Concurrence in Part and In The Judgment
Justice Kennedy concurred but thought that Congress had expressly preempted this area and that the application of implicit preemption in this case expanded the doctrine too far. Kennedy, agreeing that the state laws are pre-empted, concluded that the result is mandated by the express terms of § 18(b) of the OSH Act and that the scope of pre-emption is also defined by the statutory text. Such a finding is not contrary to the longstanding rule that this Court will not infer pre-emption of the States' historic police powers absent a clear statement of intent by Congress. Unartful though § 18(b)'s language may be, its structure and language, in conjunction with subsections (a), (c), and (f), leave little doubt that in the OSH Act Congress intended to pre-empt supplementary state regulation of an occupational safety and health issue with respect to which a federal standard exists. Pp. 109, 111-113.
Read more about this topic: Gade V. National Solid Wastes Mgt. Ass'n
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