The Supreme Court's other decision this week was Northwest, Inc. v. Ginsberg, holding that the federal Airline Deregulation Act preempted a state-law good-faith-and-fair-dealing claim by Ginsberg, whom Northwest expelled from its frequent flyer program. (SCOTUSblog analysis by Ronald Mann here). The Court (by Justice Alito) unanimously reversed the Ninth Circuit (Beezer, Trott and Rymer — not a liberal panel, but relying on prior circuit precedent).
The result seems right to me, but I'm more interested in the ADA's preemption provision, which says:
a State, political subdivision of a State, or political authority of at least 2 States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier that may provide air transportation under this subpart.
This is an express preemption provision, deliberately written broadly to, as the Court said in a prior case, "ensure that the States would not undo federal deregulation with regulation of their own." My reaction is: there's nothing hard about including such language in a statute, if Congress wants to, and the courts (other than the Ninth Circuit, apparently) don't have difficulty applying it.
Why, then, do courts also think it's necessary to ponder the "objects and purposes" of a federal statute to decide whether a state law — though not directly in conflict — is an "obstacle" to them? As I've argued previously (see here and here), the "objects and purposes" part of preemption doctrine seems to depend on a conclusion that somehow Congress has difficulty expressing itself when it wants to displace state law, and so the courts must look beyond the text to find some unexpressed intent. Perhaps that is true in some areas or on some occasions where the state activity isn't something Congress would anticipate. But in the ordinary course, surely (a) Congress knows what states are doing or can easily anticipate what they might do, and (b) can write preemption language — including broad language as in the ADA — into the statute.
If that is so, then Congress' failure to write preemptive language into a statute seems to imply a decision not to preempt. In any event, given the ease with which Congress can be clear and (if desired) sweeping, refusal to find unexpressed preemption would not place much of a burden on Congress (and it would get rid of a lot of contentious "objects and purposes" preemption cases).
(For some contrary views, see here [Daniel Meltzer] and here [John Ohlendorf]. But I have this one on my side).
Posted at 12:08 PM