Lipschultz v. Charter Advanced Services

Cite as: 589 U. S. ____ (2019) 1
THOMAS, J., concurring
SUPREME COURT OF THE UNITED STATES
DAN M. LIPSCHULTZ, IN HIS OFFICIAL CAPACITY AS
COMMISSIONER OF THE MINNESOTA PUBLIC
UTILITIES COMMISSION, ET AL. v. CHARTER
ADVANCED SERVICES (MN), LLC, ET AL.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
No. 18–1386. Decided October 21, 2019
The petition for a writ of certiorari is denied. THE CHIEF
JUSTICE took no part in the consideration or decision of this
petition.
JUSTICE THOMAS, with whom JUSTICE GORSUCH joins,
concurring in the denial of certiorari.
Charter Advanced Services provides Voice over Internet
Protocol services, which allow users to place voice calls over
an Internet connection. After the Minnesota Public Utili-
ties Commission attempted to regulate Charter’s provision
of these services, Charter brought suit in federal court, ar-
guing that the state regulation was pre-empted. The Dis-
trict Court granted summary judgment to Charter. The
Eighth Circuit affirmed, reasoning that the Federal Com-
munications Commission’s “policy of nonregulation” of
these services pre-empted state law. Charter Advanced
Servs. (MN), LLC v. Lange, 903 F.3d 715, 718 (2018) (in-
ternal quotation marks omitted).
I agree with the Court’s determination that this case does
not satisfy our criteria for certiorari. I write to explain why,
in an appropriate case, we should consider whether a fed-
eral agency’s policy can pre-empt state law.
The Supremacy Clause of the Constitution provides:
“This Constitution, and the Laws of the United States
which shall be made in Pursuance thereof; and all
2 LIPSCHULTZ v. CHARTER ADVANCED SERVICES
THOMAS, J., concurring
Treaties made, or which shall be made, under the Au-
thority 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 Laws
of any State to the Contrary notwithstanding.” Art. VI,
cl. 2.
The Clause contains a non obstante provision, a common
device used by 18th-century legislatures to signal the im-
plied repeal of conflicting statutes. See PLIVA, Inc. v.
Mensing, 564 U.S. 604, 621 (2011); see also Nelson,
Preemption, 86 Va. L. Rev. 225, 237–242, 245–246 (2000).
At the time of the founding, this Clause would have been
understood to pre-empt state law only if the law logically
contradicted the “Constitution,” the “Laws of the United
States,” or “Treaties.” See id., at 260.
It is doubtful whether a federal policy—let alone a policy
of nonregulation—is “Law” for purposes of the Supremacy
Clause. Under our precedent, such a policy likely is not fi-
nal agency action because it does not mark “the consumma-
tion of the agency’s decisionmaking process” or determine
Charter’s “rights or obligations.” Bennett v. Spear, 520
U.S. 154, 177–178 (1997) (internal quotation marks omit-
ted); see also Merck Sharp & Dohme Corp. v. Albrecht, 587
U. S. ____, ____ (2019) (THOMAS, J., concurring). Even if it
were final agency action, the Supremacy Clause “requires
that pre-emptive effect be given only to those federal stand-
ards and policies that are set forth in, or necessarily follow
from, the statutory text that was produced through the con-
stitutionally required bicameral and presentment proce-
dures.” Wyeth v. Levine, 555 U.S. 555, 586 (2009) (THOMAS,
J., concurring in judgment); see also Department of Trans-
portation v. Association of American Railroads, 575 U.S.
43, 86 (2015) (THOMAS, J., concurring in judgment) (“The
Government may create generally applicable rules of pri-
vate conduct only through the proper exercise of legislative
Cite as: 589 U. S. ____ (2019) 3
THOMAS, J., concurring
power”).
Giving pre-emptive effect to a federal agency policy of
nonregulation thus expands the power of both the Execu-
tive and the Judiciary. It authorizes the Executive to make
“Law” by declining to act, and it authorizes the courts to
conduct “a freewheeling judicial inquiry” into the facts of
federal nonregulation, rather than the constitutionally
proper “inquiry into whether the ordinary meanings of state
and federal law conflict,” Wyeth, supra, at 588 (THOMAS, J.,
concurring in judgment) (alteration and internal quotation
marks omitted). Because this petition does not clearly chal-
lenge the underlying basis of the pre-emption theory, how-
ever, I concur in the denial of certiorari.