On November 9th the Supreme Court will hear oral argument in National Meat Association v. Harris, wading once again into the mire of federal preemption. The National Meat case involves a California statute that prohibits the slaughter of non-ambulatory animals for human consumption and requires that non-ambulatory animals be immediately and humanely euthanized. A federal law, the Federal Meat Inspection Act (FMIA), thoroughly regulates, although one could question how strictly, the process of slaughtering animals for human consumption. It also contains an express preemption provision that prohibits states from making any “requirements within the scope of this chapter with respect to premises, facilities and operations of any establishment [subject to this chapter], which are in addition to, or different than those made under this chapter.” 21 U.S.C. § 678. But then it also provides that: “this chapter shall not preclude any State ... from making requirement[s] or taking other action, consistent with this chapter, with respect to any other matters regulated under this Act.” The National Meat Association filed suit for declaratory and injunctive relief against the California law as it applies to swine and the processing of pork, claiming that the California law is preempted by the federal law. The Ninth Circuit, in an opinion reflecting the inimitable style of Judge Alex Kozinski, held that the California law was not preempted. The court said that the California law merely identifies what animals may be slaughtered for human consumption, not how they are to be slaughtered. And the law’s provision requiring the euthanizing of non-ambulatory animals, the circuit court said, does not relate to the slaughtering of animals for human consumption. The Supreme Court, against the advice of the Solicitor General, granted certiorari.
Before the Court, the petitioner, the National Meat Association, rests its argument on the express preemption provision, disclaiming any reliance on obstacle preemption (the judicially created doctrine that a state law is preempted if it stands as an obstacle to the full attainment of the goals of a federal law). The United States as amicus in support of the petitioners likewise limits its argument to express preemption, although in a footnote the government asserts that there would in any case be obstacle preemption. So, the initial issue is whether the preemption provision should be read narrowly, as respondents argue and the Ninth Circuit held, relying on Wyeth v. Levine, or broadly, as the petitioners argue, relying on an earlier FMIA case, Jones v. Rath Packing Co. Of course, neither side’s argument on this is correct. In Wyeth, the Court reaffirmed the approach that there is a presumption against federal preemption, but in that case there was no preemption provision to be construed. In Rath Packing, the Court did not give the FMIA’s preemption provision a broad reading; instead it read it according to its terms, rejecting what it called a “strained” interpretation or a “restrictive reading."Full text
Cross-posted from ACSblog.
The Supreme Court will hear arguments on November 3 in a potentially important preemption case, Williamson v. Mazda Motor of America. In Williamson, a child was fatally injured in a collision when she was sitting in the center rear seat of a Mazda van, secured by a lap belt. The two other passengers in the vehicle, both wearing lap-shoulder belts, survived with minor injuries. The young Williamson, however, suffered severe abdominal injuries and internal bleeding because her body jackknifed around the lap belt. The Williamsons sued Mazda asserting that the van was defectively designed by providing only a lap belt in the center rear seat. When the van was built, the National Highway Transportation Safety Administration's Federal Motor Vehicle Standard (FMVSS) 208 only required lap belts in the center seat, even while it required lap-shoulder belts in all other seats. Mazda moved to dismiss the case on the grounds that the common law tort claim was preempted by the federal standard. The California trial court granted the motion and the appellate court affirmed. The Supreme Court granted certiorari to consider that decision.
This is not the first time that the Supreme Court has considered the relation between FMVSS 208 and state tort law. In Geier v. American Honda Motor Co. (2000), the Court held that FMVSS 208 at the time of that case preempted a state tort law claim that the failure to provide for an airbag was a design defect. Since that case, virtually every tort claim based on an alleged design defect regarding seat belts or airbags has been dismissed as preempted in light of the Geier decision. Thus, the outcome in Williamson in the lower courts is not surprising. What is surprising is that the Supreme Court granted certiorari to hear the case.
There are two possible explanations. First, unlike Geier, in which the United States filed an amicus brief in favor of preemption, here the United States filed an amicus brief in favor of granting certiorari, arguing that the lower courts had misread Geier and applied it much more broadly than appropriate. Second, on the merits, the United States is absolutely correct; Geier was a very fact-specific case, which subsequent courts have misread.Full text
In November 2008, with Riegel v. Medtronic recently decided, bills introduced into Congress to overturn its effect, and Wyeth v. Levine about to be argued in the Supreme Court, the President of the American Bar Association created a task force to review ABA policies regarding preemption of state tort law. The composition of the task force was equally split between those who generally favor preemption and those who generally oppose it and included both private practitioners and academics (I was one of those academics). Earlier this month the task force unanimously presented its recommendations to the House of Delegates of the ABA, the policy making body of the ABA, and the House adopted those recommendations by an overwhelming majority.
Eschewing any attempt to take a substantive position on the desirability of preemption of state tort law or the lack thereof, the task force focused on the procedures that should accompany any decision to preempt state tort law. The resolution urges that when Congress considers preempting state tort law it should take into account the historic responsibility States have exercised over the health and safety of their populace and to balance that responsibility against the competing concerns for national uniformity. Moreover, Congress should as a regular matter address foreseeable preemption issues clearly and explicitly when it enacts a statute that has the potential to affect state tort law. It should clearly and explicitly state when it intends to preempt state tort law and clearly and explicitly set forth the extent of the preemption it intends, and the extent to which, through a savings clause or other means, it intends not to preempt state tort law. All too often Congress has not spoken clearly, leaving to courts or agencies the federalism balancing that properly lies in the domain of Congress.Full text
Informal rulemaking under the Administrative Procedure Act was, as the late Kenneth Culp Davis opined, "one of the greatest inventions of modern government." It not only decreased the procedural requirements (and therefore the overhead) of “formal” rulemaking, but it also broadened the universe of persons able to participate in the informal proceeding to the public at large. Subsequently, other laws, such as the Freedom of Information Act, the Government in the Sunshine Act, and the Federal Advisory Committee Act, have expanded the ability of the public to monitor agency activities, if not to participate in them. BTI (before the Internet), agencies informed the “public” of proposed rules by publication in the Federal Register, which was widely available in public libraries. Interested members of the public could then submit comments on the proposal through the U.S. Mail (or private express carriers). Of course, those “in the know,” the Washington lawyers and lobbyists who actually read the Federal Register notices, could not only comment on the proposals but also monitor what was submitted to the agency by going to the agency’s FOIA reading room. And, of course, these same lawyers and lobbyists could also make use of their proximity to the agencies by arranging one-on-one meetings with influential persons in the agency. “Good government” at the time meant that such meetings would be docketed and summarized and any written material there obtained placed in the record. This information might be useful to the other insiders in Washington, but it was useless to the public at large.
The availability of the Internet has led some to believe that this rulemaking paradigm can be altered in favor of greater public participation and influence, presumably to the detriment of the traditional power brokers. Regulations.gov is the official government attempt to put rulemaking online. As a means of empowering the public, however, it’s a disaster. It is difficult to navigate, and its search engine can’t find its way home. For example, if you wanted to find the Department of Transportation’s recently proposed rulemaking to prohibit commercial truck drivers from texting while driving, you might try using the keyword “texting.” But if you did, you wouldn’t find this rule. If you’re an expert (one of those Washington insiders with a little tech savvy), however, it’s OK, because you probably already know the docket number.
Along comes Cornell Law School and its Legal Information Institute (known for its immediate dissemination of Supreme Court opinions), with a new initiative, the Cornell E-Rulemaking Initiative or CeRI. Together with the Departments of Transportation and Commerce and the National Science Foundation, CeRI is attempting to help agencies transition to electronic rulemaking. In particular, CeRI wants to facilitate public participation in government policymaking and increasing public participation beyond the notice-and-comment process.Full text
On Wednesday, by the stroke of a pen, President Obama reversed a major Bush administration policy, striking another blow for good government. For eight years the Bush administration sought to accomplish tort reform by stealth and indirection with several agencies proclaiming in preambles to regulations that the regulations preempted state tort law. These agencies included the National Highway Traffic Safety Administration, the Federal Railroad Administration, the Consumer Product Safety Commission, and most notably the Food and Drug Administration. The FDA's broadest claim -- that its drug labeling regulation preempted state tort law -- was rejected by the Supreme Court earlier this year in Wyeth v. Levine.
In a November 2008 White Paper, CPR Member Scholars called for the President to amend or strengthen the existing Executive Order on Federalism to reverse this Bush policy and to re-establish the presumption that federal regulations protecting health, safety, and the environment do not preempt state tort law. The President has now done this.Full text
There are few areas where the difference between the Republican and Democratic parties is more stark than that of the Freedom of Information Act. The FOIA, of course, requires agencies to provide copies of their records to any person upon request unless the record fits within one of nine specific exemptions. Among the most important of these are the exemption for classified information, inter-agency or intra-agency communications containing advice or recommendations, information compiled for law enforcement purposes, and private commercial information. Nevertheless, the Supreme Court has made it clear that the FOIA is a disclosure statute; nothing in the FOIA requires an agency to withhold records even if they fall within an exemption, although it is possible that some other statute might. Full text