GH America v. Fohn

United States Court of Appeals for the Fifth Circuit ____________

No. 25-50879

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GH America Energy, L.L.C., Plaintiff—Appellant,

versus

Douglas Fohn, in his official capacity as Assistant General Counsel of the Electric Reliability Council of Texas, Inc. ("ERCOT"), Defendant—Appellee,

Ken Paxton, Attorney General, State of Texas,

Intervenor Defendant—Appellee,

Pablo Vegas, Chief Executive Officer of the Electric Reliability Council of Texas, Inc.; Paul Foster, Member of the Board of

Directors of the Electric Reliability Council of Texas, Inc.; Bill Flores, Member of the Board of Directors of the Electric Reliability Council of Texas, Inc.; Carlos Aguilar, Member of the Board of Directors of the

Electric Reliability Council of Texas, Inc.; Linda

Capuano, Member of the Board of Directors of the

Electric Reliability Council of Texas, Inc.; Julie

England, Member of the Board of Directors of the

Electric Reliability Council of Texas, Inc.; Robert

Flexon, Member of the Board of Directors of the

Electric Reliability Council of Texas, Inc.; Peggy Heeg, Member of the Board of Directors of the Electric

Reliability Council of Texas, Inc.; John Swainson,

United States Court of Appeals

Fifth Circuit

FILED

October 16, 2026 Thomas B. Plunkett, III Clerk

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Member of the Board of Directors of the Electric Reliability Council of Texas, Inc.; Holly Heinrich, in her official capacity as a Legal/Regulatory Counsel of ERCOT, Defendants—Appellees.

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Appeal from the United States District Court

for the Western District of Texas

USDC No. 1:24-CV-648

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Before Smith, Haynes, and Engelhardt, Circuit Judges.^* Jerry E. Smith, Circuit Judge:

This case turns on whether the CFIUS regime preempts LSIPA. The Texas Lone Star Infrastructure Protection Act of 2021 ("LSIPA")¹prohibits certain contracts with foreign-owned companies or citizens of Russia, Iran, North Korea, and as relevant to this appeal, China. LSIPA prohibits such entities' investment in critical infrastructure such as Texas's electric grid, which is managed by the Electric Reliability Council of Texas, Inc. ("ERCOT"). The Committee on Foreign Investment in the United States ("CFIUS") is the federal interagency task force that reviews foreign-facing financial transactions for national security and economic strategic risks. CFIUS originates in § 721 of the Defense Production Act of 1950, 50 U.S.C. § 4565 (the "DPA").²

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* Judge Haynes concurs in the judgment.

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GH America Energy ("GHAE") is a Texas LLC and subsidiary of a Chinese company that sought to buy energy assets in Texas and was blocked by LSIPA. It brought a range of constitutional claims, including the pre- emption claims now on appeal, against Douglas Fohn, in his official capacity representing ERCOT. The district court granted defendants' motion to dis- miss with respect to each claim.³

GHAE appeals solely on the preemption issue. GHAE insists that LSIPA is properly characterized as a statute targeting foreign investment per se, while Texas characterizes it as an energy-utility regulation within the heart of the state's police power.

We hold that the CFIUS regime does not impliedly preempt LSIPA because (i) GHAE fails to identify any conflict between LSIPA and the stat- utory text authorizing CFIUS and (ii) LSIPA is in purposive harmony with CFIUS and, if anything, provides even greater protection as a positive upward variance for Texan security. LSIPA is also not field preempted where Congress is silent and CFIUS does not amount to the kind of all- encompassing regulatory regime that ousts and precludes any related legislation.

Because the CFIUS regime neither conflict- nor field-preempts LSIPA, we AFFIRM.

I.

LSIPA prohibits a governmental entity or critical infrastructure- related business from entering into an agreement with a company that is _____________________

data, and even real estate transactions close to sensitive United States sites and key infra- structure. See 50 U.S.C. § 4565 (granting CFIUS "[a]uthority to review certain mergers, acquisitions, and takeovers").

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majority owned or controlled by a citizen of China or the Chinese govern- ment, or is headquartered in China, if the agreement would give that com- pany "direct or remote access to or control of critical infrastructure in this state."⁴"Critical infrastructure" includes the Texas grid managed by

ERCOT.⁵

GHAE operates exclusively in Texas and is a subsidiary of Xinjiang Guanghui Industry Investment (Group) Company, Ltd., which is headquar- tered in China and majority owned by Sun Guangxin—a billionaire Chinese citizen who is neither a citizen nor resident of the United States. This case concerns ERCOT's action in 2022, per LSIPA, denying GHAE's request to interconnect a proposed solar-energy project, known as the Blue Star Solar Project ("Blue Star"), to the Texas grid.

A.

In 2015, Xinjiang and GH America Investments Group, Inc. ("GH America"), an oil-and-gas business unit affiliated with Xinjiang, gave notice to CFIUS regarding a proposed transaction by which Xinjiang and GH Amer- ica, through a subsidiary, would acquire assets of several U.S. companies (the

"GH Transaction"). CFIUS delegated review to the Department of Defense ("DoD"),⁶which determined that the GH Transaction presented a national security risk and informed Xinjiang and GH America that they would be required to enter a mitigation agreement with respect to the national security risks. CFIUS then concluded action on that transaction. From 2016 through 2018, Xinjiang and GH America, acting through _____________________

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subsidiary Texas LLCs, bought 131,290 acres of land in Val Verde County, Texas. In 2018, Xinjiang and GH America formed GHAE as a new subsidiary for renewable energy projects, and GHAE began investing in wind and solar resources as well as electric grid-connection consulting studies, intending to sell their energy into Texas. GHAE notified the DoD, which was still dele- gated oversight by CFIUS, and DoD objected to some of the renewable energy projects because of their proximity to Laughlin Air Force Base in Val Verde County. GHAE and CFIUS then updated the mitigation agreement to provide for expanded oversight.

The Texas Legislature soon passed LSIPA, and when it came into effect in 2021, GHAE had pending ERCOT interconnection requests for sev- eral renewable energy projects, including Blue Star. As part of ERCOT's generator-interconnection application process, GHAE informed ERCOT under LSIPA that it was majority-owned by Xinjiang.

In October 2022, Fohn (ERCOT's Assistant General Counsel) notified GHAE that it was noncompliant with LSIPA and that ERCOT was therefore canceling the Blue Star Solar Project's interconnection application. GHAE claimed that that denial of its interconnection requests caused it to sell two other renewable energy projects (apart from Blue Star) "at a sub- stantial loss."

Yet GHAE persisted on Blue Star, asking ERCOT whether it could

"pursue a screening study" to determine whether the land it had leased in Val Verde County was "interconnectable and saleable to potential customers who would be in compliance with" LSIPA, meaning it asked whether it could scrap the project for value. ERCOT denied that request as well, allegedly because of the sole fact that GHAE did not comply with LSIPA. GHAE maintains that, but for LSIPA, it would immediately submit interconnection requests to ERCOT for solar and wind energy projects in Val Verde County,

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notably, for Blue Star. In 2023, the Texas Legislature recognized a need to defend the elec- tric grid further and to bolster the security of Texas power against outside attacks. It therefore specifically commanded ERCOT not to register or pro- vide interconnections to a business entity "unless the business entity attests that [it] complies with" LSIPA.⁷

B.

In June 2024, GHAE sued Fohn, ERCOT, and the other individual ERCOT-side defendants. GHAE asserted variously that LSIPA is pre- empted by the CFIUS regime and related statutes such as the DPA and FIRRMA; that LSIPA is unconstitutional under the Dormant Commerce Clause; and that LSIPA violates the Equal Protection Clause on account of race, ethnicity, alienage and national origin. GHAE sought injunctive and declaratory relief and damages. Following the defendants' motions to dis- miss, GHAE twice amended its complaint to drop its claims against ERCOT itself and focus on Fohn in his official capacity; to drop the Dormant Com- merce Clause claim; to revise the Equal Protection claim and focus only on national origin; and to drop a request for damages.

The district court granted Fohn's motion to dismiss and, in relevant part, ruled that LSIPA is not preempted by the CFIUS regime or the dormant foreign affairs preemption doctrine (which latter point GHAE does not appeal). The district court also dismissed the remaining Equal Protection claim (which decision GHAE also does not appeal). GHAE timely appeals _____________________

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the dismissal of the preemption claim, as to which the district court found

"that GHAE's conflict and field preemption claims fail on the merits."⁸ The district court began with Congress's purpose embodied in the relevant text and regulatory structure: "'First, the purpose of Congress is the ultimate touchstone in every pre-emption case,' and that intent 'primar- ily is discerned from the language of the pre-emption statute and the statutory framework surrounding it.'"⁹The court then introduced the presumption that states' police power will not be overridden absent "'the clear and mani- fest purpose of Congress,'" especially in fields of legislation "'which the States have traditionally occupied.'"¹⁰The district court noted that "[b]oth the U.S. Supreme Court and Fifth Circuit have long recognized the States' ability to regulate utilities as 'one of the most important of the functions tra- ditionally associated with the police power of the States.'"¹¹And it rejected the idea that LSIPA was oriented to foreign policy, describing it as a measure

"only to secure the electric grid."¹² The district court proceeded to analyze conflict preemption, stating that it "exists where state law 'stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.'"¹³It then _____________________

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rejected GHAE's argument that LSIPA stands as an obstacle to federal laws governing the field of "foreign investments in the United States." Id. The district court reasoned that LSIPA did not impair CFIUS's goals—first, because CFIUS applies only to a limited set of transactions such that LSIPA was generally outside its scope,¹⁴second, because Texas has a strong state interest in protecting ERCOT,¹⁵and third, that access to that grid is an intrastate activity particularly germane to state regulation. The court added that LSIPA does not conflict with CFIUS's safe harbor regulatory provision, which provides that a "transaction can proceed without the possi- bility of subsequent suspension or prohibition under section 721"¹⁶because that regulation insulates a transaction only from further CFIUS review and is silent with respect to all other laws, thereby not excluding those other laws. In sum, the district court held that GHAE failed to meet the "high thresh- old" for showing conflict preemption by obstacles-to-purpose.¹⁷ The district court then proceeded to field preemption, faithfully restating this court's reasoning that "field preemption exists only where a federal statutory scheme is 'so pervasive as to make reasonable the inference _____________________

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that Congress left no room for the States to supplement it,' or that it 'touches a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.'"¹⁸ The district court added that field preemption is strongly disfavored, such that federal courts will hesitate to find it unless plaintiffs show that a "'com- plete ouster of state power including state power to promulgate laws not in conflict with federal laws was the clear and manifest purpose of Congress.'"¹⁹ Applying those principles, the district court found that the CFIUS statutes did not evince a Congressional intent to create an all-pervasive regu- latory regime effecting a complete ouster of related state power, but, instead, merely authorized national security review of certain cases on a narrow timeline.

II.

A.

The Supremacy Clause declares that "[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. Const. art. VI, cl. 2. By it, Congress possesses "the power to preempt state law,"²⁰either

"through express language in a statute" or implicitly.²¹"But the exercise of _____________________

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that power is not lightly presumed."²² In light of the dual sovereignties between the federal government and the states, "barring any contradiction, the States retain their sovereign pre- rogatives to regulate."²³The Supreme Court has disclaimed any "brooding federal interest" or "judicial policy preference" that might generically "win preemption of a state law."²⁴"Preemption analysis begins with the assump- tion that the historic police powers of the States are not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress."²⁵

So where appraising preemption, we start with the opposite presumption—the "presumption against preemption"—which is height- ened in "areas of law traditionally reserved to the states."²⁶And that height- ened presumption against preemption applies in substantive "areas of tradi- _____________________

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tional state regulation,"²⁷as well as critical areas of state prerogative such as control of essential intrastate utilities.²⁸Indeed, "utility regulation is one of the most important of the functions traditionally associated with the police power of the States."²⁹A plaintiff seeking to show federal preemption in those areas "must clear a high threshold."³⁰

To appraise preemption, we start, as always, with the text of the rele- vant statutes.³¹This court recently restated the framework for textualist pre- emption analysis: The Supreme Court has established "a preemption taxon- omy," first dividing "between express and implied preemption."³²Implied preemption is further divided into two types: field preemption and conflict preemption.³³

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B.

Conflict preemption again divides into impossibility preemption and obstacles-and-purposes preemption (of which only the latter is relevant here). Zyla, 134 F.4th at 328-29. Obstacles-and-purposes preemption arises

"when state law 'stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.'" Id. at 329 (quoting Hines

v. Davidowitz, 312 U.S. 52, 67 (1941)). "In all these types of preemption, however, evidence of pre-emptive purpose must be sought in the text and structure of the federal provision at issue." Id. (quoting CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664 (1993)) (cleaned up).

The text of the DPA provides the jurisdiction of the CFIUS regime over "covered transactions." 50 U.S.C. § 4565(a)(4); see id. at (b)(1)(A). As relevant here, covered transactions include:

(i) Any merger, acquisition, or takeover . . . by or with any foreign person that could result in foreign control of any United States business, including such a merger, acquisition, or take- over carried out through a joint venture.

(ii) . . . [T]he purchase or lease by, or a concession to, a for- eign person of private or public real estate that is located in the United States . . . in close proximity to a United States military installation or another facility or property of the United States Government that is sensitive for reasons relating to national security … .

(iii) Any other investment, subject to [certain regulations defining foreign persons as well as defining access to material nonpublic information of critical infrastructure] by a foreign person in any unaffiliated United States business that owns, operates, manufactures, supplies, or services critical infra- structure; produces, designs, tests, manufactures, fabricates, or develops one or more critical technologies; or maintains or collects sensitive personal data … .

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(iv) Any change in the rights that a foreign person has with respect to a United States business in which the foreign person has an investment, if that change could result in foreign control of the United States business … .

(v) Any other transaction, transfer, agreement, or arrange- ment, the structure of which is designed or intended to evade or circumvent the application of this section … .

50 U.S.C. § 4565(a)(4)(B)(i)-(v).³⁴ Notably not among those transactions are self-investment in a busi- ness's own assets; generic purchases of land; or transactions merely amount- ing to contract formation with distributors or suppliers of one's product. Instead, the provisions above divide into two logical categories: land pur- chases near important U.S. federal property (prong (ii)) and corporate- control transactions (prongs (i) and (iv)), including the kinds of minority- or low-stake investments that would give access to Material Nonpublic Informa- tion (prong (iii)). Finally, like any good statutory list, § 4565(a)(4)(B) in- cludes a catchall that maps back onto the substantive categories it bookends.³⁵ Below we revisit that statutory text and compare it with the relevant provisions of LSIPA.

C.

Field preemption turns on whether Congress has occupied a domain of regulation such that states may not impose their own parallel regime within that domain. Arizona v. United States, 567 U.S. 387, 399 (2012); Hines,

312 U.S. at 66-67. Field preemption applies only where Congress has "occu- _____________________

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pie[d] an entire field," reflecting "a congressional decision to foreclose any state regulation in the area."³⁶

"Field preemption of state law is disfavored," Nat'l Press Photogra- phers, 90 F.4th at 796, which is why it is so "rare" to find in practice, Kansas

v. Garcia, 589 U.S. 191, 208 (2020). No less than "an unambiguous congres- sional mandate" suffices to field preempt state law,³⁷which is why courts should "hesitate" before inferring field preemption.³⁸"Only a demonstra- tion that complete ouster of state power . . . was the clear and manifest purpose of Congress" justifies a finding of field preemption.³⁹

That complete ouster can be identified only where a federal statutory scheme is "so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it" or where it invades "a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject." Nat'l Press Photographers, 90 F.4th at 796 (citation omitted). GHAE takes issue only as to implied preemption, which bifurcates into _____________________

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conflict and field preemption.⁴⁰GHAE lodges alternative theories on both.⁴¹

III.

A.

GHAE principally contends that LSIPA is conflict preempted where

"Congress chose a centralized, Executive-led framework for national- security screening of foreign investment that relies on individualized review, tailored mitigation, and ongoing monitoring." Throughout its briefing, GHAE submits that the district court engaged in "a series of framing errors."

As GHAE would have it, this case is not about state control of utilities, but instead concerns "whether Texas may impose a categorical foreign- ownership ban that functions as a parallel foreign-investment gatekeeping regime in a domain Congress assigned to the federal government."

GHAE first frames the question at a high level of generality: "whether state law 'stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.'"⁴²GHAE theorizes that Congress chose a centralized, Executive-led CFIUS regime in the DPA and FIRRMA, and that the "calibration" of that regime supports Congress's and the Execu- _____________________

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tive's "flexibility to balance security, economic, and diplomatic interests."⁴³ GHAE posits that LSIPA conflicts with that "flexible" federal "calibration"

by substituting a "categorical, nationality-based disqualification" and mud- dying Congress's planned approach of conditional clearance and threat- mitigation deals.

GHAE continues to theorize that CFIUS embodies "Congress's broader policy judgment that foreign investment yields substantial economic benefits and that the United States should maintain an open investment policy . . . ." GHAE complains that "LSIPA forecloses outcomes" foreseen by CFIUS, while couching Congress's purpose and the types of transactions it controls through CFIUS as "any transaction that presents national security risks." GHAE then proposes an even broader field of "any foreign invest- ment" that Congress purportedly seeks to control and which would preempt any contrary state law.

Fohn counters that the "CFIUS regime is narrow and largely volun- tary." He asserts that "GHAE describes that regime only vaguely" and

"[b]ecause the statutory text is key to assessing GHAE's preemption claims," he undertakes to describe CFIUS and LSIPA in some detail. As Fohn explains,

Under § 721 of the Defense Production Act of 1950, the Pres- ident has authority to 'investigat[e] and determine the effects on national security of mergers, acquisitions, and takeovers . . . by or with foreign persons which could result in foreign control of persons engaged in interstate commerce in the United States' . . . . CFIUS was initially created as a non-statutory interagency committee in 1975 to administer § 721 [and] . . . [b]efore 2018, CFIUS had jurisdiction only over a 'merger, _____________________

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acquisition, or takeover . . . by or with any foreign person which could result in foreign control of any person engaged in inter- state commerce in the United States.'[⁴⁴]

Fohn adds that FIRRMA expanded CFIUS's jurisdiction beyond M&A, to review a slightly wider set of "covered transactions," discussed supra. But he highlights that, under CFIUS's specific grants of jurisdiction, no "covered transaction" is in play here, including as to the creation of a new business (he also points out that it is possible to comply with both laws).⁴⁵ Fohn reasons that CFIUS's jurisdiction is mainly voluntary and expressly foresees the President's "suspending and prohibiting any covered transac- tion" provided that "other provisions of law do not 'provide adequate and appropriate authority for the President to protect the national security.'"⁴⁶ Fohn also reminds that "preemption must be found in the statutory text, not a party's or court's subjective beliefs about what Congress in- tended."⁴⁷And Fohn asserts that "GHAE never acknowledges this frame- _____________________

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work" and "makes no effort to identify a preemptive purpose in § 721's text" apart from describing CFIUS as a "calibrated" framework. Thus, Fohn posits that CFIUS is orthogonal to LSIPA and implies that CFIUS exhibits a purpose to play nicely in the sandbox with other law.⁴⁸ In response, GHAE criticizes the district court for inflating the "tradi- tional police powers" interest and imposing some "heightened obstacle- preemption threshold." GHAE asserts that the "relevant question remains the ordinary one: whether LSIPA stands as an obstacle to Congress's pur- poses and objectives embodied in Section 721… ." Here, Fohn counters that Texas's control of ERCOT is at the heart of its historic police powers⁴⁹and that there is not "clear conflict" with any "express federal policy" as in Gar- amendi, 593 U.S. at 425.

GHAE also quibbles with the district court's handling, supra, of the CFIUS safe harbor provision. Attorney General Paxton's brief responds to that point by noting that the safe harbor provision only insulates a proposed control- or real estate-transaction from further CFIUS review, while remain- ing silent as to any other body of law.⁵⁰

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on judicial guesswork about broad federal policy objectives, legislative history, or gen- eralized notions of congressional purposes that are not contained within the text of federal law" (cleaned up)).

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GHAE next points to Crosby v. National Foreign Trade Council,

530 U.S. 363 (2000), and claims that Crosby's holding—that Congress's Act⁵¹imposing sanctions on Burma conflict-preempted Massachusetts's Burma Act—applies to and controls the facts of this case. Finally, GHAE revisits the jurisdictional question, averring that its voluntary letter of agreement brings it into the CFIUS regime. GHAE insists that the letter "supplies the [jurisdictional] hook" needed to create a conflict, as the letter subjects it to continuing federal notice, monitoring, and objection by the DoD. DHAE disclaims the need to identify any separate "covered transaction" that would bring GHAE or Blue Star within the CFIUS frame- work. Fohn responds by noting that GHAE never alleged before the district court that its interconnection application constituted any "Asset Purchase"

under the LOA and that it has never submitted the project to CFIUS. GHAE then proclaims that "against that backdrop" the district court adopted an

"unduly narrow reading of Section 721."

B.

Not every incidental obstacle meets the bar for obstacle-and-purpose preemption. In performing this analysis, "courts may not conduct 'a free- wheeling judicial inquiry into whether a state statute is in tension with federal objectives.'"⁵²"Such an endeavor 'would undercut the principle that it is Congress rather than the courts that pre-empts state law.'"⁵³ _____________________

to the disposition provided by state law").

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It is always the plaintiff's burden to identify evidence of preemptive purpose in the "text and structure of the federal provision at issue."⁵⁴

"Invoking some brooding federal interest or appealing to a judicial policy preference should never be enough to win preemption of a state law." Va. Uranium, 587 U.S. at 767 (lead opinion of Gorsuch, J.). So, any inquiry into whether the DPA conflict-preempts LSIPA turns on the federal statu- tory scheme's "text and structure."⁵⁵

The text and structure of the DPA providing for CFIUS review dem- onstrate that Congress conferred authority to CFIUS over a specific, narrow class of transactions—not every transaction that might involve a foreign party. See 50 U.S.C. § 4565, discussed at some length supra. Accordingly, the federal scheme here does not affect a "clear and manifest" preemption of LSIPA. Deanda, 96 F.4th at 761.

First, there is no clear obstacle in LSIPA that would impede CFIUS.⁵⁶ LSIPA only purports to block "agreement[s] relating to critical infrastruc- ture," which generally refers to contracts such as the blocked interconnect- tion agreement, rather than corporate control transactions as in CFIUS.⁵⁷So, LSIPA does not intersect with any focus of CFIUS. LSIPA also targets a different class of transactions—energy grid interconnections—as distin- _____________________

judgment)).

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guished from foreign investment per se. Cf. 50 U.S.C. § 4565(a)(4)(B)(i) (covering "any merger, acquisition, or takeover") (emphasis added). Indeed, LSIPA tenably has nothing to do with federal critical infrastructure, such as U.S. military basis. Cf. id. § 4565(a)(4)(B)(ii). Moreover, even if there is an overlapping scope of federal authority between the generalized interest in 'all foreign investment' and the specific state interest in utility regulation, the provision of energy through a power grid to the citizens of one's own state falls squarely within the heart of the state's historic police powers. See NOPSI, 491 U.S. at 365. And even if we accept GHAE's prem- ise that the proper target of the regulation is foreign ownership per se, in close cases "when there is doubt about preemption, the 'tie goes to the state.'"⁵⁸ Second, assuming arguendo that LSIPA presents any obstacle, it does not conflict with the purpose of CFIUS. Little in the express text of CFIUS evinces a purpose discretionarily to balance foreign security threats; instead, the apparent statutory goal is to mitigate and eliminate them. See 50 U.S.C. § 4565(l)(3)(A) (Mitigation—Agreements and conditions). Moreover, LSIPA points in the direction of national security: Responsibly managing interconnections with Texas's energy grid to ensure its continuous, effective, and safe functioning in providing energy to Texas residents is harmonious with LSIPA but works in a separate lane. As the state puts it, "[e]ach leaves room for the other to operate." So even assuming GHAE's argument that LSIPA is a foreign policy statute, it strengthens and does not undermine the United States' negotiating position. Cf. Crosby, 530 U.S. at 373. Ultimately, GHAE adduces no statutory conflict between CFIUS and LSIPA; no provision of CFIUS's authorizing statutes or related regulation _____________________

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tending to exclude tangentially connected State laws; and there is no hard evidence showing that CFIUS's purpose and policy contradicts that of

LSIPA.

GHAE's invocation of Crosby is also inapposite. First, the federal statute in Crosby (i) imposed mandatory sanctions and (ii) expressly granted the President broad discretion regarding those sanctions, authorizing him to impose "further sanctions subject to certain conditions" and "to waive, temporarily or permanently, any sanction . . . if he determines and certifies to Congress that the application of such sanction would be contrary to the national security interests of the United States."

530 U.S. at 369-70 (citation to the statute omitted). Second, the Massachusetts Act covered any person doing business essentially of any kind in Burma, which brought it into statutory conflict with the federal sanctions regime targeting investments into Burma, id. at 366-67, including "by penalizing individuals and conduct that Congress has explicitly exempted or excluded from sanctions" and falling outside Congress's "specific range" of sanctions, id. at 377-78 (emphasis added). Crosby is an example of a case with both textual and purposive conflict between state and federal regimes. This case poses neither.

GHAE similarly confuses the meaning of Arizona v. United States,

567 U.S. 387, 399 (2012), as that case contains a more subtle conflict pre- emption analysis, id. at 399-415. There, the Court invalidated several pro- visions of an Arizona law imposing criminal sanctions intended to punish and deter illegal immigration. Id. at 393. The Court related the challenged pro- visions of Arizona's law to specific overriding federal laws, reasoning:

(1) that Arizona's alien-registration requirement was field pre- empted by the federal alien registration and work-visa or green- card regime, id. at 400-03;

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(2) that the text of the Immigration Control and Reform Act of 1986 conflicted with Arizona's effort to criminally punish un- lawful employees, where the ICRA expressly chose to punish employers, where the ICRA's legislative report stated that such penalties would be "unnecessary and unworkable," and where other federal regulations already punished unlawful work, id. at 403-07; and

(3) that Arizona's provision authorizing State officers to con- duct warrantless arrests presented an obstacle to federal prose- cutorial and investigative discretion as well as to several federal statutes providing for delegations of federal authority to state officers in immigration matters, id. at 407-10. As in Crosby, the Arizona Court identified specific, textual conflict between the state and federal regimes. In contrast, GHAE speculates about a high-level difference in attitude between LSIPA and CFIUS. Conflict pre- emption requires more specificity.

IV.

A.

Turning to field preemption, GHAE principally argues that "LSIPA is field-preempted" where "the proper field" "is foreign-actor national se- curity screening and gatekeeping," which it calls "an area requiring national uniformity and Executive discretion." GHAE admits that "the field- preemption inquiry must be conducted at the right level of generality," and then claims that § 721 of the DPA and FIRRMA reflect Congress's judgment that "national-security risks arising from foreign investment must be ad- dressed through a centralized federal process administered by the Executive Branch."

GHAE characterizes LSIPA as a "gatekeeping rule that bars partici- pation in a sector of Texas's economy based on nationality and foreign con- trol"; GHAE equates it to Congress's discretionary and voluntary regime

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reviewing foreign-party control transactions (which refers to mergers, acqui- sitions, joint ventures, minority stakes and similar corporate transactions rather than any contract involving a foreign entity). GHAE urges that LSIPA supplies a different "rule of decision," one that is "categorical exclusion rather than federal screening and mitigation." And GHAE heralds that

"[a]llowing LSIPA to stand would fracture the national screening regime into

[50] state-by-state enclaves."

Fohn counters that LSIPA cannot be field preempted because § 721 expresses no intent for a "complete ouster of state power," and, instead of creating a comprehensive regulatory scheme, provided a voluntary system for reviewing a narrower set of foreign investment transactions.⁵⁹Fohn con- tends that GHAE "fail[ed] to properly identify the relevant field" under this court's requirement that "the relevant field should be defined narrowly."⁶⁰ Fohn doubts that CFIUS is pervasive in the relevant sense, submitting that "a single nationally accountable mechanism rather than fifty separate state regimes" is present "almost any time Congress grants power to an administrative agency," but that "few such grants are field preemptive."

Fohn adds that "[w]hen Congress leaves matters 'unaddressed in an other- wise comprehensive and detailed federal regulatory scheme,' the unregu- lated matters 'are presumably left subject to the disposition provided by state law.'"⁶¹Fohn also implies that CFIUS's narrow jurisdiction and lack of express preemption—when compared to LSIPA's narrow purpose of pro- tecting state infrastructure—fails to show any strongly dominant federal pur- _____________________

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pose.⁶²On that point, Attorney General Paxton adds that CFIUS's voluntary reporting and limited scope cut against its dominance and pervasiveness.

B.

The triggers of field preemption are complete pervasiveness and total dominance. Nat'l Press Photographers, 90 F.4th at 796. As the district court correctly held, "nothing in the CFIUS statutes suggests an intent to create a pervasive" federal regulatory regime, and so LSIPA is not field preempted.⁶³ CFIUS, as explained above, wields limited authority—and that limited authority does not reflect a Congressional desire to exclusively control all foreign-investment screening.

As a matter of statutory interpretation, we do not infer positive con- tent from silence; neither do we infer an opposite intent. We just infer no intent.⁶⁴For its part, GHAE only gestures at the various structural features of CFIUS, without supplying any language indicating a purpose tending to exclude compatible or even tangentially related state laws, to insist that the federal design is "pervasive" and "dominant." Whatever brooding impres- sion we might take from the CFIUS regime, unless Congress says something explicitly—which is well within its power—we decline to find field _____________________

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preemption.⁶⁵ This court recently addressed a field preemption argument in AbbVie, Inc. v. Murrill. 166 F.4th at 538. We upheld Louisiana's Act 358, which was a state law prohibiting drug manufacturers from interfering with delivery of discounted 340B drugs to contract pharmacies, against the drug manufactur- ers' challenge claiming that § 256b of the Veterans Healthcare Act of 1992 creating the 340B program preempted related state laws. "Because [the fed- eral] § 340B evinces no clear and manifest intent to preempt state laws regu- lating the distribution of drugs to patients and the role of pharmacies in such distribution, [Louisiana] Act 358 is not field preempted." Id. at 540 (cleaned up). So too here, especially where CFIUS expressly disclaims preempting related federal law.⁶⁶In addition, last year a sister circuit a fortiori rejected a field-preemption argument nearly identical to the one GHAE now advances.⁶⁷

* * * * *

If states can impose their own environmental standards or health and safety standards⁶⁸without triggering field preemption in any area of econ- _____________________

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omic regulation, it follows that they can protect their energy grids from data theft and computer viruses. One may disagree with LSIPA and think that the benefits of foreign direct investment include deeper capital markets and potentially greater growth or more efficient pricing. Conversely, the benefits of LSIPA are to provide greater security to Texas's power grid. That kind of discretionary policy-balancing is emphatically not the province and role of the judiciary to decide. Where Congress has been silent, and where we do not see any clear conflict or field preemption, Texas has a free lane to enact and enforce LSIPA.

The judgment is AFFIRMED.

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