Cite as: 539 U. S. 1 (2003)
Scalia, J., dissenting
to fear state-court error with respect to federal pre-emption accompanied by creation of a federal cause of action than there is with respect to federal pre-emption unaccompanied by creation of a federal cause of action—or, for that matter, than there is with respect to any federal defense to a state-law claim. The rational response to the United States' concern is to eliminate the well-pleaded-complaint rule entirely. And inadequate for judicial authority, because it is up to Congress, not the federal courts, to decide when the risk of state-court error with respect to a matter of federal law becomes so unbearable as to justify divesting the state courts of authority to decide the federal matter. Unless and until we receive instruction from Congress that claims preempted under the National Bank Act—in contrast to almost all other claims that are subject to federal pre-emption— "arise under" federal law, we simply lack authority to "avoi[d] . . . potential errors," id., at 18, by permitting removal.
* * *
Today's opinion has succeeded in giving to our Avco decision a theoretical foundation that neither Avco itself nor Taylor provided. Regrettably, that theoretical foundation is itself without theoretical foundation. That is to say, the more general proposition that (1) the existence of a pre-emptive federal cause of action causes the invalid assertion of a state cause of action to raise a federal question, has no more logic or precedent to support it than the very narrow proposition that (2) the LMRA (Avco) and statutes modeled after the LMRA (Taylor) cause invalid assertions of state causes of action pre-empted by those particular statutes to raise federal questions. Since I believe that, as between an inexplicable narrow holding and an inexplicable broad one, the former is the lesser evil, I would adhere to the approach taken by Taylor and on the basis of stare decisis simply affirm, without any real explanation, that the LMRA and statutes modeled after it have a "unique pre-emptive force" that
21
Page: Index Previous 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 NextLast modified: October 4, 2007