540
Opinion of Blackmun, J.
cautions against confusing and nonuniform state laws and regulations. S. Rep., at 12.5
Just as it acknowledges the evidence that Congress' changes in the pre-emption provision were nonsubstantive, the plurality admits that "portions of the legislative history of the 1969 Act suggest that Congress was primarily concerned with positive enactments by States and localities." Ante, at 521. Indeed, the relevant Senate Report explains that the revised pre-emption provision is "intended to include not only action by State statute but by all other administrative actions or local ordinances or regulations by any political subdivisions of any State," a list remarkable for the absence of any reference to common-law damages actions. S. Rep., at 12. Cf., e. g., 29 U. S. C. §§ 1144(a) and (c)(1) (ERISA statute defines "any and all State laws" as used in pre-emption provision to mean "all laws, decisions, rules, regulations, or other State action having the effect of law") (emphasis added). The plurality dismisses this statement with the simple observation that "the language of the Act plainly reaches beyond such [positive] enactments." Ante, at 521. Yet, as discussed above, the words of § 5(b) ("requirement or prohibition") do not so "plainly" extend to common-law damages actions, and the plurality errs in placing so much weight on this fragile textual hook.
The plurality further acknowledges that, at the same time that Congress amended the pre-emption provision of § 5(b), it made no effort to alter the statement of purpose contained in § 2 of the 1965 Act. Ante, at 521, n. 19. Although the
5 In the one reported case construing the scope of pre-emption under the 1965 Act, Banzhaf v. FCC--a case of which Congress was aware, see S. Rep., at 7--the Court of Appeals for the District of Columbia Circuit used the term "affirmative requirements" to describe § 5(b)'s ban on "statement[s]." 132 U. S. App. D. C. 14, 22, 405 F. 2d 1082, 1090 (1968), cert. denied sub nom. Tobacco Institute, Inc. v. FCC, 396 U. S. 842 (1969). It is but a small step from "affirmative requirement" to the converse, "negative requirement" ("prohibition"), and, from there, to the single explanatory phrase, "requirement or prohibition."
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