616
Thomas, J., dissenting
pleas for uniformity" as a basis for creating federal common law); see also Atherton v. FDIC, 519 U. S. 213, 225-226 (1997) (same).
Similarly, even where Congress has legislated in an area subject to its authority, our pre-emption jurisprudence explicitly rejects the notion that mere congressional silence on a particular issue may be read as pre-empting state law:
"As is always the case in our pre-emption jurisprudence, where 'federal law is said to bar state action in fields of traditional state regulation, . . . we have worked on the "assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress." ' " California Div. of Labor Standards Enforcement v. Dillingham Constr. N. A., Inc., 519 U. S. 316, 325 (1997) (citations omitted).
See also Jones v. Rath Packing Co., 430 U. S. 519 (1977) (same); Rice v. Santa Fe Elevator Corp., 331 U. S. 218 (1947) (same).
To be sure, we have overcome our reluctance to pre-empt state law in two types of situations: (1) where a state law directly conflicts with a federal law; and (2) where Congress, through extensive legislation, can be said to have pre-empted the field. See Gade v. National Solid Wastes Management Assn., 505 U. S. 88, 98 (1992). But those two forms of preemption provide little aid to defenders of the negative Commerce Clause. Conflict pre-emption only applies when there is a direct clash between an Act of Congress and a state statute, but the very premise of the negative Commerce Clause is the absence of congressional action.
Field pre-emption likewise is of little use in areas where Congress has failed to enter the field, and certainly does not support the general proposition of "pre-emption-by-silence" that is used to provide a veneer of legitimacy to our negative Commerce Clause forays. Furthermore, field pre-emption
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