Arizona v. Inter Tribal Council of Ariz., Inc.,
570 U.S. ___ (2013)

Annotate this Case
  • Syllabus  | 
  • Opinion (Antonin Scalia)  | 
  • Concurrence (Anthony M. Kennedy)  | 
  • Dissent (Clarence Thomas)  | 
  • Dissent (Samuel A. Alito, Jr.)



No. 12–71



on writ of certiorari to the united states court of appeals for the ninth circuit

[June 17, 2013]

     Justice Kennedy, concurring in part and concurring in the judgment.

     The opinion for the Court insists on stating a proposition that, in my respectful view, is unnecessary for the proper disposition of the case and is incorrect in any event. The Court concludes that the normal “starting presumption that Congress does not intend to supplant state law,” New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U. S. 645, 654 (1995) , does not apply here because the source of congressional power is the Elections Clause and not some other provision of the Constitution. See ante, at 10–12.

     There is no sound basis for the Court to rule, for the first time, that there exists a hierarchy of federal powers so that some statutes pre-empting state law must be in- terpreted by different rules than others, all depending upon which power Congress has exercised. If the Court is skeptical of the basic idea of a presumption against pre-emption as a helpful instrument of construction in express pre-emption cases, see Cipollone v. Liggett Group, Inc., 505 U. S. 504, 545 (1992) (Scalia, J., concurring in judgment in part and dissenting in part), it should say so and apply that skepticism across the board.

     There are numerous instances in which Congress, in the undoubted exercise of its enumerated powers, has stated its express purpose and intent to pre-empt state law. But the Court has nonetheless recognized that “when the text of a pre-emption clause is susceptible of more than one plausible reading, courts ordinarily ‘accept the reading that disfavors pre-emption.’ ” Altria Group, Inc. v. Good, 555 U. S. 70, 77 (2008) (quoting Bates v. Dow Agrosciences LLC, 544 U. S. 431, 449 (2005) ). This principle is best understood, perhaps, not as a presumption but as a cautionary principle to ensure that pre-emption does not go beyond the strict requirements of the statutory command. The principle has two dimensions: Courts must be careful not to give an unduly broad interpretation to ambiguous or imprecise language Congress uses. And they must confine their opinions to avoid overextending a federal statute’s pre-emptive reach. Error on either front may put at risk the validity and effectiveness of laws that Con- gress did not intend to disturb and that a State has deemed important to its scheme of governance. That con- cern is the same regardless of the power Congress invokes, whether it is, say, the commerce power, the war power, the bankruptcy power, or the power to regulate federal elections under Article I, §4.

     Whether the federal statute concerns congressional regulation of elections or any other subject proper for Congress to address, a court must not lightly infer a congressional directive to negate the States’ otherwise proper exercise of their sovereign power. This case illustrates the point. The separate States have a continuing, essential interest in the integrity and accuracy of the process used to select both state and federal officials. The States pay the costs of holding these elections, which for practical reasons often overlap so that the two sets of officials are selected at the same time, on the same ballots, by the same voters. It seems most doubtful to me to suggest that States have some lesser concern when what is involved is their own historic role in the conduct of elections. As already noted, it may be that a presumption against pre-emption is not the best formulation of this principle, but in all events the State’s undoubted interest in the regulation and conduct of elections must be taken into account and ought not to be deemed by this Court to be a subject of secondary importance.

     Here, in my view, the Court is correct to conclude that the National Voter Registration Act of 1993 is unambiguous in its pre-emption of Arizona’s statute. For this reason, I concur in the judgment and join all of the Court’s opinion except its discussion of the presumption against pre-emption. See ante, at 10–12.

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