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

Supreme Court of Texas
══════════
No. 21-0769
══════════

Angela Horton and Kevin Houser,
Petitioners,

v.

The Kansas City Southern Railway Company,
Respondent

═══════════════════════════════════════
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 holding that the answer to this question is no.
 In addition to deciding this question of express preemption,
United States Supreme Court precedent 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
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, 139 S. Ct. 1668, 1681 (2019) (Thomas,

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J., concurring). This test, which draws on the research of Professor
Caleb Nelson,1 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 standards-less judicial discretion, and
constitutionally illegitimate aggregation of federal power, the Supreme
Court’s “purposes and objectives” preemption jurisprudence bears flaws
akin to those that recently led the Court to repudiate the Lemon test.
See Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2427 (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 U.S. 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
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.”

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

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 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”2 approach to what is one of the
“most frequently used doctrine[s] of constitutional law in practice,” 3 I
write separately to urge the U.S. 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
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

2 Kennedy, 142 S. Ct. at 2427 (quoting Am. Legion v. Am. Humanist
Ass’n, 139 S. Ct. 2067, 2087 (2019)).
3Steven A. Gardbaum, The Nature of Preemption, 79 CORNELL L. REV.
767, 768 (1994).

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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
“‘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,

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411 (5th Cir. 2010) (en banc)).4 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.5 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
“regulation” of independent meaning,6 and the Court appropriately
declines to follow KCSR down that path.

4 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.”
5 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).
6Cf. 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

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 In addition, although this section gives the STB exclusive
jurisdiction to regulate certain economic and operational aspects of rail
transportation and provide 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.7 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.
Section 10501(b) is “unlike a typical preemption provision.”8
Rather, it is a jurisdictional provision designed to establish an exclusive
zone of jurisdiction9 for the STB in areas within its defined range of

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).
7 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.”).
8 Kansas v. Garcia, 140 S. Ct. 791, 802 (2020) (discussing 8 U.S.C.
§ 1324a).
9 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).

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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). 10 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.” 11
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
rate, practice, and service issues and rail restructuring transactions,
including mergers, line sales, line construction, and line
abandonments”12—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

10Federal 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, 139 S. Ct. 2400, 2417 (2019).
11 49 C.F.R. § 273.1.
12 About STB, SURFACE TRANSP. BD., https://www.stb.gov/about-stb/
(last visited June 30, 2023).

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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.13 “[J]ust as established practice may
shed light on the extent of power conveyed by general statutory
language, so the want of assertation 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,
142 S. Ct. 2587, 2610 (2022) (quoting FTC v. Bunte Bros., Inc., 312 U.S.
349, 352 (1941) (Frankfurter, J.)).
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

13 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).

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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 States.” 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).14 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
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

14Just a few months ago, we re-affirmed this principle 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. See
__ S.W.3d __, 2023 WL 3134718, at *9 (Tex. Apr. 28, 2023) (No. 21-0843).

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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
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

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variety of preemption—implied obstacle preemption—also applies to
plaintiffs’ humped-crossing negligence claim. 15
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, 139
S. Ct. at 1681 (Thomas, J., concurring). Only when this conflict is
concrete and unavoidable, rather than merely abstract and
hypothetical, would judges hold that state law is preempted by operation
of the Supremacy Clause.

15 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.

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 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.16 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
constitutional test for preemption is thus the same as the

16 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.

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 traditional test for repeal: Can state and federal law stand
together, or do they establish contradictory rules?17
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”18 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.19

17 Nelson, Preemption, 86 VA. L. REV. at 252 (emphasis added).
18 Id. at 240.
19 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.)).

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 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,”20 thus
becoming “in-state law.”21 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. 22 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.23

20 Nelson, Preemption, 86 VA. L. REV. at 246.
21Evan Caminker, State Sovereignty and Subordinacy: May Congress
Commandeer State Officers to Implement Federal Law?, 95 COLUM. L. REV.
1001, 1023 (1995).
22Nelson, 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].
23See, 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.24 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.”)
24 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. JOURNAL (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.”25 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 . . . .”26
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).
25 Judiciary Act of 1789, ch. 20, § 25, 1 Stat 73, 85-86 (emphasis added).
An Act to establish a uniform System of Bankruptcy throughout the
26

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

17
Ellsworth,27 Chief Justice John Marshall,28 and Justice Joseph Story29—
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. 30
The “repugnancy” or irreconcilability standard is also consistent
with the original understanding of the Constitution as a document that

27 See Hamilton v. Eaton, 11 F. Cas. 336, 340 (C.C.D.N.C. 1792)
(No. 5,980) (opinion of Ellsworth, Circuit Justice).
28 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.”).
29 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.”).
30 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
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 530-31.31 As Professors Bellia and

31 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
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

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, 139 S. Ct. at 1681 (Thomas, J., concurring).32
This approach is grounded in the Supremacy Clause’s history as
a non obstante clause of the type used by “[e]ighteenth-century

by implication alienate and extinguish a pre-existing right of sovereignty.” Id.
(emphasis added).
32 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
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 method of interpretation to
ascertain whether the ordinary meaning of federal and state law
‘directly conflict.’” Kansas v. Garcia, 140 S. Ct. 791, 807-08 (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 in part
and dissenting in part).33
When two laws are asserted to be in conflict, the “logical
contradiction” test replaces the traditional recency-based rule of priority
with a rule that gives priority to federal law. “Under this new rule of

33 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
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).34 Instead, the logical contradiction test ensures that states
cannot enforce obligations on parties that compete with federal law. 35
Thus, a federal law protecting one’s right to engage in certain behaviors

34 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.”).
35 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).36

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.,

36 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. 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 599-600
(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”37 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).38 Not only is the “evidence courts

37Bates 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)).
38Gregory 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”39 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.”40
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.”).
Garcia, 140 S. Ct. at 808 (Thomas, J., concurring) (internal quotation
39

marks omitted).
40 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
objectives 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. 41
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; 42a
state agency stripped of its immunity defense;43 a municipality left
unable to fully enforce an ordinance designed to remedy hazardous

As discussed above, the logical contradiction approach includes
41

impossibility preemption. See supra at 21-22 and accompanying notes.
42 Jackson v. Roberts (In re Jackson), 972 F.3d 25, 37-42 (2d Cir. 2020).
43 Deweese v. Nat’l R.R. Passenger Corp., 590 F.3d 239, 246-47 (3d Cir.
2009).

27
waste contamination;44 individuals denied a remedy for improper
scoring of their broker qualification exams;45 a dismissed supervisory
employee blocked from pursuing tortious interference claims against a
union;46 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; 47
and ICU nurses deprived of claims under the Texas Whistleblower Act
and employment discrimination laws.48 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

44 Fireman’s Fund Ins. Co. v. City of Lodi, 302 F.3d 928, 947-49 (9th Cir.
2002).
In re Series 7 Broker Qual. Exam Scoring Litig., 548 F.3d 110, 114-15
45

(D.C. Cir. 2008).
Local 926 International Union of Operating Engineers v. Jones, 460
46

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. International Brotherhood
of Teamsters Local Union No. 174, 143 S. Ct. 1404, 1411 (2023).
Wright Elec., Inc. v. Ouellette, 686 N.W.2d 313, 322, 325 (Minn. Ct.
47

App. 2004).
Castillo v. Brownsville-Valley Reg’l Med. Ctr., Inc., 421 S.W.3d 263,
48

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

28
law in practice”49 presents a substantial threat to our Constitutional
system of federalism and separation of powers. 50
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 together 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

49 Gardbaum, The Nature of Preemption, 79 CORNELL L. REV. at 768.
See Antonin Scalia, Foreword: The Importance of Structure in
50

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
with specifically 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, 142 S. Ct. at 2609 (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,” Ala. Ass’n of Realtors v. Dep’t of Health & Hum. Servs., 141 S.
Ct. 2485, 2489 (2021) (quoting United States Forest Serv. v. Cowpasture
River Pres. Ass’n, 140 S. Ct. 1837, 1850 (2020)), current implied obstacle
preemption precedent eschews statutory text and clear statements in
favor of “penumbras that wax and wane.” Glacier Nw., Inc. v.

30
International Brotherhood of Teamsters Local Union No. 174, 143 S. Ct.
1404, 1417 (2023) (Thomas, J., concurring in judgment) (internal
quotation marks omitted).
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 power 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. 51
In particular, KCSR’s position should be rejected because it
(1) implicates the major questions doctrine and (2) does not meet its
clear-statement requirement. The Supreme Court’s major questions
and nondelegation cases teach us that “[e]xtraordinary grants of

51 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.”
142 S. Ct. at 2620 (Gorsuch, J., concurring) (internal quotation marks and
citations omitted).

31
regulatory authority are rarely accomplished through modest words,
vague terms, or subtle devices.” West Virginia, 142 S. Ct. at 2609
(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 2608-09 (internal quotation marks omitted).
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
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.

32
 KCSR’s view of Section 10501(b) would similarly vest the STB
with a “breathtaking amount of authority.” Ala. Ass’n of Realtors, 141
S. Ct. at 2489. “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.
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 52 was
limited to actions that were “necessary” to curb the spread of COVID-
19. Id.53 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 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

52 42 U.S.C. § 264.
Indeed, KCSR’s argument here arguably fares even worse than the
53

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
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.54
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. 55
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.

54That 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.
55 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
 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. 142 S. Ct. at 2620-22. 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.56 Id. at 2621 (Gorsuch, J., concurring) (internal
quotation marks omitted).
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. Id.;

56 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
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., 142 S. Ct. 661, 665 (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, 141 S. Ct. at 2489 (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
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

36
highway–rail grade crossing collisions in 2022—with 242 of the
country’s 2,193 collisions happening in our state. 57 We also had the most
injuries of any state (76 out of 803 nationally), and reported the second-
largest number of fatalities (31 out of 276 nationally).58 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.59 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, 141 S.
Ct. at 2489, to assert exclusive jurisdiction over anything that could be
viewed as unreasonably burdening rail transportation. As the Supreme
Court has held, such sweeping administrative power requires clear
congressional authorization. West Virginia, 142 S. Ct. at 2614.
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

57 See Collisions & Fatalities by State, Highway-Rail Grade Crossing
Collisions—Top 25 States, OPERATION LIFESAVER (updated June 19, 2023),
https://oli.org/track-statistics/collisions-fatalities-state (last visited June 30,
2023).
58 Id.
Texas Rail Plan Executive Summary, TEX. DEP’T OF TRANSP (Dec.
59

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

37
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, 142 S. Ct. at 2609.
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
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

38
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. 60
At its core, the current obstacle preemption approach includes no
meaningful limits other than a judge’s willingness to ask what the
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

60Compare 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, 139 S. Ct. at 1682-83 (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
unreasonable burden is lacking,61 others have simply declared that
state-law claims would impact construction or maintenance of a rail line
and are therefore preempted.62
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
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

61 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).
62 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
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”63 or “logical contradiction”64 between plaintiffs’
common-law tort claims and ICCTA’s grant of exclusive jurisdiction to
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

63 Wyeth, 555 U.S. at 590 (Thomas, J., concurring in judgment).
64 Merck, 139 S. Ct. at 1681 (Thomas, J., concurring).

41
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.65
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
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

65666 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
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.
The different governments will control each other, at the
same time that each will be controlled by itself. 66

66 FEDERALIST NO. 51 (James Madison).

43
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.”67
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,
143 S. Ct. 1130, 1142 (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
other arenas,68 the Supremacy Clause and implied preemption doctrine

67 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.”)
68 See, e.g., Gundy v. United States, 139 S. Ct. 2116 (2019); Nat’l Pork
Producers Council v. Ross, 143 S. Ct. 1142 (2023), New York v. United States,
505 U.S. 144 (1992); Printz v. United States, 521 U.S. 898 (1997); Seminole
Tribe of Fla. v. Florida, 517 U.S. 44 (1996); Franchise Tax Bd. of Cal. v. Hyatt,

44
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.

J. Brett Busby
Justice

OPINION FILED: June 30, 2023

139 S. Ct. 1485 (2019); Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519
(2012).

45