Columbus v. Ours Garage & Wrecker Service, Inc., 536 U.S. 424, 22 (2002)

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Cite as: 536 U. S. 424 (2002)

Scalia, J., dissenting

Since the lawmaking power of a political subdivision of a State is a subset of the lawmaking power of the State, Hess v. Port Authority Trans-Hudson Corporation, 513 U. S. 30, 47 (1994); Wisconsin Public Intervenor v. Mortier, 501 U. S. 597, 607-608 (1991), the preemption rule would have precisely the same scope if it omitted the reference to "political subdivision of a State." It is a well-established principle of statutory construction (and of common sense) that when such a situation occurs, when "two words or expressions are coupled together, one of which generically includes the other, it is obvious that the more general term is used in a meaning excluding the specific one." J. Sutherland, Statutes and Statutory Construction 266, p. 349 (1891). The only conceivable reason for this specification of "political subdivision" apart from "State" is to establish, in the rule, the two separate categories of state power—state power exercised through political subdivisions and state power exercised by the State directly—that are later treated differently in the exceptions to the rule.

The situation is comparable to the following hypothetical using the term "football" (which may be used to include soccer, see Webster's New International Dictionary 983 (2d ed. 1950)): Assume a statute which says that "football and soccer shall not be played on the town green" ( 14501(c)(1)), except that "football and soccer may be played on Saturdays" ( 14501(c)(2)(C)), "football and soccer may be played on summer nights" ( 14501(c)(3)(A)), and "football may be played on Mondays" ( 14501(c)(2)(A)). In today's opinion, the Court says soccer may be played on Mondays. I think it clear that soccer is not to be regarded as a subset of football but as a separate category. And the same is true of "political subdivision" here.


The Court reaches the opposite conclusion merely because 14501(c) exhibits uneven drafting. First, the Court notes that 14501(c)(2)(A) does not "trac[k] the language and


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