governing the public, and the Court will similarly not construe the agreements as licenses for ICC to restrict dissemination of those laws themselves. Even if the states did intend otherwise, their intent could not affect the people’s right to freely share the laws that govern them. Cf. PRO, 140 S.Ct. at 1510 n.3 (noting that “inference from state behavior proves too much” when state claims regarding copyright protection are clearly contrary to the Government Edicts doctrine). To the extent that ICC’s codes have actually “become the law,” concerns related to the Takings Clause do not materially alter the analysis here.[1]
- b. The Supremacy Clause
The next constitutional concern raised by ICC involves the Supremacy Clause. “The Constitution’s Supremacy Clause may compel invalidation of state law in several ways: First, Congress may in express terms declare its intention to preclude state regulation in a given area. … Second, in the absence of an express declaration, preemption may be implied when the federal law is sufficiently comprehensive
- ↑ Of course, whether the model codes referenced in the enacted laws have actually become the law remains a separate question. The Court also takes no position on whether ICC might have a valid Takings Clause claim against jurisdictions that did not license use of its content. (See Declaration of Mark Johnson in support of ICC Reply (“Johnson Reply Decl.”), Dkt. No. 98-1, ¶¶ 2–3.) Because ICC actively encourages full government enactment of its codes generally, like SBCCI in Veeck, the Court is not persuaded that the limited possibility of a taking alone compels a holding that a private party may restrict dissemination of binding legal obligations.
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