Public law scholarship is increasingly turning from questions about the content of law to questions about which institution should determine the content of the law-that is, to "deciding who decides."' Implicit in this turn is the understanding that public law-including broadly not just constitutional law, but also administrative law and statutory interpretation-consists of norms that are contestable and changing. In a world of normative flux, the question naturally occurs: Who should be responsible for "say[ing] what the law is?"2 The answer traditionally given by American legal academics- the federal courts, and especially the Supreme Court-may or may not be the best choice in any given context. Other possible agents of norm articulation- the constitutional amendment process, Congress, the President, administrative agencies, state governments, world organizations, marketsalso need to be considered and evaluated on a comparative basis.
The law of preemption is ripe for reconsideration in light of this kind of comparative institutional analysis.3 At least two broad trends support this inference. First, a number of Supreme Court decisions have suggested, at least implicitly, that preemption questions should be redirected from the courts to Congress. In Cipollone v. Liggett Group, Inc.,' for example, Justice Stevens's opinion for the Court stated that when Congress has enacted an express preemption clause, this should provide the exclusive basis for decision, rather than any doctrine of implied preemption.' This proposition, if consistently applied, would promote the view that preemption should be primarily a matter of legislative determination. Other decisions have applied a presumption against preemption unless a "clear and manifest purpose of Congress" to preempt can be discerned.6 This presumption, if consistently applied, would also shift authority for making preemption decisions from the courts to Congress.
A second trend suggesting the need for an institutional choice analysis is a growing controversy about whether courts should defer to the views of administrative agencies on the preemptive effect of statutes and regulations. 7 The Supreme Court dodged the issue in Watters v. Wachovia Bank, N.A.,' which presented the question whether a preemptive regulation issued by the Office of the Comptroller of the Currency (OCC) was entitled to Chevron deference by reviewing courts.' Five Justices, speaking through Justice Ginsburg, concluded that it was unnecessary to reach this question because the statute itself compelled preemption.'0 Three dissenting Justices- Justice Stevens joined by Chief Justice Roberts and Justice Scaliawould have decided the question and held that agencies are not entitled to Chevron deference for preemption determinations." Controversy has also been stirred by the practice of federal agencies offering advisory opinions about the preemptive effect of federal statutes and regulations. 2 Products liability defendants have urged courts to defer to these views. The Supreme Court again recently avoided determining how much weight courts should give such views as advanced by the Food and Drug Administration (FDA), but has granted review in yet another case which now may require that it revisit the issue in the FDA context. 3 Obviously, a general practice of deferring to administrative agencies on questions of preemption would shift authority for resolving preemption controversies away from courts toward agencies.
Thomas W. Merrill,
Preemption and Institutional Choice,
Nw. U. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/353