Finally it is worth bearing in mind that the effect of Section 5 in the future may be to elicit broader statements of preemption than would emerge from a less focused process. There are some areas where the degree of preemption required by a statute seems to have emerged through a process of regulation and adjudication, and I am not sure that the problems that have developed for state and local governments will necessarily be diminished by requirement of explicit deliberation in the law enacting process. However, because I think requiring somewhat greater attention to the question of whether there really is a need for federal legislation is healthy, I believe Section 5 is on balance a useful advance.

Comments on Section 6

In determining preemption policy we must remember that it is a constitutional question under the Supremacy Clause with which we deal. The Supremacy Clause and the constitutional structure as a whole do not provide any strong reason to suppose that the people benefit acrossthe-board more from the exercise of state than of federal authority. See FEDERALIST PAPERS, Nos. 45, 46 ("The federal and State governments are in fact but different agents and trustees of the people.... If... [the] people should in future become more partial to the federal than to the State governments... the people ought not surely to be precluded from giving most of their confidence where they may discover it to be most due....")

For a number of reasons, I am somewhat more skeptical about the approach of Section 6 than about the approach of Section 5. First, Section 6 may raise what courts could see as separation of powers concerns, involving incursions of the legislative branch into the judicial branch. Second, the bill's definition a direct conflict is so ambiguous that, on some constructions, it would require different results in landmark constitutional cases (such as Gibbons v. Ogden), a result unlikely to be intended by Congress. Third, a general, trans-substantive preemption provision may not be particularly effective in preserving state and local government authority and may at the same time contribute to confusion in the lower courts. Fourth, the provisions of Section 6(b) relating to the preemptive force of regulations promulgated after the effective date -- but pursuant to statutes previously enacted -- is unclear and potentially disruptive. Finally, the favorable construction provision of Section 6(c) is, in my view, inconsistent with the constitutional structure and with the far more complex demands of U.S. federalism.

*Separation of Powers Concerns: While Congress as the legislative body clearly has the power to define the statutory terms it uses and to express its intentions on what its legislation means, it is for the Courts to interpret and apply that legislation in actual cases and controversies. In U.S. v. Klein, 80 U.S. 128 (1870), the Supreme Court held unconstitutional a statute that required federal courts to treat evidence of a presidential pardon as proof of disloyalty, disqualifying a claimant in a pending case from receiving compensation for a taking of property. In cryptic words, the Court held that by this law Congress had inadvertently violated the line separating the legislative from the judicial power.

"In the case before us no new circumstances have been created by legislation. But the court is forbidden to give the effect to evidence which, in its own judgment, such evidence should have, and is directed to give it an effect precisely contrary."

Although the prospective provisions of this proposed bill do not raise constitutional problems of legislative interference with adjudication in pending cases, it might nonetheless be argued that Congress' attempt to direct the courts in how to "construe" the effects of federal legislation on state authority under the Supremacy Clause shares in the constitutional difficulty identified in the quoted portion of Klein. It is one thing for Congress to clearly express its own intentions, but perhaps a different matter to instruct the courts on how the courts should perform their judicial function of interpreting the laws (including laws to be enacted in the future). Alternatively, however, the rule of construction might be regarded as a constitutionally appropriate act of lawmaking, whose effects in turn will be construed by the courts, and thus constitutionally appropriate. Cf. Robertson v. Seattle Audubon Society, 503 U.S. 429 (1992) (interpreting appropriations law provision that specifically referred to pending case as a constitutionally appropriate modification of the underlying law to be applied by the courts). Whether or not the courts would find a separation of powers problem here, it is appropriate for Members of Congress to consider whether such a broad instruction to the Judicial Branch as to the performance of its constitutional functions is appropriate, particularly when the instruction on how legislation is to be "construed" is not ancillary to any particular act of substantive lawmaking.

Unintended Consequences as Applied to Landmark Cases: Consider, in this regard, the effect of the provisions of Section 6(a)(2) that, absent an explicit statement of preemption, preemption can be found only if "there is a direct conflict between such statute and a State or local law, ordinance or regulation such that the two cannot be reconciled or consistently stand together." Recall the case of Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824): Ogden was the licensee of Fulton and Livingston, who had received a monopoly from the State of New York to operate a ferry service between points in New York and New Jersey. Gibbons, whose vessels held federal licenses as "vessels [in] the coasting trade", set up a competing ferry service. The state courts granted Ogden an injunction against Gibbons' ferry operation, but the Supreme Court held that the state's law had been preempted by the federal coastal trading license. Refusing to decide whether, in the absence of the federal law the state had authority to issue such a regulation, the Court held that the laws of the state of New York had "come into collision" with the federal law and must yield to that law. The Court interpreted the federal law as authorizing the ferries to enter New York waters for purposes of coastal trading, resulting in a direct conflict. Note that the lower courts (the state courts of New York) had sought to reconcile the two laws by construing the federal law as relating merely to ownership and registration of vessels, and as not entailing an authorization to engage in coastal trading, an interpretation rejected by the Supreme Court. What would be the result in Gibbons under the proposed language of Section 6(a)(2) (particularly when coupled with the final portion of Section 6(c))? To put this in other terms, if the standard is one of "physical impossibility" (i.e., that a regulated entity could not physically comply with both the federal and state standard) one could argue that since it is physically

possible for the federal licensee to ply his trade without trenching on the monopoly given by New York, the state monopoly law should not be treated as in direct conflict for preemption purposes."

Problems with General, Trans-Substantive Preemption Provisions. Different areas of preemption present very different mixes of reasons for federal action and consequences for state and local governments. Trying to identify a single approach for trans-substantive preemption questions ignores the diversity of interests that the Court's interpretive patterns have recognized, in labor law, in ERISA, in civil rights laws, in products liability regulation, and in liabilities relating to goods provided to the armed forces, to mention only a few areas in which quite different approaches to preemption of state laws have been applied.

While some decades ago the Court articulated and applied the concept of “field" preemption quite broadly, on my reading of the more modern cases the broader uses of field preemption have come close to vanishing." In the last decade the Court has, in many areas, presumed that Congress did not intend to preempt state law, even going so far as to construe explicit preemption provisions narrowly. Although the Court nominally maintains its varied

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"However, if the standard is, as suggested by Professor Nelson's testimony, whether the state law prohibits what the federal law permits, then perhaps Gibbons would be treated as direct conflicts case under the language of Section 6(a).

'Cf. Kenneth Starr et al, THE LAW OF PREEMPTION: A REPORT OF THE APPELLATE JUDGES' CONFERENCE, AMERICAN BAR ASSOCIATION 18 (Section on Antitrust Law, 1991) (suggesting that the Court "may be shifting its preemption jurisprudence toward a willingness to confine the search for clear legislative intent largely to statutory language, structure and history"). This report goes on to describe implied preemption doctrines, including "occupation of the field” based on pervasive regulation or the presence of a peculiarly federal interest, and "obstacle" preemption, and argues that these approaches are imperfect proxies for legislative intent. The Report concludes that the Court "should and most likely will move closer to adopting a background rule of interpretation that requires the national legislature to indicate clearly any preemptive effects of its acts," and predicts that "we will likely see even more judicial emphasis upon express congressional indications of an intent to preempt... no matter what implied preemption doctrine the Court formally employs." As is evident from this passage, the Report focused on interpretation by courts, and not on whether Congress should enact a general, trans-substantive preemption provision.

'See, e.g., New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Insurance Co., 115 S. Ct. 2671 (1995) (unanimously construing ERISA preemption clause's "relate to" language narrowly in order to afford room for state health care reform experiments and upholding New York's hospital surcharge on commercial health care insurers); DeBuono v. NYSA-ILA Medical and Clinical Services Fund, 520 U.S. 806 (1997) (upholding state tax on gross receipts for patient services as not preempted by ERISA's preemption provision, which Court found was not intended to modify the "starting presumption" that Congress does not intend

formulations of the different kinds of preemption, some might think that it is more of a semantic difference than a substantive point to distinguish narrow field preemption from conflicts preemption based on a state law standing as an obstacle to the accomplishment of the federal goal or from "direct" conflicts preemption. If, for example, it is the intention of a federal law to establish a uniform safety standard - to promote both the goals of safety and the goals of competitive efficiency through uniform regulation - then state safety laws are preempted, whether this be called "field," "obstacle," or "direct conflict" preemption. Compare Gade v. National Solid Wastes, 505 U.S. 88, 99, 104 n. 2 (O'Connor, J., plurality) (finding implied preemption) with id at 111-12 (Kennedy, J., concurring in judgment) (finding express preemption, but rejecting plurality's finding of implied preemption as too expansive). The question, the unanimous Court recently said, “is basically one of congressional intent." Barnett Bank v. Nelson, 515 U.S. 25, 30 (1996). The more important point is that the Supreme Court in recent decades has on the whole interpreted the preemptive force of federal statutes with moderation. Some of the Court's most activist forays in preemption in recent years would apparently not be affected by the proposed bill, since they have come in areas in which, rather than interpreting a federal statute, the Court was engaged in federal common law making. See Boyle v. United Technologies Corp., 487U.S.500 (1988) (holding that state law tort rules re military contractor defenses were preempted by a uniform federal common law rule articulated by the Court).

It is possible at the margin that the rule of construction in Section 6(a) will influence courts to read federal statutes' preemptive effects more narrowly rather than more broadly. It is also possible, however, that the existence of this statute will proliferate confusion and disparity of results in the lower courts on the preemptive effects of substantive statutes. But it is also possible, perhaps likely, that the statute will ultimately have little effect on judicial construction of subsequently enacted statutes, in light of the maxim, recently referred to and relied on by the Court, that "specific provisions qualify more general ones." Robertson v. Seattle Audubon, 503 U.S. at 439, citing Simpson v. U.S., 435 U.S. 6, 15 (1978).

I urge Members of Congress to consider instead the benefits of more focused attention to the preemptive effects of substantive legislation, as would be encouraged by the provisions of Section 5.9 I believe this may be a sounder approach because it is more likely to result in a correct tailoring of preemption to the particular needs of the subject. In some areas (safety regulation in nuclear power plants, for example, or interstate transportation of hazardous materials) broader

to supplant state law)

'For a similar conclusion with respect to other types of interpretive directives, see Alan R. Moreno, Interpretive Directions in Statutes, 31 HARV. J. ON LEGIS. 211 (1994) (noting that "there are many problems with interpretive directions," and that "[a]lthough the idea is an appealing one to reduce the uncertainty of judicial interpretation, in practice it is not very effective for avoiding unexpected or unwanted interpretations;” arguing that "focusing on substantive drafting and responding to judicial mistakes [would] better control the application of the laws, [and] would also better respect the separation of powers").

preemption may best serve the national interests; in others (such as product labeling and consumer safety), a much more limited preemptive effect allowing more room for state and local regulation or enforcement will be appropriate."

Moreover, it is in the construction of substantive statutes that I think courts are likely to focus most of their analysis. A substance-specific approach is sounder because I think it is likely that the majority of judicial decisions will turn more heavily on the provisions of specific substantive legislation than on a trans-substantive rule of construction such as is embodied here. To the extent that the Court has concerns about the degree of serious deliberation in Congress over federalism effects, finally, it is not clear that a trans-substantive provision will be regarded as reflecting the level of serious attention that the subject deserves.

Potentially disruptive effect of Section 6(b)'s provisions relating to the preemptive force of regulations: Apart from the concerns expressed above, to the extent that this Section were construed to require an explicit statement of preemption in a statute to authorize an agency to preempt state laws through administrative regulations, it could have unfortunate and unintended results for federal statutes enacted prior to the effective date of this bill, and regulatory authorities issued under such statutes but after the effective date of the bill. If the Congresses enacting the earlier statutes intended to authorize agencies to issue regulations with preemptive effects, but did not explicitly say so because under controlling authority such explicit statements were not required, then future Congresses could be faced with a messy need to fix up legislation to authorize preemption by agency rule-making. On the other hand, it may be that reading Section 6(b) together with Section 6(a) would lead to the conclusion that the question whether agency preemption is authorized by previously enacted legislation would be (for legislation enacted prior to this bill's effective date) analyzed in accordance with prior standards, so that there would be little disruptive effect.

Section 6(c) and the Constitutional Structure: Finally, let me comment on the provisions of Section 6(c), which provides that “Any ambiguities in this Act, or in any other law of the United States, shall be construed in favor of preserving the authority of the States and the

1o As one example of the confusion that can result from a trans-substantive approach, consider how a court would interpret a federal statute, perhaps such as the Indian Gaming Regulatory Act, in light of the definitional section of the proposed statute defining both states and tribes as "states" entitled to favorable constructions of ambiguities under the Act or any other law of the U.S. See Section 4(3) (A), (C). Under the Cabazon decision, California v. Cabazon band of Mission Indians, 480 U.S. 202 (1987), states were held unable to apply their anti-gambling laws to tribal reservations. IGRA, in response, provided that gambling operations on tribal reservations could be subject to state regulation provided the State and the tribe engaged in negotiations over the regulatory scheme. One of the statutory rules concerned whether the state permitted analogous gambling activities off the reservation. If a tribe and a state were to disagree on what are analogous gambling operations, how would the instruction to construe acts favorably to the authority of the state and the tribe be applied?