Preemption plays a prominent role in health law, establishing the contours of coexistence for federal and state regulatory authorities over health topics as varied as medical malpractice, insurance coverage, drug safety, and privacy. When courts adjudicate crucial preemption questions, they must divine Congress’s intent by applying substantive canons of statutory interpretation, including presumptions against preemption.
This Article makes three main contributions to health law and preemption doctrine. First, it identifies a variant of the presumption against preemption that applies to health laws—referred to throughout as the “tradition presumption.” Unlike the general presumption against preemption on federalism grounds, courts base this tradition presumption on a notion of “state primacy” that is rooted in tradition and unique to health regulation. Therefore, courts assume it is unlikely in most cases that Congress intended to preempt state health laws.
Second, this Article explores the tradition presumption’s accuracy as a description of health laws’ history and its utility as a gauge of congressional intent. Investigation reveals that it is unexamined, inaccurately broad, and subjective. Further, its rote perpetuation risks deterring meaningful inquiry into the context of federal health regulations. Even when courts invoke the tradition presumption to save worthy reform efforts from elimination by preemption, this blunt tool’s unstable construction has made it particularly vulnerable to critique.
Third, to remedy these infirmities, this Article proposes a “scalpel approach” to health law preemption analysis; it is designed to identify distinct regulatory traditions and reflect the heterogeneity of regulatory topics within the body of “health law.” The scalpel approach promotes a more accurate preemption analysis and a more coherent health law jurisprudence, while reserving the tradition presumption as a tiebreaker for indeterminate cases. By encouraging courts to relinquish monolithic notions of tradition in health law, the scalpel approach enables health law preemption analysis to accommodate the frequent departures from tradition.