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84 Tul. L. Rev. 1185 (2009-2010)

handle is hein.journals/tulr84 and id is 1197 raw text is: A Separation-of-Powers Defense of the Presumption Against Preemption Robert S. Peck* I. INTRODUCTION ........................................................................... 1185 II. THE BASIS FOR PREEMPTION ..................................................... 1188 A. Express Preempton ................................................... 1190 B. Implied Preemption .......................................................... 1191 C Conflict Preemption ......................................................... 1193 III. THE PRESUMPTION AGAINST PREEMPTION ............................... 1194 IV SEPARATION OF POWERS AND THE ANTIPREEMPTION PRESUM PTION ............................................................................ 1195 V C ONCLUSION .............................................................................. 1201 I. INTRODUCTION In Wyeth v Levine, the United States Supreme Court revitalized the sometimes dormant presumption against pre-emption by declaring it one of two cornerstones of preemption jurisprudence.' Under the presumption, the analysis of a claim that federal law preempts state law starts with 'the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.'2 Although the Court previously had instructed lower courts that the preemption analysis always begins with a basic presumption against pre-emption'3 the Court itself often has honored that mandate in the breach-when it has bothered to mention the presumption at all.' * © 2010 Robert S. Peck. President, Center for Constitutional Litigation, PC.; Adjunct Professor of Law, American University Washington College of Law & George Washington University Law School. B.A. 1975, George Washington University; J.D. 1978, Cleveland-Marshall School of Law/New York University School of Law; LL.M. 1990, Yale Law School. 1. 129 S. Ct. 1187, 1194 (2009). The Court said one cornerstone of preemption jurisprudence is the purpose of Congress. Id (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996)). The other is the presumption against preemption. Id at 1194-95. 2. Id (quoting Lob1; 518 U.S. at 485). 3. Bates v. Dow Agrosciences LLC, 544 U.S. 431,449 (2005). 4. For example, in Geier Y American Honda Motor Co., 529 U.S. 861 (2000), the majority entirely ignored the presumption against preemption, mentioning it not at all. In other cases, the presumption is given mere lip service. See Catherine M. Sharkey, Products 1185

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