"Manifest" Destiny?: How Some Courts Have Fallaciously Come To Require a Greater Showing of Congressional Intent for Jurisdictional Exhaustion Than They Require for Preemption

Brigham Young University Law Review, 2008 by Miller, Colin

Part VI argues that courts applying the "sweeping and direct" language test in post-PLRA cases are in fact requiring a greater showing of congressional intent in the jurisdictional exhaustion context than in the preemption context. It argues that in doing so, these courts have flatly contradicted Supreme Court precedent, resulting in circuit splits, which are confusing to Congress, the courts, and potential litigants. The Article concludes by claiming that courts should abolish the "sweeping and direct" language test and resume applying Supreme Court precedent that analyzes exhaustion requirements and determines whether they are prudential or jurisdictional based not only on their language but also upon other factors such as structure and legislative history.

II. THE PREEMPTION DOCTRINE

A. Express and Implied Preemption

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or the Laws of any State to the Contrary notwithstanding.8

Based on the Supremacy Clause of the United States Constitution,9 courts have held that Congress may enact legislation that preempts state and local regulation over matters historically covered by the state's police powers.10 Because a finding of preemption abrogates the ability of states and localities to exercise their traditional powers, courts "start with the assumption that ifie historic . . . powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress."11

Because courts "'begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose,"'12 they must first consider whether the enactment of a congressional statute was an act of express preemption, i.e., "an explicit statutory command that state law be displaced."13 There is no single test that courts use to determine whether a statute expressly preempts state law, but courts have used certain catch phrases in finding statutory provisions to be expressly preemptive.14 For instance, the Employee Retirement Income security Act of 1974 (ERISA) states that "[e]xcept as provided in subsection (b) . . . [certain subchapters of the Act] shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan."15 In finding that 29 U.S.C. § 1144(a) "pre-empts all state laws 'insofar as they . . . relate to any employee benefit plan,'" the Court has held that "the breadth of [that provision's] preemptive reach is apparent from [its] language" because the statute "has [a] broad scope . . . and an expansive sweep;" it is also "broadly worded, . . . deliberately expansive, . . . and conspicuous for its breadth."16

Some courts have found the Copyright Act to be expressly preemptive based upon similar grounds.17 The Copyright Act states: