Geier v. American Honda Motor Co., 529 U.S. 861, 51 (2000)

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Cite as: 529 U. S. 861 (2000)

Stevens, J., dissenting

regulatory history and final commentary. The latter two sources are even more malleable than legislative history. Thus, when snippets from them are combined with the Court's broad conception of a doctrine of frustration-of-purposes pre-emption untempered by the presumption, a vast, undefined area of state law becomes vulnerable to preemption by any related federal law or regulation. In my view, however, "preemption analysis is, or at least should be, a matter of precise statutory [or regulatory] construction rather than an exercise in free-form judicial policymaking." 1 L. Tribe, American Constitutional Law § 6-28, p. 1177 (3d ed. 2000).

As to the Secretary's litigating position, it is clear that "an interpretation contained in a [legal brief], not one arrived at after, for example, a formal adjudication or notice-and-comment rulemaking[,] . . . do[es] not warrant Chevron-style deference." Christensen v. Harris County, ante, at 587. Moreover, our pre-emption precedents and the APA establish that even if the Secretary's litigating position were coherent, the lesser deference paid to it by the Court today would be inappropriate. Given the Secretary's contention that he has the authority to promulgate safety standards that pre-empt state law and the fact that he could promulgate a standard such as the one quoted supra, at 887, with relative ease, we should be quite reluctant to find preemption based only on the Secretary's informal effort to recast the 1984 version of Standard 208 into a pre-emptive mold.25 See Hillsborough County v. Automated Medical

25 The cases cited by the Court, ante, at 883, are not to the contrary. In City of New York v. FCC, 486 U. S. 57 (1988), for example, we were faced with Federal Communications Commission regulations that explicitly "reaffirmed the Commission's established policy of pre-empting local regulation of technical signal quality standards for cable television." Id., at 62, 65. It was only in determining whether the issuance of such regulations was a proper exercise of the authority delegated to the agency by Congress that we afforded a measure of deference to the agency's interpretation of that authority, as formally expressed through its explicitly pre-

911

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