Supreme Court Review

Article Title

“Clarifying” Murphy’s Law: Did Something Go Wrong in Reconciling Commandeering and Conditional Preemption Doctrines?


Murphy v National Collegiate Athletic Association is perplexing. The Court, 7–2, emphatically held that key provisions of the federal Professional and Amateur Sports Protection Act (PASPA) did not operate as permissible federal preemption but instead unconstitutionally commandeered state legislative processes in violation of federalism principles, and by a 6–3 margin ruled that no other part of the Act was severable. But interested parties sought more than a definitive result—they wanted a ruling that carefully explained how commandeering and preemption doctrines fit together, and in this respect consumers of the Court’s work product may feel disappointed. At times Murphy defined unconstitutional commandeering in incredibly broad terms—to include federal laws “that direct[ ] … the States … to refrain from enacting a regulation of the conduct of activities occurring within their borders.” And yet every congressional enactment that properly accomplishes federal preemption either explicitly or implicitly “direct[s] the States [ ] to … refrain from … regulation” of some kind. While it is far too late in the day to believe Congress can simply command states to adopt or maintain, as state law, policies desired by the federal government, it would be revolutionary to suggest Congress cannot cabin states’ sovereign actions when states affirmatively regulate private actors—through new state-law restrictions or partial repeal of old ones—in a domain located within Congress’s enumerated powers. So some of Murphy’s sweeping language cannot be taken at face value.

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