Reassessing the law of preemption

Georgetown Law Journal

Volumn 88, Issue 7, 2000, Pages 2085-2117

  Dinh, Viet D ^a,b  

^a GEORGETOWN UNIVERSITY LAW CENTER   (United States)

^b HARVARD UNIVERSITY   (United States)

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[No Author keywords available]

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FOOD AND DRUG ADMINISTRATION; HUMAN; LEGAL ASPECT; LEGAL LIABILITY; MEDICAL TECHNOLOGY; NOTE; RISK MANAGEMENT; SAFETY; UNITED STATES;

CONSUMER PRODUCT SAFETY; HUMANS; LIABILITY, LEGAL; RISK MANAGEMENT; TECHNOLOGY, MEDICAL; UNITED STATES; UNITED STATES FOOD AND DRUG ADMINISTRATION;

EID: 0034350303     PISSN: 00168092     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (174)

1. Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996) (quoting Retail Clerks Int'l Ass'n v. Schermerhorn, 375 U.S. 96, 103 (1963)); see also Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516 (1992); id. at 532-33 (Blackmun, J., concurring in part, concurring in the judgment in part, and dissenting in part); id. at 545 (Scalia, J., concurring in the judgment in part and dissenting in part).
2. U.S. CONST. art. VI, cl. 2.
3. Gregory v. Ashcroft, 501 U.S. 452, 460 (1991).
4. 518 U.S. 470 (1996).
5. Id. at 485.
6. Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947); see also Maryland v. Louisiana, 451 U.S. 725, 746 (1981) ("Consideration under the Supremacy Clause starts with the basic assumption that Congress did not intend to displace state law."); Reid v. Colorado, 187 U.S. 137, 148 (1902) ("It should never be held that Congress intends to supersede, or by its legislation suspend, the exercise of the police powers of the States, even when it may do so, unless its purpose to effect that result is clearly manifested."). Surveying the preemption landscape, commentators have noted the Court's "overriding reluctance outside the Indian commerce context to infer preemption in ambiguous cases," LAURENCE TRIBE, CONSTITUTIONAL LAW § 6-28, at 1175 (3d ed. 1999), and that the Court increasingly did not find preemption "unless Congress clearly and explicitly provides for it by statute,"
7. Ronald D. Rotunda, Sheathing the Sword of Federal Preemption, 5 CONST. COMMENTARY 311, 317 (1988).
8. 518 U.S. at 485.
9. 505 U.S. 504, 516 (1992).
10. See id. at 544 (Scalia, J., concurring in the judgment in part and dissenting in part) ("The life-span of this new rule may have been blessedly brief, inasmuch as the opinion that gives it birth in Part I proceeds to ignore it in Part V.").
11. Although the assumption that Congress does not lightly preempt traditional state regulation has been invoked most often and applied most consistently in obstacle and field preemption cases, the Court in Cipollone stated that this assumption is a general interpretive presumption applicable also to express preemption cases and that, where an express preemption provision exists, no further inquiry into implied preemption is required. The doctrinal confusion wrought by Cipollone and the Court's attempt to explain it in Freightliner Corp. v. Myrick, 514 U.S. 280, 287-89 (1995), is discussed below. See infra Part II.B.
12. Robert Rabin, Reassessing Regulatory Compliance, 88 GEO. L. J. 2049, 2057 (2000).
13. Id. at 2060.
14. See generally Alden v. Maine, 527 U.S. 706 (1999); College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666 (1998); Printz v. United States, 521 U.S. 898 (1997); Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996); United States v. Lopez, 514 U.S. 549 (1995); New York v. United States, 505 U.S. 144 (1992).
15. Cipollone, 505 U.S. at 546 (Scalia, J., dissenting).
16. See generally Viet D. Dinh, First Impressions: A Tribute to Justice Sandra Day O'Connor, 21 SETON HALL LEGIS. J. 3 (1997) (applauding Justice O'Connor's leadership in federalism jurisprudence);
17. Edward L. Rubin & Malcolm Feeley, Federalism: Some Notes on a National Neurosis, 41 UCLA L. REV. 903, 904-07 (1994) (criticizing Justice O'Connor's leadership in federalism jurisprudence).
18. See, e.g., William W. Bratton, Jr., Note, The Preemption Doctrine: Shifting Perspectives on Federalism and the Burger Court, 75 COLUM. L. REV. 623, 624 (1975) ("The Supreme Court, however, has not developed a uniform approach to preemption; its decisions in this area take on an ad hoc, unprincipled quality, seemingly bereft of any consistent doctrinal basis.");
19. Note, Pre-emption as a Preferential Ground: A New Canon of Construction, 12 STAN. L. REV. 208, 208 (1959) ("Many of the Supreme Court's recent pre-emption decisions have been condemned as extreme examples of the unwarranted substitution of judicial wisdom for that of Congress.").
20. U.S. CONST. art. VI, cl. 2.
21. Gregory v. Ashcroft, 501 U.S. 452, 460 (1991).
22. See M'Culloch v. Maryland. 17 U.S. (4 Wheat.) 316, 419-21 (1819).
23. For a discussion of the jurisprudential distinction between preemption and supremacy, see Stephen A. Gardbaum, The Nature of Preemption, 79 CORNELL L. REV. 767 (1994).
24. For a thorough historical analysis of the Supremacy Clause as a non obstante provision, see Caleb Nelson, Preemption, 86 VA. L. REV. 225 (2000).
25. For a general review of the constitutional debate, see KENNETH STARR ET AL., THE LAW OF PREEMPTION: A REPORT OF THE APPELLATE JUDGES CONFERENCE 5-8 (1991). For a broader history of preemption analysis, see generally Nelson, supra note 20.
26. The relevant resolution read in its entirety as follows: 6. Resolved that each branch ought to possess the right of originating Acts; that the National Legislature ought to be impowered to enjoy the Legislative Rights vested in Congress by the Confederation & moreover to legislate in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual Legislation; to negative all laws passed by the several States, contravening in the opinion of the National Legislature the articles of Union; and to call forth the force of the Union agst. any member of the Union failing to fulfill its duty under the articles thereof. 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 21 (M. Farrand ed., rev. ed. 1937) [hereinafter Farrand].
27. See id.
28. Benjamin Franklin successfully proposed to permit Congress to negative all laws inconsistent with treaties of the Union, and the Committee postponed consideration of the last clause of the sixth resolution, which is not relevant here. See id. at 47.
29. The vote was nine to zero, with Connecticut divided. See id.
30. The complete text of the resolution is as follows: 6. Resd. that all Acts of the U. States in Congs. Made by virtue & in pursuance of the powers hereby & by the articles of confederation vested in them, and all Treaties made & ratified under the authority of the U. States shall be the supreme law of the respective States so far forth as those Acts or Treaties shall relate to the said States or their Citizens, and that the Judiciary of the several States shall be bound thereby in their decisions, any thing in the respective laws of the Individual States to the contrary notwithstanding; and that if any State, or any body of men in any State shall oppose or prevent ye. carrying into execution such acts or treaties, the federal Executive shall be authorized to call forth ye power of the Confederated States, or so much thereof as may be necessary to enforce and compel an obedience to such Acts, or an Observance of such Treaties. Id. at 245.
31. See Id. at 243.
32. See id. at 244.
33. See Id. at 169 (June 8, 1787), 317 (June 19, 1787).
34. 2 THE RECORDS OF THE FEDERAL CONSTITUTIONAL CONVENTION OF 1787, at 27 (M. Farrand ed., rev. ed. 1937) [hereinafter Farrand 2].
35. Id. at 28.
36. See id.
37. Luther Martin proposed that the Legislative acts of the U. S. made by virtue & in pursuance of the articles of the Union, and all treaties made & ratified under the authority of the U. S. shall be the supreme law of the respective States, as far as those acts or treaties shall relate to the said States, or their Citizens and inhabitants - & that the Judiciaries of the several States shall be bound thereby in their decisions, any thing in the respective laws of the individual States to the contrary notwithstanding. Id. at 28-29.
38. What degree of conflict suffices - including whether any federal legislation is needed at all - and how much state law is displaced are answered by the various strands of preemption analysis, to which I return below at infra Part II.
39. Whether the breadth of the power to preempt is coterminous with the breadth of the substantive authority to regulate - in other words, whether the power to regulate necessarily implies the power to preempt - is beyond the scope of this article. Suffice it to note here that an expansive definition of the power to preempt needs to be distinguished from a general power to negative state laws, which the Framers rejected. One distinction may be that the power to preempt is narrower than the power to negative. Another may be that the rejection of a general power to negative nevertheless leaves room for specific powers to negative - that is, authority to negative limited by the specific enumeration of congressional powers under Article I, Section 8. For a general discussion on the relationship between Congress's power to regulate and to preempt, see William Van Alstyne, Federalism, Congress, the States and the Tenth Amendment: Adrift in the Cellophane Sea, 1987 DUKE L.J. 769.
40. See Gardbaum, supra note 20, at 774 ("The Supremacy Clause does not empower, but rather resolves a particular problem arising out of the powers granted by other parts of the Constitution: namely, conflicts resulting from concurrent state and federal powers."). Professor Gardbaum would draw a further distinction between supremacy and preemption: "Preemption is thus a jurisdiction-stripping - or 'jurispathic' - concept, unlike supremacy which deals with conflict resolution in particular cases." Id. at 771. This seems to me an unnecessarily broad definition of preemption. A preemption provision does not - and perhaps cannot, consistent with the Tenth Amendment - deprive states of the authority to enact legislation; it only provides that state legislation in certain areas, if enacted, would not be valid. Such a provision has preemptive effect only to the extent that the Supremacy Clause gives it precedence over conflicting state laws - in other words, state laws that seek to be valid within the scope prescribed by the preemption provision. Express preemption, therefore, is only a special case of true conflict preemption - that is, a special case of supremacy.
41. Farrand, supra note 22, at 160.
42. Congress may answer those questions in specific instances, by including preempting or saving language in particular statutes, or wholesale by changing the legislative background against which it will legislate. See Federalism Accountability Act, S. 1214, 106th Cong. (1999). For a discussion of the relevance of federalism principles to the Federalism Accountability Act, see Paul D. Clement & Viet D. Dinh, Constitution Provides No Support for Opponents of Preemption, 14 LEGAL BACKGROUNDER 42 (Washington Legal Foundation, Washington, D.C.), Nov. 12, 1999.
43. The Executive may answer those questions in specific instances, through agencies interpreting statutes to have preemptive effect or giving preemptive effect to duly authorized regulations, or wholesale by defining the procedures through which such preemptive agency actions are undertaken. See Exec. Order No. 13,132, 64 Fed. Reg. 43,255 (1999).
44. See Bratton, supra note 16, at 624-39 (tracing the historic oscillation of preemption doctrine between favoring federal interests and preserving state autonomy).
45. Dellmuth v. Muth, 491 U.S. 223, 230 (1989) (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985)).
46. 501 U.S. 452 (1991).
47. See id. at 456.
48. See EEOC v. Wyoming, 460 U.S. 226, 231 (1983).
49. See Gregory; 501 U.S. at 463-67.
50. See Pub. L. No. 93-259, § 28(a), 88 Stat. 74 (1974) (codified at 29 U.S.C. § 630(b)(2)).
51. Gregory, 501 U.S. at 465.
52. Id. at 461.
53. See Catherine L. Fisk, The Last Article About the Language of ERISA Preemption? A Case Study on the Failure of Textualism, 33 HARV. J. ON LEGIS. 35, 44 n.38 (1996) ("If Gregory's 'plain statement' rule were applied to preemption, . . . entire bodies of preemption doctrine might be called into question.").
54. See National League of Cities v. Usery, 426 U.S. 833, 861-63 (1976).
55. Gregory, 501 U.S. at 460.
56. 469 U.S. 528 (1985).
57. See Gregory, 501 U.S. at 464.
58. See Debartolo v. Florida Gulf Coast Bldg. & Const. Trades Council, 485 U.S. 568, 575 (1988); Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 329-30 (1936); Adrian Vermeule, Saving Constructions, 85 GEO. L.J. 1945 (1997).
59. Gregory, 501 U.S. at 460-61.
60. Id. at 460.
61. U.S. CONST. amend. X.
62. See, e.g., New York v. United States, 505 U.S. 144, 159 (1992) ("In the end, just as a cup may be half empty or half full, it makes no difference whether one views the question at issue in these cases as one of ascertaining the limits of the power delegated to the Federal Government under the affirmative provisions of the Constitution or one of discerning the core of sovereignty retained by the States under the Tenth Amendment.").
63. See id. at 144 (holding that Congress may not compel a state to enact laws to further a federal radioactive waste regulatory program).
64. See Printz v. United States, 521 U.S. 898, 935 (1997) (invalidating federal regulation that state law enforcement officers perform background checks).
65. U.S. CONST. art VI, cl. 2.
66. It is unclear to this city dweller whether cow-tipping is an actual activity or merely apocryphal myth. Compare Jackie Loohauis, Jackie's Picks to Click, MILWAUKEE J. SENTINEL, Apr. 8, 1999, at A11 ("The evil practice of 'cow-tipping' is the stuff of rural legend . . . ."),
67. with Scott Hester, Letter to the Editor, VILLAGE VOICE, Nov. 25, 1997, at 6 ("As someone who, in my younger, less enlightened days, did engage in cow-tipping, I can assure him that it is not an 'urban myth only gullible city-slickers believe.'"). However, it is apparently a rather dangerous activity, as cows sleep lying down and thus can be tipped, if at all, only while they are awake.
68. See WIS. ST. J., June 27, 1999, at 1C ("We native Wisconsinites . . . know that cows sleep lying down, so you can't actually tip them over.");
69. see also Rick Barrett, Watching Cows, OK; Tipping, No Way: Dairy Expo Visitors Advised on Cow Etiquette, WIS. ST. J., Sept. 30, 1998, at A1
70. (quoting the following advice from John Pukite, the author of A Field Guide to Cows: "Besides the obvious dangers of the sport (the cow may fall on you or gore you with its horns) cow tipping can be unhealthy for the cow"). In any event, virtual cow-tipping thrives in Cyberspace.
71. See Virtual Cow Tipping (visited Mar. 27, 2000) .
72. 22 U.S. (9 Wheat.) 1 (1824).
73. Id. at 263.
74. Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947).
75. PAUL BATOR ET AL., HART & WECHSLER'S FEDERAL COURTS AND THE FEDERAL SYSTEM 533 (3d ed. 1988).
76. RICHARD H. FALLON ET AL., HART & WECHSLER'S FEDERAL COURTS AND THE FEDERAL SYSTEM 522 (4th ed. 1996).
77. Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996) (quoting Rice, 331 U.S. at 230); see also Cipollone v. Ĺiggett Group, Inc. 505 U.S. 504, 516 (1992); id. at 532-33 (Blackmun, J., concurring in part, concurring in the judgment, and dissenting in part); id. at 545 (Scalia, J., concurring in the judgment in part and dissenting in part).
78. Medtronic, 518 U.S. at 485 (quoting Retail Clerks Int'l Assn. v. Schermerhorn, 375 U.S. 96, 103 (1963)); see also Cipollone, 505 U.S. at 516; id. at 532-33 (Blackmun, J., concurring in part, concurring in the judgment, and dissenting in part); id. at 545 (Scalia, J., concurring in the judgment in part and dissenting in part).
79. See, e.g., Palmer v. Liggett Group, 825 F.2d 620, 624 (1st Cir. 1987) ("We are somewhat wary that these ready citations list, but do not describe, and catalog, but do not define, any real distinctions among the various types of preemption.").
80. 312 U.S. 52 (1941).
81. Id. at 67.
82. See id. at 66.
83. 487 U.S. 500 (1988).
84. See id. at 509.
85. Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (quoting Retail Clerks Int'l Assn. v. Schermerhom, 375 U.S. 96, 103 (1963)); see also Cipollone, 505 U.S. at 516; id. at 532-33 (Blackmun, J., concurring in part, concurring in the judgment, and dissenting in part); id. at 545 (Scalia, J., concurring in the judgment in part and dissenting in part).
86. Medtronic, 518 U.S. at 485 (quoting Rice v. Santa Fe Elevator Corp., 313 U.S. 218, 230 (1947)).
87. See United States v. Bass, 404 U.S. 336, 347-49 (1971). The rule serves separation of powers and due process concerns recognizing that activities can only be proscribed by the legislature in a manner sufficiently clear to provide general notice. See generally Dan M. Kahan, Lenity and Federal Common Law Crimes, 1994 SUP. CT. REV. 345 (1994);
88. Sarah Newland, The Mercy of Scalia: Statutory Construction and the Rule of Lenity, 29 HARV. C.R.-C.L. L. REV. 197 (1994).
89. See Traynor v. Turnage, 485 U.S. 535, 542 (1988); Abbott Labs. v. Gardner, 387 U.S. 136, 139-41 (1967). The rule ensures agency fidelity to congressional intent. See Louis L. JAFFE, JUDICIAL CONTROL OF ADMINISTRATIVE ACTION 336-53 (1965).
90. See generally WILLIAM N. ESKRIDGE, JR., DYNAMIC STATUTORY INTERPRETATION 275-306 (1994) (discussing interpretive canons in three categories: "[P]recepts of grammar, syntax, and logical inference (the textual canons); rules of deference to the interpretations others have placed on the statutory language (the extrinsic source canons); and policy rules and presumptions (the substantive canons).").
91. Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947).
92. New York State Dept. of Soc. Servs. v. Dublino, 413 U.S. 405, 413 (1973) (quoting Schwartz v. Texas, 344 U.S. 199, 202-03 (1952)).
93. See generally United States v. Providence Journal Co., 485 U.S. 693 (1988).
94. See supra text accompanying notes 41-60.
95. 22 U.S. (9 Wheat.) 1 (1824).
96. See generally id.
97. See Louise Weinberg, The Federal-State Conflict of Laws: "Actual" Conflicts, 70 TEX. L. REV. 1743, 1751 (1992).
98. Cipollone v. Liggett Group, Inc., 505 U.S. 504, 532 (1992) (Blackmun, J., concurring in part, concurring in the judgment in part, and dissenting in part).
99. Id. (citations omitted and emphasis added).
100. 514 U.S. 280 (1995).
101. Id. at 287.
102. Justice Scalia concurred in the result without explanation. See id. at 290.
103. Id. at 289.
104. See Susan Raeker-Jordan, The Pre-Emption Presumption That Never Was: Pre-Emption Doctrine Swallows the Rule, 40 ARIZ. L. REV. 1379, 1418 (1998) ("Another and more significant substantive problem flowing from the Court's clarification was that in clarifying, the Court eviscerated the good rule stated, but not applied, in Cipollone.").
105. Hines v. Davidowitz, 312 U.S. 52, 67 (1941).
106. 487 U.S. 131 (1988).
107. See id. at 152.
108. Id. at 141.
109. Cf. Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 146-47 (1963) (noting the Court's reluctance to displace state law "in the absence of an unambiguous congressional mandate to that effect").
110. See Cipollone v. Liggett Group, Inc., 505 U.S. 504, 532 (1992) (Blackmun, J., concurring in part, concurring in the judgement in part, and dissenting in part) (noting that "many of the cases in which the Court has invoked such a presumption against displacement of state law have involved implied pre-emption").
111. Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947).
112. See ESKRIDGE, supra note 80. For an application of the Eskridge-Frickey approach to preemption analysis, see Richard C. Ausness, Federal Preemption of State Products Liability Doctrines, 44 S.C. L. REV. 187, 238-51 (1993).
113. 487 U.S. 131 (1988).
114. Id. at 141.
115. It is sometimes considered a looser version of conflict preemption, requiring a lesser degree of conflict than impossibility of compliance. See generally Gade v. National Solid Waste Management Ass'n, 505 U.S. 88 (1992). Further, the classic statement of obstacle preemption actually served as the analytical foundation for core field preemption cases. See Perez v. Campbell, 402 U.S. 637, 649 (1971); Mines v. Davidowitz, 312 U.S. 52, 67 (1941).
116. Pennsylvania v. Nelson, 350 U.S. 497, 502 (1956) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947) (holding a dominant federal interest precludes state intervention in proscribing advocacy of the overthrow of the United States government)).
117. Id. at 504 (quoting Rice, 331 U.S. at 230).
118. 331 U.S. 218 (1947).
119. Id. at 230 (holding federal interest in establishing "fair and uniform business practices" supersedes state interest in regulating warehouse operations).
120. Likewise, if Congress does not legislate pervasively over time, it can regulate comprehensively as an initial matter. In such an event, the background does not change but the completeness of the regulatory scheme suffices to change the interpretive perception of the congressional action.
121. 312 U.S. 52 (1941).
122. See id. at 59.
123. Id. at 68.
124. Id. at 67.
125. See id. at 76 (Stone, J., dissenting).
126. See M'Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 436 (1819) (stating that "states have no power . . . to retard, impede, burden or in any other manner control the operation of the constitutional laws enacted by congress").
127. 487 U.S. 500 (1988).
128. See id. at 503.
129. Id. at 507.
130. Id. at 504 (citations omitted).
131. Id. at 508 (citations omitted).
132. Id. at 504.
133. Daniel Farber expertly puts the confusing doctrinal analysis in a nutshell as follows: State regulations having a discriminatory effect on interstate commerce are subject to stringent judicial scrutiny even if the discrimination was inadvertent. On the other hand, regulations that burden interstate commerce without discriminating against it are subject to a less rigorous balancing test: a state law that burdens local and interstate commerce equally will be upheld if the law's local benefits outweigh the burden on commerce. Daniel A. Farber, State Regulation and the Dormant Commerce Clause, 3 CONST. COMMENTARY 395, 395-96 (1986).
134. Cooley v. Board of Port Wardens, 53 U.S. (12 How.) 299, 319 (1851).
135. See Wilkerson v. Rahrer, 140 U.S. 545, 561 (1891) (upholding a federal law permitting local regulation of interstate commerce on the ground that Congress "has not attempted to delegate the power to regulate commerce, or to exercise any power reserved to the States," but rather has adopted a federal law divesting articles in interstate commerce of their interstate commerce character).
136. See William Cohen, Congressional Power to Validate Unconstitutional State Laws: A Forgotten Solution to an Old Enigma, 35 STAN. L. REV. 387, 410 (1983).
137. See Noel T. Dowling, Interstate Commerce and State Power, 27 VA. L. REV. 1, 2-19 (1940).
138. Tyler Pipe Indus., Inc. v. Washington State Dept. of Revenue, 483 U.S. 232, 262 (1987) (Scalia, J., dissenting) (quoting Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 686 (1987)); see also John C. Grabow, Congressional Silence and the Search for Legislative Intent: A Venture into "Speculative Unrealities", 64 B.U. L. REV. 737, 741 (1984).
139. Farber, supra note 123, at 396 n.8.
140. Id. at 396.
141. See M'Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 428-37 (1819); Richard B. Collins, Economic Union as a Constitutional Value, 63 N.Y.U. L. REV. 43, 43-47 (1988).
142. Leisy v. Hardin, 135 U.S. 100, 108 (1890) (invalidating state statute prohibiting the sale of liquor without a license from the state's county court).
143. Pub. L. No. 103-272, 108 Stat. 1379 (codified as amended in scattered sections of 15, 49 U.S.C.)
144. 15 U.S.C. § 1392(d) (1988) (repealed and replaced by 49 U.S.C. § 30103(b) (1994)).
145. 15 U.S.C. § 1397(k) (1988) (repealed and replaced by 49 U.S.C. § 30103(e) (1994)).
146. 166 F.3d 1236 (D.C. Cir. 1999), cert. granted, 67 U.S.L.W. 3717 (U.S. Sept. 10, 1999) (No 98-1811).
147. See Geier, 166 F.3d at 1237.
148. See id. at 1242.
149. See id. at 1243.
150. Id. at 1238.
151. See id. at 1237.
152. See id.
153. See Geier v. American Honda Motor Co., cert. granted, 67 U.S.L.W. 3717 (U.S. Sept. 10, 1999) (No. 98-1811).
154. See City of New York v. FCC, 486 U.S. 57, 63-64 (1988) (holding that FCC did not exceed its statutory authority by preempting state and local technical standards governing the quality of cable television signals); Fidelity Fed. Sav. & Loan Ass'n v. de la Cuesta, 458 U.S. 141, 153 (1982).
155. See South Carolina v. Catawba Indian Tribe, Inc., 476 U.S. 498, 510 n.22 (1986).
156. See supra text accompanying notes 34-36.
157. Cf. Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 256 (1984) (stating that in the Atomic Energy Act, "Congress intended to stand by both concepts and to tolerate whatever tension there was between them").
158. 110 F.3d 1410 (9th Cir. 1997).
159. Id. at 1415-16 (citations omitted).
160. See Timothy Wilton, Federalism Issues in "No Airbag" Tort Claims: Preemption and Reciprocal Comity, 61 NOTRE DAME L. REV. 1, 27 (1986).
161. 15 U.S.C. § 1392(d) (1988) (repealed and replaced by 49 U.S.C. § 30103(b) (1994)) (emphasis added).
162. The two articles are also linked to each other by the reference in the middle of the provision to "any safety standard applicable to the same aspect of performance." Id. (emphasis added).
163. 15 U.S.C. § 1392(k) (1988) (repealed and replaced by 49 U.S.C. § 30103(e) (1994)).
164. 166 F.3d at 1241.
165. Id. at 1243.
166. See Keith C. Miller, Deflating the Airbag Pre-Emption Controversy, 37 EMORY L.J. 897, 899 (1988);
167. Ralph Nader & Joseph A. Page, Automobile-Design Liability and Compliance with Federal Standards, 64 GEO. WASH. L. REV. 415, 434-46 (1996).
168. Cf. Holmes v. Securities Investor Protection Corp., 503 U.S. 258, 266 (1992) (looking to statutory history to narrow scope of literal statutory language because "the very unlikelihood that Congress meant to allow all factually injured plaintiffs to recover persuades us that RICO should not get such an expansive reading").
169. See, e.g., Nelson, supra note 20 (arguing that constitutional history and jurisprudence do not support obstacle preemption).
170. Younger v. Harris, 401 U.S. 37, 44 (1971).
171. Farrand, supra note 22, at 160 (statement of George Mason, June 7, 1787).
172. See, e.g., STARR ET AL., supra note 21, at 40-42; Gardbaum, supra note 20, at 813-15; Stephen Gardbaum, Rethinking Constitutional Federalism, 74 TEx. L. REV. 795, 828-30 (1996);
173. Betsy J. Grey, Make Congress Speak Clearly: Federal Preemption of State Tort Remedies, 77 B.U. L. REV. 559, 565 (1997);
174. Raeker-Jordan, supra note 94, at 1428-39; Paul Wolfson, Preemption and Federalism: The Missing Link, 16 HASTINGS CONST. L.Q. 69, 103-14 (1988).