Angela Horton and Kevin Houser v. the Kansas City Southern Railway Company

Supreme Court of Texas

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No. 21-0769

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Angela Horton and Kevin Houser,

Petitioners,

v.

The Kansas City Southern Railway Company,

Respondent

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On Petition for Review from the

Court of Appeals for the Fifth District of Texas

═══════════════════════════════════════

JUSTICE BUSBY, joined by Justice Devine, Justice Blacklock, and

Justice Young, concurring.

The heart of this case should be decided as a straightforward

question of statutory interpretation: when both chambers of the United

States Congress passed and the President signed the Interstate

Commerce Commission Termination Act (ICCTA) in 1995, did they

actually delegate to the Surface Transportation Board (STB) exclusive

jurisdiction over humped railroad crossings, preempting state common-

law negligence suits concerning accidents at such crossings? I join the

Court’s opinion, which holds that the answer to this question is no. 1

In addition to deciding this question of express preemption,

precedent from the Supreme Court of the United States requires us to

consider implied obstacle preemption. Under Hines v. Davidowitz and

its progeny, we must analyze whether allowing the plaintiffs to bring

their claim in court would stand as an “obstacle to the accomplishment

and execution of the full purposes and objectives of Congress.” 312 U.S.

52, 67 (1941).

Although I agree with my colleagues that the claim before us

presents no such obstacle, I am concerned that this doctrine has

developed in a manner that poses questions judges are neither

authorized to ask under our Constitution nor able to answer in a

consistent and principled manner. As Justice Clarence Thomas has

observed for two decades, “implied pre-emption doctrines that wander

far from the statutory text are inconsistent with the Constitution.”

Wyeth v. Levine, 555 U.S. 555, 583 (2009) (Thomas, J., concurring in

judgment). In particular, implied obstacle preemption invites judges to

imagine what the unexpressed “purposes and objectives” of Congress

might have been and speculate about whether there is tension between

those purposes and state law that rises to the level of an “obstacle.” Such

creativity seems especially misplaced when (as here) the statute

includes an express preemption clause, which “necessarily contains the

1 Justice Devine and I join the Court’s opinion in full. Justices Blacklock

and Young join this concurring opinion and Parts I-III of the Court’s opinion,

but they do not join Part IV of that opinion, which addresses a separate issue,

or the Court’s judgment.

2

best evidence of Congress’ pre-emptive intent.” CSX Transp., Inc. v.

Easterwood, 507 U.S. 658, 664 (1993).

Justice Thomas has urged the Court to abandon its “purposes and

objectives” approach to implied preemption in favor of a test that asks

whether state law stands in “logical contradiction” to federal law. Merck

Sharp & Dohme Corp. v. Albrecht, 587 U.S. 299, 319 (2019) (Thomas, J.,

concurring). This test, which draws on the research of Professor Caleb

Nelson, 2 commendably seeks to refocus the Court’s preemption

precedent on the original public meaning of the Supremacy Clause. In

its lack of originalist provenance, empirical unworkability,

encouragement of standardless judicial discretion, and constitutionally

illegitimate aggregation of federal power, the Supreme Court’s

“purposes and objectives” preemption jurisprudence suffers from flaws

akin to those that recently led the Court to repudiate the Lemon test.

See Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 534 (2022)

(overruling Lemon v. Kurtzman, 403 U.S. 602 (1971)).

Moreover, because ICCTA’s preemption clause is coupled with a

delegation of exclusive jurisdiction to the STB, administrative law

principles should inform the proper preemption analysis. The

presumption underlying the Supreme Court’s implied obstacle

preemption jurisprudence is exactly contrary to that underlying its

recent federal administrative law jurisprudence—particularly the major

questions doctrine and the principle that clear statutory direction is

required to transfer core state power to a federal agency. Instead of the

2 Caleb Nelson, Preemption, 86 VA. L. REV. 225 (2000).

3

statutorily prescribed scope of an agency’s powers giving rise to a

presumption that Congress did not mean to delegate major questions

outside that scope exclusively to the agency, implied obstacle

preemption presumes that matters outside that scope are also

withdrawn from other decisionmakers as necessary to fulfill Congress’s

“purposes and objectives.”

These two approaches to federalism, the separation of powers,

and statutory interpretation are irreconcilable. Because this case

painfully illustrates the failures of implied obstacle preemption’s

“‘ambitiou[s],’ abstract, and ahistorical” 3 approach to what is one of the

“most frequently used doctrine[s] of constitutional law in practice,” 4 I

write separately to urge the Supreme Court to reconsider Hines and its

progeny.

I. ICCTA does not expressly preempt ordinary state

common-law claims.

ICCTA provides that “[t]he jurisdiction of the [STB] . . . is

exclusive” over (1) “transportation by rail carriers” and the “remedies

provided by this part [of the Act] with respect to” matters including

carriers’ rates, operating rules, routes, services, and facilities, and

(2) “the construction, acquisition, operation, abandonment, or

discontinuance of” tracks or facilities. 49 U.S.C. § 10501(b). The next

sentence goes on to say that “the remedies provided under this part with

3 Kennedy, 597 U.S. at 534 (quoting Am. Legion v. Am. Humanist Ass’n,

588 U.S. 29, 60 (2019)).

4 Steven A. Gardbaum, The Nature of Preemption, 79 CORNELL L. REV.

767, 768 (1994).

4

respect to regulation of rail transportation are exclusive and preempt

the remedies provided under Federal or State law.” Id.

The text and context of Section 10501(b) make clear that ordinary

state common-law claims regarding rail crossing safety are not

expressly preempted by this second sentence. Instead, as I explain

below, state- and federal-law remedies “with respect to regulation of rail

transportation” include only laws that are specifically directed toward

managing or governing the aspects of rail transportation that the

statute gives the STB exclusive jurisdiction to regulate. And the state

and federal “remedies” Congress preempted in Section 10501(b) are

those that Congress granted the STB exclusive jurisdiction to provide

regarding economic and operational aspects of rail transportation.

Throughout this case, respondent KCSR has emphasized the

wrong question. The central issue Congress sought to address in ICCTA

generally, and within Section 10501(b) in particular, was not the scope

of federal preemption of state-law claims. Rather, Congress was focused

on specifying the parameters of exclusive regulatory power being

delegated to an executive branch agency, and Congress provided for

preemption of state and federal “remedies” to ensure that the agency’s

jurisdiction within the specified range of its expertise was exclusive.

Thus, instead of asking whether Congress deprived state courts of the

ability to address common-law negligence claims such as the ones at

issue here, we should be asking whether Congress clearly delegated to

the STB the exclusive authority to provide a remedy.

The answer to that question is no. Like generally applicable

“state property laws and rules of civil procedure that” on their face

5

“‘have nothing to do with railroad crossings,’ . . . state negligence law”

typically has “effects . . . on rail operations [that] are merely incidental”;

thus, ordinary negligence claims do not qualify as preempted “regulation

of rail transportation.” Elam v. Kan. City S. Ry., 635 F.3d 796, 813 (5th

Cir. 2011) (quoting Franks Inv. Co. v. Union Pac. R.R., 593 F.3d 404,

411 (5th Cir. 2010) (en banc)). 5 Instead, “State law[s]” that provide

remedies “with respect to regulation of rail transportation” are laws—

generally positive laws—that are specifically directed toward managing

or governing such transportation. 6 This statutory phrase “necessarily

means something qualitatively different from laws ‘with respect to rail

transportation.’” Fla. E. Coast Ry. v. City of W. Palm Beach, 266 F.3d

1324, 1331 (11th Cir. 2001). An overly broad reading of Section

10501(b)’s express preemption provision would deprive the word

5 Under this rule, the only common-law claims expressly preempted by

ICCTA will typically be negligence per se claims based on statutes, regulations,

or ordinances that directly regulate an aspect of rail transportation over which

the STB has exclusive jurisdiction. See also Friberg v. Kan. City S. Ry.,

267 F.3d 439, 444 (5th Cir. 2001). I express no view regarding whether a state

court could recognize a particular common-law negligence duty so specifically

tailored to rail transportation that it would qualify as preempted “regulation.”

6 Elam, 635 F.3d at 805-07; Franks Inv. Co., 593 F.3d at 411; Emerson

v. Kan. City S. Ry., 503 F.3d 1126, 1130-31 (10th Cir. 2007) (McConnell, J.);

see also Dan’s City Used Cars, Inc. v. Pelkey, 569 U.S. 251, 260-62 (2013)

(observing that phrase “with respect to” limits preemptive scope to laws that

directly “concern” or “involve” the matter described); Pilot Life Ins. Co. v.

Dedeaux, 481 U.S. 41, 50 (1987) (explaining that “[a] common-sense view of the

word ‘regulates’ would lead to the conclusion” that a law regulates a subject if

it is “specifically directed toward that” subject).

6

“regulation” of independent meaning, 7 and the Court appropriately

declines to follow KCSR down that path.

In addition, although this section gives the STB exclusive

jurisdiction to regulate certain economic and operational aspects of rail

transportation and provides remedies with respect to that regulation, it

does not preempt “all other law” regarding those aspects of rail

transportation—a phrase Congress used elsewhere to preempt laws that

would limit the STB’s exclusive authority to permit railroad mergers

and acquisitions. 8 49 U.S.C. § 11321. Instead, Section 10501(b) focuses

its preemptive force more narrowly on state- and federal-law “remedies”

that Congress granted the STB exclusive jurisdiction to “provid[e] under

this part” of ICCTA. Here, KCSR identifies no “remedies provided under

this part” that would bear on plaintiffs’ common-law negligence claim

regarding crossing safety, so it is not preempted.

7 Cf. Sprietsma v. Mercury Marine, 537 U.S. 51, 63 (2002) (“[T]he terms

‘law’ and ‘regulation’ used together in the pre-emption clause indicate that

Congress pre-empted only positive enactments. If ‘law’ were read broadly so

as to include the common law, it might also be interpreted to include

regulations, which would render the express reference to ‘regulation’ in the

pre-emption clause superfluous.”). As in Sprietsma, the word “regulation” here

must be given a meaning different from “law,” though “regulation” is used

somewhat differently in each statute. The statute at issue in Sprietsma

generally preempts (among other things) a state or local “law or regulation”

establishing boating safety standards or equipment requirements not identical

to federal regulations, 46 U.S.C. § 4306, while the statute at issue here

preempts “remedies provided under Federal or State law” “with respect to

regulation of rail transportation.” 49 U.S.C. § 10501(b).

8 See United Sav. Ass’n of Tex. v. Timbers of Inwood Forest Assocs.,

484 U.S. 365, 371 (1988) (Scalia, J.) (“A provision that may seem ambiguous in

isolation is often clarified by the remainder of the statutory scheme.”).

7

Section 10501(b) is “unlike a typical preemption provision.” 9

Rather, it is a jurisdictional provision designed to establish an exclusive

zone of jurisdiction 10 for the STB in areas within its defined range of

economic and operational expertise, under which it provides parties

with “remedies” that are different from those offered by other federal

agencies that regulate railroad safety: the Federal Railroad

Administration (FRA), Federal Transit Administration (FTA), and

National Transportation Safety Board (NTSB). 11 By ensuring that the

various federal agencies regulating railroads stay in their proverbial

lanes, Section 10501(b) is designed (for example) to prevent the FRA

from setting railroad rates while preserving its authority to establish

“metrics and minimum standards for measuring the performance and

service quality of intercity passenger train operations.” 12

This backdrop of multiple federal agencies with different zones of

jurisdiction confirms that the STB’s professed expertise in the economic

and non-safety operational regulation of railroads—namely “railroad

9 Kansas v. Garcia, 589 U.S. 191, 204 (2020) (discussing 8 U.S.C.

§ 1324a).

10 Because Section 10501(b) is a jurisdictional statute that delegates

power from Congress to a federal administrative agency, we must also read it

with a careful eye toward the capaciousness of the power, as we assume that

Congress did not intend to “hide elephants in mouseholes.” Whitman v. Am.

Trucking Ass’ns, Inc., 531 U.S. 457, 468 (2001).

11 Federal administrative law emphasizes a close relationship between

an agency’s substantive policy expertise and the scope and nature of its

authority. “When the agency has no comparative expertise in resolving a

regulatory ambiguity, Congress presumably would not grant it that authority.”

Kisor v. Wilkie, 588 U.S. 558, 578 (2019).

12 49 C.F.R. § 273.1.

8

rate, practice, and service issues and rail restructuring transactions,

including mergers, line sales, line construction, and line

abandonments” 13—would not be implicated by suits under generally

applicable tort law. The Federal Railroad Safety Act (FRSA) expressly

recognizes as much, including savings clauses to clarify that state laws

and causes of action relating to railroad safety are not preempted unless

they are incompatible with federal rules on the subject. 49 U.S.C.

§ 20106(a)(2), (b)(1).

Nothing about the claim at issue here, or common-law negligence

claims in general, implicates the STB’s expertise. Indeed, the STB has

firmly declined to exercise jurisdiction over such cases, stating its view

that common-law negligence claims involving rail crossing accidents are

regulated by FRSA, not ICCTA. 14 “[J]ust as established practice may

shed light on the extent of power conveyed by general statutory

language, so the want of assertion of power by those who presumably

would be alert to exercise it, is equally significant in determining

whether such power was actually conferred.” West Virginia v. EPA, 597

U.S. 697, 725 (2022) (quoting FTC v. Bunte Bros., Inc., 312 U.S. 349, 352

(1941) (Frankfurter, J.)).

13 About STB, SURFACE TRANSP. BD., https://www.stb.gov/about-stb/

(last visited June 20, 2024).

14 See, e.g., Waneck, Fed. Carr. Cas. P 37399 (S.T.B. May 23, 2018) (pet.

for declaratory order); Waneck et al. Pet. for Declaratory Order and on Motion

for Reconsideration, No. FD 36167, 2018 WL 5723286 (S.T.B. Oct. 31, 2018)

(denying reconsideration). Cf. Tubbs, No. FD 35792, 2014 WL 5508153, at *4

(S.T.B. Oct. 29, 2014) (pet. for declaratory order) (holding that plaintiffs’

common-law tort claims, arising from railroad’s failure to provide adequate

drainage on tracks that damaged adjacent property during flood, were

preempted under ICCTA).

9

Given the STB’s view, holding that ICCTA preempts plaintiffs’

common-law negligence theory regarding the humped crossing would

likely leave them without a forum to adjudicate that theory, effectively

granting the railroad immunity from any negligence regarding the

hump. “[U]nlike most administrative and legislative regulations,” state-

law tort claims “necessarily perform an important remedial role.”

Sprietsma v. Mercury Marine, 537 U.S. 51, 64 (2002). As the Supreme

Court has observed, “[i]t is difficult to believe that Congress would,

without comment, remove all means of judicial recourse for those

injured by” conduct contrary to law. Silkwood v. Kerr-McGee Corp.,

464 U.S. 238, 251 (1984). In addition, such a holding would be difficult

to reconcile with the FRSA savings clauses as well as the U.S. Supreme

Court’s longstanding view that “[t]he care of grade crossings is

peculiarly within the police power of the [S]tates.” Lehigh Valley R.R.

Co. v. Bd. of Pub. Util. Comm’rs, 278 U.S. 24, 35 (1928).

For over half a century, our Court has adhered to the principle

that “if a statute . . . deprives a person of a common law right, the statute

will be strictly construed in the sense that it will not be extended beyond

its plain meaning or applied to cases not clearly within its purview.”

Satterfield v. Satterfield, 448 S.W.2d 456, 459 (Tex. 1969). 15 The U.S.

Supreme Court has adopted a similar presumption, holding that “[i]n

order to abrogate a common-law principle, the statute must speak

15 We reaffirmed this principle just last year in American National

Insurance Co. v. Arce, where we refused to hold that a statutory scheme had

the effect of destabilizing more than a hundred years of common-law precedent

because the two could be read in harmony with each other. 672 S.W.3d 347,

359 (Tex. 2023).

10

directly to the question addressed by the common law.” United States v.

Texas, 507 U.S. 529, 534 (1993) (internal quotation marks omitted). In

addition, “Congress should make its intention clear and manifest if it

intends to pre-empt the historic powers of the States.” Will v. Mich. Dep’t

of State Police, 491 U.S. 58, 65 (1989) (internal quotation marks

omitted). And courts “would not expect Congress to take . . . [the]

extraordinary step” of “stripping state courts of jurisdiction to hear their

own state claims” without a “clear statement.” Atl. Richfield Co. v.

Christian, 140 S. Ct. 1335, 1351 (2020).

Section 10501(b) does not satisfy any of these clear-statement

rules. Thus, KCSR continues to be subject to the Texas common law of

torts.

In sum, the words “regulation” and “remedies” in Section 10501(b)

mean that ICCTA expressly preempts statutes, ordinances, and

regulations passed or promulgated by any body other than the STB or

Congress that directly regulate an aspect of rail transportation safety or

operations for which ICCTA provides a remedy. Because ordinary

common-law tort claims like those at issue here are not included in this

category, they are not expressly preempted by ICCTA’s exclusive

jurisdiction provision.

II. Implied obstacle preemption is inconsistent with the

Supremacy Clause.

In addition to express preemption, the U.S. Supreme Court has

held that federal law impliedly preempts state law in two circumstances:

(1) when a “pervasive” framework of regulation supports the inference

that “Congress, acting within its proper authority, has determined [that

11

a field] must be regulated by its exclusive governance,” and (2) when

state law “conflict[s] with federal law,” either because compliance with

both “is a physical impossibility” or state law “stands as an obstacle to

the accomplishment and execution of the full purposes and objectives of

Congress.” Arizona v. United States, 567 U.S. 387, 399 (2012) (internal

quotation marks and citations omitted). KCSR contends that this last

variety of preemption—implied obstacle preemption—also applies to

plaintiffs’ humped-crossing negligence claim. 16

KCSR’s contention requires us to apply a body of U.S. Supreme

Court jurisprudence that has been criticized as unconstrained,

unworkable, and “completely unmoored from the original understanding

of the Constitution.” Josh Blackman, Originalism and Stare Decisis in

the Lower Courts, 13 N.Y.U. J.L. & LIBERTY 44, 54 (2019). The process

of applying the “purposes and objectives” preemption doctrine to these

facts amply illustrates why that doctrine ought to be reexamined by the

Supreme Court. Instead of asking judges to engage in a purposivist

analysis that relies on guesswork and innuendo and yields

unpredictable results, the implied preemption inquiry could focus on

whether federal and state law “are in logical contradiction.” Merck, 587

U.S. at 319 (Thomas, J., concurring). Only when this conflict is concrete

and unavoidable, rather than merely abstract and hypothetical, would

16 Implied “obstacle” preemption is the only variety of implied

preemption that could possibly be implicated by this case. Congress did not

intend to wholly occupy the field of railroad safety, as FRSA’s savings clauses

demonstrate. See 49 U.S.C. § 20106(a)-(b). In addition, it is not actually

impossible to comply with both Texas common-law negligence standards and

relevant federal law, as there are no federal statutes or regulations prescribing

standards for humped railroad crossings.

12

judges hold that state law is preempted by operation of the Supremacy

Clause.

A. The Supremacy Clause is a non obstante provision

allowing federal laws to “repeal” contradictory state

laws.

The Supremacy Clause provides that our federal Constitution,

laws, and treaties “shall be the supreme Law of the Land; and the

Judges in every State shall be bound thereby, any Thing in the

Constitution or Laws or any State to the Contrary notwithstanding.”

U.S. CONST. art. VI, cl. 2. An originalist analysis reveals that this text

adopts a straightforward rule: federal law repeals contradictory state

law by implication. 17 As Professor Caleb Nelson has explained:

Taken as a whole, the Supremacy Clause says that courts

must apply all valid rules of federal law. To the extent that

applying state law would keep them from doing so, the

Supremacy Clause requires courts to disregard the state

rule and follow the federal one. But this is the extent of the

preemption it requires. Under the Supremacy Clause, any

obligation to disregard state law flows entirely from the

obligation to follow federal law.

To put the same point slightly differently, the Supremacy

Clause’s rules of applicability and priority mean that

courts are always bound to apply the federal portion of “in-

state law.” But if it is possible for courts simultaneously to

follow the state portion of “in-state law,” then the

Supremacy Clause’s demand that courts apply federal law

does not prevent them from applying state law too. The

17 As understood by the founding generation, “repeal” in this context

refers to Congress’s ability—by passing a statute or ratifying a treaty—to

supersede contradictory state law. Of course, the state law is not literally

removed from the statute books. Throughout my discussion, I also use repeal

in this functional, non-literal sense.

13

constitutional test for preemption is thus the same as the

traditional test for repeal: Can state and federal law stand

together, or do they establish contradictory rules? 18

As Professor Nelson notes, the final phrase of the Supremacy

Clause—which operationalizes the superiority of federal law over state

law when the two are contradictory—is a non obstante clause. Such

clauses were “ubiquitous in the session laws of every state” 19 in late

eighteenth century America, and were used

to acknowledge that a statute might contradict some other

laws and to instruct courts not to apply the traditional

presumption against implied repeals. When a statute

contained a non obstante clause, courts did not have to

struggle to harmonize the statute with prior laws; they

could give the statute its natural meaning and let it

displace whatever law it contradicted. 20

18 Nelson, Preemption, 86 VA. L. REV. at 252 (emphasis added).

19 Id. at 240.

20 Id. at 232. See also Opinion of the Mayor’s Court (August 27, 1784)

in 1 THE LAW PRACTICE OF ALEXANDER HAMILTON 417 (Julius Goebel Jr., ed.,

1964) (In this case litigated by Alexander Hamilton, the court applied the

presumption against implied repeals to reconcile New York’s Trespass Act,

which allowed property owners to seek damages for trespass from those who

had lived in their homes during the British occupation of New York, with the

Treaty of Paris. As its opinion explains, the Trespass Act “doth not contain

even the common non obstante clause, tho’ it is so frequent in our statute book,”

and thus the “established maxim” applies: “where two laws are seemingly

repugnant, and there be no clause of non obstante in the latter, they shall, if

possible, have such construction, that the latter may not repeal the former by

implication.”); 4 M. BACON, A NEW ABRIDGEMENT OF THE LAW 639 (4th ed.

1778) (“Although two Acts of Parliament are seemingly repugnant, yet if there

be no Clause of non Obstante in the latter, they shall if possible have such

Construction, that the latter may not be a Repeal of the former by

Implication.”) (cited in PLIVA, Inc. v. Mensing, 564 U.S. 604, 622 (2011)

(plurality op. of Thomas, J.)).

14

The use of non obstante language in the Supremacy Clause—

which only speaks explicitly to the obligations of state court judges—is

important because it clarifies that the natural meaning of federal

statutes would “take effect automatically within each state and form

part of the same body of jurisprudence as state statutes,” 21 thus

becoming “in-state law.” 22 Absent this clarifying provision, the Framers

of our federal Constitution feared that state court judges, consistent

with “prevailing conceptions of the law of nations,” would treat federal

law as the law of a foreign sovereign and refuse to apply it. 23 Nowhere

was this fear more acute than in the foreign affairs context, as numerous

sources from the founding era raised fears of state legislation displacing

federally ratified treaties. 24

21 Nelson, Preemption, 86 VA. L. REV. at 246.

22 Evan Caminker, State Sovereignty and Subordinacy: May Congress

Commandeer State Officers to Implement Federal Law?, 95 COLUM. L. REV.

1001, 1023 (1995).

23 Nelson, Preemption, 86 VA. L. REV. at 246-47. Indeed, the Framers

were familiar with this problem in multiple dimensions, as they had seen the

states openly defy national laws passed under the Articles of Confederation

with impunity. As Alexander Hamilton put it, “[t]he measures of the union

have not been executed: the delinquencies of the States have, step by step,

matured themselves to an extreme, which has at length arrested all the wheels

of the national government, and brought them to an awful stand.” THE

FEDERALIST NO. 15 (Alexander Hamilton) (Gideon ed., 2001) [hereinafter

FEDERALIST].

24 See, e.g., 4 DEBATES IN THE SEVERAL STATE CONVENTIONS, ON THE

ADOPTION OF THE FEDERAL CONSTITUTION 188 (Jonathan Elliot 2d ed., 1836)

[hereinafter ELLIOT] (reporting Governor Johnston’s remarks in the North

Carolina ratifying convention, including the Governor’s statement that

“[w]ithout this [Supremacy] clause, the whole Constitution would be a piece of

blank paper. Every treaty should be the supreme law of the land; without this,

15

Most important for our purposes, both supporters and opponents

of the Supremacy Clause discussed preemption in terms of “repeal,” as

the extensive debate over the clause in the North Carolina ratifying

convention and other contemporary fora reveals. 25 This framework for

any one state might involve the whole Union in war.”); id. at 278-80 (reporting

Gen. Charles Cotesworth Pinckney’s statement at the South Carolina ratifying

convention that the Supremacy Clause would prevent states from undermining

treaties entered into by the federal government). See also 3 JOSEPH STORY,

COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 1832, 696

(1833) (“[T]reaty stipulations (especially those of the treaty of peace of 1783)

were deemed by the states, not as laws, but like requisitions, of mere moral

obligation, and dependent upon the good will of the states for their execution

. . . . It was probably to obviate this very difficulty, that this [Supremacy]

clause was inserted in the constitution.”).

25 Opponents of the Supremacy Clause described it as “a total repeal of

every act and constitution of the states” that “[t]he judges are sworn to uphold,”

4 ELLIOT at 179-180 (remarks of Mr. Bloodworth), under which state laws

“could be repealed entirely by those of Congress,” id. at 188 (remarks of Mr. J.

M’Dowall), and treaties that are “the supreme law of the land . . . may repeal

the laws of different states, and render nugatory our bill of rights,” id. at 215

(remarks of Mr. Lancaster). To this, Governor Johnston, a supporter of

ratification, responded by clarifying that “[t]he laws made in pursuance [of the

Constitution] by Congress ought to be the supreme law of the land; otherwise

any one state might repeal the laws of the Union at large,” and “it would be in

the power of any one state to counteract the law of other states, and withdraw

itself from the Union.” Id. at 187-88. Consistent with the trend at the North

Carolina ratifying convention, the Anti-Federalist Papers are replete with

references to the Supremacy Clause as “repealing” state law. See, e.g., 221

Brutus II, N.Y. J. (Nov. 1, 1787), reprinted in 13 DOCUMENTARY HISTORY OF

THE RATIFICATION OF THE CONSTITUTION 529 (John P. Kaminski & Gaspere J.

Saladino eds., 1981) [hereinafter DHRC] (“It is therefore not only necessarily

implied thereby [by the Supremacy Clause and the General Oath or

Affirmation Clause], but positively expressed, that the different state

constitutions are repealed and entirely done away, so far as they are

inconsistent with this, with the laws which shall be made in pursuance thereof,

or with treaties made, or which shall be made, under the authority of the

United States; of what avail will the constitutions of the respective states be to

preserve the rights of its citizens?”); An Old Whig VI, PHILA. INDEP.

16

thinking about preemption continued to dominate in the early days of

the Republic. For instance, the Judiciary Act of 1789 only gave the U.S.

Supreme Court appellate jurisdiction over final judgments of state high

courts “where is drawn in question the validity of a statute of, or an

authority exercised under any State, on the ground of their being

repugnant to the constitution, treaties or laws of the United States,” and

the decision was “in favour of . . . their validity.” 26 By the same token,

the Bankruptcy Act of 1800 included a savings clause providing that

“this act shall not repeal or annul, or be construed to repeal or annul the

laws of any state . . . for the relief of insolvent debtors, except so far as

the same may respect persons who are, or may be clearly within the

purview of this act . . . .” 27

Early American jurists—including Chief Justice Oliver

GAZETTEER (Nov. 24, 1787), reprinted in 14 DHRC 216 (1983) (“Congress, being

the supreme legislatures, may annul or repeal the laws of the individual states,

whenever they please.”). See also Andrew S. Oldham, The Anti-Federalists:

Past as Prologue, 12 N.Y.U. J.L. & LIBERTY 451, 456 (2019) (“[W]e should read

the Federalists’ papers together with the Anti-Federalists’ papers to elucidate

the original public understanding of the Constitution.”). But the Anti-

Federalists’ campaign against the Supremacy Clause “repealing” state law was

not limited to publishing political propaganda. In Maryland, William Paca

proposed to amend the Constitution to include a savings clause for state

constitutions and bills of rights: “No Law of Congress, or Treaties, shall be

effectual to repeal or abrogate the Constitutions, or Bills of Rights, of the

States, or any of them, or any Part of the said Constitutions or Bills of Rights.”

Amendments Proposed by William Paca in the Maryland Convention, MD. J.

(Apr. 29, 1788), reprinted in 17 DHRC 241 (1995).

26 Judiciary Act of 1789, ch. 20, § 25, 1 Stat 73, 85-86 (emphasis added).

27 An Act to establish a uniform System of Bankruptcy throughout the

United States, ch. 19, § 61, 2 Stat 19, 36 (1800) (emphasis added).

17

Ellsworth, 28 Chief Justice John Marshall, 29 and Justice Joseph

Story 30—also understood the Supremacy Clause as repealing state laws

that were “repugnant” to the federal Constitution, federal statutes, and

treaties. In requiring actual “repugnancy” or irreconcilability between

state and federal law before applying preemption, early American

jurisprudence understood the Supremacy Clause’s nature as a product

of compromise between proponents and opponents of James Madison’s

failed proposal at the Philadelphia Convention for a national veto over

state laws. 31

28 See Hamilton v. Eaton, 11 F. Cas. 336, 340 (C.C.D.N.C. 1792)

(No. 5,980) (opinion of Ellsworth, Circuit Justice).

29 McCullough v. Maryland, 17 U.S. (4 Wheat.) 316, 425-26 (1819)

(declaring that preemption under the Supremacy Clause meant that “[a] law,

absolutely repugnant to another, as entirely repeals that other as if express

terms of repeal were used.”).

30 3 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE

UNITED STATES § 1836, 701 (“[T]he judiciary of the United States has no

general jurisdiction to declare acts of the several states void, unless they are

repugnant to the constitution of the United States, notwithstanding they are

repugnant to the state constitution.”).

31 See 4 THE FOUNDERS CONSTITUTION 592-97 (Phillip B. Kurland &

Ralph Lerner eds., 1987). Compare Alison L. LaCroix, What if Madison Had

Won? Imagining A Constitutional World of Legislative Supremacy, 45 IND. L.

REV. 41, 50 (2011) (observing that had the negative actually succeeded, “[t]he

potential scope of Congress’s power in a world with the negative would have

been far broader than the actual scope of Congress’s power when it preempts

state law”), with Thomas W. Merrill, Preemption and Institutional Choice,

102 NW. U.L. REV. 727, 735 (2008) (“[S]ince the Supremacy Clause was

expressly adopted as a substitute for Madison’s sweeping ‘negative,’ it is

doubtful that the Clause was regarded as being limited to cases of mutual

exclusivity or trumping. The Framers must have also contemplated some

degree of displacement power.”).

18

The “repugnancy” or irreconcilability standard is also consistent

with the original understanding of the Constitution as a document that

transferred sovereign rights from the states to the federal government

against the backdrop of the late eighteenth century law of nations. See

Anthony J. Bellia, Jr. & Bradford R. Clark, The International Law

Origins of American Federalism, 120 COLUM. L. REV. 835, 878 (2020);

Anthony J. Bellia, Jr. & Bradford R. Clark, The Constitutional Law of

Interpretation, 98 NOTRE DAME L. REV. 519, 536 (2022). Under these

legal principles, an “instrument could alienate sovereign rights and

powers in two ways. It could either transfer the right or power

expressly, or grant one party an express right or power that by

unavoidable implication divested the other party of a corresponding

right. In both cases, the clear and express terms of the instrument were

to be given their ordinary and customary meaning as of the time of

adoption.” 98 NOTRE DAME L. REV. at 530-31. 32 As Professors Bellia and

32 See FEDERALIST NO. 32 (Alexander Hamilton) (“[T]he plan of the

convention aims only at a partial union or consolidation, the state governments

would clearly retain all the rights of sovereignty which they before had, and

which were not, by that act, exclusively delegated to the United States. This

exclusive delegation, or rather this alienation of state sovereignty, would only

exist in three cases: where the Constitution in express terms granted an

exclusive authority to the union; where it granted in one instance an authority

to the union, and in another, prohibited the states from exercising the like

authority; and where it granted an authority to the union, to which a similar

authority in the States would be absolutely and totally contradictory and

repugnant.”). Further elaborating on this last category, Hamilton wrote that

actual contradiction or repugnancy between state and federal law had to

involve “direct contradiction of power,” and not just “mutual[] questions of

prudence.” Id. For instance, both the State and federal government taxing the

same item would not fall under the umbrella of actual contradiction or

repugnancy, as “[t]he particular policy of the national and of the state system

19

Clark have explained, “[t]o find preemption of state authority consistent

with the background rules governing the transfer of sovereign rights,

the States’ exercise of a given power assigned to federal officials must be

fundamentally incompatible—or irreconcilable—with its exercise by the

federal government.” Id. at 613 n.440 (internal quotation marks

omitted).

Justice Thomas has advocated the adoption of a “logical

contradiction” test that is consistent with these understandings of the

Supremacy Clause’s text. As he has written, “[e]vidence from the

founding suggests that, under the original meaning of the Supremacy

Clause, federal law pre-empts state law only if the two are in logical

contradiction.” Merck, 587 U.S. at 319 (Thomas, J., concurring). 33

of finance might now and then not exactly coincide, and might require

reciprocal forbearances. It is not however a mere possibility of inconvenience

in the exercise of powers, but an immediate constitutional repugnancy, that can

by implication alienate and extinguish a pre-existing right of sovereignty.” Id.

(emphasis added).

33 Consistent with the text of the Supremacy Clause, Justice Thomas’s

approach requires that “Federal laws ‘made in Pursuance’ of the Constitution

must comply with two key structural limitations in the Constitution that

ensure that the Federal Government does not amass too much power at the

expense of the States”: the enumeration of limited federal powers, and the

requirement “that pre-emptive effect be given only to those federal standards

and policies that are set forth in, or necessarily follow from, the statutory text

that was produced through the constitutionally required bicameral and

presentment procedures.” Wyeth, 555 U.S. at 585-86 (Thomas, J., concurring

in judgment). See also 3 JOSEPH STORY, COMMENTARIES ON THE

CONSTITUTION OF THE UNITED STATES § 1831, 694 (“[I]t will not follow, that

acts of the larger society [the federal government], which are not pursuant to

its constitutional powers, but which are invasions of the residuary authorities

of the smaller societies [the States], will become the supreme law of the land.

They will be merely acts of usurpation, and will deserve to be treated as such.”).

20

This approach is grounded in the Supremacy Clause’s history as

a non obstante clause of the type used by “[e]ighteenth-century

legislatures . . . to specify the degree to which a new statute was meant

to repeal older, potentially conflicting statutes in the same field.”

PLIVA, Inc. v. Mensing, 564 U.S. 604, 621-22 (2011) (plurality op. of

Thomas, J.). As discussed above, “a non-obstante provision in a new

statute acknowledged that the statute might contradict prior law and

instructed courts not to apply the general presumption against implied

repeals.” Id. at 622 (internal citations omitted). Thus, “if we interpret

the Supremacy Clause as the founding generation did, our task is

straightforward. We must use the accepted methods of interpretation

to ascertain whether the ordinary meaning of federal and state law

‘directly conflict.’” Kansas v. Garcia, 589 U.S. 191, 214 (2020) (Thomas,

J., concurring). “[P]re-emptive effect is to be given to congressionally

enacted laws, not to judicially divined legislative purposes.” Arizona,

567 U.S. at 440 (Thomas, J., concurring in part and dissenting in part). 34

When two laws are asserted to be in conflict, the “logical

contradiction” test replaces the traditional recency-based rule of priority

34 Of course, Professor Nelson’s and Justice Thomas’s approach is not

without its critiques. See, e.g., Daniel J. Meltzer, Preemption and Textualism,

112 MICH. L. REV. 1 (2013); John David Ohlendorf, Textualism and Obstacle

Preemption, 47 GA. L. REV. 369 (2013). These criticisms, however, tend to go

to the technical implementation of this approach without substantively

critiquing its originalist bona fides, and according to at least one scholar have

been overstated. See Jesse Merriam, Preemption as a Consistency Doctrine,

25 WM. & MARY BILL RTS. J. 981, 1044 (2017). More importantly, there

appears to be no evidence that the “purposes and objectives” test for evaluating

implied obstacle preemption has any foundation in the original meaning of the

Supremacy Clause whatsoever.

21

with a rule that gives priority to federal law. “Under this new rule of

priority, when courts had to choose between following a valid federal law

and following a state law, the federal law would prevail even if the state

law had been enacted more recently.” Nelson, Preemption, 86 VA. L.

REV. at 250. This rule is broader than—and effectively subsumes—the

Court’s “narrow ‘physical impossibility’ standard” that Justice Thomas

has criticized. Wyeth, 555 U.S. at 590 (Thomas, J., concurring in

judgment). 35 Instead, the logical contradiction test ensures that states

cannot enforce obligations on parties that compete with federal law. 36

Thus, a federal law protecting one’s right to engage in certain behaviors

35 As Justice Thomas has correctly noted, the overly broad sweep of

“purposes and objectives” implied obstacle preemption has rendered it

unnecessary for the Court to rely on its overly narrow “impossibility”

preemption doctrine. Wyeth, 555 U.S. at 589-90 (Thomas, J., concurring in

judgment). See also Mut. Pharm. Co. v. Bartlett, 570 U.S. 472, 488 (2013) (“Our

pre-emption cases presume that an actor seeking to satisfy both his federal-

and state-law obligations is not required to cease acting altogether in order to

avoid liability.”); PLIVA, 564 U.S. at 621 (plurality op. of Thomas, J.) (“We do

not read the Supremacy Clause to permit an approach to pre-emption that

renders conflict pre-emption all but meaningless. The Supremacy Clause, on

its face, makes federal law ‘the supreme Law of the Land’ even absent an

express statement by Congress.”).

36 As one commentator on Justice Thomas’s view of logical contradiction

has pointed out, “only actual conflict leads to preemption. Imposing an

obstacle to achievement of federal purposes or objectives does not create

preemption unless those purposes are based in the statutory language.” E.

Travis Ramey, Congress Hatches the Egg: Justice Thomas’s Textual Mandate

Test for Preemption, 62 ALA. L. REV. 1119, 1125 (2011). “When analyzing the

pre-emptive effect of federal statutes or regulations validly promulgated

thereunder, evidence of pre-emptive purpose must be sought in the text and

structure of the provision at issue to comply with the Constitution.” Wyeth,

555 U.S. at 588 (Thomas, J., concurring in judgment) (citing Easterwood, 507

U.S. at 664 (internal quotation marks and brackets omitted)).

22

trumps a state law that prohibits those behaviors. Wyeth, 555 U.S. at

590 (Thomas, J., concurring in judgment). 37

B. Implied obstacle preemption is unmoored from

constitutional and statutory text and damages

federalism and the separation of powers.

Unfortunately, the current standard for implied obstacle

preemption is far removed from the original meaning of the Supremacy

Clause. By grounding the inquiry in Congress’s “purposes and

objectives” in passing a statute, Hines, 312 U.S. at 67, implied obstacle

preemption allows courts to “improperly rely on legislative history,

broad atextual notions of congressional purpose, and even congressional

inaction in order to pre-empt state law.” Wyeth, 555 U.S. at 594

(Thomas, J., concurring in judgment). In practice, this approach allows

judges to “wad[e] into a sea of agency musings and Government

litigation positions” in a search for what Congress or federal

administrative agencies “may have been thinking” when relevant

provisions were drafted. Williamson v. Mazda Motor of Am., Inc.,

37 For example, Justice Thomas has explained that the “general express

statutory goal” of the Motor Vehicle Safety Act, which was “to reduce traffic

accidents and deaths and injuries to persons resulting from traffic accidents,”

did not logically contradict allowing the plaintiff’s common-law tort suit to go

forward in Geier v. American Honda Motor Co. See Wyeth, 555 U.S. at 600

(Thomas, J., concurring in judgment) (citing Geier, 529 U.S. 888-89, 903 (2000)

(Stevens, J., dissenting)). “With text that allowed state actions like the one at

issue in Geier, the Court had no authority to comb through agency

commentaries to find a basis for an alternative conclusion.” Id. at 600 (citing

15 U.S.C. § 1381(k) (1988)). “Because the ‘requirement’ imposed by state tort

liability would have actually served the stated statutory purpose, and

compliance with both state and federal guidelines was possible, the action

should not have been preempted.” Ramey, Congress Hatches the Egg, 62 ALA.

L. REV. at 1127.

23

562 U.S. 323, 341 (2011) (Thomas, J., concurring in judgment). And the

“impossibility of defining ‘purposes’ in complex statutes at such a high

level of abstraction” results in the “danger of invoking obstacle pre-

emption based on the arbitrary selection of one purpose to the exclusion

of others.” Pharm. Rsch. & Mfrs. of Am. v. Walsh, 538 U.S. 644, 678

(2003) (Thomas, J., concurring in judgment).

Such “freeranging speculation about what the purposes of the

[law or] regulation must have been is not constitutionally proper in any

case.” Williamson, 562 U.S. at 343 (Thomas, J., concurring in judgment)

(cleaned up). This speculation undermines federalism by overreading

the Supremacy Clause’s command to give preemptive effect only to the

“Laws of the United States,” and it erodes the separation of powers by

empowering judges to act with “potentially boundless” discretion. Geier

v. Am. Honda Motor Co., 529 U.S. 861, 908 (2000) (Stevens, J.,

dissenting).

Put simply, implied obstacle preemption is a doctrine of

“freewheeling judicial inquiry” 38 that invites courts—including state

courts—to become federal legislators, “wander[ing] far from the . . . text”

of the supposedly preempting federal law. Wyeth, 555 U.S. at 583

(Thomas, J., concurring in judgment). 39 Not only is the “evidence courts

38 Bates v. Dow Agrosciences LLC, 544 U.S. 431, 459 (2005) (Thomas, J.,

concurring in judgment in part and dissenting in part) (quoting Gade v. Nat’l

Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 111 (1992) (Kennedy, J., concurring in

part and concurring in judgment)).

39 Gregory M. Dickinson, An Empirical Study of Obstacle Preemption in

the Supreme Court, 89 NEB. L. REV. 682, 701 (2011) (“[T]he key factor in Justice

Thomas’s preemption analysis is the explicitness of congressional action.

Absent clear action by Congress to preempt state law, states should be

24

employ to discern congressional intent” dubious, the entire exercise of

courts trying to “tease out single purposes or aims of federal legislation

and regulations” is fraught with unsubstantiated assumptions about

lawmaking and is inherently inconsistent with the separation of powers.

Catherine M. Sharkey, Against Freewheeling, Extratextual Obstacle

Preemption: Is Justice Clarence Thomas the Lone Principled Federalist?,

5 N.Y.U. J.L. & LIBERTY 63, 91 (2010). By its very nature, this “judicial

guesswork about broad federal policy objectives, legislative history, or

generalized notions of congressional purposes that are not contained

within the text of federal law” 40 encourages sharp, policy-based

disagreements between judges that have little relation to actual

statutory text—thus “undercut[ting] the principle that it is Congress

rather than the courts that pre-empts state law.” 41

Moreover, the purposivist nature of implied obstacle preemption

jurisprudence upsets the “delicate balance” of state versus federal power

presumed to retain their sovereignty. Any other approach would aggrandize

the judiciary at the expense of the legislature and violate the principle of dual

sovereignty enshrined in the Constitution.”).

40 Garcia, 589 U.S. at 214 (Thomas, J., concurring) (internal quotation

marks omitted).

41 Gade, 505 U.S. at 111 (Kennedy, J., concurring in part and concurring

in judgment); see also Walsh, 538 U.S. at 682 (Thomas, J., concurring in

judgment). Recent empirical research by Professor Jesse Merriam confirms

this is the case. “The most sharply divided implied preemption cases on the

Roberts Court have arisen under conflict preemption. Of the seven Roberts

Court decisions [prior to 2017] finding conflict (impossibility or obstacle)

preemption, four rested on razor-thin five-Justice majorities. By contrast, of

the eleven cases [prior to 2017] finding express preemption, only one rested on

a five-Justice majority, and that was likely a result of Justice Thomas not

participating.” Merriam, Preemption as a Consistency Doctrine, 25 WM. &

MARY BILL RTS. J. at 1011 (footnotes omitted).

25

“mandated by the Constitution” by encouraging an overly preemptive

reading of statutory text. Wyeth, 555 U.S. at 585 (Thomas, J.,

concurring in judgment). Empowering courts to “divine the broader

purposes of the statute before [them] inevitably leads [them] to assume

that Congress wanted to pursue those policies ‘at all costs’—even when

the text reflects a different balance.” Id. at 601 (Thomas, J., concurring

in judgment) (citing Geier, 529 U.S. at 904 (Stevens, J., dissenting));

Nelson, Preemption, 86 VA. L. REV. at 279-80). “As this Court has

repeatedly noted, it frustrates rather than effectuates legislative intent

simplistically to assume that whatever furthers the statute’s primary

objective must be the law.” Wyeth, 555 U.S. at 601 (Thomas, J.,

concurring in judgment) (citing Norfolk So. R. Co. v. Sorrell, 549 U.S.

158, 171 (2007); Rodriguez v. United States, 480 U.S. 522, 526 (1987)

(internal quotation marks omitted)). In doing so, courts distort the text

of statutes and stray from the actual command of the Supremacy Clause,

which gives priority to the “Laws of the United States,” not “agency

musings, . . . Government litigating positions,” or “the unenacted hopes

and dreams” of executive branch agencies. Williamson, 562 U.S. at 341,

343 (Thomas, J., concurring in judgment).

On the other side of the coin, there is a notable lack of discussion

in the jurisprudence regarding why the imaginative enterprise of

implied “purposes and objectives” preemption is even necessary. The

search for unspoken purposes certainly seems out of place regarding

statutes like ICCTA, in which Congress chose to speak directly to its

“pre-emptive intent” with the “best evidence” available: an express

preemption clause. Easterwood, 507 U.S. at 664. And the field,

26

impossibility, and logical contradiction varieties of implied preemption

amply guard federal law against state interference. 42

Moreover, the current doctrine of implied obstacle preemption

leaves many victims in its wake, indiscriminately preventing resort to

claims, defenses, and enforcement actions provided by state and local

law. The inconsistent application of obstacle preemption—which, as

described above, is a near inevitability given its arbitrary and atextual

nature—means that “[a]ll sides of the political spectrum have suffered

as a result of the incoherence. Plaintiffs have been denied rightful

remedies, businesses have operated in unpredictable legal

environments, and most importantly for constitutional purposes, states

have been arbitrarily deprived of their regulatory authority.” Merriam,

Preemption as a Consistency Doctrine, 25 WM. & MARY BILL RTS. J. at

1044.

For example, broad applications of implied obstacle preemption

have affected plaintiffs and defendants of all kinds—individuals,

business entities, and government agencies alike, including: a recording

artist denied the right to assert state-law right-of-publicity claims; 43 a

state agency stripped of its immunity defense; 44 a municipality left

unable to fully enforce an ordinance designed to remedy hazardous

As discussed above, the logical contradiction approach includes

42

impossibility preemption. See supra at 22-23 and accompanying notes.

43 Jackson v. Roberts (In re Jackson), 972 F.3d 25, 37-42 (2d Cir. 2020).

44 Deweese v. Nat’l R.R. Passenger Corp., 590 F.3d 239, 246-47 (3d Cir.

2009).

27

waste contamination; 45 individuals denied a remedy for improper

scoring of their broker qualification exams; 46 a dismissed supervisory

employee blocked from pursuing tortious interference claims against a

union; 47 an employer prevented from pursuing claims for breach of

contract, fraud, unauthorized use of property, and unjust enrichment

against a former employee who falsified his employment application; 48

and ICU nurses deprived of claims under the Texas Whistleblower Act

and employment discrimination laws. 49 These cases illustrate that

continuing to use current implied obstacle preemption precedents when

we apply one of the “most frequently used doctrine[s] of constitutional

45 Fireman’s Fund Ins. Co. v. City of Lodi, 302 F.3d 928, 947-49 (9th Cir.

2002).

46 In re Series 7 Broker Qual. Exam Scoring Litig., 548 F.3d 110, 114-15

(D.C. Cir. 2008).

47 Loc. 926 Int’l Union of Operating Eng’rs v. Jones, 460 U.S. 669, 676-

78, 684 (1983). The examples in this and the next two footnotes concern the

broadest implied preemption regime in American law, which currently governs

labor relations under San Diego Building Trades Council v. Garmon, 359 U.S.

236, 245 (1959). Under this regime, the National Labor Relations Act

“preempts state law even when the two only arguably conflict,” in which case

the National Labor Relations Board “resol[ves] . . . the legal status of the

relevant conduct.” Glacier Nw., Inc. v. Int’l Brotherhood of Teamsters Loc.

Union No. 174, 598 U.S. 771, 776-77 (2023).

48 Wright Elec., Inc. v. Ouellette, 686 N.W.2d 313, 322, 325 (Minn. Ct.

App. 2004).

49 Castillo v. Brownsville-Valley Reg’l Med. Ctr., Inc., 421 S.W.3d 263,

272-73 (Tex. App.—Corpus Christi–Edinburg 2013, no pet.).

28

law in practice” 50 presents a substantial threat to our constitutional

system of federalism and separation of powers. 51

Done right, implied preemption requires neither a “penumbral”

reading of federal law, in which state-court jurisdiction over state claims

is defined by the atextual whims of judges or federal administrative

agencies, nor artificially narrow constructions of federal law that allow

for overzealous protection of state law at all costs. Instead, it calls for a

straightforward analysis of statutory text, amendment history, and

structure—including applicable interpretive presumptions and clear-

statement rules—to determine whether state and federal law establish

irreconcilable standards that are in “logical contradiction” with each

other.

III. ICCTA obstacle preemption is inconsistent with the major

questions doctrine.

Because ICCTA’s preemption clause is coupled with a delegation

of exclusive jurisdiction to the STB, the proper scope of implied ICCTA

preemption should also be informed by relevant principles of

administrative law. As explained above, the statutory interpretation

question before us is not really about what state courts can do, but what

Congress—which the federal Constitution vests only with specifically

50 Gardbaum, The Nature of Preemption, 79 CORNELL L. REV. at 768.

See Antonin Scalia, Foreword: The Importance of Structure in

51

Constitutional Interpretation, 83 NOTRE DAME L. REV. 1417, 1418 (2008) (“The

constitutional structure of the United States has two main features:

(1) separation and equilibration of powers and (2) federalism. Each functions

to safeguard individual liberty in isolation, but they provide even greater

protection working together.”).

29

enumerated powers—has actually delegated exclusively to an executive

branch agency: the STB. Thus, I turn next to precedent and scholarship

concerning the nature and power of the federal administrative state,

which sheds substantial light on whether Section 10501(b) impliedly

preempts Texas common law.

Applying current federal precedent on implied obstacle

preemption in the ICCTA context makes little sense given developments

in the Supreme Court’s federal administrative law jurisprudence. In

recent years, the Court has shown greater reticence to find legislative

delegations of authority over “major questions” or matters of core state

power to executive branch agencies absent “clear congressional

authorization.” West Virginia, 597 U.S. at 723 (citing Util. Air Regul.

Grp. v. EPA, 573 U.S. 302, 324 (2014)). But implied obstacle preemption

takes the opposite view, concluding that any state-law obstacle to the

“purposes and objectives” of Congress in passing a statute, including

those Congress did not speak to at all, is preempted by the statute—no

matter how “major” the displacement of state law.

In the case of ICCTA preemption, these conflicting positions come

to a head. While federalism principles underlying the major questions

doctrine counsel that Congress must “enact exceedingly clear language

if it wishes to significantly alter the balance between federal and state

power,” 52 current implied obstacle preemption precedent eschews

52 Ala. Ass’n of Realtors v. Dep’t of Health & Hum. Servs., 594 U.S. 758,

764 (2021) (quoting United States Forest Serv. v. Cowpasture River Pres. Ass’n,

590 U.S. 604, 622 (2020)).

30

statutory text and clear statements in favor of “penumbras that wax and

wane.” 53

Here, KCSR asserts that the STB has exclusive jurisdiction to

provide a remedy any time the application of state or other federal law

would unreasonably burden or interfere with rail transportation. In

other words, the STB has almost plenary authority over rail

transportation under KCSR’s view of Section 10501(b), meaning that

any action taken under state or other federal law that unreasonably

impacts a railroad’s bottom line impliedly falls within the STB’s

exclusive jurisdiction and is preempted by ICCTA. Because KCSR

frames ICCTA’s preemptive scope at such a high level of generality,

adopting its position would undermine the federalism and separation of

powers values that inform the nondelegation doctrine and its corollary,

the major questions doctrine. 54

In particular, KCSR’s position should be rejected because it

(1) implicates the major questions doctrine and (2) does not meet its

53 Glacier Nw., 598 U.S. at 787 (Thomas, J., concurring in judgment)

(internal quotation marks omitted).

54 In his West Virginia concurrence, Justice Gorsuch noted that the

Supreme Court “has applied the major questions doctrine for the same reason

it has applied other similar clear-statement rules—to ensure that the

government does not inadvertently cross constitutional lines. And the

constitutional lines at stake here are surely no less important than those this

Court has long held sufficient to justify parallel clear-statement rules. At stake

is not just a question of retroactive liability or sovereign immunity, but basic

questions about self-government, equality, fair notice, federalism, and the

separation of powers. The major questions doctrine seeks to protect against

unintentional, oblique, or otherwise unlikely intrusions on these interests.”

597 U.S. at 742 (Gorsuch, J., concurring) (internal quotation marks and

citations omitted).

31

clear-statement requirement. The Supreme Court’s major questions

and nondelegation cases teach us that “[e]xtraordinary grants of

regulatory authority are rarely accomplished through modest words,

vague terms, or subtle devices.” West Virginia, 597 U.S. at 723 (internal

quotation marks omitted). “We presume that ‘Congress intends to make

major policy decisions itself, not leave those decisions to agencies.’” Id.

(quoting United States Telecom Ass’n v. FCC, 855 F.3d 381, 419 (D.C.

Cir. 2017) (Kavanaugh, J., dissenting from denial of reh’g en banc)).

Thus, when a litigant argues that a statute grants an agency “sweeping”

authority over matters of “economic” or “political significance,” it must

point to “clear congressional authorization for the power” claimed. Id.

at 766 (internal quotation marks omitted); see also Biden v. Nebraska,

143 S. Ct. 2355, 2380 (2023) (Barrett, J., concurring).

Supreme Court precedent indicates that whether an agency

possesses exclusive power to regulate everything that unreasonably

burdens or interferes with rail transportation qualifies as a major

question, and relatedly as a question on which Congress must speak

clearly if it wishes to displace core state power. Indeed, one of the

earliest cases in which the Supreme Court applied what has come to be

known as the major questions doctrine involved whether the STB’s

predecessor—the ICC—could set carriage prices for railroads. The

Court observed that transferring such a “power of supreme delicacy and

importance” to “any administrative body is not to be presumed or

implied from any doubtful and uncertain language.” ICC v. Cincinnati,

N.O. & T.P.R. Co., 167 U.S. 479, 505 (1897). If Congress “had intended

to grant the power to establish rates, it would have said so in

32

unmistakable terms.” Id. at 509. Because Congress “did not give [that]

express power to the commission,” the Court concluded “it did not intend

to secure the same result indirectly . . . .” Id. at 511.

KCSR’s view of Section 10501(b) would similarly vest the STB

with a “breathtaking amount of authority.” Ala. Ass’n of Realtors, 594

U.S. at 764. “It is hard to see what [“remedies”] this interpretation

would place outside the [STB’s] reach, and [KCSR] has identified no

limit in [Section 10501(b)] beyond the requirement” that the state-law

claim have the effect of regulating or interfering with rail

transportation. Id. at 764-65.

KCSR’s attempt to downplay that vague and far-reaching

standard by arguing that ICCTA only preempts “unreasonabl[e]

interfere[nce] with its operations” fares no better than the CDC’s

argument that its authority under the Public Health Service Act 55 was

limited to actions that were “necessary” to curb the spread of COVID-

19. Id. at 765. 56 The Supreme Court rejected the CDC’s reading of a

statute that would vest it with authority to “mandate free grocery

delivery to the homes of the sick or vulnerable,” “[r]equire

55 42 U.S.C. § 264.

56 Indeed, KCSR’s argument here arguably fares even worse than the

CDC’s argument in Alabama Association of Realtors, as the word “necessary”

actually appeared in the relevant statutory provision. In contrast,

“unreasonable interference with operations,” “allocat[ion] [of] capital

resources,” and the other phrases KCSR argues define the scope of the STB’s

powers under Section 10501(b) are nowhere to be found in the text of that

Section. The concept of an “unreasonable burden” does appear in other parts

of ICCTA, confirming that Congress deliberately chose to use a different

standard in this general preemption provision. See, e.g., 49 U.S.C.

§§ 10909(a)(1), 10910, 11501.

33

manufacturers to provide free computers to enable people to work from

home,” or “[o]rder telecommunications companies to provide free high-

speed Internet service to facilitate remote work.” Id. Similarly, we

should reject KCSR’s reading of a statute that would, for example, grant

the STB exclusive jurisdiction to adjudicate contractual disputes

between railroads and their energy suppliers, resolve labor disputes

between railroads and their employees, or regulate the securities issued

by railroads. 57

There is no doubt that a railroad with no fuel, no workers, or no

access to capital markets would be facing “unreasonable interference

with its operations” and vast impacts on its bottom line. But no one

seriously contends that the STB actually could—or would—attempt to

govern any of these things, lest it upset separate statutory schemes. 58

57 That these arguments are being advanced by a party other than the

agency administering a particular statute makes no difference for purposes of

the major questions doctrine, which seeks to define the scope of an agency’s

powers under that statute. Indeed, the U.S. Supreme Court’s decision in West

Virginia involved rejecting the arguments of the EPA, several power

companies, and various states in defense of the Clean Power Plan—with all of

these parties arguing for a broader reading of the EPA’s powers under the

Clean Air Act.

58 See Biden, 143 S. Ct. at 2382 (Barrett, J., concurring) (“Another

telltale sign that an agency may have transgressed its statutory authority is

when it regulates outside its wheelhouse.”). For instance, allowing the STB to

resolve labor disputes between railroads and their workers would undermine

the statutory scheme laid out in the Railway Labor Act, 45 U.S.C. §§ 151 et

seq., which is administered by the National Mediation Board, another

independent federal agency. Similarly, allowing the STB to regulate the

securities issued by KCSR would intrude on the Securities and Exchange

Commission’s authority under federal securities laws. See, e.g., 15 U.S.C.

§§ 77a et seq., (Securities Act of 1933); 15 U.S.C. §§ 78a et seq. (Securities

Exchange Act of 1934).

34

And rightfully so, as neither the STB’s expertise nor its statutory

mandate actually implicates any of these potential legal disputes, even

though they are related to a railroad’s “operations” and its financial

health.

The same is true of routine, common-law negligence disputes of

the type at issue here. KCSR concedes that several types of negligence

claims—such as failure to sound a whistle, keep a lookout, apply brakes,

or maintain a yield sign—would not be preempted. This concession

highlights that there is no coherent limiting principle to KCSR’s view of

implied ICCTA preemption, as the impact of these claims on railroad

operations is not different in kind from the plaintiffs’ humped-crossing

negligence claim, and we have only KCSR’s unsupported assertion that

they differ in degree.

KCSR’s position also meets two of the three major questions

doctrine “triggers” that Justice Gorsuch identified in his West Virginia

concurrence. 597 U.S. at 743-44. KCSR’s reading of Section 10501(b) to

give the STB exclusive jurisdiction over any actions that unreasonably

burden or interfere with rail transportation would vest the STB with

almost unlimited authority to regulate the railroad industry, boxing out

all other “regulation of rail transportation”—no matter how indirect—

under state and other federal laws. Thus, KCSR’s interpretation of

ICCTA would empower the STB to “regulate a significant portion of the

American economy” from under the shield of Chevron deference. 59 Id.

59 Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843-

44 (1984) (holding that where statute is “silent or ambiguous with respect to

[a] specific issue,” courts must grant deference to reasonable interpretation

advanced by federal administrative agency administering that statute).

35

at 744 (Gorsuch, J., concurring) (internal quotation marks omitted); see

Biden, 143 S. Ct. at 2373 (holding student loan forgiveness program met

this indicator of a major question).

And it would do so in a manner that “intrude[s] into an area that

is the particular domain of state law”: the care of grade crossings. West

Virginia, 597 U.S. at 744 (Gorsuch, J., concurring); see Lehigh Valley

R.R., 278 U.S. at 35. The STB’s assertion of exclusive jurisdiction over

ordinary common-law claims, such as the one at issue here, would not

amount to an “everyday exercise of federal power,” as it would

dramatically displace the role of state courts and state common law in

an area they have traditionally governed and that falls squarely within

their function and expertise. Nat’l Fed’n of Indep. Bus. v. Occupational

Safety & Health Admin., 595 U.S. 109, 117 (2022) (quoting In re MCP

No. 165, 20 F.4th 264, 272 (6th Cir. 2021) (Sutton, C.J., dissenting from

denial of initial hearing en banc)); see also Ala. Ass’n of Realtors, 594

U.S. at 764 (holding CDC’s eviction moratorium “intrude[d] into an area

that is the particular domain of state law: the landlord-tenant

relationship”).

KCSR’s assertions to the contrary conflict with the

longstanding—and constitutionally protected—norm that “the States,

not the Federal Government, are the traditional source of authority over

safety, health, and public welfare. In the context of a vast attempt to

assume these police powers by the Federal Government, Congress must

speak unequivocally.” In re MCP No. 165, 20 F.4th at 273 (Sutton, C.J.,

dissenting from initial hearing en banc). For these reasons, KCSR’s

position would yield a significant expansion in the powers of the federal

36

administrative state with severe consequences for federalism and the

separation of powers.

As the dissent in the court of appeals correctly pointed out, the

importance of this issue is especially apparent in Texas. 666 S.W.3d 1,

19 (Tex. App.—Dallas 2021) (Carlyle, J., dissenting). According to

preliminary data provided by the FRA, Texas led the country in

highway–rail grade crossing collisions in 2023—with 246 of the

country’s 2,190 collisions happening in our state. 60 We also had the most

injuries of any state (76 out of 761 nationally), and reported the second-

largest number of fatalities (16 out of 248 nationally). 61 Texas also has

the most miles of freight railroad in the United States, with rail

transportation directly impacting almost 18,000 jobs in the state and 0.5

percent of our state’s economy. 62 Making state law inapplicable to all

this activity would have substantial consequences for Texas’s

sovereignty and economy.

In sum, the “sheer scope” of the STB’s jurisdiction under KCSR’s

position invokes the major questions doctrine, as it would vest the STB

with a “breathtaking amount of authority,” Ala. Ass’n of Realtors, 594

U.S. at 764, to assert exclusive jurisdiction over anything that could be

60 See Collisions & Fatalities by State, Highway–Rail Grade Crossing

Collisions—Top 25 States, OPERATION LIFESAVER (updated June 6, 2024),

https://oli.org/track-statistics/collisions-fatalities-state (last visited June 20,

2024).

61 Id.

62 Texas Rail Plan Executive Summary, TEX. DEP’T OF TRANSP. (Dec.

2019), https://ftp.dot.state.tx.us/pub/txdot-info/rail/texas-rail-plan-executive-

summary.pdf.

37

viewed as unreasonably burdening rail transportation. As the Supreme

Court has held, such sweeping administrative power requires clear

congressional authorization. West Virginia, 597 U.S. at 723.

Turning to the doctrine’s second step (its clear-statement

requirement), ICCTA expressly grants the STB exclusive jurisdiction

only over transportation by rail carriers, remedies with respect to

specified carrier actions, and uses of railroad facilities. See 49 U.S.C.

§ 10501(b). Yet KCSR asks us to implicitly delegate more power to the

STB through an ancillary preemption provision that does not directly

address the nature or scope of its exclusive jurisdiction and that we have

held is inapplicable to this case by its own terms. And KCSR does so

despite the FRSA provision saving state laws and suits regarding

railroad safety as well as the STB’s own view that it has no such

jurisdiction. This “oblique” approach to jurisdiction is insufficient to

satisfy the major questions doctrine. West Virginia, 597 U.S. at 723. For

this additional reason, I disagree with KCSR that any action taken

under state or other federal law that unreasonably burdens or interferes

with rail transportation impliedly falls within the STB’s exclusive

jurisdiction and is preempted by ICCTA.

IV. ICCTA obstacle preemption is inconsistently applied and

unworkable in practice.

Finally, ICCTA obstacle preemption analysis is fundamentally

broken and unworkable, as the deep split among lower courts makes

clear. Rather than asking judges to evaluate structural relationships

between state and federal law, obstacle preemption asks judges to do

nothing short of reading legislators’ minds. That enterprise is foreign to

38

the judicial role, which requires us to read text in context—not tea

leaves, tarot cards, or the unspoken thoughts, feelings, and trepidations

of individual legislators.

Arguments for ICCTA obstacle preemption of state common-law

claims often turn on technical, fact-intensive disputes that require

courts to decide when the aggregate effects of state tort suits generate

an “unreasonable” burden on rail transportation. This approach gives

courts almost boundless judicial discretion while placing a thumb on the

scale in favor of preemption, as it enables railroads to argue that almost

anything has some “effect” on their profits. See Hall v. United States,

371 F.3d 969, 977 (7th Cir. 2004) (Easterbrook, J., dissenting) (“Effects

are ubiquitous. A koala’s choice among tasty eucalyptus leaves in

Australia could change the weather in Alaska.”). In addition, some

circuits finding ICCTA obstacle preemption rely on the same sort of

speculation about hypothetical future consequences that the Supreme

Court has rejected in the FDA preemption context. 63

At its core, the current obstacle preemption approach includes no

meaningful limits other than a judge’s willingness to ask what the

63 Compare Union Pac. R.R. Co. v. Chi. Transit Auth., 647 F.3d 675, 681

(7th Cir. 2011) (concluding that Chicago Transit Authority’s attempted

condemnation of property owned by Union Pacific was impliedly preempted

because “[e]ven if the property was not being used and Union Pacific had no

immediate plans to use this property, a taking of this property would still

prevent Union Pacific from using it for railroad transportation in the future”),

with Merck, 587 U.S. at 321 (Thomas, J., concurring) (“Merck’s primary

argument, based on various agency communications, is that the FDA would

have rejected a hypothetical labeling change . . . . But . . . hypothetical future

rejections [do not] constitute pre-emptive ‘Laws’ under the Supremacy

Clause.”).

39

impact of a legal claim on a railroad might be—which in turn requires a

review of abstract congressional “purposes.” The resulting

jurisprudence has been predictably bumpy, as the Court summarizes in

Part II.C. of today’s opinion. For example, while some circuits have been

willing to reject obstacle preemption when particularized evidence of an

unreasonable burden is lacking, 64 others have simply declared that

state-law claims would impact construction or maintenance of a rail line

and are therefore preempted. 65

This complexity and inconsistency also exists within circuits.

Compare, e.g., Adrian & Blissfield R.R. Co. v. Village of Blissfield,

550 F.3d 533, 541-42 (6th Cir. 2008) (holding Michigan statute requiring

64 See Franks, 593 F.3d at 414-15 (holding “state law actions can be

preempted as applied if they have the effect of unreasonably burdening or

interfering with rail transportation,” but ICCTA did not impliedly preempt

state-law action for use of private railroad crossings because testimony was not

specific to crossings at issue); Adrian & Blissfield R.R. Co. v. Vill. of Blissfield,

550 F.3d 533, 541-42 (6th Cir. 2008) (holding Michigan statute requiring

railroads to construct, or compensate municipalities for constructing,

sidewalks across railway crossings was not impliedly preempted because it was

not “unreasonably burdensome and d[id] not discriminate against railroads”

even though it might prevent them from maximizing profits); Emerson,

503 F.3d at 1133-34 (holding no preemption of state-law tort claims for

railroad’s failure to dispose of old railroad ties properly or maintain vegetation

along right-of-way because record did not clearly address how railroad would

fix problem).

65 See Tubbs v. Surface Transp. Bd., 812 F.3d 1141, 1145-46 (8th Cir.

2015) (concluding common-law negligence suit would “subject construction of

elevated railroad embankments to state regulation . . . via negligence”); Chi.

Transit Auth., 647 F.3d at 681; cf. Edwards v. CSX Transp., Inc., 983 F.3d 112,

122-23 (4th Cir. 2020) (holding common-law tort claims seeking damages for

flood-related losses caused by railroad’s unwillingness to allow sandbagging

along right-of-way were expressly preempted as “direct attempts to ‘regulate’

railroading”).

40

railroads to construct, or compensate municipalities for construction of,

sidewalks across railway crossings was not impliedly preempted by

ICCTA), with CSX Transp., Inc. v. City of Sebree, 924 F.3d 276, 283-84

(6th Cir. 2019) (holding municipal ordinance requiring railroad to obtain

city council approval before changing grade at any crossing was

impliedly preempted because it was not “settled and definite enough to

avoid open-ended delays” and forced railroad to use certain maintenance

methods to correct fouled ballast). Under the plain text of ICCTA, there

is no discernible difference between these forms of “regulation,” and it is

hard to see how requiring a railroad to build sidewalks at crossings is

not in “logical contradiction” to ICCTA’s statutory scheme while

requiring it to use certain maintenance methods at crossings is. In a

legal regime this chaotic, nobody wins.

V. Plaintiffs’ claims against KCSR are not impliedly

preempted by ICCTA.

Because implied obstacle preemption of any state law that

unreasonably burdens rail transportation is unworkable and

inconsistent with the Supremacy Clause and the major questions

doctrine, I conclude by explaining how an ICCTA implied preemption

analysis should proceed consistent with those principles. Because there

is no “direct conflict” 66 or “logical contradiction” 67 between plaintiffs’

common-law tort claims and ICCTA’s grant of exclusive jurisdiction to

66 Wyeth, 555 U.S. at 590 (Thomas, J., concurring in judgment).

67 Merck, 587 U.S. at 319 (Thomas, J., concurring).

41

the STB under Section 10501(b), their claims should not be impliedly

preempted.

Allowing plaintiffs’ claims to proceed in state court does not

contradict ICCTA’s statutory scheme, which centralizes and simplifies

the economic and operational regulation of railroads without intruding

on state regulation of railroad safety allowed by FRSA. By proceeding

with their state-court suit, plaintiffs are not seeking to prevent KCSR

from engaging in conduct that federal law expressly protects. See Wyeth,

555 U.S. at 590 (Thomas, J., concurring in judgment). And as noted

above, neither the STB—which has no expertise in railroad safety—nor

any other federal agency has promulgated standards governing humped

crossings. Instead, FRSA’s savings clauses and a century of

jurisprudence demonstrate that railroad safety is governed by a regime

of cooperative federalism, not top-down federal uniformity as with the

economic regulation of railroads (particularly mergers and acquisitions).

Moreover, as the dissenting justice in the court of appeals pointed out,

Congress expressly delegated relevant duties to the states in 2015,

requiring them to develop state-specific safety plans for highway-rail

grade crossings. 68

By using the logical contradiction test to review the textual

details of federal and state law regulating railroad crossings, as well as

KCSR’s legal obligations to both sets of sovereigns, a factually intensive

ICCTA obstacle preemption inquiry could be avoided. But regardless of

68 666 S.W.3d at 21 n.5 (Carlyle, J., dissenting) (citing Fixing America’s

Surface Transportation Act, Pub. L. 114-94, § 11401, 129 Stat 1312, 1679-81

(2015)).

42

which implied preemption test is used, KCSR’s implied preemption

argument is wholly unsatisfying. KCSR maintains that if this common-

law negligence suit is allowed, it will face inconsistent legal liabilities in

various courtrooms around the state—and the costs of this legal

uncertainty, anticipatory compliance measures, and possibly a few

unfavorable verdicts in future cases will aggregate into a substantial

sum. Perhaps. But even if the STB decided at some point to regulate

humped crossings under the jurisdiction KCSR asserts it has (despite

not doing so in the last 28 years), it is difficult to see how giving the five-

member STB exclusive jurisdiction over thousands of routine, fact-

intensive claims of common-law negligence at rail crossings would make

the legal picture any more consistent for KCSR or, for that matter, any

cheaper.

In short, because there is no textual evidence of a “direct conflict”

or a “logical contradiction” between KCSR’s obligations under state and

federal law, as well as ample evidence that Congress had no desire to

establish such a conflict, ICCTA does not impliedly preempt plaintiffs’

humped-crossing negligence claim according to the original public

meaning of the Supremacy Clause.

CONCLUSION

In Federalist 51, James Madison laid out the nature and purpose

of our federal constitutional structure:

In the compound republic of America, the power

surrendered by the people is first divided between two

distinct governments, and then the portion allotted to each

subdivided among distinct and separate departments.

Hence a double security arises to the rights of the people.

43

The different governments will control each other, at the

same time that each will be controlled by itself. 69

Commenting on this passage, Justice Antonin Scalia observed that

“[t]hose who seek to protect individual liberty ignore threats to this

constitutional structure at their peril.” 70

The current doctrine of implied obstacle preemption presents

such a peril because it allows courts to seize power for themselves (and

often for federal executive branch agencies), undercutting the norm that

Congress must speak clearly when it seeks to delegate powers to other

branches or displace the traditional police powers of the States. Just as

Congress “cannot give the Judiciary uncut marble with instructions to

chip away all that does not resemble David,” Percoco v. United States,

598 U.S. 319, 337 (2023) (Gorsuch, J., concurring in judgment), the

Judiciary cannot glue new pieces of marble onto Congress’s David

whenever it thinks Congress’s aesthetic “purposes and objectives” would

be advanced. “[T]hat is not a path the Constitution tolerates.” Id.

(Gorsuch, J., concurring in judgment). Although recent decades’ debates

about federal structural constitutionalism have been most vigorous in

69 FEDERALIST NO. 51 (James Madison).

70 Scalia, Foreword: The Importance of Structure in Constitutional

Interpretation, 83 NOTRE DAME L. REV. at 1418. See also Morrison v. Olson,

487 U.S. 654, 697 (1988) (Scalia, J., dissenting) (“The Framers of the Federal

Constitution . . . viewed the principle of separation of powers as the absolutely

central guarantee of a just Government . . . . Without a secure structure of

separated powers, our Bill of Rights would be worthless, as are the bills of

rights of many nations of the world that have adopted, or even improved upon,

the mere words of ours.”).

44

other arenas, 71 the Supremacy Clause and implied preemption doctrine

implicate the very same questions about the Framers’ choice to diffuse

power across the federal government and the states and among the

different branches, lest a concentration of those powers undermine the

people’s liberty.

Because preemption issues are so frequently litigated, implied

obstacle preemption’s distorted application of the Supremacy Clause is

perhaps one of the most damaging constitutional doctrines of modern

times. It has undermined the “double security” the Framers sought to

guarantee Americans, replacing it with judicial arbitrariness, confusion,

and the substantive loss of rights. It is unmoored from the original

public meaning of the Constitution, and it is in irreconcilable tension

with the Supreme Court’s administrative law jurisprudence protecting

federalism and the separation of powers through the major questions

doctrine. I urge the Supreme Court to reexamine its implied obstacle

preemption jurisprudence and adopt an approach consistent with the

original public meaning of the Supremacy Clause.

With these concurring thoughts, I join the Court’s opinion.

71 See, e.g., Nat’l Pork Producers Council v. Ross, 598 U.S. 356 (2023);

Gundy v. United States, 588 U.S. 128 (2019); Franchise Tax Bd. of Cal. v. Hyatt,

587 U.S. 230 (2019); Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012);

Printz v. United States, 521 U.S. 898 (1997); Seminole Tribe of Fla. v. Florida,

517 U.S. 44 (1996); New York v. United States, 505 U.S. 144 (1992).

45

J. Brett Busby

Justice

OPINION FILED: June 28, 2024

46