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law preempts state law starts with “‘the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.”’ Although the Court previously had instructed lower courts that the preemption analysis always begins with a “basic presumption against pre-emption,” the Court itself often has honored that mandate in the breach--when it has bothered to mention the presumption at all.. . .
Quasi-Preemption: Nervous Breakdown in Our Constitutional System
A half century ago, in The Relations Between State and Federal Law, Professor Henry Hart of Harvard defined the public need for harmonizing the legal dictates issuing from the two levels of sovereignty established in the United States Constitution:
The law which governs daily living in the United States is a single system of law: it speaks in relation to any particular question with only one ultimately authoritative voice, however difficult it may be on occasion to discern in advance which of two or more conflicting voices really carries authority. In the long run and in the large, this must be so. People repeatedly subjected, like Pavlov's dogs, to two or more inconsistent sets of directions, without means of resolving the inconsistencies, could not fail in the end to react as the dogs did. The society, collectively, would suffer a nervous breakdown.. . .