Frustrated with Preemption: Why Courts Should Rarely Displace State Law Under the Doctrine of Frustration Preemption

26 Pages Posted: 28 Sep 2013 Last revised: 23 Jan 2014

See all articles by Kevin O. Leske

Kevin O. Leske

University of Dayton School of Law

Dan Schweitzer



In recent years, the Supreme Court's docket has been replete with preemption cases. Indeed, it is fair to say that the preemption of state law by federal law has become the preeminent federalism issue in our courts. But the topic of preemption implicates far more than federalism; it also raises important separation of powers concerns and does so in at least two ways. First, when courts imply that federal statutes preempt state law, despite having no explicit preemption provisions, the courts risk judicial lawmaking. In Justice Thomas's words, it "leads to decisions giving improperly broad pre-emptive effect to judicially manufactured policies." Second, when administrative agencies claim state laws are preempted, it raises the question of whether unelected executive branch officials can displace state law. Agencies often claim that state laws are preempted based either on their construction of an express preemption provision or their conclusion that the state law frustrates the achievement of federal statutory objectives.

This Article explores how separation of powers concerns and related principles of statutory construction bear on the preemption inquiry. Our specific focus is on the type of preemption that presents the greatest separation of powers risks, namely, preemption based on the conclusion that state law frustrates "the accomplishment and execution of the full purposes and objectives of Congress." The Article first explains why principles of statutory construction, separation of powers, and federalism require that courts should rarely displace state law under frustration preemption. When reasonable policy grounds both support and oppose preempting state law, courts should construe Congress's decision not to include an express preemption provision as a decision not to displace state law. And when Congress did not intend to preempt state law on frustration preemption grounds, federal agencies lack the authority to decree otherwise.

Next, this Article explores the Supreme Court's recent decision in Wyeth v. Levine, in which the Court's reasoning aligned with many of the contentions in this Article. In Wyeth, the Court addressed the preemptive scope of the Federal Food, Drug, and Cosmetic Act (FDCA), which, as amended, does not contain an express preemption provision. The Court rejected the defendant's frustration preemption argument that the FDCA displaced the plaintiffs state tort law action because it presented an obstacle to the FDCA's regulatory regime.

Suggested Citation

Leske, Kevin and Schweitzer, Dan, Frustrated with Preemption: Why Courts Should Rarely Displace State Law Under the Doctrine of Frustration Preemption. NYU Annual Survey of American Law, 65 N.Y.U. Ann. Surv. Am. L. 585 (2010) , Available at SSRN:

Kevin Leske (Contact Author)

University of Dayton School of Law ( email )

300 College Park
Dayton, OH 45469
United States


Dan Schweitzer

Independent ( email )

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