THOMAS, J., CONCURRING IN JUDGMENT
WYETH V. LEVINE
555 U. S. ____ (2009)
SUPREME COURT OF THE UNITED STATES
NO. 06-1249
WYETH, PETITIONER
v. DIANA LEVINE
on writ of certiorari to the supreme court of
vermont
[March 4, 2009]
Justice Thomas, concurring in the
judgment.
I agree with the Court that the
fact that the Food and Drug Administration (FDA) approved the label
for petitioner Wyeth’s drug Phenergan does not pre-empt the
state-law judgment before the Court. That judgment was based on a
jury finding that the label did not adequately warn of the risk
involved in administering Phenergan through the IV-push injection
method. Under federal law, without prior approval from the FDA,
Wyeth could have “add[ed] or strengthen[ed]” information on its
label about “a contraindication, warning, precaution, or adverse
reaction,” 21 CFR §314.70(c)(6)(iii)(A) (2008), or “about dosage
and administration that is intended to increase the safe use of the
drug product,” §314.70(c)(6)(iii)(C), in order to “reflect newly
acquired information,” including “new analyses of previously
submitted data,” about the dangers of IV-push administration of
Phenergan, 73 Fed. Reg. 49603, 49609 (2008). It thus was possible
for Wyeth to label and market Phenergan in compliance with federal
law while also providing additional warning information on its
label beyond that previously approved by the FDA. In addition,
federal law does not give drug manufacturers an unconditional right
to market their federally approved drug at all times with the
precise label initially approved by the FDA. The Vermont court’s
judgment in this case, therefore, did not directly conflict with
federal law and is not pre-empted.
I write separately, however, because I cannot
join the majority’s implicit endorsement of far-reaching implied
pre-emption doctrines. In particular, I have become increasingly
skeptical of this Court’s “purposes and objectives” pre-emption
jurisprudence. Under this approach, the Court routinely invalidates
state laws based on perceived conflicts with broad federal policy
objectives, legislative history, or generalized notions of
congressional purposes that are not embodied within the text of
federal law. Because implied pre-emption doctrines that wander far
from the statutory text are inconsistent with the Constitution, I
concur only in the judgment.
I
A
In order “to ensure the
protection of our fundamental liberties,”
Atascadero State
Hospital v.
Scanlon,
473 U. S. 234, 242
(1985) (internal quotation marks omitted), the “Constitution
establishes a system of dual sovereignty between the States and the
Federal Government.”
Gregory v.
Ashcroft,
501 U. S. 452,
457 (1991). The Framers adopted this “ ‘constitutionally
mandated balance of power,’ ”
Atascadero State
Hospital,
supra, at 242, to “reduce the risk of
tyranny and abuse from either front,” because a “federalist
structure of joint sovereigns preserves to the people numerous
advantages,” such as “a decentralized government that will be more
sensitive to the diverse needs of a heterogeneous society” and
“increase[d] opportunity for citizen involvement in democratic
processes,”
Gregory,
supra, at 458
.
Furthermore, as the Framers observed, the “compound republic of
America” provides “a double security … to the rights of the people”
because “the power surrendered by the people is first divided
between two distinct governments, and then the portion allotted to
each subdivided among distinct and separate departments.” The
Federalist No. 51, p. 266 (M. Beloff ed., 2d ed. 1987).
Under this federalist system,
“the States possess sovereignty concurrent with that of the Federal
Government, subject only to limitations imposed by the Supremacy
Clause.”
Tafflin v.
Levitt,
493 U. S. 455, 458
(1990). In this way, the Supremacy Clause gives the Federal
Government “a decided advantage in [a] delicate balance” between
federal and state sovereigns.
Gregory, 501 U. S., at 460.
“As long as it is acting within the powers granted it under the
Constitution, Congress may impose its will on the States.”
Ibid. That is an “extraordinary power in a federalist
system.”
Ibid.
Nonetheless, the States retain
substantial sovereign authority. U. S. Const., Amdt. 10 (“The
powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States
respectively, or to the people”); see also
Alden v.
Maine,
527
U. S. 706, 713 (1999);
Printz v.
United
States,
521 U.
S. 898, 918–922 (1997);
New York v.
United
States,
505 U.
S. 144, 155–156 (1992);
Gregory,
supra, at
457–459;
Tafflin,
supra, at 458. In accordance
with the text and structure of the Constitution, “[t]he powers
delegated by the proposed constitution to the federal government,
are few and defined” and “[t]hose which are to remain in the state
governments, are numerous and indefinite.” The Federalist No. 45,
at 237–238. Indeed, in protecting our constitutional government,
“the preservation of the States, and the maintenance of their
governments, are as much within the design and care of the
Constitution as the preservation of the Union and the maintenance
of the National government.”
Texas v.
White, 7
Wall. 700, 725 (1869), quoted in
New York v.
United
States, supra, at 162.
As a result, in order to protect the delicate
balance of power mandated by the Constitution, the Supremacy Clause
must operate only in accordance with its terms. The clause
provides:
“This Constitution, and the Laws of the United
States which shall be made in Pursuance thereof; and all Treaties
made, or which shall be made, under the Authority 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.
With respect to federal laws, then, the Supremacy
Clause gives “supreme” status only to those that are “made in
Pursuance” of “[t]his Constitution.”
Ibid.; see 3 J.
Story, Commentaries on the Constitution of the United States §1831,
p. 694 (1833) (hereinafter Story) (“It will be observed, that
the supremacy of the laws is attached to those only, which are made
in pursuance of the constitution”).
Federal laws “made in Pursuance” of the
Constitution must comply with two key structural limitations in the
Constitution that ensure that the Federal Government does not amass
too much power at the expense of the States. The first structural
limitation, which the parties have not raised in this case, is “the
Constitution’s conferral upon Congress of not all governmental
powers, but only discrete, enumerated ones.”
Printz,
supra, at 919; see also
United States v.
Morrison,
529 U. S. 598, 618,
n. 8 (2000);
New York v.
United States,
supra, at 155–157;
McCulloch v.
Maryland, 4
Wheat. 316, 405 (1819) (“This government is acknowledged by all to
be one of enumerated powers”).[
Footnote 1]
The second structural limitation is the
complex set of procedures that Congress and the President must
follow to enact “Laws of the United States.” See
INS v.
Chadha,
462
U. S. 919, 945–946 (1983) (setting forth the Constitution’s
Bicameral and Presentment Clauses, Art. I, §7, cls. 2–3, which
“prescribe and define the respective functions of the Congress and
of the Executive in the legislative process”). “[T]he Framers were
acutely conscious that the bicameral requirement and the
Presentment Clauses would serve essential constitutional
functions,”
Chadha, 462 U. S., at 951, by allowing the
passage of legislation only after it has proceeded through “a
step-by-step, deliberate and deliberative process,”
id.,
at 959, that was “finely wrought and exhaustively considered” by
the Framers,
id., at 951. The Supremacy Clause thus
requires that pre-emptive effect be given only those to federal
standards and policies that are set forth in, or necessarily follow
from, the statutory text that was produced through the
constitutionally required bicameral and presentment procedures. See
3 J. Story §1831, at 694 (Actions of the Federal Government “which
are not pursuant to its constitutional powers, but which are
invasions of the residuary authorities of the smaller societies,”
are not “the supreme law of the land. They will be merely acts of
usurpation, and will deserve to be treated as such”).
B
In light of these constitutional
principles, I have become “increasing[ly] reluctan[t] to expand
federal statutes beyond their terms through doctrines of implied
pre-emption.”
Bates v.
Dow Agrosciences LLC,
544 U. S. 431,
459 (2005) (Thomas, J., concurring in judgment in part and
dissenting in part). My review of this Court’s broad implied
pre-emption precedents, particularly its “purposes and objectives”
pre-emption jurisprudence, has increased my concerns that implied
pre-emption doctrines have not always been constitutionally
applied. Under the vague and “potentially boundless” doctrine of
“purposes and objectives” pre-emption,
Geier v.
American Honda Motor Co.,
529 U. S. 861, 907 (2000) (Stevens,
J., dissenting), for example, the Court has pre-empted state law
based on its interpretation of broad federal policy objectives,
legislative history, or generalized notions of congressional
purposes that are not contained within the text of federal law.
See,
e.g.,
Pharmaceutical Research and Mfrs. of
America v.
Walsh,
538 U. S. 644, 678
(2003) (Thomas, J., concurring in judgment) (referring to the
“concomitant danger of invoking obstacle pre-emption based on the
arbitrary selection of one purpose to the exclusion of others”);
Crosby v.
National Foreign Trade Council,
530 U. S. 363,
388–391 (2000) (Scalia, J., concurring in judgment) (criticizing
the majority’s reliance on legislative history to discern statutory
intent when that intent was “perfectly obvious on the face of th[e]
statute”);
Geier,
supra, at 874–883 (relying on
regulatory history, agency comments, and the Government’s
litigating position to determine that federal law pre-empted state
law).
Congressional and agency musings,
however, do not satisfy the Art. I, §7 requirements for
enactment of federal law and, therefore, do not pre-empt state law
under the Supremacy Clause. When analyzing the pre-emptive effect
of federal statutes or regulations validly promulgated thereunder,
“[e]vidence of pre-emptive purpose [must be] sought in the text and
structure of the [provision] at issue” to comply with the
Constitution.
CSX Transp., Inc. v.
Easterwood,
507 U. S. 658,
664 (1993); see also
New York v.
FERC,
535 U. S. 1, 18 (2002)
(“[A] federal agency may pre-empt state law only when and if it is
acting within the scope of its congressional delegated authority …
[for] an agency literally has no power to act, let alone pre-empt
the validly enacted legislation of a sovereign State, unless and
until Congress confers power upon it” (internal quotation marks
omitted; second alteration in original));
Camps
Newfound/Owatonna, Inc. v.
Town of Harrison,
520 U. S. 564, 617 (1997) (Thomas, J.,
dissenting) (noting that “treating unenacted congressional intent
as if it were law would be constitutionally dubious”). Pre-emption
analysis should not be “a freewheeling judicial inquiry into
whether a state statute is in tension with federal objectives, but
an inquiry into whether the ordinary meanings of state and federal
law conflict.”
Bates,
supra, at 459
(Thomas, J., concurring in judgment in part and dissenting in
part) (internal quotation marks and citation omitted); see also
Geier,
supra, at 911 (Stevens., J., dissenting)
(“[P]re-emption analysis is, or at least should be, a matter of
precise statutory [or regulatory] construction rather than an
exercise in free-form judicial policymaking” (internal quotation
marks omitted)). Pre-emption must turn on whether state law
conflicts with the text of the relevant federal statute or with the
federal regulations authorized by that text. See
Foster v.
Love,
522 U.
S. 67, 71 (1997) (finding that conflict pre-emption question
“turn[ed] entirely on the meaning of the state and federal
statutes” at issue before the Court); see also
New York v.
FERC, supra, at 19.
II
This Court has determined that
there are two categories of conflict pre-emption, both of which
Wyeth contends are at issue in this case. First, the Court has
found pre-emption “where compliance with both federal and state
regulations is a physical impossibility for one engaged in
interstate commerce.”
Florida Lime & Avocado Growers,
Inc. v.
Paul,
373 U. S. 132, 142–143
(1963). Second, the Court has determined that federal law pre-empts
state law when, “under the circumstances of [a] particular case,
[state] law stands as an obstacle to the accomplishment and
execution of the full purposes and objectives of Congress.”
Hines v.
Davidowitz,
312 U.
S. 52, 67 (1941).[
Footnote
2]
A
Wyeth first contends that “it
would have been impossible for it to comply with the state-law duty
to modify Phenergan’s labeling without violating federal law.”
Ante, at 6 (opinion for the Court by Stevens, J.). But, as
the majority explains, the text of the relevant federal statutory
provisions and the corresponding regulations do not directly
conflict with the state-law judgment before us.
This Court has used different
formulations of the standard to be used in deciding whether state
and federal law conflict, and thus lead to pre-emption, under the
“impossibility” doctrine. See,
e.g.,
Geier,
supra, at 873 (“a case in which state law penalizes what
federal law requires”);
American Telephone & Telegraph
Co. v.
Central Office Telephone, Inc.,
524 U. S. 214, 227
(1998)
(AT&T) (when state-law claims “directly
conflict” with federal law), cited in
Geier,
supra, at 874 (describing
AT&T as a “cas[e]
involving impossibility”);
Florida Lime & Avocado
Growers,
supra, at 142–143 (“where compliance with
both federal and state regulations is a physical impossibility”).
The Court has generally articulated a very narrow “impossibility
standard,” see
Crosby, 530 U. S., at 372–373 (citing
Florida Lime & Avocado Growers,
supra, at
142–143); see also
Sprietsma v.
Mercury Marine,
537 U. S. 51,
64–65 (2002);
United States v.
Locke,
529 U. S. 89, 109
(2000)—in part because the overly broad sweep of the Court’s
“purposes and objectives” approach, see
infra, at 13–23,
has rendered it unnecessary for the Court to rely on
“impossibility” pre-emption.
The Court, in fact, has not explained why a
narrow “physical impossibility” standard is the best proxy for
determining when state and federal laws “directly conflict” for
purposes of the Supremacy Clause. There could be instances where it
is not “physically impossible” to comply with both state and
federal law, even when the state and federal laws give directly
conflicting commands. See Nelson, Preemption, 86 Va. L. Rev.
225, 260–261 (2000). For example, if federal law gives an
individual the right to engage in certain behavior that state law
prohibits, the laws would give contradictory commands
notwithstanding the fact that an individual could comply with both
by electing to refrain from the covered behavior.
Ibid.
Therefore, “physical impossibility” may not be the most appropriate
standard for determining whether the text of state and federal laws
directly conflict. See
ibid. (concluding that the
Supremacy Clause does not limit direct conflicts to cases with
“physically impossible” conflicts and arguing that evidence from
the Founding supports a standard of “logical-contradiction”); see
also
AT&T,
supra, at 227 (requiring that the
state-law claims “directly conflict” with federal law); 3 Story
§1836, at 701 (suggesting instead that a state law is pre-empted by
the Supremacy Clause when it is “
repugnant to the
constitution of the United States” (emphasis added)).
Nonetheless, whatever the precise
constitutional contours of implied pre-emption may be, I am
satisfied that it does not operate against respondent’s judgment
below. The text of the federal laws at issue do not require that
the state-court judgment at issue be pre-empted, under either the
narrow “physical impossibility” standard,
Florida Lime &
Avocado Growers,
supra, at 142–143, or a more general
“direc[t] conflict” standard,
AT&T,
supra, at
227.
Under the FDA’s “changes being effected”
regulation, 21 CFR §314.70(c)(6)(iii), which was promulgated
pursuant to the FDA’s statutory authority, it is physically
possible for Wyeth to market Phenergan in compliance with federal
and Vermont law. As the majority explains, Wyeth could have changed
the warning on its label regarding IV-push without violating
federal law. See
ante, at 11–13. The “changes being
effected” regulation allows drug manufacturers to change their
labels without the FDA’s preapproval if the changes “add or
strengthen a contraindication, warning, precaution, or adverse
reaction,” §314.70(c)(6)(iii)(A), or “add or strengthen an
instruction about dosage and administration that is intended to
increase the safe use of the drug product,” §314.70(c)(6)(iii)(C),
in order to “reflect newly acquired information,” including “new
analyses of previously submitted data,” 73 Fed. Reg. 49603, 49609.
Under the terms of these regulations, after learning of new
incidences of gangrene-induced amputation resulting from the
IV-push administration of Phenergan, see
ante, at 12–13,
federal law gave Wyeth the authority to change Phenergan’s label to
“strengthen a … warning,” “strengthen a … precaution,”
§314.70(c)(6)(iii)(A), or to “strengthen an instruction about …
administration [of the IV-push method] … to increase the safe use
of the drug product,” §314.70(c)(6)(iii)(C). Thus, it was
physically possible for Wyeth to comply with a state-law
requirement to provide stronger warnings on Phenergan about the
risks of the IV-push administration method while continuing to
market Phenergan in compliance with federal law.
In addition, the text of the statutory
provisions governing FDA drug labeling, and the regulations
promulgated thereunder, do not give drug manufacturers an
unconditional right to market their federally approved drug at all
times with the precise label initially approved by the FDA. Thus,
there is no “direct conflict” between the federal labeling law and
the state-court judgment. The statute prohibits the interstate
marketing of any drug, except for those that are federally
approved. See 21 U. S. C. §355(a) (“
No person shall
introduce or deliver for introduction into interstate commerce any
new drug,
unless an approval of an application filed
pursuant to subsection (b) or (j) of this section is effective with
respect to such drug” (emphasis added)). To say, as the statute
does, that Wyeth may not market a drug without federal approval
(
i.e., without an FDA-approved label) is not to say that
federal approval gives Wyeth the unfettered right, for all time, to
market its drug with the specific label that was federally
approved. Initial approval of a label amounts to a finding by the
FDA that the label is safe for purposes of gaining federal approval
to market the drug. It does not represent a finding that the drug,
as labeled, can never be deemed unsafe by later federal action, or
as in this case, the application of state law.
Instead, FDA regulations require a drug
manufacturer—after initial federal approval of a drug’s label—to
revise the federally approved label “to include a warning as soon
as there is reasonable evidence of an association of a serious
hazard with a drug.” 21 CFR §201.80(e). Drug manufacturers are also
required to “establish and maintain records and make reports” to
the FDA about “[a]ny adverse event associated with the use of a
drug in humans, whether or not considered drug related,” after it
has received federal approval. §§314.80(a), (c), (j). In addition,
the manufacturer must make periodic reports about “adverse drug
experience[s]” associated with its drug and include “a history of
actions taken since the last report because of adverse drug
experiences (for example, labeling changes or studies initiated).”
§§314.80(c)(2)(i)–(ii). When such records and reports are not made,
the FDA can withdraw its approval of the drug. §314.80(j); see also
21 U. S. C. §355(e) (“The Secretary may … withdraw the
approval of an application … if the Secretary finds … that the
applicant has failed to establish a system for maintaining required
records, or has repeatedly or deliberately failed to maintain such
records or to make required reports”). The FDA may also determine
that a drug is no longer safe for use based on “clinical or other
experience, tests, or other scientific data.”
Ibid.
(approval may be withdrawn if “the Secretary finds … that clinical
or other experience, tests, or other scientific data show that such
drug is unsafe for use under the conditions of use upon the basis
of which the application was approved”).
The text of the statutory provisions and the
accompanying regulatory scheme governing the FDA drug approval
process, therefore, establish that the FDA’s initial approval of a
drug is not a guarantee that the drug’s label will never need to be
changed. And nothing in the text of the statutory or regulatory
scheme necessarily insulates Wyeth from liability under state law
simply because the FDA has approved a particular label.
In sum, the relevant federal law did not give
Wyeth a right that the state-law judgment took away, and it was
possible for Wyeth to comply with both federal law and the
Vermont-law judgment at issue here. The federal statute and
regulations neither prohibited the stronger warning label required
by the state judgment, nor insulated Wyeth from the risk of
state-law liability. With no “direct conflict” between the federal
and state law, then, the state-law judgment is not pre-empted. Cf.
AT&T, 524 U. S., at 221–226 (finding pre-emption where
federal law forbade common carriers from extending communications
privileges requested by state-law claims);
Foster, 522 U.
S., at 68–69 (finding pre-emption where the federal statute
required congressional elections on a particular date different
from that provided by state statute).
B
Wyeth also contends that state
and federal law conflict because “recognition of [this] state tort
action creates an unacceptable ‘obstacle to the accomplishment and
execution of the full purposes and objectives of Congress,’
Hines v.
Davidowitz,
312 U.
S. 52, 67 (1941), because it substitutes a lay jury’s decision
about drug labeling for the expert judgment of the FDA.”
Ante, at 6–7. This Court’s entire body of “purposes and
objectives” pre-emption jurisprudence is inherently flawed. The
cases improperly rely on legislative history, broad atextual
notions of congressional purpose, and even congressional inaction
in order to pre-empt state law. See
supra, at 5–7. I,
therefore, cannot join the majority’s analysis of this claim, see
ante, at 17–25, or its reaffirmation of the Court’s
“purposes and objectives” jurisprudence,
ante, at 17–18
(analyzing congressional purposes);
ante, at 20 (quoting
the “ ‘purposes and objectives’ ” pre-emption standard
from
Hines v.
Davidowitz,
312 U.
S. 52, 67 (1941), and
Geier, 529 U. S., at 883);
ante, at 23–24, and nn. 13–14 (analyzing this case in
light of
Geier,
529 U. S. 861).
1
The Court first formulated its
current “purposes and objectives” pre-emption standard in
Hines when it considered whether the federal Alien
Registration Act pre-empted an Alien Registration Act adopted by
the Commonwealth of Pennsylvania. The Court did not find that the
two statutes, by their terms, directly conflicted. See
Hines,
supra, at 59–60, and n. 1 (citing Pa.
Stat. Ann., Tit. 35, §§1801–1806 (Purdon Supp. 1940)); 312 U. S.,
at 60, and n. 5 (citing Act of June 28, 1940, 54 Stat. 670);
312 U. S., at 69–74 (analyzing numerous extratextual sources and
finding pre-emption without concluding that the terms of the
federal and state laws directly conflict); see also
id.,
at 78 (noting that “[i]t is conceded that the federal act in
operation does not at any point conflict with the state statute”
(Stone, J., dissenting)).[
Footnote
3] Nonetheless, the Court determined that it was not confined
to considering merely the terms of the relevant federal law in
conducting its pre-emption analysis. Rather, it went on to ask
whether the state law “stands as an obstacle to the accomplishment
and execution of the full purposes and objectives of Congress.”
Id., at 67.
In so doing, the Court looked far
beyond the relevant federal statutory text and instead embarked on
its own freeranging speculation about what the purposes of the
federal law must have been. See
id., at 69–74. In addition
to the meaning of the relevant federal text, the Court attempted to
discern “[t]he nature of the power exerted by Congress, the object
sought to be attained, and the character of the obligations imposed
by the law.”
Id., at 70. To do so, the Court looked in
part to public sentiment, noting that “[o]pposition to laws …
singling out aliens as particularly dangerous and undesirable
groups, is deep-seated in this country.”
Ibid. The Court
also relied on statements by particular Members of Congress and on
congressional inaction, finding it pertinent that numerous bills
with requirements similar to Pennsylvania’s law had failed to
garner enough votes in Congress to become law.
Id., at
71–73, and nn. 32–34. Concluding that these sources revealed a
federal purpose to “protect the personal liberties of law-abiding
aliens through one uniform national registration system,” the Court
held that the Pennsylvania law was pre-empted.
Id., at
74.
Justice Stone, in dissent, questioned the
majority’s decision to read an exclusive registration system for
aliens into a statute that did not specifically provide such
exclusivity. See
id., at 75. He noted his concern that
state power would be improperly diminished through a pre-emption
doctrine driven by the Court’s “own conceptions of a policy which
Congress ha[d] not expressed and which is not plainly to be
inferred from the legislation which it ha[d] enacted.”
Ibid. In his view, nothing that Congress enacted had
“denie[d] the states the practicable means of identifying their
alien residents and of recording their whereabouts.”
Id.,
at 78. Yet, the
Hines majority employed pre-emption to
override numerous state alien-registration laws even though enacted
federal law “at no point conflict[ed] with the state legislation
and [was] harmonious with it.”
Id., at 79.[
Footnote 4]
2
The consequences of this Court’s
broad approach to “purposes and objectives” pre-emption are
exemplified in this Court’s decision in
Geier, which both
the majority and the dissent incorporate into their analysis today.
See
ante, at 23–24, and nn. 13–14;
post, at 6–9
(opinion of Alito, J.). In
Geier, pursuant to the National
Traffic and Motor Vehicle Safety Act of 1966 (Safety Act), 80 Stat.
718, 15 U. S. C. §1381
et seq. (1988 ed.), the
Department of Transportation (DOT) had promulgated a Federal Motor
Vehicle Safety Standard that “required auto manufacturers to equip
some but not all of their 1987 vehicles with passive restraints.”
529 U. S., at 864–865. The case required this Court to decide
whether the Safety Act pre-empted a state common-law tort action in
which the plaintiff claimed that an auto manufacturer, though in
compliance with the federal standard, should nonetheless have
equipped a 1987 automobile with airbags.
Id., at 865. The
Court first concluded that the Safety Act’s express pre-emption
provision and its saving clause, read together, did not expressly
pre-empt state common-law claims. See
id., at
867–868.[
Footnote 5] The Court
then proceeded to consider whether the state action was nonetheless
pre-empted as an “obstacle” to the purposes of the federal law. The
Court held that the state tort claim was pre-empted, relying in
large part on comments that DOT made when promulgating its
regulation, statements that the Government made in its brief to the
Court, and regulatory history that related to the federal
regulation of passive restraints. See
id., at 874–886.
In particular, the majority found
that DOT intended to “deliberately provid[e] the manufacturer[s]
with a range of choices among different passive restraint devices”
and to “bring about a mix of different devices introduced gradually
over time,” based on comments that DOT made when promulgating its
regulation, rather than the Safety Act’s text.
Id., at
875. The majority also embarked on a judicial inquiry into “why and
how DOT sought these objectives,”
ibid., by considering
regulatory history and the Government’s brief, which described
DOT’s safety standard as “ ‘embod[ying] the Secretary’s policy
judgment that safety would best be promoted if manufacturers
installed
alternative protection systems in their fleets
rather than one particular system in every car,’ ”
id., at 881 (quoting Brief for United States as
Amicus
Curiae in
Geier v.
American Honda Motor Co.,
O. T. 1999, No. 98–1811, p. 25); see also 529 U. S., at
883–884. Based on this “
ex post administrative
litigating position and inferences from regulatory history and
final commentary,”
id., at 910–911 (Stevens., J.,
dissenting), the Court found that the state action was pre-empted
because it would have required manufacturers of all cars similar to
that in which the plaintiff was injured to “install airbags rather
than other passive restraint systems” and would have, therefore,
“presented an obstacle to the variety and mix of devices that the
federal regulation sought” to phase in gradually,
id., at
881.
The Court’s decision in
Geier to
apply “purposes and objectives” pre-emption based on agency
comments, regulatory history, and agency litigating positions was
especially flawed, given that it conflicted with the plain
statutory text of the saving clause within the Safety Act, which
explicitly preserved state common-law actions by providing that
“[c]ompliance with any Federal motor vehicle safety standard issued
under this subchapter does not exempt any person from any liability
under common law,” 15 U. S. C. §1397(k) (1988 ed.).[
Footnote 6] See
Engine Mfrs.
Assn. v.
South Coast Air Quality Management Dist.,
541 U. S. 246,
252 (2004) (“Statutory construction must begin with the language
employed by Congress and the assumption that the ordinary meaning
of that language accurately expresses the legislative purpose”
(internal quotation marks omitted));
West Virginia Univ.
Hospitals, Inc. v.
Casey,
499 U. S. 83, 98 (1991)
(“The best evidence of th[e] purpose [of a statute] is the
statutory text adopted by both Houses of Congress and submitted to
the President”). In addition, the Court’s reliance on its divined
purpose of the federal law—to gradually phase in a mix of passive
restraint systems—in order to invalidate a State’s imposition of a
greater safety standard was contrary to the more general express
statutory goal of the Safety Act “to reduce traffic accidents and
deaths and injuries to persons resulting from traffic accidents,”
15 U. S. C. §1381 (1988 ed.). This Court has repeatedly stated
that when statutory language is plain, it must be enforced
according to its terms. See
Jimenez v.
Quarterman, 555 U. S. ___ (2009); see also,
e.g.,
Dodd v.
United States,
545 U. S. 353, 359
(2005);
Lamie v.
United States Trustee,
540 U. S. 526, 534
(2004);
Hartford Underwriters Ins. Co. v.
Union
Planters Bank, N. A.,
530 U. S. 1, 6 (2000). The
text in
Geier “directly addressed the precise question at
issue” before the Court, so that should have been “the end of the
matter; for the court, as well as the agency, must give effect to
the unambiguously expressed intent of Congress.”
National Assn.
of Home Builders v.
Defenders of Wildlife,
551 U. S. 644, ___
(2007) (slip op., at 18) (2007) (internal quotation marks omitted).
With text that allowed state actions like the one at issue in
Geier, the Court had no authority to comb through agency
commentaries to find a basis for an alternative conclusion.
Applying “purposes and objectives” pre-emption
in
Geier, as in any case, allowed this Court to vacate a
judgment issued by another sovereign based on nothing more than
assumptions and goals that were untethered from the
constitutionally enacted federal law authorizing the federal
regulatory standard that was before the Court. See
Watters
v.
Wachovia Bank, N. A.,
550 U. S. 1, 44 (2007)
(Stevens, J., dissenting) (noting that pre-emption “affects the
allocation of powers among sovereigns”). “ ‘[A]n agency
literally has no power to act, let alone pre-empt the [law] of a
sovereign State, unless and until Congress confers power upon
it.’ ”
New York v.
FERC, 535 U. S., at 18
(quoting
Louisiana Pub. Serv. Comm’n v.
FCC,
476 U. S. 355,
374 (1986)). Thus, no agency or individual Member of Congress can
pre-empt a State’s judgment by merely musing about goals or
intentions not found within or authorized by the statutory text.
See
supra, at 5–7.
The Court’s “purposes and objectives”
pre-emption jurisprudence is also problematic because it encourages
an overly expansive reading of statutory text. The Court’s desire
to divine the broader purposes of the statute before it inevitably
leads it to assume that Congress wanted to pursue those policies
“at all costs”—even when the text reflects a different balance. See
Geier,
supra, at 904 (Stevens, J., dissenting)
(finding no evidence to support the notion that the DOT Secretary
intended to advance the purposes of the safety standard “at all
costs”); Nelson, 86 Va. L. Rev., at 279–280. As this Court has
repeatedly noted, “ ‘it frustrates rather than effectuates
legislative intent simplistically to assume that
whatever
furthers the statute’s primary objective must be the law.’ ”
E.g.,
Norfolk Southern R. Co. v.
Sorrell,
549 U. S. 158, 171
(2007) (quoting
Rodriguez v.
United States,
480 U. S. 522,
526 (1987)
(per curiam)). Federal legislation is often the
result of compromise between legislators and “groups with marked
but divergent interests.” See
Ragsdale v.
Wolverine
World Wide, Inc.,
535 U. S. 81, 93–94
(2002). Thus, a statute’s text might reflect a compromise between
parties who wanted to pursue a particular goal to different
extents. See,
e.g.,
ibid. (noting that the Family
and Medical Leave Act’s provision of only 12 workweeks of yearly
leave “was the result of compromise” that must be given effect by
courts);
Silkwood v.
Kerr-McGee Corp.,
464 U. S. 238, 257
(1984) (finding that a state law was not pre-empted though it
allegedly frustrated a primary purpose of the Atomic Energy Act
because the Act provided that its purpose was to be furthered only
“to the extent it is consistent ‘with the health and safety of the
public’ ” (quoting 42 U. S. C. §2013(d) (1982 ed.))); see
also Manning, What Divides Textualists from Purposivists? 106
Colum. L. Rev. 70, 104 (2006) (“Legislators may compromise on
a statute that does not fully address a perceived mischief,
accepting half a loaf to facilitate a law’s enactment”). Therefore,
there is no factual basis for the assumption underlying the Court’s
“purposes and objectives” pre-emption jurisprudence that every
policy seemingly consistent with federal statutory text has
necessarily been authorized by Congress and warrants pre-emptive
effect. Instead, our federal system in general, and the Supremacy
Clause in particular, accords pre-emptive effect to only those
policies that are actually authorized by and effectuated through
the statutory text.
3
The majority, while reaching the
right conclusion in this case, demonstrates once again how
application of “purposes and objectives” pre-emption requires
inquiry into matters beyond the scope of proper judicial review.
For example, the majority relies heavily on Congress’ failure
“during the … 70-year history” of the federal Food, Drug, and
Cosmetic Act to enact an express pre-emption provision that
addresses approval of a drug label by the FDA.
Ante, at
18. That “silence on the issue, coupled with [Congress’] certain
awareness of the prevalence of state tort litigation,” the majority
reasons, is evidence that Congress did not intend for federal
approval of drug labels to pre-empt state tort judgments.
Ibid.; see also
ante, at 17–18 (construing from
inaction that Congress “[e]vidently [had] determined that widely
available state rights of action provided appropriate relief”).
Certainly, the absence of a statutory provision pre-empting all
state tort suits related to approved federal drug labels is
pertinent to a finding that such lawsuits are not pre-empted. But
the relevance is in the fact that no statute explicitly pre-empts
the lawsuits, and not in any inferences that the Court may draw
from congressional silence about the motivations or policies
underlying Congress’ failure to act. See
Brown v.
Gardner,
513 U. S. 115, 121
(1994) (“[C]ongressional silence lacks persuasive significance”
(internal quotation marks omitted));
O’Melveny & Myers
v.
FDIC,
512
U. S. 79, 85 (1994) (“[M]atters left unaddressed in [a
comprehensive and detailed federal] scheme are presumably left
subject to the disposition provided by state law”);
Camps
Newfound, 520 U. S., at 616 (“[O]ur pre-emption jurisprudence
explicitly rejects the notion that mere congressional silence on a
particular issue may be read as pre-empting state law”).
In this case, the majority has
concluded from silence that Congress believed state lawsuits pose
no obstacle to federal drug-approval objectives. See
ante,
at 18. That is the required conclusion, but only because it is
compelled by the text of the relevant statutory and regulatory
provisions, not judicial suppositions about Congress’ unstated
goals. The fact that the Court reaches the proper conclusion does
not justify its speculation about the reasons for congressional
inaction. In this case, the Court has relied on the perceived
congressional policies underlying inaction to find that state law
is
not pre-empted. But once the Court shows a willingness
to guess at the intent underlying congressional inaction, the Court
could just as easily rely on its own perceptions regarding
congressional inaction to give unduly broad pre-emptive effect to
federal law. See,
e.g.,
American Ins. Assn. v.
Garamendi,
539 U. S. 396, 401,
405–408, 429 (2003) (finding that Congress’ failure to pass
legislation indicating that it disagreed with the President’s
executive agreement supported, at least in part, the Court’s
determination that the agreement pre-empted state law). Either
approach is illegitimate. Under the Supremacy Clause, state law is
pre-empted only by federal law “made in Pursuance” of the
Constitution, Art. VI, cl. 2—not by extratextual
considerations of the purposes underlying congressional inaction.
See
Hoffman v.
Connecticut Dept. of Income
Maintenance,
492
U. S. 96, 104 (1989) (plurality opinion) (finding that policy
arguments that “are not based in the text of the statute … are not
helpful”);
TVA v.
Hill,
437 U. S. 153, 194
(1978) (“Our individual appraisal of the wisdom or unwisdom of a
particular course consciously selected by the Congress is to be put
aside in the process of interpreting a statute”). Our role, then,
is merely “to interpret the language of the statute[s] enacted by
Congress.”
Barnhart v.
Sigmon Coal Co.,
534 U. S. 438, 461
(2002).
III
The origins of this Court’s
“purposes and objectives” pre-emption jurisprudence in
Hines, and its broad application in cases like
Geier, illustrate that this brand of the Court’s
pre-emption jurisprudence facilitates freewheeling, extratextual,
and broad evaluations of the “purposes and objectives” embodied
within federal law. This, in turn, leads to decisions giving
improperly broad pre-emptive effect to judicially manufactured
policies, rather than to the statutory text enacted by Congress
pursuant to the Constitution and the agency actions authorized
thereby. Because such a sweeping approach to pre-emption leads to
the illegitimate—and thus, unconstitutional—invalidation of state
laws, I can no longer assent to a doctrine that pre-empts state
laws merely because they “stan[d] as an obstacle to the
accomplishment and execution of the full purposes and objectives”
of federal law,
Hines, 312 U. S., at 67, as perceived by
this Court. I therefore respectfully concur only in the
judgment.
Footnote 1
This structural limitation may be implicated
in a pre-emption case if the federal law at issue is beyond the
scope of Congress’ enumerated powers. Expansion of congressional
power through an “increasingly generous … interpretation of the
commerce power of Congress,” for example, creates “a real risk that
Congress will gradually erase the diffusion of power between State
and Nation on which the Framers based their faith in the efficiency
and vitality of our Republic.”
Garcia v.
San Antonio
Metropolitan Transit Authority,
469 U. S. 528, 583–584
(1985) (O’Connor, J., dissenting); see also
Marbury v.
Madison, 1 Cranch 137, 176 (1803) (“The powers of the
legislature are defined, and limited; and that those limits may not
be mistaken, or forgotten, the constitution is written”).
Footnote 2
The majority’s pre-emption analysis relies in
part on a presumption against pre-emption.
Ante, at 8, and
n. 3 (opinion of Stevens, J.). Because it is evident from the
text of the relevant federal statutes and regulations themselves
that the state-law judgment below is not pre-empted, it is not
necessary to decide whether, or to what extent, the presumption
should apply in a case such as this one, where Congress has not
enacted an express-pre-emption clause. Cf.
Altria Group,
Inc. v.
Good, 555 U. S. ___, ___ (2008) (Thomas, J.,
dissenting) (rejecting the use of a presumption against pre-emption
in express pre-emption cases).
Footnote 3
According to the Court, the Pennsylvania Act
required:
“every alien 18 years or over, with certain
exceptions, to register once each year; provide such information as
is required by the statute, plus any ‘other information and
details’ that the Department of Labor and Industry may direct; pay
$1 as an annual registration fee; receive an alien identification
card and carry it at all times; show the card whenever it may be
demanded by any police officer or any agent of the Department of
Labor and Industry; and exhibit the card as a condition precedent
to registering a motor vehicle in his name or obtaining a license
to operate one. … Nonexempt aliens who fail to register are subject
to a fine … or imprisonment … . For failure to carry an
identification card or for failure to show it upon proper demand,
the punishment is a fine … or imprisonment … .”
Hines, 312 U. S., at 59–60 (footnote omitted).
The Court explained that the federal Alien
Registration Act required:
“a single registration of aliens 14 years of
age and over; detailed information specified by the Act, plus ‘such
additional matters as may be prescribed by the Commissioner, with
the approval of the Attorney General’; finger-printing of all
registrants; and secrecy of the federal files … . No
requirement that aliens carry a registration card to be exhibited
to police or others is embodied in the law, and only the wilful
failure to register is made a criminal offense … .”
Id., at 60–61.
Footnote 4
According to Justice Stone, the
Hines majority’s analysis resembled an inquiry into
whether the federal act “ ‘occupied the field,’ ” rather
than an application of simple conflict pre-emption principles.
Id., at 78 (dissenting opinion). Regardless of whether
Hines involved field or conflict pre-emption, the dissent
accurately observed that in assessing the boundaries of the federal
law—
i.e., the scope of its pre-emptive effect—the Court
should look to the federal statute itself, rather than speculate
about Congress’ unstated intentions.
Id., at 78–79. See
also
Camps Newfound/Owatonna, Inc. v.
Town of
Harrison,
520 U. S. 564, 616–617 (1997) (Thomas,
J., dissenting) (noting that “field pre-emption is itself suspect,
at least as applied in the absence of a congressional command that
a particular field be pre-empted”).
Footnote 5
The Safety Act’s express pre-emption
provision stated in part:
“Whenever a Federal motor vehicle safety
standard established under this subchapter is in effect, no State …
shall have any authority either to establish, or to continue in
effect, with respect to any motor vehicle or item of motor vehicle
equipment[,] any safety standard applicable to the same aspect of
performance of such vehicle or item of equipment which is not
identical to the Federal standard.” 15 U. S. C. §1392(d) (1988
ed.).
The Safety Act also included a saving clause,
which stated: “Compliance with any Federal motor vehicle safety
standard issued under this subchapter does not exempt any person
from any liability under common law.” §1397(k). The majority and
dissent in
Geier agreed that the import of the express
pre-emption provision and the saving clause, read together, was
that by its terms, the Safety Act did not expressly pre-empt state
common-law actions. See
Geier, 529 U. S., at 867–868;
id., at 895–898 (Stevens, J., dissenting).
Footnote 6
In addition to the impropriety of looking
beyond the plain text of the saving clause to regulatory history,
DOT comments, and an administrative litigating position to evaluate
the Safety Act’s pre-emptive effect, it is unclear that the Court
in
Geier accurately assessed the federal objectives of the
relevant federal law. As the dissent in
Geier pointed out,
the purpose of the Safety Act, as stated by Congress, was generally
“ ‘to reduce traffic accidents and deaths and injuries to
persons resulting from traffic accidents.’ ”
Id., at
888–889 (opinion of Stevens, J.) (quoting 15 U. S. C. §1381
(1988 ed.)). On its face, that goal is of course consistent with a
state-law judgment that a particular vehicle needed a passive
restraint system that would better protect persons from death and
injury during traffic accidents. Furthermore, the dissent observed
that “by definition all of the standards established under the
Safety Act … impose minimum, rather than fixed or maximum,
requirements.” 529 U. S., at 903 (citing 15 U. S. C. §1391(2)
(1988 ed.)). Thus, in the dissent’s view, the requirements of the
DOT regulation were not ceilings, and it was “obvious that the
Secretary favored a more rapid increase” than required by the
regulations. 529 U. S., at 903. That goal also would be consistent
with a state-law judgment finding that a manufacturer acted
negligently when it failed to include an airbag in a particular
car. See
id., at 903–904.
Comments
Be the first to comment
Leave a Comment