Can Federal Contract Requirements Preempt State Law?

The only thing predictable about the U.S. Supreme Court’s  decisions on federal preemption — a subject that strikes at the heart of federalism — is the odd way that the Justices spell “pre-emption.” While the Court’s implied preemption (field preemption and conflict preemption) case law is particularly difficult to reconcile, the Court in recent years has tried to achieve some degree of uniformity in the way that it goes about interpreting federal statutes’ express preemption provisions. The continual challenge for the Court, however, is that there is little consistency, and often imprecision, in the way that Congress drafts express preemption provisions. As Coventry Health Care of Missouri, Inc. v. Nevils, No. 16-149 (argued March 1, 2017) illustrates, the Supreme Court still needs to address — or further address — some basic questions relating to express preemption:

  • Whether a federal statute’s express preemption provision is constitutional under the Supremacy Clause, U.S. Const. Art. VI, cl.2, even though it defines the scope of preemption by referring to the terms of federal contracts rather than to federal statutory or regulatory provisions.
  • Whether a “presumption against preemption,” rather than ordinary statutory construction principles, applies to interpretation of express preemption provisions, and if so, under what circumstances and to what effect.
  • Whether Chevron deference should be afforded to a federal agency’s reasonable interpretation of an arguably ambiguous express preemption provision in a statute that it administers.

To read more of Larry Ebner’s Coventry Health Care post-hearing analysis, which appeared in March 2, 2017 editions of Law360, click here

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