The Clause That Is Not There

The bill the Senate agreed to debate this week is described by its sponsors as a national framework that replaces a patchwork of state rules. Read the introduced text and the sentence that would accomplish that is not in it.

This is not a gotcha about drafting. It is the difference between one rule for fifty states and fifty-one rules operating at once, and it is decided by a clause of one or two sentences.

The supremacy clause is where the power comes from: federal law made under the Constitution is the supreme law of the land, and state law that conflicts with it gives way.

But supremacy is not automatic displacement. Federal and state law coexist across almost every field, and a court will not read a federal statute as clearing the field unless Congress has indicated that it should.

Courts recognise three routes. Express preemption, where the statute says so. Conflict preemption, where obeying both is impossible or where state law obstructs the federal purpose. And field preemption, where the federal scheme is so comprehensive that no room is left.

Express is the only one a drafter controls. The other two are arguments made years later by whichever party is losing under state law, and they are expensive, slow and unpredictable.

Which is why statutes intended to be uniform say so in terms. The pension statute, the pesticide statute and the airline deregulation statute each carry an express clause, and each names the state laws it displaces and the ones it preserves.

the bill as introduced does something different. Its section on the relationship to existing law addresses how the new requirements sit alongside what is already there, without declaring that state statutes on the same subject cease to apply.

So the federal floor would arrive on top of the state structures rather than instead of them. An institution would owe the federal duties and, separately, whatever its state requires.

Sometimes that is exactly what Congress wants: a floor everyone must meet, with states free to go further. Consumer and environmental statutes are routinely built this way, and it is a coherent choice.

It is not, however, the choice the sponsors are describing. A uniform national market in which every institution plays by one set of rules is the argument being made for the bill, and it requires the clause that is absent.

The practical consequence is litigation. Without express language, every conflict between the federal requirement and a state one becomes a case about obstacle preemption, decided court by court over several years.

There is a second asymmetry inside the same bill. It grants an antitrust shield, declaring that enforcing several of its provisions shall not be unlawful under the antitrust laws.

That shield is express and specific, which tells you the drafters knew exactly how to write displacement when they wanted it. Protection from federal antitrust suits is spelled out; protection from state statutes is not.

the Supreme Court's decision in NCAA v. Alston explains why the shield matters so much to the institutions. Once the Court held that these rules get ordinary antitrust scrutiny, every restriction became a lawsuit waiting to be filed.

A statutory exemption ends that exposure in federal court. It does nothing about a state legislature that decides its own athletes are entitled to more.

The Congressional Research Service's primer on preemption sets out the drafting conventions in detail, and they are conventions rather than requirements -- which is the point. Nothing forces Congress to be clear.

The amendment stage is where this gets resolved, and it is worth watching for one sentence rather than for the speeches. Either a preemption clause is offered and adopted, or the bill passes as a federal layer.

A savings clause would be the honest middle: language preserving state law except where it directly conflicts. That at least tells courts what Congress intended instead of leaving them to infer it.

Until then, the accurate description of the bill is not a national standard. It is a federal statute about a subject that thirty-odd states already legislate, with the question of who wins left to be answered later and elsewhere.