EVERYTHING IS PRESUMED IN TEXAS: ANALYZING THE APPLICATION OF THE PRESUMPTION AGAINST PREEMPTION BENJAMIN WALTHER* I. II.
INTRODUCTION ..................................... INVOKING THE PRESUMPTION AGAINST PREEMPTION ......
A. B. III. IV.
...... 579 ..... 582
Matters of TraditionalState Concern ....... .......... 583 Analyzing the State Regulation'sPurposeand Effect............. 587
EFFECT OF THE PRESUMPTION ........................ APPLICATION OF THE PRESUMPTION ....................
...... 590 ..... 591
A.
V.
Express Preemption: Texas Courts Apply the Presumption by Requiring a Narrow Construction of a Preemption Clause ...................................... 591 B. Implied Preemption: Texas CourtsEmploy the Presumption to Require a HigherBurden in Orderfor Regulatory Silence to be Given PreemptiveEffect......... ............... 597 CONCLUSION ...................................... ....... 602 I.
INTRODUCTION
The presumption against preemption is a well-known canon of statutory interpretation. The canon arises from the structure of federalisma judicial warning sign that cautions against crossing the inherently blurry line separating federal and state sovereignty.' Although the courts have recognized the canon for several decades, the U.S. Supreme Court's irregular application of the presumption precludes any reliable means to predict how the courts will treat the presumption in the future. 2 Wyeth v. Levine suggested a new resolve to apply a more straightforward presumption-against-preemption analysis, 3 but the Court's * Associate, Shook, Hardy & Bacon L.L.P. I would like to thank my wife, Catherine Walther, for the love and support she gave during the process of writing this article. I would also like to thank Prof. Aaron Bruhl for all of his helpful thoughts, comments, and criticisms. 1. Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996). 2. See Robert N. Weiner, The Height of Presumption:Preemption and the Role of Courts, 32 HAMLINE L. REV. 727, 727 (2009) ("Few aspects of Supreme Court jurisprudence are as
contradictory and convoluted as the so-called 'presumption against preemption."'). 3. See Wyeth v. Levine, 555 U.S. 555, 576-77 (2009).
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