Wyeth v. Levine

I agree with the majority, and to an even greater extent with Justice Thomas' concurrence, in Wyeth v. Levine, the latest in a series of preemption cases the court has decided in recent terms.1 Thomas, like Prof. Rick Hills,2 is right on the money in pointing out that these are cases, as Justice O'Connor also correctly noted in another context,3 about federalism.

Justice Alito may well be correct in his skepticism about the lineage of a presumption against preemption, or a presumption in any subset of preemption cases.4 If so, however, it seems obvious to me that we should coin one immediately, and that it should be an especially strong presumption when we deal with preemption by agency regulation rather than Congressional legislation. The text of the Constitution in toto5 is certainly open to, and in my view strongly leans towards, that reading, and as little sensitivity as Congress will predictably show towards federalism concerns,6 they can be considered cheerleaders when compared to the likely solicitousness of executive branch agencies for not "impair[ing] the States' 'ability to function effectively in a federal system.'"7 Members of Congress are, after all, at least theoretically representing their states in a loose sense. The fact that today's majority is motivated more by the tradition of Justice Brennan than Justice Rehnquist makes no difference.8

As it did in Altria Group, federalism won a victory today. It is unfortunate that it had to win over the dissent of three members of the court who one would have hoped would be friends of federalism.

1. 1. See generally Daniel Troy and Rebecca Wood, Federal Preemption at the Supreme Court, 7 Engage No. 3 (Oct. 2008).
2. 2. See, e.g., the latter's post here (noting that "all of the important battles over state power are now being fought in the arena of administrative law and regulatory preemption. If agencies can easily preempt state law, then federalism is dead, because agency regs tend inexorably to expand over time, squeezing out most state policy-making space").
3. 3. See Coleman v. Thompson, 501 U.S. 722, 726 (1991); cf. Ann Althouse, Variations on a Theory of Normative Federalism: a Supreme Court Dialogue, 42 Duke L. J. 979 (1993) (Thompson "was a case about rape and murder; a case about a guilty verdict and a death penalty; a case about numerous alleged violations of constitutional rights; a case about an attorney who filed a notice of appeal three days late; a case about the merciless forfeiture that follows from procedural default.... But as Justice O’Connor saw it, it was 'a case about federalism.'").
4. 4. See dissenting opinion, n.14.
5. 5. See SF: Clinton's eligibility, III (11/24/2008) nn.5-6 and accompanying text.
6. 6. See, e.g., SF: An open letter to Congressional candidates about federalism and limited government (8/24/2007) (noting that the notion that “'[t]he political process ensures that laws that unduly burden the States will not be promulgated'” is the product of a "quaintly pre-17th Amendment mindset" (alteration in original) (quoting Garcia v. San Antonio Metro. Transit Authority, 469 U.S. 528, 556 (1985)).
7. 7. National League of Cities, 426 U.S. 833, 852 (1976) (quoting Fry v. United States, 421 U.S. 542, 547 n.7 (1975)) (overruled by Garcia, supra, but see id. at 579-80 (Rehnquist, J., dissenting)).
8. 8. See William Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489 (1977).