DRAFT Please do not quote or cite without written permission majoritys contemplation, statutes and regulations are static texts -subject to future development only by the legislature or executive, yet to be accorded meaning by courts applying their own and rather independent syntactic views. 5 This want of sensitivity and attention to the possibilities of integration is suggested by an opinion from the Term just ended. Egelhoff v. egelhoff presented questions of preemption of state law by federal another context where one might expect the fact-driven and cautious processes of the common law to dominate. David Egelhoff died intestate just two months after finalizing his divorce from his wife Donna. Under the terms of their settlement, she had received a business, an iRa account, and stock he had retained 100% ownership of his pension and life insurance under his employer's plan. That plan was subject to ERISA, the federal statute regulating retirement plans. He had neglected to redesignate the beneficiaries under these benefits, so that when he died the primary beneficiary named in his policy remained"Donna Egelhoff wife. " A Washington state statute provided for this contingency; in such a case it said, non-probate assets should pass as if the divorced spouse had predeceased the decedent. Thus, they would go to his secondary beneficiaries under the plan, his children. ERISA, on the other hand, states that the federal statute"shall supersede any and all State laws insofar as they may now or hereafter relate to any employment benefit plan. Acknowledging that the operative terms, " relate to, were so indefinite as to threaten infinite preemptionof state law, Justice Thomas's majority opinion nonetheless found that a state rule specifying a beneficiary other than the one mentioned in the plan would unacceptably burden plan administrators and so must be regarded as preempted It is striking that the majority, whose members have generally been so solicitous ofstate interests, gave the federal statute such broad sweep. As Justice Breyer's dissent observed, Washington law would be permitted to govern if Donna had actually predeceased David (or had murdered him); there is no necessary conflict with the federal statute the injustice of the result commanded by the majority opinion is transparent; and it interferes with state judgments in contexts, those of inheritance and the consequences of marital dissolution, that are of central importance to state and not federal policy. It is virtually inconceivable that Congress would have chosen this outcome, the plan in terms contained provisions nting at David's children as beneficiaries if his beneficiary designation was invalid - and making the designation invalid was what state law accomplished. The majority s response to these arguments was to advance highly improbable hypotheticals which, it asserted, could not be distinguished in principle from the case at hand. Even acknowledging the indeterminacy of the statutory language, it is as if they feared acknowledging any responsibility for reconciling state and federal law for themselves; it must all be placed in the lap of Congress or, rather, Congress's language as the judges chose to read it. For the dissent, tl better course would be to applyi pre-emption analysis with care, statute by statute, line by line, in order to determine how best to reconcile a federal statute's language and purpose with federalism's need to 25 Cf. United States v. Mead Corp., (Scalia, J, dissenting)DRAFT Please do not quote or cite without written permission 25 Cf. United States v. Mead Corp., (Scalia, J., dissenting). 26 Cite -9- majority’s contemplation, statutes and regulations are static texts – subject to future development only by the legislature or executive, yet to be accorded meaning by courts applying their own and rather independent syntactic views.25 This want of sensitivity and attention to the possibilities of integrationis suggested by an opinion from the Term just ended. Egelhoff v. Egelhoff26 presented questions of preemption of state law by federal, another context where one might expect the fact-driven and cautious processes of the common law to dominate. David Egelhoff died intestate just two months after finalizing his divorce from his wife Donna. Under the terms of their settlement, she had received a business, an IRA account, and stock; he had retained 100% ownership of his pension and life insurance under his employer’s plan. That plan was subject to ERISA, the federal statute regulating retirement plans. He had neglected to redesignate the beneficiaries under these benefits, so that when he died the primary beneficiary named in his policy remained “Donna Egelhoffwife.” A Washington state statute provided for this contingency; in such a case, it said, non-probate assets should pass as if the divorced spouse had predeceased the decedent. Thus, theywould go to hissecondarybeneficiaries underthe plan, his children. ERISA, on the other hand, states that the federal statute “shall supersede any and all State laws insofar astheymaynow or hereafter relate to any employment benefit plan.” Acknowledging that the operative terms, “relate to,” were so indefinite as to threaten infinite preemptionofstate law, Justice Thomas’s majority opinion nonetheless found that a state rule specifying a beneficiaryotherthanthe one mentioned inthe planwould unacceptably burdenplan administrators and so must be regarded as preempted. It is striking that the majority, whose members have generally beenso solicitous ofstate interests, gave the federal statute such broad sweep. As Justice Breyer’s dissent observed, Washington law would be permitted to govern if Donna had actually predeceased David (or had murdered him); there is no necessaryconflictwiththe federalstatute; the injustice of the result commanded by the majority opinion is transparent; and it interferes with state judgments in contexts, those of inheritance and the consequences of marital dissolution, that are of central importance to state and not federal policy. It is virtually inconceivable that Congress would have chosen this outcome; the plan in terms contained provisions pointing at David’s children as beneficiaries if his beneficiary designation was invalid – and making the designation invalid was what state law accomplished. The majority’sresponse to these arguments wasto advance highlyimprobable hypotheticals which, it asserted, could not be distinguished in principle fromthe case at hand. Even acknowledging the indeterminacy of the statutory language, it is as if they feared acknowledging any responsibility for reconciling state and federal law forthemselves; it must allbe placed in the lap of Congress or, rather, Congress’slanguage as the judges chose to read it. For the dissent, the better course would be to “apply[] pre-emptionanalysis withcare, statute by statute, line by line, in order to determine how best to reconcile a federal statute’s language and purpose with federalism’s need to