the tail wagging the dog?

[John Noble]

The following passage is from the Supreme Court's March 4 decision in New
York v. FERC, holding that the presumption against federal preemption is
not relevant to a challenge to agency preemption. The full opinion is at
http://supct.law.cornell.edu/supct/html/00-568.ZS.html. Does this mean that
the Court presumes that Congress does not mean to preempt state law --
unless it does so by proxy. Or, stated another way, that Congress can only
directly preempt state law determinedly, but can hand off its authority to
preempt state law accidentally. Logically, doesn't the presumption -- that
Congress has not preempted state law -- also require recognition of a
presumption that Congress has not delegated its authority to preempt state
law. The seeming illogic was ignored by the dissent, which suggests that I
may well be missing the point. Comments?

John Noble

Quote:

 Pre-emption of state law by federal law can raise two quite different
legal questions. The Court has most often stated a "presumption against
pre-emption" when a controversy concerned not the scope of the Federal
Government's authority to displace state action, but rather whether a given
state authority conflicts with, and thus has been displaced by, the
existence of Federal Government authority. See, e.g., Hillsborough County
v. Automated Medical Laboratories, Inc., 471 U.S. 707, 715 (1985) (citing
cases); see also Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996);
Cipollone v. Liggett Group, Inc., 505 U.S. 504, 518 (1992). In such a
situation, the Court " 'start[s] with the assumption that the historic
police powers of the States were not to be superseded   unless that was the
clear and manifest purpose of Congress.' " Hillsborough County, 471 U.S.,
at 715 (quoting Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977)). These
are not such cases, however, because the question presented does not
concern the validity of a conflicting state law or regulation.

    The other context in which "pre-emption" arises concerns the rule "that
a federal agency may pre-empt state law only when and if it is acting
within the scope of its congressionally delegated authority[,]   [for] an
agency literally has no power to act, let alone pre-empt the validly
enacted legislation of a sovereign State, unless and until Congress confers
power upon it." Louisiana Pub. Serv. Comm'n v. FCC, 476 U.S. 355, 374
(1986). This is the sort of case we confront here-defining the proper scope
of the federal power. Such a case does not involve a "presumption against
pre-emption," as New York argues, but rather requires us to be certain that
Congress has conferred authority on the agency. As we have explained, the
best way to answer such a question-i.e., whether federal power may be
exercised in an area of pre-existing state regulation-"is to examine the
nature and scope of the authority granted by Congress to the agency." Ibid.
In other words, we must interpret the statute to determine whether Congress
has given FERC the power to act as it has, and we do so without any
presumption one way or the other.

    As noted above, the text of the FPA gives FERC jurisdiction over the
"transmission of electric energy in interstate commerce and   the sale of
such energy at wholesale in interstate commerce." 16 U.S.C. § 824(b). ...
Because the FPA authorizes FERC's jurisdiction over interstate
transmissions, without regard to whether the transmissions are sold to a
reseller or directly to a consumer, FERC's exercise of this power is valid.