New York University Public Law and Legal Theory Working Papers


Preemption Doctrine in the Roberts Court: Constitutional Dual Federalism by Another Name?

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Forthcoming in BUSINESS AND THE ROBERTS COURT, Jonathan Adler, ed., Oxford University Press


This paper argues that the Roberts Court’s preemption decisions suggest a pattern of deferring to state laws in “regulatory” contexts while presumptively preempting them in “commercial” contexts. As I use these terms, “commercial” contexts involve federal and state laws having the purpose of defining the rules for bargaining and remedies for breach of bargains, while “regulatory” contexts involve state and federal laws defining the baseline entitlements over which the parties bargain. The “mailbox rule” defining when a contract is accepted is an example of a “commercial” law, while a prohibition on filling a wetlands or building a cement plant in a residential zone are examples of “regulatory” laws. I suggest that, in “commercial” contexts so defined, the Court’s decisions seem to favor preemption. In “regulatory” contexts, the decisions lean against preemption. In both contexts, the Court enforces the independence of each level of government from the other, striking blows for states’ control over their own property and personnel by refusing to give federal agencies exclusive control over the enforcement of state law in Cuomo v. Clearing House Association. The flip side of state autonomy is federal supremacy: Despite the exhortations of some scholars, the Court seems to have continued to resist the idea that state law can be justified by its utility in reforming federal administrative processes.

Put simply, the Roberts Court’s decisions seem to follow a traditional script of dual federalism – that is, carving out separate spheres for state and federal governments and enforcing norms of mutual non-interference between these spheres. The paper concludes with speculation about whether there might be any normative justification for this pattern. One might argue that preemption is less costly when the state and federal rules in question define the framework for bargaining as opposed to the assignment of entitlements. By contrast, preemption of state laws defining entitlements to health, safety, bodily integrity, and property more generally tend to raise culturally and politically divisive issues that are best handled subnationally in a federal regime.

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