Cite as: 520 U. S. 564 (1997)
Thomas, J., dissenting
is itself suspect, at least as applied in the absence of a congressional command that a particular field be pre-empted. Perhaps recognizing this problem, our recent cases have frequently rejected field pre-emption in the absence of statutory language expressly requiring it. See, e. g., O'Melveny & Myers v. FDIC, 512 U. S. 79, 85 (1994) ("Nor would we adopt a court-made rule to supplement federal statutory regulation that is comprehensive and detailed; matters left unaddressed in such a scheme are presumably left subject to the disposition provided by state law"). Even when an express pre-emption provision has been enacted by Congress, we have narrowly defined the area to be pre-empted. See, e. g., Dillingham, supra, at 324-325; Cipollone v. Liggett Group, Inc., 505 U. S. 504, 517 (1992).
In the analogous context of statutory construction, we have similarly refused to rely on congressional inaction to alter the proper construction of a pre-existing statute. See Central Bank of Denver, N. A. v. First Interstate Bank of Denver, N. A., 511 U. S. 164, 180-185 (1994). And, even more troubling, the "pre-emption-by-silence" rationale virtually amounts to legislation by default, in apparent violation of the constitutional requirements of bicameralism and presentment. Cf. INS v. Chadha, 462 U. S. 919, 951-959 (1983). Thus, even were we wrongly to assume that congressional silence evidenced a desire to pre-empt some undefined category of state laws, and an intent to delegate such policy-laden categorization to the courts, treating unenacted congressional intent as if it were law would be constitutionally dubious.
In sum, neither of the Court's proffered theoretical justifications—exclusivity or pre-emption-by-silence—currently supports our negative Commerce Clause jurisprudence, if either ever did. Despite the collapse of its theoretical foundation, I suspect we have nonetheless adhered to the negative Commerce Clause because we believed it necessary to check state measures contrary to the perceived spirit, if not
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