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

JUSTICE STEVENS, with whom JUSTICE SOUTER, JUSTICE THOMAS, and JUSTICE GINSBURG join, dissenting.

Airbag technology has been available to automobile manufacturers for over 30 years. There is now general agreement on the proposition "that, to be safe, a car must have an airbag." Ante this page. Indeed, current federal law imposes that requirement on all automobile manufacturers. See 49 U.S.C. § 30127; 49 CFR § 571.208 S4.1.5.3 (1998). The question raised by petitioner’s common law tort action is whether that proposition was sufficiently obvious when Honda’s 1987 Accord was manufactured to make the failure to install such a safety feature actionable under theories of negligence or defective design. The Court holds that an interim regulation motivated by the Secretary of Transportation’s desire to foster gradual development of a variety of passive restraint devices deprives state courts of jurisdiction to answer that question. I respectfully dissent from that holding, and especially from the Court’s unprecedented extension of the doctrine of preemption. As a preface to an explanation of my understanding of the statute and the regulation, these preliminary observations seem appropriate.

"This is a case about federalism," Coleman v. Thompson, 501 U.S. 722, 726 (1991) -- that is, about respect for "the constitutional role of the States as sovereign entities." Alden v. Maine, 527 U.S. 706, 713 (1999). It raises important questions concerning the way in which the Federal Government may exercise its undoubted power to oust state courts of their traditional jurisdiction over common law tort actions. The rule the Court enforces today was not enacted by Congress, and is not to be found in the text of any Executive Order or regulation. It has a unique origin: it is the product of the Court’s interpretation of the final commentary accompanying an interim administrative regulation and the history of airbag regulation generally. Like many other judge-made rules, its contours are not precisely defined. I believe, however, that it is fair to state that, if it had been expressly adopted by the Secretary of Transportation, it would have read as follows:

No state court shall entertain a common law tort action based on a claim that an automobile was negligently or defectively designed because it was not equipped with an airbag;

Provided, however, that this rule shall not apply to cars manufactured before September 1, 1986, or after such time as the Secretary may require the installation of airbags in all new cars; and

Provided further, that this rule shall not preclude a claim by a driver who was not wearing her seatbelt that an automobile was negligently or defectively designed because it was not equipped with any passive restraint whatsoever, or a claim that an automobile with particular design features was negligently or defectively designed because it was equipped with one type of passive restraint instead of another.

Perhaps such a rule would be a wise component of a legislative reform of our tort system. I express no opinion about that possibility. It is, however, quite clear to me that Congress neither enacted any such rule itself nor authorized the Secretary of Transportation to do so. It is equally clear to me that the objectives that the Secretary intended to achieve through the adoption of Federal Motor Vehicle Safety Standard 208 would not be frustrated one whit by allowing state courts to determine whether in 1987 the life-saving advantages of airbags had become sufficiently obvious that their omission might constitute a design defect in some new cars. Finally, I submit that the Court is quite wrong to characterize its rejection of the presumption against preemption, and its reliance on history and regulatory commentary rather than either statutory or regulatory text, as "ordinary experience-proved principles of conflict preemption." Ante at 874.

I

The question presented is whether either the National Traffic and Motor Vehicle Safety Act of 1966 (Safety Act or Act), 80 Stat. 718, 15 U.S.C. § 1381 et seq. (1988 ed.),{1} or the version of Standard 208 promulgated by the Secretary of Transportation in 1984, 49 CFR §§ 571.208, S4.1.3-S4.1.4 (1998), preempts common law tort claims that an automobile manufactured in 1987 was negligently and defectively designed because it lacked "an effective and safe passive restraint system, including, but not limited to, airbags." App. 3. In Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29, 34-38 (1983), we reviewed the first chapters of the "complex and convoluted history" of Standard 208. It was the "unacceptably high" rate of deaths and injuries caused by automobile accidents that led to the enactment of the Safety Act in 1966. Id. at 33. The purpose of the Act, as stated by Congress, was "to reduce traffic accidents and deaths and injuries to persons resulting from traffic accidents." 15 U.S.C. § 1381. The Act directed the Secretary of Transportation or his delegate to issue motor vehicle safety standards that "shall be practicable, shall meet the need for motor vehicle safety, and shall be stated in objective terms." § 1392(a). The Act defines the term "safety standard" as a "minimum standard for motor vehicle performance, or motor vehicle equipment performance." § 1391(2).

Standard 208 covers "[o]ccupant crash protection." Its purpose

is to reduce the number of deaths of vehicle occupants, and the severity of injuries, by specifying vehicle crashworthiness requirements . . . [and] equipment requirements for active and passive restraint systems.

49 CFR § 571.208 S2 (1998). The first version of that standard, issued in 1967, simply required the installation of manual seatbelts in all automobiles. Two years later, the Secretary formally proposed a revision that would require the installation of "passive occupant restraint systems" -- that is to say, devices that do not depend for their effectiveness on any action by the vehicle occupant. The airbag is one such system.{2} The Secretary’s proposal led to a series of amendments to Standard 208 that imposed various passive restraint requirements, culminating in a 1977 regulation that mandated such restraints in all cars by the model year 1984. The two commercially available restraints that could satisfy this mandate were airbags and automatic seatbelts; the regulation allowed each vehicle manufacturer to choose which restraint to install. In 1981, however, following a change of administration, the new Secretary first extended the deadline for compliance and then rescinded the passive restraint requirement altogether. In Motor Vehicle Mfrs. Assn., we affirmed a decision by the Court of Appeals holding that this rescission was arbitrary. On remand, Secretary Elizabeth Dole promulgated the version of Standard 208 that is at issue in this case.

The 1984 standard provided for a phase-in of passive restraint requirements beginning with the 1987 model year. In that year, vehicle manufacturers were required to equip a minimum of 10% of their new passenger cars with such restraints. While the 1987 Honda Accord driven by Ms. Geier was not so equipped, it is undisputed that Honda complied with the 10% minimum by installing passive restraints in certain other 1987 models. This minimum passive restraint requirement increased to 25% of 1988 models and 40% of 1989 models; the standard also mandated that "after September 1, 1989, all new cars must have automatic occupant crash protection." 49 Fed.Reg. 28999 (1984); see 49 CFR §§ 571.208, S4.1.3-S4.1.4 (1998). In response to a 1991 amendment to the Safety Act, the Secretary amended the standard to require that, beginning in the 1998 model year, all new cars have an airbag at both the driver’s and right front passenger’s positions.{3}

Given that Secretary Dole promulgated the 1984 standard in response to our opinion invalidating her predecessor’s rescission of the 1977 passive restraint requirement, she provided a full explanation for her decision not to require airbags in all cars and to phase in the new requirements. The initial 3-year delay was designed to give vehicle manufacturers adequate time for compliance. The decision to give manufacturers a choice between airbags and a different form of passive restraint, such as an automatic seatbelt, was motivated in part by safety concerns and in part by a desire not to retard the development of more effective systems. 49 Fed.Reg. 29000-29001 (1984). An important safety concern was the fear of a "public backlash" to an airbag mandate that consumers might not fully understand. The Secretary believed, however, that the use of airbags would avoid possible public objections to automatic seatbelts and that many of the public concerns regarding airbags were unfounded. Id. at 28991.

Although the standard did not require airbags in all cars, it is clear that the Secretary did intend to encourage wider use of airbags. One of her basic conclusions was that

[a]utomatic occupant protection systems that do not totally rely upon belts, such as airbags . . . , offer significant additional potential for preventing fatalities and injuries at least in part because the American public is likely to find them less intrusive; their development and availability should be encouraged through appropriate incentives.

Id. at 28963; see also id. at 28966, 28986 (noting conclusion of both Secretary and manufacturers that airbags used in conjunction with manual lap and shoulder belts would be "the most effective system of all" for preventing fatalities and injuries). The Secretary therefore included a phase-in period in order to encourage manufacturers to comply with the standard by installing airbags and other (perhaps more effective) nonbelt technologies that they might develop, rather than by installing less expensive automatic seatbelts.{4} As a further incentive for the use of such technologies, the standard provided that a vehicle equipped with an airbag or other nonbelt system would count as 1.5 vehicles for the purpose of determining compliance with the required 10, 25, or 40% minimum passive restraint requirement during the phase-in period. 49 CFR § 571.208 S4.1.3.4(a)(1) (1998). With one oblique exception,{5} there is no mention, either in the text of the final standard or in the accompanying comments, of the possibility that the risk of potential tort liability would provide an incentive for manufacturers to install airbags. Nor is there any other specific evidence of an intent to preclude common law tort actions.

II

Before discussing the preemption issue, it is appropriate to note that there is a vast difference between a rejection of Honda’s threshold arguments in favor of federal preemption and a conclusion that petitioners ultimately would prevail on their common law tort claims. I express no opinion on the possible merit, or lack of merit, of those claims. I do observe, however, that even though good faith compliance with the minimum requirements of Standard 208 would not provide Honda with a complete defense on the merits,{6} I assume that such compliance would be admissible evidence tending to negate charges of negligent and defective design.{7} In addition, if Honda were ultimately found liable, such compliance would presumably weigh against an award of punitive damages. Silkwood v. Kerr-McGee Corp., 485 F. Supp. 566, 583-584 (WD Okla. 1979) (concluding that substantial compliance with regulatory scheme did not bar award of punitive damages, but noting that "[g]ood faith belief in, and efforts to comply with, all government regulations would be evidence of conduct inconsistent with the mental state requisite for punitive damages" under state law).{8}

The parties have not called our attention to any appellate court opinions discussing the merits of similar no-airbag claims despite the fact that airbag technology was available for many years before the promulgation of the 1984 standard -- a standard that is not applicable to any automobiles manufactured before September 1, 1986. Given that an arguable basis for a preemption defense did not exist until that standard was promulgated, it is reasonable to infer that the manufacturers’ assessment of their potential liability for compensatory and punitive damages on such claims -- even without any preemption defense -- did not provide them with a sufficient incentive to engage in widespread installation of airbags.

Turning to the subject of preemption, Honda contends that the Safety Act’s preemption provision, 15 U.S.C. § 1392(d), expressly preempts petitioners’ common law no-airbag claims. It also argues that the claims are in any event impliedly preempted because the imposition of liability in cases such as this would frustrate the purposes of Standard 208. I discuss these alternative arguments in turn.

III

When a state statute, administrative rule, or common law cause of action conflicts with a federal statute, it is axiomatic that the state law is without effect. U.S. Const., Art. VI, cl. 2; Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516 (1992). On the other hand, it is equally clear that the Supremacy Clause does not give unelected federal judges carte blanche to use federal law as a means of imposing their own ideas of tort reform on the States.{9} Because of the role of States as separate sovereigns in our federal system, we have long presumed that state laws -- particularly those, such as the provision of tort remedies to compensate for personal injuries, that are within the scope of the States’ historic police powers -- are not to be preempted by a federal statute unless it is the clear and manifest purpose of Congress to do so. Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996); Gade v. National Solid Wastes Management Assn., 505 U.S. 88, 116-117 (1992) (SOUTER, J., dissenting) ("If the [federal] statute’s terms can be read sensibly not to have a preemptive effect, the presumption controls and no preemption may be inferred").

When a federal statute contains an express preemption provision, "the task of statutory construction must in the first instance focus on the plain wording of [that provision], which necessarily contains the best evidence of Congress’ preemptive intent." CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664 (1993). The Safety Act contains both an express preemption provision, 15 U.S.C. § 1392(d), and a saving clause that expressly preserves common law claims, § 1397(k). The relevant part of the former provides:

Whenever a Federal motor vehicle safety standard established under this subchapter is in effect, no State or political subdivision of a State shall have any authority either to establish, or to continue in effect, with respect to any motor vehicle or item of motor vehicle equipment[,] any safety standard applicable to the same aspect of performance of such vehicle or item of equipment which is not identical to the Federal standard.{10}

The latter states:

Compliance with any Federal motor vehicle safety standard issued under this subchapter does not exempt any person from any liability under common law.{11}

Relying on § 1392(d) and legislative history discussing Congress’ desire for uniform national safety standards,{12} Honda argues that petitioners’ common law no-airbag claims are expressly preempted because success on those claims would necessarily establish a state "safety standard" not identical to Standard 208. It is perfectly clear, however, that the term "safety standard" as used in these two sections refers to an objective rule prescribed by a legislature or an administrative agency, and does not encompass case-specific decisions by judges and juries that resolve common law claims. That term is used three times in these sections; presumably it is used consistently. Gustafson v. Alloyd Co., 513 U.S. 561, 570 (1995). The two references to a federal safety standard are necessarily describing an objective administrative rule. 15 U.S.C. § 1392(a). When the preemption provision refers to a safety standard established by a "State or political subdivision of a State," therefore, it is most naturally read to convey a similar meaning. In addition, when the two sections are read together, they provide compelling evidence of an intent to distinguish between legislative and administrative rulemaking, on the one hand, and common law liability, on the other. This distinction was certainly a rational one for Congress to draw in the Safety Act given that common law liability -- unlike most legislative or administrative rulemaking -- necessarily performs an important remedial role in compensating accident victims. Cf. Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 251, 256 (1984).

It is true that in three recent cases we concluded that broadly phrased preemptive commands encompassed common law claims. In Cipollone v. Liggett Group, Inc., while we thought it clear that the preemption provision in the 1965 Federal Cigarette Labeling and Advertising Act applied only to "rulemaking bodies," 505 U.S. at 518, we concluded that the broad command in the subsequent 1969 amendment that "[n]o requirement or prohibition . . . shall be imposed under State law" did include certain common law claims. Id. at 548-549 (SCALIA, J., concurring in judgment in part and dissenting in part).{13} In CSX Transp., Inc. v. Easterwood, where the preemption clause of the Federal Railroad Safety Act of 1970 expressly provided that federal railroad safety regulations would preempt any incompatible state "`law, rule, regulation, order, or standard relating to railroad safety,’"{14} we held that a federal regulation governing maximum train speed preempted a negligence claim that a speed under the federal maximum was excessive. And in Medtronic, Inc. v. Lohr, we recognized that the statutory reference to "any requirement" imposed by a State or its political subdivisions may include common law duties. 518 U.S. at 502-503 (plurality opinion); id. at 503-505 (BREYER, J., concurring in part and concurring in judgment); id. at 509-512 (O’CONNOR, J., concurring in part and dissenting in part).

The statutes construed in those cases differed from the Safety Act in two significant respects. First, the language in each of those preemption provisions was significantly broader than the text of § 1392(d). Unlike the broader language of those provisions, the ordinary meaning of the term "safety standard" includes positive enactments, but does not include judicial decisions in common law tort cases.

Second, the statutes at issue in Cipollone, CSX, and Medtronic did not contain a saving clause expressly preserving common law remedies. The saving clause in the Safety Act unambiguously expresses a decision by Congress that compliance with a federal safety standard does not exempt a manufacturer from any common law liability. In light of this reference to common law liability in the saving clause, Congress surely would have included a similar reference in § 1392(d) if it had intended to preempt such liability. Chicago v. Environmental Defense Fund, 511 U.S. 328, 338 (1994) (noting presumption that Congress acts intentionally when it includes particular language in one section of a statute but omits it in another).

The Court does not disagree with this interpretation of the term "safety standard" in § 1392(d). Because the meaning of that term as used by Congress in this statute is clear, the text of § 1392(d) is itself sufficient to establish that the Safety Act does not expressly preempt common law claims. In order to avoid the conclusion that the saving clause is superfluous, therefore, it must follow that it has a different purpose: to limit, or possibly to foreclose entirely, the possible preemptive effect of safety standards promulgated by the Secretary. The Court’s approach to the case has the practical effect of reading the saving clause out of the statute altogether.{15}

Given the cumulative force of the fact that § 1392(d) does not expressly preempt common law claims and the fact that § 1397(k) was obviously intended to limit the preemptive effect of the Secretary’s safety standards, it is quite wrong for the Court to assume that a possible implicit conflict with the purposes to be achieved by such a standard should have the same preemptive effect "`as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’" Ante at 873. Properly construed, the Safety Act imposes a special burden on a party relying on an arguable implicit conflict with a temporary regulatory policy -- rather than a conflict with congressional policy or with the text of any regulation -- to demonstrate that a common law claim has been preempted.

IV

Even though the Safety Act does not expressly preempt common law claims, Honda contends that Standard 208 -- of its own force -- implicitly preempts the claims in this case.

We have recognized that a federal statute implicitly overrides state law either when the scope of a statute indicates that Congress intended federal law to occupy a field exclusively, English v. General Elec. Co., 496 U.S. 72, 78-79 (1990), or when state law is in actual conflict with federal law. We have found implied conflict preemption where it is "impossible for a private party to comply with both state and federal requirements," id. at 79, or where state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Hines v. Davidowitz, 312 U.S. 52, 67 (1941).

Freightliner Corp. v. Myrick, 514 U.S. 280, 287 (1995). In addition, we have concluded that regulations "intended to preempt state law" that are promulgated by an agency acting nonarbitrarily and within its congressionally delegated authority may also have preemptive force. Fidelity Fed. Sav. & Loan Assn. v. De la Cuesta, 458 U.S. 141, 153-154 (1982). In this case, Honda relies on the last of the implied preemption principles stated in Freightliner, arguing that the imposition of common law liability for failure to install an airbag would frustrate the purposes and objectives of Standard 208.

Both the text of the statute and the text of the standard provide persuasive reasons for rejecting this argument. The saving clause of the Safety Act arguably denies the Secretary the authority to promulgate standards that would preempt common law remedies.{16} Moreover, the text of Standard 208 says nothing about preemption, and I am not persuaded that Honda has overcome our traditional presumption that it lacks any implicit preemptive effect.

Honda argues, and the Court now agrees, that the risk of liability presented by common law claims that vehicles without airbags are negligently and defectively designed would frustrate the policy decision that the Secretary made in promulgating Standard 208. This decision, in their view, was that safety -- including a desire to encourage "public acceptance of the airbag technology and experimentation with better passive restraint systems{17}" -- would best be promoted through gradual implementation of a passive restraint requirement making airbags only one of a variety of systems that a manufacturer could install in order to comply, rather than through a requirement mandating the use of one particular system in every vehicle. In its brief supporting Honda, the United States agreed with this submission. It argued that if the manufacturers had known in 1984 that they might later be held liable for failure to install airbags, that risk "would likely have led them to install airbags in all cars," thereby frustrating the Secretary’s safety goals and interfering with the methods designed to achieve them. Brief for United States as Amicus Curiae 25.

There are at least three flaws in this argument that provide sufficient grounds for rejecting it. First, the entire argument is based on an unrealistic factual predicate. Whatever the risk of liability on a no-airbag claim may have been prior to the promulgation of the 1984 version of Standard 208, that risk did not lead any manufacturer to install airbags in even a substantial portion of its cars. If there had been a realistic likelihood that the risk of tort liability would have that consequence, there would have been no need for Standard 208. The promulgation of that standard certainly did not increase the preexisting risk of liability. Even if the standard did not create a previously unavailable preemption defense, it likely reduced the manufacturers’ risk of liability by enabling them to point to the regulation and their compliance therewith as evidence tending to negate charges of negligent and defective design. See Part II, supra. Given that the pre-1984 risk of liability did not lead to widespread airbag installation, this reduced risk of liability was hardly likely to compel manufacturers to install airbags in all cars -- or even to compel them to comply with Standard 208 during the phase -- in period by installing airbags exclusively.

Second, even if the manufacturers’ assessment of their risk of liability ultimately proved to be wrong, the purposes of Standard 208 would not be frustrated. In light of the inevitable time interval between the eventual filing of a tort action alleging that the failure to install an airbag is a design defect and the possible resolution of such a claim against a manufacturer, as well as the additional interval between such a resolution (if any) and manufacturers’ "compliance with the state law duty in question," ante at 882, by modifying their designs to avoid such liability in the future, it is obvious that the phase-in period would have ended long before its purposes could have been frustrated by the specter of tort liability. Thus, even without preemption, the public would have been given the time that the Secretary deemed necessary to gradually adjust to the increasing use of airbag technology and allay their unfounded concerns about it. Moreover, even if any no-airbag suits were ultimately resolved against manufacturers, the resulting incentive to modify their designs would have been quite different from a decision by the Secretary to mandate the use of airbags in every vehicle. For example, if the extra credit provided for the use of nonbelt passive restraint technologies during the phase-in period had (as the Secretary hoped) ultimately encouraged manufacturers to develop a nonbelt system more effective than the airbag, manufacturers held liable for failing to install passive restraints would have been free to respond by modifying their designs to include such a system instead of an airbag.{18} It seems clear, therefore, that any potential tort liability would not frustrate the Secretary’s desire to encourage both experimentation with better passive restraint systems and public acceptance of airbags.

Third, despite its acknowledgement that the saving clause "preserves those actions that seek to establish greater safety than the minimum safety achieved by a federal regulation intended to provide a floor," ante at 870, the Court completely ignores the important fact that, by definition, all of the standards established under the Safety Act -- like the British regulations that governed the number and capacity of lifeboats aboard the Titanic{19} -- impose minimum, rather than fixed or maximum, requirements. 15 U.S.C. § 1391(2); see Norfolk Southern R. Co. v. Shanklin, ante, at 359 (BREYER, J., concurring) ("federal minimum safety standards should not preempt a state tort action"); Hillsborough County v. Automated Medical Laboratories, Inc., 471 U.S. 707, 721 (1985). The phase-in program authorized by Standard 208 thus set minimum percentage requirements for the installation of passive restraints, increasing in annual stages of 10, 25, 40, and 100%. Those requirements were not ceilings, and it is obvious that the Secretary favored a more rapid increase. The possibility that exposure to potential tort liability might accelerate the rate of increase would actually further the only goal explicitly mentioned in the standard itself: reducing the number of deaths and severity of injuries of vehicle occupants. Had gradualism been independently important as a method of achieving the Secretary’s safety goals, presumably the Secretary would have put a ceiling as well as a floor on each annual increase in the required percentage of new passive restraint installations. For similar reasons, it is evident that variety was not a matter of independent importance to the Secretary. Although the standard allowed manufacturers to comply with the minimum percentage requirements by installing passive restraint systems other than airbags (such as automatic seatbelts), it encouraged them to install airbags and other nonbelt systems that might be developed in the future. The Secretary did not act to ensure the use of a variety of passive restraints by placing ceilings on the number of airbags that could be used in complying with the minimum requirements.{20} Moreover, even if variety and gradualism had been independently important to the Secretary, there is nothing in the Standard, the accompanying commentary, or the history of airbag regulation to support the notion that the Secretary intended to advance those purposes at all costs, without regard to the detrimental consequences that preemption of tort liability could have for the achievement of her avowed purpose of reducing vehicular injuries. See Silkwood v. Kerr-McGee Corp., 464 U.S. at 257.

My disagreement with Honda and the Government runs deeper than these flaws, however. In its brief, the Government concedes that

[a] claim that a manufacturer should have chosen to install airbags rather than another type of passive restraint in a certain model of car because of other design features particular to that car . . . would not necessarily frustrate Standard 208’s purposes.

Brief for United States as Amicus Curiae 26, n. 23.{21} Petitioners’ claims here are quite similar to the claim described by the Government: their complaint discusses other design features particular to the 1987 Accord (such as the driver’s seat) that allegedly rendered it unreasonably dangerous to operate without an airbag. App. 4-5. The only distinction is that, in this case, the particular 1987 Accord driven by Ms. Geier included no passive restraint of any kind, because Honda chose to comply with Standard 208’s 10% minimum requirement by installing passive restraints in other 1987 models. I fail to see how this distinction makes a difference to the purposes of Standard 208, however. If anything, the type of claim favored by the Government -- e.g., that a particular model of car should have contained an airbag instead of an automatic seatbelt -- would seem to trench even more severely upon the purposes that the Government and Honda contend were behind the promulgation of Standard 208: that having a variety of passive restraints, rather than only airbags, was necessary to promote safety. Thus, I conclude that the Government, on the Secretary’s behalf, has failed to articulate a coherent view of the policies behind Standard 208 that would be frustrated by the petitioners’ claims.

V

For these reasons, it is evident that Honda has not crossed the high threshold established by our decisions regarding preemption of state laws that allegedly frustrate federal purposes: it has not demonstrated that allowing a common law no-airbag claim to go forward would impose an obligation on manufacturers that directly and irreconcilably contradicts any primary objective that the Secretary set forth with clarity in Standard 208. Gade v. National Solid Wastes Management Assn., 505 U.S. at 110 (KENNEDY, J., concurring in part and concurring in judgment); id. at 111 ("A freewheeling judicial inquiry into whether [state law] is in tension with federal objectives would undercut the principle that it is Congress [and federal agencies,] rather than the courts[,] that preemp[t] state law"). Furthermore, it is important to note that the text of Standard 208 (which the Court does not even bother to quote in its opinion), unlike the regulation we reviewed in Fidelity Fed. Sav. & Loan Assn. v. De la Cuesta, 458 U.S. at 158, does not contain any expression of an intent to displace state law. Given our repeated emphasis on the importance of the presumption against preemption, see, e.g., CSX Transp., Inc. v. Easterwood, 507 U.S. at 663-664; Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947), this silence lends additional support to the conclusion that the continuation of whatever common law liability may exist in a case like this poses no danger of frustrating any of the Secretary’s primary purposes in promulgating Standard 208. See Hillsborough County v. Automated Medical Laboratories, Inc., 471 U.S. at 721; Silkwood v. Kerr-McGee Corp., 464 U.S. at 251 ("It is difficult to believe that [the Secretary] would, without comment, remove all means of judicial recourse for those injured by illegal conduct.").

The Court apparently views the question of preemption in this case as a close one. Ante at 883 (relying on Secretary’s interpretation of Standard 208’s objectives to bolster its finding of preemption). Under "ordinary experience-proved principles of conflict preemption," ante at 874, therefore, the presumption against preemption should control. Instead, the Court simply ignores the presumption, preferring instead to put the burden on petitioners to show that their tort claim would not frustrate the Secretary’s purposes. Ante at 882 (noting that petitioners’ arguments "cannot, by themselves, change the legal result"). In view of the important principles upon which the presumption is founded, however, rejecting it in this manner is profoundly unwise.

Our presumption against preemption is rooted in the concept of federalism. It recognizes that, when Congress legislates

in a field which the States have traditionally occupied . . . [,] we start 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.

Rice v. Santa Fe Elevator Corp., 331 U.S. at 230; see Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977). The signal virtues of this presumption are its placement of the power of preemption squarely in the hands of Congress, which is far more suited than the Judiciary to strike the appropriate state/federal balance (particularly in areas of traditional state regulation), and its requirement that Congress speak clearly when exercising that power. In this way, the structural safeguards inherent in the normal operation of the legislative process operate to defend state interests from undue infringement. Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 552 (1985); see United States v. Morrison, ante, at 660-663 (BREYER, J., dissenting); Kimel v. Florida Bd. of Regents, 528 U.S. 62, 93-94 (2000) (STEVENS, J., dissenting); Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 292-293 (1995) (THOMAS, J., dissenting); Gregory v. Ashcroft, 501 U.S. 452, 460-464 (1991). In addition, the presumption serves as a limiting principle that prevents federal judges from running amok with our potentially boundless (and perhaps inadequately considered) doctrine of implied conflict preemption based on frustration of purposes -- i.e., that state law is preempted if it "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Hines v. Davidowitz, 312 U.S. at 67.{22}

While the presumption is important in assessing the preemptive reach of federal statutes, it becomes crucial when the preemptive effect of an administrative regulation is at issue. Unlike Congress, administrative agencies are clearly not designed to represent the interests of States, yet with relative ease they can promulgate comprehensive and detailed regulations that have broad preemption ramifications for state law. We have addressed the heightened federalism and nondelegation concerns that agency preemption raises by using the presumption to build a procedural bridge across the political accountability gap between States and administrative agencies. Thus, even in cases where implied regulatory preemption is at issue, we generally "expect an administrative regulation to declare any intention to preempt state law with some specificity."{23} California CoastalComm’n v. Granite Rock Co., 480 U.S. 572, 583 (1987); see Hillsborough County v. Automated Medical Laboratories, Inc., 471 U.S. at 717-718 (noting that too easily implying preemption "would be inconsistent with the federal-state balance embodied in our Supremacy Clause jurisprudence," and stating that "because agencies normally address problems in a detailed manner and can speak through a variety of means, including regulations, preambles, interpretive statements, and responses to comments, we can expect that they will make their intentions clear if they intend for their regulations to be exclusive"); Fidelity Fed. Sav. & Loan Assn. v. De la Cuesta, 458 U.S. at 154 (noting that preemption inquiry is initiated "[w]hen the administrator promulgates regulations intended to preempt state law"). This expectation, which is shared by the Executive Branch,{24} serves to ensure that States will be able to have a dialog with agencies regarding preemption decisions ex ante through the normal notice and comment procedures of the Administrative Procedure Act (APA), 5 U.S.C. § 553.

When the presumption and its underpinnings are properly understood, it is plain that Honda has not overcome the presumption in this case. Neither Standard 208 nor its accompanying commentary includes the slightest specific indication of an intent to preempt common law no-airbag suits. Indeed, the only mention of such suits in the commentary tends to suggest that they would not be preempted. Seen. 5, supra. In the Court’s view, however, "[t]he failure of the Federal Register to address preemption explicitly is . . . not determinative," ante at 884, because the Secretary’s consistent litigating position since 1989, the history of airbag regulation, and the commentary accompanying the final version of Standard 208 reveal purposes and objectives of the Secretary that would be frustrated by no-airbag suits. Preempting on these three bases blatantly contradicts the presumption against preemption. When the 1984 version of Standard 208 was under consideration, the States obviously were not afforded any notice that purposes might someday be discerned in the history of airbag regulation that would support preemption. Nor does the Court claim that the notice of proposed rulemaking that led to Standard 208 provided the States with notice either that the final version of the standard might contain an express preemption provision or that the commentary accompanying it might contain a statement of purposes with arguable preemptive effect. Finally, the States plainly had no opportunity to comment upon either the commentary accompanying the final version of the standard or the Secretary’s ex post litigating position that the standard had implicit preemptive effect.

Furthermore, the Court identifies no case in which we have upheld a regulatory claim of frustration of purposes implied conflict preemption based on nothing more than an ex post administrative litigating position and inferences from 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 preemption 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 preemption 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 preempt 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 preemptive mold.{25} See Hillsborough County v. Automated MedicalLaboratories, Inc., 471 U.S. at 721; cf. Medtronic, Inc. v. Lohr, 518 U.S. at 512 (O’CONNOR, J., concurring in part and dissenting in part) ("It is not certain that an agency regulation determining the preemptive effect of any federal statute is entitled to deference"); Smiley v. Citibank (South Dakota), N.A., 517 U.S. 735, 743-744 (1996). Requiring the Secretary to put his preemptive position through formal notice and comment rulemaking -- whether contemporaneously with the promulgation of the allegedly preemptive regulation or at any later time that the need for preemption becomes apparent{26} -- respects both the federalism and nondelegation principles that underlie the presumption against preemption in the regulatory context and the APA’s requirement of new rulemaking when an agency substantially modifies its interpretation of a regulation. 5 U.S.C. § 551(5); Paralyzed Veterans of America v. D.C. Arena L.P., 117 F.3d 579, 586 (CADC 1997); National Family Planning & Reproductive Health Assn. v. Sullivan, 979 F.2d 227, 240 (CADC 1992).

* * * *

Because neither the text of the statute nor the text of the regulation contains any indication of an intent to preempt petitioners’ cause of action, and because I cannot agree with the Court’s unprecedented use of inferences from regulatory history and commentary as a basis for implied preemption, I am convinced that Honda has not overcome the presumption against preemption in this case. I therefore respectfully dissent.