I received an email this weekend from a reader questioning whether the Marks test could be considered here based on the fact that Justice Thomas did not technically “concur in judgment.” I appreciate criticism like this, as I write my blog in large part to provoke thought and discussion on issues. As we are in the business of crafting the perfect argument, which I view as an ideal rather than an attainable end, criticism is my best friend. That said, I am not sold at this point that the distinction raised disposes of the issue I previously discussed.
First, placing labels aside, and focusing solely on the substance of the Majority’s and Thomas’ analysis, it is apparent that the Majority and Justice Thomas do not agree on the grounds for finding preemption. The majority believes that preemption of the Discover Bank rule occurs “[b]ecause it ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress….” See Slip Opinion, at 18 (citing Hines v. Davidowitz, 312 U. S. 52, 67 (1941)). Conversely, although Justice Thomas states that he joins the Court’s opinion, he expressly conditions his participation on a continued rejection of “purposes-and-objectives pre-emption.” See Slip Opinion (Concurrence), at 1-2 (“although I adhere to my views on purposes-and-objectives pre-emption, see Wyeth v. Levine, 555 U. S. 555, ___ (2009) (opinion concurring in judgment), I reluctantly join the Court’s opinion.”). Justice Thomas’ view on this type of preemption – as explained in Wyeth – is that it is “inconsistent with the Constitution.” I do not see how he can simultaneously maintain that he still rejects “purposes-and-objectives pre-emption” and join the Majority’s analysis finding preemption on that very basis. Thus, placing substance over form, Thomas’ statement in this regard necessarily demonstrates a logical disconnect from the Majority’s underlying analysis.
Second, assuming the Marks rule is inapplicable as suggested, this does not really dispose of the issue – namely, whose analysis governs moving forward? This would seem to be a legitimate issue, as Justice Thomas not only acknowledges that he and the Majority have different tests, but even suggests that these tests may not always result in the same outcome. See Slip Opinion (Concurrence), at 1-2 (“I think that the Court’s test will often lead to the same outcome as my textual interpretation …”).
Again, it is important to note that my prior analysis sought to get to the underlying meaning of the Court’s opinion to evaluate the potential legal options, if any, that now exist. To do this one must know which test is applicable; Is it the test proposed by the majority or the test proposed by Justice Thomas? More to follow.