Preemption

  • November 1, 2011
    Guest Post

    By Stephen I. Vladeck, a law professor and associate dean for scholarship at American University Washington College of Law.


    Typically, when Congress buries critical substantive policy initiatives in massive spending bills, the question is whether anyone — the media, in particular — will take heed. But with regard to the detainee provisions nestled into a subtitle of the Senate Armed Services Committee’s version of the National Defense Authorization Act (NDAA), garnering public attention has surprisingly not been the issue. Instead, thanks to a very public series of disagreements between Senate Majority Leader Harry Reid and Senators Carl Levin and John McCain (respectively the Chair and Ranking Member of the Committee), the jig is up on keeping these provisions under the radar — as manifested, to take two of many examples, in editorials in this Sunday’s Washington Post and last Sunday’s New York Times.

    There’s a lot going on in the NDAA, but the provisions animating much of the current debate would do three separate things:

    1. Define with at least some specificity the scope of the government’s power to detain terrorism suspects without trial;

    2. Mandate the military detention of certain non-citizen terrorism suspects (and thereby bar their prosecution in civilian federal courts); and

    3. Make permanent what have thus far been temporary spending restrictions barring the President from using certain funds to transfer detainees from Guantánamo to the United States for continuing long-term detention.

    A lot of the opprobrium directed at the NDAA — including in Sunday’s Post editorial — has been focused on the latter two provisions, and for good reason. In this post, though, I want to explain why the first provision is no less (and perhaps even more) significant, and why the Post’s endorsement thereof is so alarmingly short-sighted.

  • October 4, 2011
    Guest Post

    By Rochelle Bobroff, Directing Attorney, Herbert Semmel Federal Rights Project, National Senior Citizens Law Center


    The Supreme Court justices started the new court term with piercing questions to all the attorneys arguing the opening case, which presents an important court access issue.  In Douglas v. Independent Living Center, Medicaid beneficiaries challenged a California law which slashed reimbursement rates, arguing that the state law was preempted or invalidated by federal law requiring rates to be sufficient to ensure access to care. Due to the reimbursement rates being below the cost of filling prescriptions, low-income individuals were unable to get their prescriptions filled. Beneficiaries and medical providers sued the state, arguing that the state law was invalid, because it is preempted by federal law.

    Businesses regularly bring preemption cases, and California is not trying to stop wealthy corporations from getting their claims heard in court. Instead, California seeks to carve out poor people from the protection of the Constitution’s Supremacy Clause, which states that federal law is the “supreme law of the land.” The Justice Department supported California in the oral argument, arguing that this is a matter purely between the federal and state governments.  The Medicaid statute enables the federal government to sanction states that do not comply with federal rules, by cutting off federal Medicaid funds.

  • September 28, 2011
    Guest Post

    By Rochelle Bobroff, Directing Attorney, Herbert Semmel Federal Rights Project, National Senior Citizens Law Center


    On October 3rd at 10 am, the Supreme Court will hear, at its very first oral argument of the new term, a case of vital importance to low-income individuals who rely on safety-net programs, such as health insurance through the federal Medicaid program. The case, Douglas v. Independent Living Center, addresses whether people with limited income and resources can sue states that enact laws which conflict with federal Medicaid requirements, the same way that businesses sue states to challenge state consumer protection laws. The Supreme Court has declined to hear the merits of the Douglas case, not taking the question of whether the slashing of Medicaid reimbursement rates by California violated federal law. The only issue before the Supreme Court is whether the Supremacy Clause of the Constitution – commonly invoked by businesses challenging state environmental or consumer protection laws – applies to the claims of poor people, including low income older adults, who were unable to obtain medication from pharmacies due to the reimbursement rates being below cost.

    As in many cases that have denied disadvantaged individuals court access, the case involves a technical legal principle that doesn’t make for a great sound bite on the evening news. Specifically, the lawyers on Monday will debate whether beneficiaries of federal safety net programs, like Medicaid, are protected by the Supremacy Clause of the Constitution. That fundamental provision says that the “Constitution and the laws of the United States shall be the supreme law of the land, anything in the constitutions or laws of any State to the contrary notwithstanding.” The federal courts, including the Supreme Court, routinely permit businesses to get into court to argue that state consumer and worker protections conflict with federal laws, and, hence, must be “preempted,” i.e., invalidated. And all the federal circuit courts of appeal have held that that there is no basis in the text of the Constitution or in prior case law for denying low income individuals the same access to courts as businesses.

  • June 24, 2011
    Guest Post

    By Elizabeth B. Wydra, Chief Counsel, Constitutional Accountability Center. This analysis is cross posted at CAC’s Text & History blog.


    Two years ago in Wyeth v. Levine, the Supreme Court refused to allow federal food and drug law to displace state consumer-safety law.  Instead, the Court held that Diana Levine, a Vermont musician whose arm had to be amputated after Levine suffered adverse effects from Wyeth’s brand-name drug, Phenergan, could hold the drug manufacturer liable under state failure-to-warn laws—laws which hold drug and other manufacturers responsible for inadequate safety labels.  Yesterday, in a 5-4 ruling, the Supreme Court held in PLIVA, Inc. v. Mensing that generic drug manufacturers may not be sued under state failure-to-warn law because it would be “impossible” for the generic drug manufacturers to comply with both state failure-to-warn law and federal law.  Given the nearly identical storylines, how did the Supreme Court come up with a happy ending for consumers in Wyeth but a happy ending for big business in PLIVA?

    To be sure, there are important differences between the labeling laws for brand-name and generic drugs.  Federal law, for example, requires a generic drug to carry the same label as the brand-name drug it replicates.  But this “duty of sameness” for generic manufacturers is tempered by a duty under federal law to report problems with generic drugs.  So, while generic drug manufacturers cannot unilaterally change their labels, they can—and must—approach the FDA to seek to revise a drug’s label when they have reasonable evidence of a serious problem with the drug.  Such a label change would then go into effect for both brand-name and generic drugs. There is no guarantee, of course, that the FDA will act based on the information provided by the generic drug manufacturer, but the manufacturer’s attempt to achieve a safe and adequate warning label would nonetheless likely serve as a defense to state liability.  In other words, if the generic manufacturer did what it could under federal law, a state failure-to-warn claim should be preempted by federal law because it would be impossible for the manufacturer to comply with both federal and state law.

    But if a generic drug manufacturer doesn’t even try to comply with federal drug safety law and state failure-to-warn standards, it is difficult to see how it is “impossible” for the manufacturer to comply with both sets of laws.  As Justice Sotomayor explained in her PLIVA dissent, “because federal law affords generic manufacturers a mechanism for attempting to comply with their state-law duties to warn, . . . federal law does not categorically pre-empt state-law failure-to-warn claims against generic manufacturers.”  

    For the majority, led by Justice Thomas, to find impossibility preemption in this context is to twist the word “impossibility” beyond recognition.

  • March 8, 2011
    Guest Post

    By Rochelle Bobroff, Directing Attorney, Herbert Semmel Federal Rights Project, National Senior Citizens Law Center
    Headlines are filled with reports of states repudiating the federal approach to hot button issues such as health reform and immigration. Clashes between federal and state law often culminate in a trip to the court house, because under the United States Constitution, state laws that conflict with federal statutes are preempted and thus invalid. Preemption law suits are as American as apple pie, and have been widely utilized for well over a hundred years by businesses and individuals on all sides of the political spectrum to enforce numerous federal laws.

    Yet, a case recently accepted by the Supreme Court has the potential to restrict drastically the availability of preemption and thereby vastly increase state powers at the expense of the national government. Maxwell-Jolly v. Independent Living Center ("ILC") and consolidated cases address the preemption of a California law by the federal Medicaid statute. California is asking the Court to rule in ILC that Medicaid providers and beneficiaries do not have a cause of action for their claim that the slashing of reimbursement rates for prescription medications and other services was preempted. The Court's decision in this case could be targeted to barring court access to uphold safety-net statutes which protect the neediest and most vulnerable individuals. Nevertheless, the Court's decision could have wide-ranging implications for laws involving the environment, employment, immigration, civil rights, food and drug safety, elections and much more.

    One argument advanced by California is that preemption challenges should not be permitted for statutes enacted under the Constitution's Spending Clause. These laws give states millions or even billions of dollars of federal funds in exchange for the states participating in federal programs or complying with federal rules. Medicaid is not the only Spending Clause statute. Indeed, in the seminal Spending Clause case of South Dakota v. Dole, the Court upheld the constitutionality of conditioning federal highway funds on states' adoption of the minimum drinking age of 21. Other major Spending Clause statutes include education laws, housing laws, food stamps, and civil rights laws prohibiting discrimination on the basis of race, national origin, sex, and disability.