Over the last couple of days, there has been an interesting pop-up symposium between Daniel Hemel, Ilya Somin, Brian Galle, and Jeffrey Schmitt over the true meaning of Murphy v. NCAA. Daniel (in the latest round) argues that the best reading of Murphy‘s definition of acceptable federal preemption excludes all “direct” federal prohibitions on state taxation and regulation. Brian Galle agrees, Ilya and I disagree, and Jeffrey has perhaps the best bottom line: “Murphy v. NCAA is Poorly Written and should be Narrowly Applied.”
When I am confronted by loose language in a new precedent, my inclination is to sand off the rough edges and try to squeeze the new decision into the pattern of old cases in a way that conforms to common sense. Loose language in Murphy notwithstanding, Murphy should not be read to repudiate Congress’ longstanding power to preempt state taxes and regulations, because that federal power of preemption rests on the same principle justifying state autonomy doctrine — the principle that Congress does not need to commandeer state officials’ services precisely because Congress can preempt state law. After the jump, I explain how a broad congressional power to preempt has, since McCulloch v, Maryland, been linked to a constitutional prohibition on Congress’ commandeering state officials’ services. Moreover, this tie between the pro-preemption and anti-commandeering rules makes sense. Put simply, the feds can create an alternative bureaucracy to regulate where the state bureaucrats refuse to implement federal law, but the feds cannot create an alternative citizenry to deregulate where state lawmakers refuse to waive state laws. Holdout problems, therefore, make preemption necessary (and, therefore, proper) and commandeering of state officials’ services, unnecessary (and, therefore, improper).
1. What is the historical connection between the federal power to preempt state law and the prohibition on federal power to commandeer state officials?
As I argued 20 years ago, state autonomy from federal law is simply the mirror image and corollary of federal autonomy from state law. Both are creatures of this passage from McCulloch v. Maryland (emphasis added):
No trace is to be found in the Constitution of an intention to create a dependence of the Government of the Union on those of the States, for the execution of the great powers assigned to it. Its means are adequate to its ends, and on those means alone was it expected to rely for the accomplishment of its ends.
By McCulloch‘s reasoning, a federal bank charter (McCulloch) or federal coasting license (Gibbons v. Ogden) automatically set aside state law, because the rights conferred by the federal law could not be impeded or even affected by the existence of state law. By extension, the feds could not conscript state officials to implement federal law, because (again) federal law could not depend on the existence of state officials. That’s why Justice Story concluded