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I?m Rubber, You?re Glue: Preemption Cases Pivot on the Court, Congress Both Reading Case Law (and Reading it the Same Way....)

By E.L. Lipman

Issuing parallel opinions today, the U.S. Supreme Court sustained two challenges to state law requirements on the grounds that those requirements interfered with Congressional statutes regulating commercial activities.

Among the interesting features of these two cases is the Justices? observation that the Congressional enactments at issue were best and most meaningfully understood against the backdrop of the Court?s earlier construction of similar terms, in other cases. In Riegel v. Medtronic, Inc., for example ? which addressed whether the federal Medical Device Amendments of 1976 barred certain common-law tort claims ? Justice Scalia points to Congressional reliance upon the Court?s decisions when Congress decides to legislate. He writes:

Congress is entitled to know what meaning this Court will assign to terms regularly used in its enactments. Absent other indication, reference to a State?s ?requirements? includes its common-law duties. As the plurality opinion said in [Cipollone v. Liggett Group, Inc., 505 U. S. 504 (1992)], common-law liability is ?premised on the existence of a legal duty,? and a tort judgment therefore establishes that the defendant has violated a state-law obligation.?

In the present case, in the context of this legislation excluding common-law duties from the scope of pre-emption would make little sense. State tort law that requires a manufacturer?s catheters to be safer, but hence less effective, than the model the FDA has approved disrupts the federal scheme no less than state regulatory law to the same effect. Indeed, one would think that tort law, applied by juries under a negligence or strict-liability standard, is less deserving of preservation.
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The dissent would narrow the pre-emptive scope of the term ?requirement? on the grounds that it is ?difficult to believe that Congress would, without comment, remove all means of judicial recourse? for consumers injured by FDA-approved devices. But, as we have explained, this is exactly what a pre-emption clause for medical devices does by its terms.

While in a different context, this same theme is carried forward in today?s other preemption case, Rowe v. New Hampshire Motor Transportation Association. The Rowe case addressed whether a federal statute that prohibits States from enacting any law ?related to? a motor carrier ?price, route, or service? pre-empted Maine?s regulations which restricted the methods of delivering tobacco products. As Justice Breyer wrote for the majority in that case:

Here, the Congress that wrote the language before us copied the language of the air-carrier pre-emption provision of the Airline Deregulation Act of 1978. And it did so fully aware of this Court?s interpretation of that language as set forth in [Morales v. Trans World Airlines, Inc., 504 U. S. 374 (1992)]. See H. R. Conf. Rep., at 83 (motor carriers will enjoy ?the identical intrastate preemption of prices, routes and services as that originally contained in ?the Airline Deregulation Act); ibid. (expressing agreement with ?the broad preemption interpretation adopted by the United States Supreme Court in Morales?).
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[G]iven Morales, where the Court held that federal law pre-empts state consumer-protection laws, we find that federal law must also pre-empt Maine?s efforts directly to regulate carrier services.

The Court?s complete analysis in Riegel is accessible here, and its analysis in Rowe is accessible here.

Full post as published by Within the Scope on February 20, 2008 (boomark / email).