Federal preemption is perhaps the most important public law issueof the day. The stakes in preemption cases are enormous, as preemption determines whether the federal government or the statescontrol regulatory policy in a host of politically controversial contexts. Congress clearly has primary constitutional authority insetting federal preemption policy, but, for numerous political and practical reasons, cannot be solely responsible for its implementation.Determining which organ of the federal government is best at implementing preemption policy has therefore become the central preoccupation of the academic literature. While this comparative institutional analysis is certainly important in allocating preemptionpolicy-making business, it has elided a very important issue: Congress has an interest not only in what substantive preemption policy should be, but also in who should be primarily responsible for implementing it. In other words, there is a strategic delegation choiceto be made by Congress for which current institutional choice approaches to preemption do not fully account.
This Article addresses the delegation issue by providing a framework for how Congress should be “legislating preemption.” It identifies two previously overlooked challenges posed by delegating preemption implementation responsibility to the federal courts instead of to federal agencies. First, Congress has only weak policing tools when it delegates to federal courts, and therefore has little opportunity to correct the judiciary when it strays from Congress’s preemption policy preferences. Second, in its preemption jurisprudence, the Supreme Court has adopted what this Article terms a Centralization Default, which leads it to generally disfavor anti-preemption arguments when Congress does not provide clear instructions to the contrary. The Article then proposes that Congress respond to these challenges by drafting broad standards and creating favorable legislative history when preemption policy coincides with the Centralization Default. By contrast, Congress should draft clear rules when it wants to overcome the Centralization Default. After developing the “legislating preemption” framework, the Article uses the Dodd-Frank Act’s national bank preemption provisions to illustrate what happens when Congress does not apply the framework. As the Article shows, Congress’s failure to account for its weak post-delegation policing tools or the Centralization Default will likely lead to more federal preemption than Congress intended.