The First Circuit Reframes Preemption

Yesterday the First Circuit handed down a notable decision in Maine Forest Products Council v. Cormier, a case in which my firm represented the plaintiffs-appellees.  In MFPC, plaintiffs challenged a state law barring non-resident workers from hauling logs within Maine under the federal H-2A visa program.   The First Circuit concluded that plaintiffs demonstrated a substantial likelihood of succeeding on their claim that the state law is preempted by federal immigration law.  The preemption analysis in MFPC presents a notable clarification of the First Circuit’s approach to obstacle preemption.

The state law, Public Law 280, prohibits the employment of non-resident workers from transporting forest products within Maine.  By contrast, federal law permits non-resident workers to obtain admission to the United States to transport forest products under the H-2A program as long as employers demonstrate that there are not sufficient U.S. workers to perform the labor and that the employment of the nonresident would not adversely affect wages and working conditions for U.S. workers.  Because of the conflict between state and federal law, the district court held that Public Law 280 was likely preempted by federal law and enjoined enforcement the law.

The First Circuit affirmed, and in so doing provided an important gloss on the preemption analysis.   Historically, courts have found that a state law is preempted if it “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress” in enacting a federal law.   Judge Selya, however, writing for the First Circuit, highlighted an important shift in how the Supreme Court has framed this inquiry.  Justice Gorsuch, among others, has questioned courts’ ability to divine the “unenacted purposes and objectives” of a statute and the wisdom of “displacing perfectly legitimate state laws on the strengths of ‘purposes’ that only [the court] can see.”  In the First Circuit’s view, the Supreme Court has subtly modified its approach because of these doubts and now finds that obstacle preemption bars enforcement of a state law when

Congress enacts a law that imposes restrictions or confers rights on private actors and a state law confers rights or imposes restrictions that conflict with the federal law.

In short, the First Circuit’s decision suggests that the effect of the law, not the purpose of the law, is most relevant for determining whether a state law stands as an obstacle to federal law and is thus preempted.

Applying this preemption analysis, the First Circuit found the conflict between Public Law 280 and the H2A visa program to be “unmistakable.”  The H-2A program confers on employers the right to employ nonresident workers if it makes the necessary showing regarding the need for foreign workers and the absence of an adverse impact on U.S. workers.  Public Law 280, however, would forbid employment of nonresident workers authorized under federal law.  Accordingly, the First Circuit concluded that “the H-2A restriction imposed by P.L. 280 is likely preempted by federal law.”

MFPC is likely to be an oft-cited case because of the First Circuit’s re-framed approach to preemption.