The Blank Page Before You: Should the Preemption Doctrine Apply to Unwritten Practices?

This Note argues that the preemption doctrine should be extended to cover unwritten practices of state agencies. Preemption is a judicially created doctrine, grounded in the Supremacy Clause, which allows courts to invalidate state laws if they conflict with or otherwise obstruct a federal law. The Supreme Court has applied preemption to a range of state actions, from statutes to adjudicatory decisions of state agencies. The Court has not, however, indicated whether it would apply preemption in the absence of a textual statement of the rule by the state agency. Unwritten practices are repeated patterns of decisionmaking that evidence some implicit norm guiding the decision. Applying the preemption doctrine to them is desirable because, like other forms of agency action, such unwritten practices can significantly interfere with the operation of federal regulatory regimes. Unwritten practices by definition are decisions being continuously implemented. Courts, however, should be cautious in applying preemption in this realm because of the risk of infringing on states’ autonomy interests. Preemption is disruptive because it invalidates state action; as applied to unwritten practices, it is even more so because the courts are reaching day-to-day actions that the state agencies may not have fully articulated and defined. This Note argues that to resolve the tension between federal interests and state autonomy, the courts should find preemption to apply only when the unwritten practice constitutes a custom, borrowing from § 1983 municipal liability claims the “persistent and widespread” standard for finding instances where an unwritten practice constitutes the equivalent of a law.