Making Preemption Less Palatable
Mikos, Robert A.
Congressional preemption constitutes perhaps the single greatest threat to state power and to the values served thereby. Given the structural incentives now in place, there is little to deter Congress from preempting state law, even when the state interests Congress displaces far exceed its own. The threat of preemption has raised alarms across the political spectrum, but no one has yet devised a satisfactory way to balance state and federal interests in preemption disputes. This Article devises a novel solution: state poison pill legislation. Borrowing a page from corporate law, poison pill legislation would enable the states to make preemption less palatable, by threatening to withhold valuable state services from Congress if Congress preempts state law. In more abstract terms, the Article re-imagines preemption as an as-yet untapped opportunity for inter-governmental bargaining, one in which poison pill legislation would facilitate beneficial trades between the state and federal governments over their respective constitutional entitlements. The Article explains how poison pill legislation would work, drawing upon a diverse array of case studies to illustrate the many potential applications of the tactic. It also proffers a normative defense of poison pill legislation, arguing that the tactic should produce better preemption decisions, from a welfarist perspective, without usurping Congress’s legislative prerogatives - a problem endemic to extant solutions like the presumption against preemption. Finally, the Article lays the foundation for future work examining the use of threats to influence other legal decisions apart from preemption.