Columbus v. Ours Garage & Wrecker Service, Inc., 536 U.S. 424, 23 (2002)

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Scalia, J., dissenting

structure of the general preemption rule." Ante, at 434. Whereas other exceptions to the rule refer to the authority of a State or other political entity "to enact or enforce a law, regulation, or other provision," 14501(c)(2)(A) merely refers to the "safety regulatory authority of a State." Second, the Court notes that another exception to the preemption rule, 14501(c)(2)(B), is "stated with similar economy." Ante, at 435. It addresses merely the subject of regulation (transportation of household goods) instead of both the subject and the source of regulation (a State, political subdivision, or political authority of two or more States). This has, the Court notes, the same effect as its neighbor, 14501(c)(2)(C), of permitting both state and local regulation.1 Ibid. These inconsistencies in the statute's drafting style, the Court contends, undermine the conclusion we would ordinarily draw from the absence of the term " 'political subdivision' " in 14501(c)(2)(A). Ibid.

The weakness of this argument should be self-evident. How can inconsistencies of style, on points that have nothing to do with the issue of separating state and local authority, cause the text's crystal-clear distinction between state and local authority to disappear? It would certainly reflect more orderly draftsmanship if the statute consistently used the formulation "to enact or enforce a law, regulation, or other provision," rather than replacing it in 14501(c)(2)(A) with the equivalent phrase "regulatory authority of a State"; and if the statute referred to subject matter alone (à la 14501(c)(2)(B)) either never at all, or else whenever the exception applied to all three categories of States, subdivisions of States, and political authorities of two or more States.

1 Not only is this point (as the text proceeds to discuss) irrelevant in principle; it is misleading in its description of fact, suggesting that the two neighboring sections produce the same result with different language. It is true enough that 14501(c)(2)(C), like 14501(c)(2)(B), permits both state and local regulation. But 14501(c)(2)(C), unlike 14501(c)(2)(B), also permits regulation by a "political authority of 2 or more States."

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