In yesterday's opinion in Virginia Uranium, Inc. v. Warren, the Supreme Court held that a Virginia law banning uranium mining is not preempted by the Atomic Energy Act. The vote was 6 to 3, with the six Justices in the majority divided between two separate opinions—the first announcing the judgment of the Court, written by Justice Gorsuch (joined by Justices Thomas and Kavanaugh), and the second concurring in the judgment, written by Justice Ginsburg (joined by Justices Sotomayor and Kagan).
Some readers of this blog follow the Court's preemption decisions, and so I thought I'd mention a couple things about Justice Gorsuch's opinion:
1. The opinion begins by explaining what the federal government does and does not regulate:
We begin with the company’s claim that the text and structure of the [Atomic Energy Act (AEA)] reserve the regulation of uranium mining for the purpose of addressing nuclear safety concerns to the NRC alone—and almost immediately problems emerge. Unlike many federal statutes, the AEA contains no provision preempting state law in so many words. Even more pointedly, the statute grants the NRC extensive and sometimes exclusive authority to regulate nearly every aspect of the nuclear fuel life cycle except mining. Companies like Virginia Uranium must abide the NRC’s rules and regulations if they wish to handle enriched uranium, to mill uranium ore or store tailings, or to build or run a nuclear power plant. See 42 U. S. C. §§2111(a), 2113(a), 2073. But when it comes to mining, the statute speaks very differently, expressly stating that the NRC’s regulatory powers arise only “after [uranium’s] removal from its place of deposit in nature.” §2092 (emphasis added [by Justice Gorsuch]).
Virginia Uranium, slip op. at 4. Justice Gorsuch then goes on to address other contextual hints and statutory amendments, all indicating, in his view, that Congress plays no role in deciding whether private actors should or should not get involved in uranium mining.
One way to look at this decision, then, is that Congress has left it open to the states to regulate whether folks get into the business at all, but once they are in the business, they have to follow a whole bunch of federal rules that may (or may not) be preemptive. We could view a lot of other federal regulatory programs that way too. Many of them extensively regulate products and services that private companies put into commerce, but those programs don't (of course) demand market entry in the first place. I wonder, then, whether a similar analysis would free states to ban or restrict marketing of other federally regulated products and services, even though when those products or services are on the market, federal rules play a significant (and possibly preemptive) role. Cf. Wyeth v. Levine, 555 U.S. 555, 592 (2009) (Thomas, J., concurring in the judgment). See also VIrginia Uranium, slip op. at 11 (Ginsburg, J., concurring in the judgment) ("A state law regulating an upstream activity within the State’s authority is not preempted simply because a down-stream activity falls within a federally occupied field.")
2. Justice Gorsuch's opinion roundly condemns freewheeling application of the species of implied conflict preemption known as "obstacle preemption." Under that doctrine, the question in Virginia Uranium was whether Virginia's ban on uranium mining would "stand as an impermissible 'obstacle to the accomplishment and execution of the full purposes and objectives of Congress.'" Slip. op. at 14 (citation omitted). Justice Gorsuch rejected this use of the Supremacy Clause "to elevate abstract and unenacted legislative desires above state law." Id. "[O]nly federal laws 'made in pursuance of' the Constitution,through its prescribed processes of bicameralism and presentment, are entitled to preemptive effect." Id. (quoting Art. VI, cl. 2). "Any evidence of pre-emptive purpose, whether express or implied, must therefore be sought in the text and structure of the statute at issue." Slip. op. 14-15 (citations and quotation marks omitted). Otherwise, Justice Gorsuch went on, "we may only wind up displacing perfectly legitimate state laws on the strength of “purposes” that only we can see, that may seem perfectly logical to us, but that lack the democratic provenance the Constitution demands before a federal law may be declared supreme." Slip op. at 15.
Justice Gorsuch's critique of obstacle preemption in Virginia Uranium is highly reminiscent of Justice Thomas's separate opinion in Wyeth v. Levine, which makes the same points. Justice Thomas maintained there that obstacle preemption is, first, at odds with the interlocking constitutional commands of the Supremacy Clause, which makes ‘‘supreme’’ only those laws ‘‘‘made in Pursuance’ of the Constitution,’’and the Bicameral and Presentment Clauses, which demand that the ‘‘passage of legislation’’ follow ‘‘‘a step-by-step, deliberate and deliberative process,’’’ 555 U.S. at 586 (Thomas, J., concurring in the judgment) (citations omitted), and, second, ‘‘problematic because it encourages an overly expansive reading of statutory text,’’ in a misguided and error-producing search for a statute's purposes, id. at 587-88, 595-96.