Preemption

  • 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.

  • February 24, 2011
    Guest Post

    By David Franklin, an associate professor at DePaul University College of Law and author of the new ACS Issue Brief, Why Does Business (Usually) Win in the Roberts Court?
    On Tuesday, the Supreme Court ruled that people who are injured or killed by the side effects of vaccines cannot sue vaccine manufacturers for alleged design defects. Another day, another victory in the Supreme Court for a business defendant - and another victory for preemption, the legal doctrine under which state law can be nullified when it conflicts with the language or purpose of federal law, in this case the 1986 federal vaccine compensation statute.

    It was also yet another victory for the Chamber of Commerce of the United States. The Chamber, through its litigating affiliate, the National Chamber Litigation Center, regularly files briefs as an amicus curiae ("friend of the court") in the Supreme Court on behalf of the business community - and it regularly prevails.

    In a recent ACS Issue Brief, I crunch the numbers. Since Samuel Alito became a justice in 2006, the Court has decided 66 cases in which the Chamber of Commerce filed a brief. Of these cases, the party supported by the Chamber has won 46. That's a very high win rate: just under 70 percent. It suggests that while the arguments in the Chamber's briefs probably aren't swaying the justices (amicus briefs rarely do), they are finding a receptive audience at One First Street.

    Why has the Chamber been doing so well lately?

  • February 24, 2011
    Guest Post

    By Annie Decker, Visiting Assistant Professor, Benjamin H. Cardozo School of Law.
    Four-plus months after hearing oral arguments, which I discussed here, the U.S. Supreme Court yesterday issued a unanimous decision in Williamson v. Mazda. The Court held that a federal Department of Transportation (DOT) regulation that gave manufacturers some leeway in what kinds of seatbelts to install did not trump a defective design claim, among others, arguing that Mazda should have installed both shoulder and lap belts in a seat in the plaintiffs' minivan.

    Justice Breyer's majority opinion clarified that federal agencies such as the DOT can decide to give manufacturers a choice in designs without the DOT's objectives for leaving options open -- the reason being cost containment in this case -- always preempting state tort litigation. Going forward, therefore, manufacturers cannot argue that federal regulations that give them a choice between designs automatically translate into immunity from suits arguing that they, unfortunately, chose badly among the regulatory options. However, the Court also bolstered its obstacle preemption doctrine, which means that manufacturers can continue to argue that state tort suits conflict with important agency objectives.

    Through Williamson, the Court sought to stem the tide of lower court decisions misapplying Geier v. American Honda Motor Co. In Geier, the Court had found that an earlier version of the same federal regulation at issue in Williamson did, in contrast, impliedly preempt a state tort suit that challenged Honda's choice among passive restraint systems such as airbags and automatic seatbelts.

    While the Court rejected the preemption challenge, unlike in Geier, it methodically applied the Geier framework. Indeed, the decision is notable for its refusal to back down from Geier. Williamson entrenches Geier's approach to preemption cases where the relevant federal statute not only has an express preemption clause but also has an explicit so-called savings clause that preserves state tort suits from preemption. (The National Traffic and Motor Vehicle Safety Act declares that "[c]ompliance with" a federal safety standard, such as the DOT regulation here, "does not exempt any person [such as Mazda] from any liability under common law," such as a state-law defective design claim.) The Court in Williamson affirmed that such savings clauses do not kill preemption challenges. Instead, courts must move on to consider "ordinary conflict pre-emption principles." These include obstacle preemption, which asks whether state claims present an obstacle to an important federal regulatory objective. Yet the Court clarified that a preemptive conflict must be with a significant federal objective. Unlike the cost objective underlying the DOT's seatbelt regulation at issue in Williamson, preserving car manufacturers' flexibility was the agency's main consideration in giving manufacturers a choice over passive restraint systems in the provision at issue in Geier -- and the Court found that to be "significant regulatory objective[]."

  • January 18, 2011
    Guest Post

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

    Today the Supreme Court granted certiorari to address the question whether Medicaid beneficiaries have the same right to obtain federal court preemption of state laws in conflict with federal Medicaid requirements, as big businesses have to challenge state consumer protection laws that allegedly conflict with federal statutes. All courts of appeals that have considered this question have held that there was no basis for treating a preemption claim protecting low-income people's interests differently from a preemption claim on behalf of business interests. The Solicitor General recommended that certiorari be denied. Nevertheless, the Supreme Court granted cert in three consolidated cases, which are styled Maxwell-Jolly v. Independent Living Center of Southern California, California Pharmacists Assn, and Santa Rosa Memorial Hospital. I am among counsel representing the Independent Living Center.

    Medicaid beneficiaries were unable to get their prescription medications filled when the state of California passed a law slashing reimbursement rates, first by 10 percent and then by 5 percent, in an effort to save the state money. The reimbursement rates were below retailers' costs, and therefore some pharmacies were unwilling to provide the medications to low-income individuals with disabilities. Even though beneficiaries had Medicaid coverage for their prescriptions, many were still unable to get the medications they needed, due to the low reimbursement rates. The beneficiaries filed suit claiming that the state law was preempted by the federal Medicaid statute. The Ninth Circuit held that indeed the state law conflicted with federal law, and therefore an injunction properly halted enforcement of the state law. The federal government has denied the state's proposed plan amendment to implement the rate cut.

  • December 7, 2010
    Guest Post

    By Jennifer Chang Newell, a staff attorney for the ACLU Immigrants' Rights Project. Chang Newell recently participated in an ACS panel discussion on Chamber of Commerce v. Whiting, available here.
    Oral arguments in the first legal challenge to the recent wave of state and local anti-immigrant laws to reach the Supreme Court will be held this Wednesday. The case, Chamber of Commerce v. Whiting, involves a challenge to an Arizona state law that sanctions and penalizes businesses whom the state determines has employed workers not lawfully authorized to work in the United States. The challenged law imposes a potential business "death penalty" for employers found to have hired unauthorized workers and requires all Arizona employers to participate in an electronic employment verification system, e-Verify, that is voluntary under federal law. The case was brought by a coalition that includes the United States Chamber of Commerce, the American Civil Liberties Union, and other civil rights and business groups. The coalition asserts that the Arizona law conflicts with federal immigration law and violates the Supremacy Clause of the U.S. Constitution. The Acting Solicitor General of the United States, which submitted a key amicus curiae brief in support of the coalition's position, will also be arguing.

    The Backdrop: An Epidemic of State and Local Anti-Immigrant Laws Across the Country

    The challenge to the Arizona employer sanctions law provides the Supreme Court with its first opportunity to weigh in on the trend in recent years of states and localities fashioning their own local immigration laws. Over the past three years, hostility toward immigrants coupled with apparent frustration with the lack of federal immigration reform have inspired states and cities to propose and enact laws that attempt to make life difficult for "illegal aliens" by imposing a patchwork of local penalties. Hundreds of local anti-immigrant measures have been introduced across the country, including the other well-known Arizona anti-immigrant law, SB 1070 (currently the subject of a pending Ninth Circuit appeal). In addition to creating divergent employer sanctions schemes and mandating participation in the voluntary federal e-Verify program, these local immigration efforts have included prohibitions and penalties for the renting of apartments to allegedly unauthorized immigrants and even criminal laws that would prosecute immigrants or family members, friends, employers, and others who allegedly associate with undocumented immigrants.

    Where enacted, these laws have created a climate of hostility and racial profiling against immigrants, increased fear in immigrant communities, and caused immigrant families to flee to more welcoming communities. The harsh penalties in these laws have made employers and landlords wary of dealing with anyone who may look or sound foreign. In response to these many harms, the ACLU and other groups have gone to court to challenge these laws in numerous locations across the United States. Most notably, in September the Third Circuit struck down Hazleton, Pennsylvania's anti-immigrant employment and housing law, diverging with the Ninth Circuit's ruling below on the Arizona employer sanctions law in Whiting; a certiorari petition may be filed in the Hazleton case as well.

    The Issues before the Court in Whiting