Over the last several decades, the United States Supreme Court has heard a series of cases dealing with federal preemption. Federal preemption is rooted in the Supremacy Clause of Article VI of the United States Constitution, which provides that the laws of the United States are “the supreme Law of the land; . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” In practical terms, this means that Congress (or administrative agencies which have had certain powers delegated to them by Congress), subject to the limits on the federal government’s own power imposed by the Constitution, has authority to preclude – or “preempt” – any state law that conflicts with federal law.
At least once in every term in recent memory, the Court has considered whether some federal statute interdicts some body or other of state law. There have been more than a dozen cases discussing the preemptive scope of the Employee Retirement Income Security Act (ERISA) in the last l30 years, as well as cases addressing preemption under the National Bank Act, the Food and Drug Act, the Federal Communications Act, the Home Owner’s Lending Act, the National Traffic and Motor Vehicle Safety Act, the Airline Deregulation Act, the Boat Safety Act, and our personal favorite, the Federal Insecticide Fungicide and Rodenticide Act, among many other federal statutes.
This year is no exception. Indeed, there are at least five cases pending on the United States Supreme Court’s docket for its 2007-2008 term that deal with whether federal law preempts state law in a particular area. The two cases that have attracted the most national attention from both lawyers and the media involve claims that Food and Drug Act law preempts state tort laws involving products liability claims. The first of these cases, Riegel v. Medtronic, Inc., No. 06-179, concerns injuries caused by medical devices that have received premarket approval from the Food and Drug Administration. The second case, Warner-Lambert v. Kent, No. 06-1498, raises the issue of whether state laws may permit product liability suits to proceed against drug manufacturers who have defrauded the FDA.
What lessons can be drawn from, or predictions be made about, all of these pending cases? If one reads the briefs of the parties (and, in most of these cases, the briefs of a number of amici on one or sometimes both sides of the cases), and the transcripts of the oral arguments in the cases (the Riegel case was argued on December 4, 2007, for example, with Public Citizen’s Allison Zieve ably representing the family bringing the product liability claim and former Solicitor General Ted Olson representing Medtronic), one surprising thing becomes clear: the arguments being made in these cases are almost completely different in each case. To a very large degree, the outcome in each of these five cases will turn upon a detailed examination of the language of statutes that are surprisingly unlike each other, or upon a history of administrative regulations (or, in the case of the Federal Arbitration Act, court decisions) that have resulted from very brief and oblique statutory language. These five cases will almost certainly not be decided based upon some single broad principle that will govern the outcome in each matter or establish a rule of general application. It would not be at all surprising if the Court were to find preemption in two or three of the pending cases and to find no preemption in the other two or three pending cases, and for each case to be decided in an opinion that does not cite any of the other four cases.
The experienced preemption lawyer will also understand the enormous difference between the different types of preemption as a defense – express preemption (where the direct language of a statute or federal regulation preempts state law), field preemption (where the Congress intended federal regulation to be so comprehensive that all state law in an entire field of law is overridden), and implied/conflict preemption (where federal law preempts state laws that either (a) make it impossible for federal law to operate; or (b) frustrate the objectives of federal law). (E.g., Crosby v. National Foreign Trade Council (2000) 530 U.S. 363, 371.) The types of arguments that can and should be made in opposing a claim of federal preemption vary a great deal depending upon whether the preemption claim is based upon field preemption, for example, as opposed to conflict preemption.
Nonetheless, the key point to recognize about the diversity of the legal arguments set forth in the five pending United States Supreme Court cases is that federal preemption issues tend to be decided based upon a very detailed and painstaking analysis of the particular body of federal and state law that relates to a dispute, and practitioners should not hope to win these cases by relying upon generalized statements of law that are generated in different settings.
One point in particular should be noted about generalized statements that are often bandied about with respect to federal preemption. There are a number of cases where the Supreme Court has held that there is a strong presumption against federal preemption.4 In a number of other cases, however, the Court makes no mention of the presumption against preemption. It is not clear the extent to which this doctrine is actually regularly a decisive element of the Court’s consideration of claims of federal preemption, or whether it has sometimes become a doctrine that is invoked when the Court intends to rule against a claim of federal preemption and is ignored in cases where the Court intends to rule the other way.
As a telling indication of the extent to which the Supreme Court has become the forum of choice for the Administration to expand the scope of federal law at the expense of state law, the United States Solicitor General has filed briefs supporting the pro-preemption provision of the corporate party in all but one of the five cases that are currently pending before the United States Supreme Court that involve assertions that federal law preempts state laws. (The only case in which it has not done so is Preston v. Ferrar, the Federal Arbitration Act case. Unlike most other statutes that have been given preemptive force, no federal agency plays any role in implementing the FAA.) While there are no guarantees that the corporate pro-preemption position will prevail in each of these cases, it is likely that the government’s position helps the position of the corporate side.
The Supreme Court will not give deference to a government agency’s interpretation of a matter in every circumstance. Where there is no ambiguity in a statute, an agency’s attempt at reinterpretation is entitled to no deference.8 Before a court will consider an agency’s interpretation, a party must show that there is ambiguity warranting the agency’s involvement.
There are several additional exceptions where courts will refuse to defer to agency interpretations or regulations. For example, just a few years ago, by a 7-2 vote, the U.S. Supreme Court refused to give deference to a federal agency’s position where it represented a change from the agency’s prior position.9 The significance of consistency has long been an important factor in how the U.S. Supreme Court views agency positions.
The format in which the agency opinion is issued is a factor in whether deference is granted. For example, the Supreme Court has rejected the rule of traditional Chevron deference for “policy statements, interpretive rules, agency manuals and enforcement guidelines lacking the force of law.”10 Where the agency has not engaged in a formal process, such as formal and public rule-making, the Supreme Court has denied deference. Courts also look to the authority granted the agency by congress as a factor into determining the appropriateness of deference.11 U.S. v. Mead, 533 US 218 (2001). In contrast, where the issue involves the interpretation or application of an agency’s own published federal regulations, the Court will defer to the agency. Long Island Care at Home, Ltd. v. Coke (2007) 127 S.Ct. 2339, 2550.
There are some indications that the Supreme Court gives less weight to the Government’s position when it senses that the Government has changed its position for apparent political purposes. See, e.g., Bates, 544 U.S. at 449, (rejecting the Solicitor General’s position as “particularly dubious given that just five years ago the United States advocated the interpretation that we adopt today.”).
The Supreme Court has not yet decided any of the five federal preemption cases pending on its docket for the 2007-2008 term. It is not only impossible to predict the outcome of these individual cases at this point; it is impossible to predict with any degree of certainty whether any particular significant trend will emerge from the Court’s decisions. One thing is clear, however: the current Administration is energetically advocating in favor of reducing the liability of corporations through expanded preemption of state laws, and the Solicitor General is strongly and consistently coming in on behalf of corporate defendants and against individual consumers and injury victims.
F. Paul Bland, Jr. is Executive Director of Public Justice, overseeing its docket of consumer, environmental and civil rights cases. He has argued or co-argued and won more than 25 reported decisions from federal and state courts across the nation, including cases in six of the federal Circuit Courts of Appeal and at least one victory in nine different state high courts. He has been counsel in cases which have obtained injunctive or cash relief of more than $1 billion for consumers. He was named the “Vern Countryman” Award winner in 2006 by the National Consumer Law Center, which “honors the accomplishments of an exceptional consumer attorney who, through the practice of consumer law, has contributed significantly to the well being of vulnerable consumers.” In 2013, he received the Maryland Consumer Rights Coalition’s “Legal Champion” award. In 2010, he received the Maryland Legal Aid Bureau’s “Champion of Justice” Award. In the late 1980s, he was Chief Nominations Counsel to the U.S. Senate Judiciary Committee. He graduated from Harvard Law School in 1986, and Georgetown University in 1983.
2 The same is true, for example, in cases involving motions to compel arbitration and motions to strike under California’s anti-SLAPP statute, Code of Civil Procedure section 425.16, et seq.
3 E.g., Beneficial National Bank v. Anderson (2003), 539 U.S. 1, 8 (“when a federal statute wholly displaces the state-law clause of action through complete preemption,” a case may be removed to federal court.”) The Court has so far announced only a few statutes to which complete preemption applies – ERISA, the Labor Management Relations Act, the National Bank Act with respect to usury claims, and the Price Anderson Act.
5 The Solicitor General’s recommendation is not always accepted by the U.S. Supreme Court, however. In the Rowe v. New Hampshire Motor Transport Association case now pending decision this term, for example, the Solicitor General urged the Supreme Court not to take the case (because it believed, naturally for this Solicitor General), that the pro- preemption position of the U.S. Court of Appeals for the First Circuit was correct. Notwithstanding the Solicitor General’s position, the Supreme Court decided to grant certiorari and hear the case.
6 This fact has been criticized and bemoaned by a number of commentators. Historically, there was a broad consensus that the Solicitor General was supposed to be a non-political, even-handed and scholarly figure in the government. While this notion was always perhaps an ideal rather than a description, humans being humans, there are many who argue that the Solicitor General has become an increasingly political figure in this Administration who regularly takes positions (and particularly pro-tort reform positions) that advance the political agenda of the current President.
8 Christensen v. Harris County (2000) 529 U.S. 576, 588 (where the agency’s regulation is not ambiguous, “defense is unwarranted”).
9 Bates, 544 U.S. at 449 (the Solicitor General’s position was held to be “particularly dubious given that just five years [previously] the United States advocated the interpretation that we adopt today”).
10 See, Christensen, 529 U.S. 576.
11 See, e.g., U.S. Mead (2001) 533 U.S. 218.
12 See generally, Bravin & Beckett, Friendly Watchdog: Federal Regulator Often Helps Banks Fighting Consumers - Depending on Lenders’ Fees, the OCC Takes Banks’ Side Against Local, State Laws, Wall St. J., Jan. 28, 2002.