Machinists Preemption in the New Administrative Law

This Article assesses Machinists preemption—a labor-specific form of implied field preemption—while freshly considering implications both for and of new developments in administrative law. The radical transformation of administrative law in the Supreme Court, particularly its newfound emphasis on clear-statement rules, provides opportunities to reconsider the Machinists rationale. Aligning with scholars who have called to question the doctrine’s “ossifying” influence on labor and employment policy, it argues that the modern-day version of Machinists preemption clashes with the Supreme Court’s newly constrained view of delegated power and its differing conceptions of the major questions doctrine. On the other hand, Machinists preemption might instead harmonize with the new administrative law’s favor for private ordering of employment relations and individual freedom of contract.

Whereas Machinists preemption once could be fairly cast as among the many procedural rules governing private formation of labor and employment policy, evolving circumstances and treatment in the courts have morphed it into a substantive rule imposing an unfilled void as a policy end in itself. That unfilled void functions as a proxy for individual freedom of contract principles, crowding out other forms of substantive labor and employment policymaking. Although Machinists preemption initially aspired to give space to innovation within the NLRA’s unique structure, the reality is that it now stifles innovation. Calling Machinists preemption to question consequently asks how to calibrate private policymaking mechanisms within the new balance of power currently taking shape between branches and levels of government.

That debate should engage every observer of the administrative state, state-federal relations, and the growing power of the courts.