| *Our Nation was built on one principle above all others—the Rule of Law. As James Madison explained in the //Federalist//: "If men were angels, no government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself." ((The Federalist No. 51, at 322 (Madison) (Clinton Rossiter ed. 1961) [hereinafter "THE FEDERALIST"].)) As the Founders envisioned it, //the rule of law //offered the solution to that great difficulty: the law could check the ambitions of men who were far from angels, and the law could moderate the excesses of governments that were far from benevolent. | Our Nation was built on one principle above all others—the Rule of Law. As James Madison explained in the //Federalist//: "If men were angels, no government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself." ((The Federalist No. 51, at 322 (Madison) (Clinton Rossiter ed. 1961) [hereinafter "THE FEDERALIST"].)) As the Founders envisioned it, //the rule of law //offered the solution to that great difficulty: the law could check the ambitions of men who were far from angels, and the law could moderate the excesses of governments that were far from benevolent. |
| //FERC v. Mississippi//, 456 U.S. 742, 777-78 (1982) (O'Connor, J., dissenting) (internal quotation marks omitted). This facet of the Texas Plan also would harmonize the doctrine of preemption, in which //Geier //always has been somewhat anomalous. For example, the Supreme Court often emphasizes: "//In all pre-emption cases//, and particularly in those in which Congress has 'legislated . . . in a field which the States have traditionally occupied,' . . . we 'start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.'" //Medtronic, Inc. v. Lohr//, 518 U.S. 470, 485 (1996) (emphasis added; quoting //Rice// //v. Santa Fe Elevator Corp.//, 331 U.S. 218, 230 (1947)). Given that "all preemption cases" should turn on clear statements from Congress, it makes little sense to allow administrative agencies to preempt state law without //any //statement from Congress (let alone a clear one).)) | //FERC v. Mississippi//, 456 U.S. 742, 777-78 (1982) (O'Connor, J., dissenting) (internal quotation marks omitted). This facet of the Texas Plan also would harmonize the doctrine of preemption, in which //Geier //always has been somewhat anomalous. For example, the Supreme Court often emphasizes: "//In all pre-emption cases//, and particularly in those in which Congress has 'legislated . . . in a field which the States have traditionally occupied,' . . . we 'start 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.'" //Medtronic, Inc. v. Lohr//, 518 U.S. 470, 485 (1996) (emphasis added; quoting //Rice// //v. Santa Fe Elevator Corp.//, 331 U.S. 218, 230 (1947)). Given that "all preemption cases" should turn on clear statements from Congress, it makes little sense to allow administrative agencies to preempt state law without //any //statement from Congress (let alone a clear one).)) |
