Cite as: 505 U. S. 504 (1992)
Opinion of Scalia, J.
courts); Atascadero State Hospital v. Scanlon, 473 U. S. 234, 243 (1985) (abrogation of state sovereign immunity must be expressed "in unmistakable language"). But none of those rules exists alongside a doctrine whereby the same result so prophylactically protected from careless explicit provision can be achieved by sheer implication, with no express statement of intent at all. That is the novel regime the Court constructs today.
The results seem odder still when one takes into account the second new rule that the Court announces: "When Congress has considered the issue of pre-emption and has included in the enacted legislation a provision explicitly addressing that issue, . . . we need only identify the domain expressly pre-empted by [that provision]." Ante, at 517. Once there is an express pre-emption provision, in other words, all doctrines of implied pre-emption are eliminated. This proposition may be correct insofar as implied "field" pre-emption is concerned: The existence of an express preemption provision tends to contradict any inference that Congress intended to occupy a field broader than the statute's express language defines. However, with regard to implied "conflict" pre-emption—i. e., where state regulation actually conflicts with federal law, or where state regulation "stands as an obstacle to the accomplishment and execution" of Congress's purposes, Hines, supra, at 67—the Court's second new rule works mischief. If taken seriously, it would mean, for example, that if a federal consumer protection law provided that no state agency or court shall assert jurisdiction under state law over any workplace safety issue with respect to which a federal standard is in effect, then a state agency operating under a law dealing with a subject other than workplace safety (e. g., consumer protection) could impose requirements entirely contrary to federal law—forbidding, for example, the use of certain safety equipment that federal law requires. To my knowledge, we have never expressed such a rule before, and our prior cases are inconsist-
547
Page: Index Previous 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 NextLast modified: October 4, 2007