers. Congress can depart from that baseline explicitly or by implication, but the baseline is “one problem, one sovereign.” Post-New Deal preemption law starts with a presumption of concurrent state and federal powers: let regulators descend in swarms, and let’s hear it for “cooperative federalism” (unless Congress bestirs itself to break the mold).

In this conflict of visions, I take my stand with Daniel Webster. He denounced the very idea of a general concurrent power in the states as “insidious and dangerous” and, in his Gibbons argument, had this to say (Gibbons v. Ogden, 22 U.S. 1, 17–18 (1824)):

The States may legislate, it is said, wherever Congress has not made a plenary exercise of its power. But who is to judge whether Congress has made this plenary exercise of power? Congress has acted on this power; it has done all that it deemed wise; and are the States now to do whatever Congress has left undone? Congress makes such rules as, in its judgment, the case requires; and those rules, whatever they are, constitute the system.

All useful regulation does not consist in restraint; and that which Congress sees fit to leave free, is a part of its regulation, as much as the rest.

Bingo. Jackpot. Thank you, Counselor.