900
Stevens, J., dissenting
pre-empt common-law remedies.16 Moreover, the text of Standard 208 says nothing about pre-emption, and I am not persuaded that Honda has overcome our traditional presumption that it lacks any implicit pre-emptive effect.
Honda argues, and the Court now agrees, that the risk of liability presented by common-law claims that vehicles without airbags are negligently and defectively designed would frustrate the policy decision that the Secretary made in promulgating Standard 208. This decision, in their view, was that safety—including a desire to encourage "public acceptance of the airbag technology and experimentation with better passive restraint systems" 17—would best be promoted
16 The Court contends, in essence, that a saving clause cannot foreclose implied conflict pre-emption. Ante, at 873-874. The cases it cites to support that point, however, merely interpreted the language of the particular saving clauses at issue and concluded that those clauses did not foreclose implied pre-emption; they do not establish that a saving clause in a given statute cannot foreclose implied pre-emption based on frustration of that statute's purposes, or even (more importantly for our present purposes) that a saving clause in a given statute cannot deprive a regulation issued pursuant to that statute of any implicit pre-emptive effect. See United States v. Locke, ante, at 104-107; International Paper Co. v. Ouellette, 479 U. S. 481, 493 (1987) ("Given that the Act itself does not speak directly to the issue, the Court must be guided by the goals and policies of the Act in determining whether it in fact pre-empts an action"); Chicago & North Western Transp. Co. v. Kalo Brick & Tile Co., 450 U. S. 311, 328, 331 (1981). As stated in the text, I believe the language of this particular saving clause unquestionably limits, and possibly forecloses entirely, the pre-emptive effect that safety standards promulgated by the Secretary have on common-law remedies. See Louisiana Pub. Serv. Comm'n v. FCC, 476 U. S. 355, 374 (1986). Under that interpretation, there is by definition no frustration of federal purposes—that is, no "tolerat[ion of] actual conflict," ante, at 874—when tort suits are allowed to go forward. Thus, because there is a textual basis for concluding that Congress intended to preserve the state law at issue, I think it entirely appropriate for the party favoring pre-emption to bear a special burden in attempting to show that valid federal purposes would be frustrated if that state law were not pre-empted.
17 166 F. 3d 1236, 1243 (CADC 1999).
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