Constitutional Law Prof Blog

Proposed Amendments to Arizona Immigration Law SB 1070

The Arizona House of Representatives has proposed amendments to the controversial Arizona Immigration Law SB 1070 signed just last week.

Arizona HB 2162 (NOW: immigration; border security) would amend SB 1070 as follows:

• Changes “lawful contact” to “lawful stop, detention or arrest.”  
• Stipulates that a lawful stop, detention or arrest must be in the enforcement of any other law or ordinance of a county, city or town or this state.
• Stipulates that a reasonable attempt must be made, when practicable, to determine the immigration status of a person, except if the determination may hinder or obstruct an investigation when reasonable suspicion exists that the person is an alien and is unlawfully present in the U.S.
• Removes “solely” from the provision relating the prohibition on discriminatory enforcement.
• Stipulates that for the Enforcement of Immigration Law, Unlawfully Picking up Passengers for Work and Unlawfully Transporting or Harboring Unlawful Aliens the immigration status may be determined by:
•  A law enforcement officer who is authorized by the federal government to verify or ascertain an alien’s immigration status.
•  ICE or CBP pursuant to 8 U.S.C. § 1373(c).
•  Specifies that 8 U.S.C § 1373 and 8 U.S.C § 1644 are included in the federal immigration laws relating to challenges regarding policies adopted or implemented by an entity.
• Stipulates that for the enforcement of Willful Failure to Complete or Carry an Alien Registration Document, Unlawfully Picking up Passengers for Work and Unlawfully Transporting or Harboring Unlawful Aliens a law enforcement official or agency cannot consider race, color or national origin when implementing these provisions, except as permitted by the U.S. or Arizona Constitution.

The proposed amendments address some of the equal protection and fourth amendment challenges in the complaints filed in federal district court which we discussed here and here, but do not substantially change the preemption arguments also made in the complaint which we discussed here.  Our original post is here with update here.

Arizona Republic story on the proposal here.

{Update: Arizona immigration statute partially enjoined; here}

RR

Constitutional Challenges to Arizona Immigration Law SB 1070

Two more complaints have been filed in federal courts challenging the constitutionality of Arizona Immigration Law SB 1070.   In addition to the complaint filed by the Tucson police officer Martin Escobar we discussed previously, Phoenix police officer David Salgado has filed a complaint with similar allegations and arguments.

The more lengthy complaint filed by National Coalition of Latino Clergy and Christian Leaders (CONLAMIC) is filed as a class action of "all persons who currently reside in Arizona and find themselves to be negatively affected by the proposed unconstitutional law." (para 51).   The claims of unconstitutionality include substantive due process under the Fourteenth Amendment, violations of the Supremacy Clause; First Amendment; and violations of the Fourth Amendment and procedural due process. 

Other constitutional arguments are being put forward in a nonjudicial forum, spearheaded by Professor Ediberto Roman:

 Immigration and Constitutional Law Experts Against SB 1070

The undersigned law professors, immigration experts, and interested organizations write this petition requesting the Governor and the Legislature of the State of Arizona to repeal SB 1070, or in the alternative, calling upon Congress to conduct hearings on Arizona’s ultra vires act of authorizing local police to enforce federal immigration laws without an express delegation from Congress. The petitioners also urge President Obama to direct the Justice Department Civil Rights Division to mobilize quickly to educate the public how to report civil rights violations associated with SB 1070. With the passage of SB 1070, the state of Arizona has ignored legal precedent striking down similar state encroachments on federal supremacy relating to immigration. Moreover, courts have held similar encroachments to be violative of Due Process and Equal Protection.

  [remainder of statement and more information here]

{Update: Arizona immigration statute partially enjoined; here}

RR

Complaint Challenging Constitutionality of Arizona Immigration Law SB 1070

A lawsuit challenging the constitutionality of Arizona's new immigration law SB1070 has been filed today in the United States District Court for the District of Arizona.  The  Complaint alleges violations of

• the due process clause of the Fourteenth Amendment, 
• the equal protection clause of the Fourteenth Amendment,
• the speech clause of the First Amendment,
• the Fifth Amendment,
• the Fourth Amendment,
• and of preemption (see our analysis here) and unauthorized or supervised federal immigration conduct.

The plaintiff, Martin Escobar, alleges he is "Hispanic" and "is employed as a permanent Police Officer with the City of Tucson for the Tucson Police Department."

The Arizona Star story is here.  See more discussions of SB1070 here.

[UPDATE: For DOJ Complaint filed July 6, 2010 and analysis see here].

RR

Arizona's Immigration Law, Supremacy, and Federal Preemption

Does Arizona's new immigration law, SB 1070, violate the Supremacy Clause of the U.S. Constitution?  It may, in (at least) two ways.

SEE ALSO THE UPDATES AT THE END OF THIS POST.

First, Arizona's immigration law, which authorizes state and local law enforcement officials to inquire into the immigration status of any person "where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States," runs up against the comprehensive federal scheme in Title 8 U.S.C. that governs treatment of aliens.  Congress enacted Title 8 pursuant to its plenary power under Article I, Section 8 of the Constitution to "establish a uniform Rule of Naturalization . . . throughout the United States."  The federal scheme reflects Congress's judgment to completely occupy the field of immigration and naturalization (with an important exception, discussed below)--a judgment that is well within its powers until Article I, Section 8--and the comprehensive federal scheme therefore likely preempts Arizona's new law.  The new law is almost certainly invalid under the Supremacy Clause.

But even if Arizona's new law doesn't fall under field preemption, it almost certainly falls under conflict preemption.  The federal immigration and naturalization scheme includes a place for state and local authorities.  8 U.S.C. Sec. 1252c reads:

(a) In general.  Notwithstanding any other provision of law, to the extent permitted by relevant State and local law, State and local law enforcement officials are authorized to arrest and detain an individual who--

(1) is an alien illegally present in the United States; and

(2) has previously been convicted of a felony in the United States and deported or left the United States after such conviction, but only after the State or local law enforcement officials obtain appropriate confirmation from the Immigration and Naturalization Service of the status of such individual and only for such period of time as may be required for the Service to take the individual into Federal custody for purposes of deporting or removing the alien from the United States.

(b) Cooperation.  The Attorney General shall cooperate with the States to assure that information in the control of the Attorney General, including information in the National Crime Information Center, that would assist State and local law enforcement officials in carrying out duties under subsection (a) of this section is made available to such officials.

The provision contemplates a circumscribed role for state and local officials, to be sure, but the Arizona law authorizes a much broader role.  Particularly: The Arizona law authorizes arrest without a showing of a prior felony, the requirement under (a)(2), above.  Here's the provision from SB 1070:

E. A law enforcement officer, without a warrant, may arrest a person if the officer has probable cause to believe that the person has committed any public offense that makes the person removable from the United States.

An alien's unauthorized presence in the United States is just such an offense under 8 U.S.C. Sec. 1227.  Arizona's law is thus in conflict with the federal law and likely violates the Supremacy Clause under conflict preemption.

This isn't the first time that Arizona law came under challenge as running up against federal immigration law.  Just last year, the Ninth Circuit in Chicanos por la Causa v. Napolitano upheld Arizona's Legal Worker Act against a preemption challenge.  That act allows Arizona courts to revoke or suspend business licenses of employers who knowingly or intentionally hired unauthorized aliens.  But there the federal law, which prohibited employers from hiring unauthorized aliens, contained a specific savings clause that exempted state and local sanctions related to licensing from the broader preemption of state enforcement.  Arizona's law in that case fell squarely within this savings clause, and the court ruled that the Legal Worker Act was therefore not preempted.  (The Ninth Circuit also took its lead from De Canas v. Bica, the 1976 Supreme Court case that upheld a state law prohibiting employers from hiring unauthorized aliens, because the employment relationship is "within the mainstream of the state's police powers.")

The new law is different.  It regulates aliens directly, not by way of the employer-employee relationship (which is more obviously within the traditional powers of the state).  And the new law doesn't fall within a savings clause to a broader preemption provision; instead, it seems to run directly up against the corresponding federal law.

We've posted previously on the Arizona law here and here.  Jack Balkin posts his thoughts on preemption here; Jonathan Adler responds here.

UPDATE:  The law as enacted addresses some of these problems, but it does not solve them.  Thus, for example, Section B. requires "any lawful stop, detention or arrest" (not merely "any lawful contact") by a law enforcement official "in the enforcement of any other law or ordinance of a county, city or town or this state" (not merely for no reason) in order to trigger the "reasonable suspicion" standard.  This helps dodge the second conflict problem above (under the old section E. and 8 U.S.C. Sec. 1227), but not the first one (under 8 U.S.C. Sec. 1252c).  And it does nothing to dodge the field preemption problem.

Other sections of the law, too, are likely preempted under field and conflict theories.  Thus Sections C. and D. authorize state officials to securely transport an unauthorized alien to federal authorities upon release from state prison or on the assessment of any monetary fine.  This, too, runs up against 8 U.S.C. Sec. 1252c, because it does not require a felony or deportation or departure from the country, and violates field preemption.  Section F. authorizes the state to maintain immigration records for certain purposes; this, too, probably violates field preemption.

UPDATE: For DOJ Complaint filed July 6, 2010 and analysis see here.

Update: Arizona immigration statute partially enjoined on July 28, 2010, see here.

SDS

Arizona Immigration Law SB 1070

The "Support Our Law Enforcement and Safe Neighborhoods Act," Arizona SB1070, just [update here; update on proposed change here] signed by Governor Jan Brewer, is the "toughest" anti-immigration state law in the United States.

Constitutional challenges are sure to follow. [update here; DEPARTMENT OF JUSTICE lawsuit analysis update here].  UPDATE: PORTIONS OF STATUTE ENJOINED BY FEDERAL DISTRICT JUDGE.

State laws seeking to regulation immigration status are always subject to preemption challenges given the federal government's plenary power over immigration and nationality.  Moreover, equal protection challenges to immigration regulations by states will be scrutinized more carefully by the courts than regulations by the federal government.  A good overview of these issues is by Juliet Stumpf, States of Confusion: The Rise of State and Local Power over Immigration, available on ssrn here.

The new Arizona law allows state officials to inquire into the immigration status of any person based upon "reasonable suspicion":

For any lawful contact made by a law enforcement official or agency of this state or a county, city, town or other political subdivision of this state where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person.

The statute also prohibits localities from adopting any policies that allow less than full enforcement of the immigration laws, thus prohibiting so-called sanctuary provisions.

Additionally, section 13-1509 provides that a person is guilty of the crime of trespassing if the person is both:  "present on any public or private land in this state" and in violation of federal immigration statutes.  The statute further provides that there is no eligibility for "suspension or commutation of sentence or release on any basis until the sentence imposed is served."

The statute also has an anti-solicitation of workers (often called day laborers) provision of the type that has been held unconstitutional under the First Amendment, see Town of Herndon v. Thomas, MI-2007-644 (Va. Cir. Ct. Aug. 29, 2007) Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 475 F. Supp. 2d 952, 962 (C.D. Cal. 2006).

The statute has already garnered some critical commentary from our colleagues on Immigration Law Prof.  MALDEF has issued a statement that it will challenge the statute.  The United States Department of Justice will reportedly examine the constitutionality of the statute as instructed by President Obama.

RR

Daylight Savings Time as Unconstitutional?

With all the current discussions of states' rights and federal power, the federally mandated change to "daylight savings time" at 2am this Sunday morning may require a constitutional discussion.

Under the Uniform Time Act of 1966, states may exempt themselves from daylight savings time, however federal law preempts state choice regarding different dates of changing from daylight savings time:

(b) State laws superseded

It is hereby declared that it is the express intent of Congress by this section to supersede any and all laws of the States or political subdivisions thereof insofar as they may now or hereafter provide for advances in time or changeover dates different from those specified in this section.

Congress passed the Energy Policy Act of 2005 and lengthened daylight savings time in section 110 (amending the Uniform Time Act of 1966  by striking "first Sunday of April'' and inserting "second Sunday of March''; and by striking "last Sunday of October'' and inserting "first Sunday of November"). 

However, because of the express preemption and the Supremacy Clause, states that had been perfectly happy with the previous routine of April/November had little recourse but to change to March/October.

John K Wilson has an amusing and provocative column over at Daily Kos on the constitutionality of Daylight Savings time ("It’s a typical Big Government program: steal an hour from us in March, give back our hour to us in November, and expect us to be grateful for getting back our own property").

RR

State Constitutional Open Courts and the Limits of Medical Liability Reform

The President famously announced last week in his healthcare address to a joint session of Congress that he would order the Agency for Healthcare and Research Quality, a division of the Department of Health and Human Services, to support state demonstration projects on medical liability reform.  The initiative appears to be an attempt to reach across the aisle to Republican opponents of the President's plan, who have argued that medical liability reform--or "tort reform"--is an essential part of any healthcare reform plan.  The President's memo for the Secretary of HHS is here.

On the very same day last week that the President sent his memo to the Secretary, the Supreme Court of Washington issued an opinion reminding us that whatever the federal government may support, there still may be some limits on medical liability reform.  Particularly, state constitutional "open courts" provisions may restrain some states in "demonstrating" their reforms.

"Open courts" provisions simply say that courts must be open and available to litigants.  Maryland's open courts provision, one of the earliest, is typical:

That every man, for any injury done to him in his person or property, ought to have remedy by the course of the Law of the land, and ought to have justice and right, freely without sale, fully without any denial, and speedily without delay, according to the Law of the land.

At least forty state constitutions have such a clause; they trace their roots directly to Magna Carta.  (The federal constitution, of course, does not have an explicit open courts clause.  But courts often look to the open courts language in Marbury v. Madison as a sign of federal constitutional protection: "The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.  One of the first duties of government is to afford that protection.")  State courts by and large have interpreted open courts provisions to mean that the legislature can't curtail state court claims that existed at the time of the adoption of their state's provision.  That principle seems clear enough, but these provisions get interesting against the myriad particular (and often slight, but significant) ways that states encroach on access.  (Shameless self-promotion: For more on open courts and access to justice, see my 2007 piece on open courts and the right to counsel.)

Open courts jurisprudence is notoriously muddled.  But there is one consistency:  Open courts attacks on state medical liability reform and, more generally, tort reform--strict damage caps, short statutes of limitations, and the like--have mostly failed. 

This may be all the more reason to pay attention to Washington's ruling.

Washington required plaintiffs in medical malpractice claims to file a "certificate of merit" prior to initiating suit.  The state supreme court held that this violated the state's constitutional open courts principles.  The analysis is remarkably short; it begins with the Marbury quote above, and continues:

The people have a right of access to the courts; indeed, it is "the bedrock foundation upon which rest all the people's rights and obligations."  This right of access to courts "includes the right of discovery authorized by the civil rules."  As we have said before, "[i]t is common legal knowledge that extensive discovery is necessary to effectively pursue either a plaintiff's claim or a defendant's defense."

Requiring medical malpractice plaintiffs to submit a certificate prior to discovery hinders their right of access to the courts.  Through the discovery process, plaintiffs uncover the evidence necessary to pursue their claims.  Obtaining the evidence necessary to obtain a certificate of merit may not be possible prior to discovery, when health care workers can be interviewed and procedural manuals reviewed.  Requiring plaintiffs to submit evidence supporting their claims prior to the discovery process violates the plaintiffs' right of access to courts.  It is the duty of the courts to administer justice by protecting the legal rights and enforcing the legal obligations of the people.  Accordingly, we must strike down this law.

(Citations omitted.)

There's certainly nothing unconstitutional (federal) about the federal government funding state demonstration projects related to medical liability reform.  But unless the President's demonstration program includes a preemption provision--which would seem both unlikely (because the whole point is to support new state laws experimenting with reform) and extraordinary (because it could only be designed to impede state constitutional rights that might get in the way of state reforms)--states are still bound by their constitutions.  The Washington Supreme Court's ruling is a healthy (pardon the pun) reminder that state constitutional rights are still relevant and may play an important role in state reform efforts.

SDS

States Seek to Limit Federal Health Care Overhaul

State lawmakers in several states have sought to introduce measures to curtail federal health care reform, according to a report yesterday by the AP.  The effort has so far been most successful in Arizona, where a proposed state constitutional amendment will appear on the ballot in 2010.  The bill reads in relevant part:

A.  To preserve the freedom of Arizonans to provide for their health care:

1.  A law or rule shall not compel, directly or indirectly, any person, employer or health care provider to participate in any health care system.

2.  A person or employer may pay directly for lawful health care services and shall not be required to pay penalties or fines for paying directly for lawful health care services.  A health care provider may accept direct payment for lawful health care services and shall not be required to pay penalties or fines for accepting direct payment from a person or employer for lawful health care services.

B.  Subject to reasonable and necessary rules that do not substantially limit a person's options, the purchase or sale of health insurance in private health care systems shall not be prohibited by law or rule.

This measure, and others like it, would certainly run up against federal preemption under any comprehensive federal reform bill.

On the flip side, protesters again suggested at Saturday's protest on the National Mall that federal health care reform would increase the size and scope of the federal government beyond what the founders intended.  But any federal reform measure currently in play would fit comfortably within Congress's authority under the Commerce Clause and the Court's "substantial effects" test--i.e., that Congress can regulate under the Commerce Clause anything that has a "substantial effect" upon interstate commerce.

Given the reality of federal supremacy, the expansive federal authority under the Commerce Clause, and a sprawling health care system that pervades the national economy (isn't that exactly the problem?),  the state efforts to limit federal health care reform and the arguments that federal health care reform exceed the federal government's powers have no real traction in our federal constitutional system.  But they seem to have garnered enough of a following to at least signal that some number think, on principle or merely because of politics, that the federal government has no business in health care reform.

SDS

The Constitutionality of State and Local Laws Targeting Immigrants: Saturday Evening Review

What power do state and local governments have to regulate or enforce laws relating to immigration?  This question is a recurring one, even as the federal government attempts immigration reform.

In her new article, The Constitutionality of State and Local Laws Targeting Immigrants,
available on ssrn here and forthcoming in University of Arkansas Little Rock Law Review, Professor Karla Mari McKanders of University of Tennessee (photo below), argues that

The practice of employing state and municipal laws to exclude immigrants should be discontinued. . . . . If states and localities are permitted to enact immigration laws, our country will have fifty  different iterations of pro- and anti- immigrant laws.  This will also cause state and local governments across the country to compete with each other to see who can pass laws to exclude immigrants from their states, so they will not have to address any issues that come along with migration and integrating immigrants into their communities.  This will essentially result in a downward spiral of states with laws that exclude (a race to the bottom) as states and localities attempt to enact laws which result in immigrants relocating or self-deporting.

McKanders analyzes the various (and contrary) federal decisions, noting that the federal courts take two main positions: (1) when states act pursuant to their police powers, state laws that affect immigration are not per se preempted; and (2) the INA establishes a comprehensive scheme that preempts state and local laws that target or affect immigrants.   She concentrates on  Chicanos Por La Causa, Inc. v. Napolitano,  544 F.3d 976 (9th Cir. 2008), and Lozano v. City of Hazleton, 496 F. Supp. 2d 477, 540-41 (M.D. Pa. 2007), but also discusses the important Eleventh Circuit case Young Apartments, Inc. v. Town of Jupiter, 529 F.3d 1027 (11th Cir. 2008), as well as several others.   

This paper was prepared for a Symposium at University of Arkansas-Little Rock on “cause lawyering,” which the law review defined as   “any activity that seeks to use law-related means or seeks to change law or regulations to achieve greater social justice—both for a particular individual and for disadvantaged groups.”  The Symposium further focused on "immigrants and the Gay, Lesbian, Bisexual, and Transgender communities."

Professor McKanders was doubtlessly invited because of her excellent previous piece, Welcome to Hazleton! 'Illegal' Immigrants Beware: Local Immigration Ordinances and What the Federal Government Must Do About It, available on ssrn here and in Loyola University Chicago Law Journal. If you are teaching or working in this specific area, or on preemption more generally, McKanders' articles are definitely worth a close read.

RR

President Directs Agencies on Preemption

President Obama this week issued a memorandum for agency heads that restores the federalism and preemption principles in Executive Order 13132 (August 10, 1999, "Federalism," Sec. 4, "Special Requirements for Preemption") and directs agencies to include statements of preemption in regulations "only when such statements have a suffiicent legal basis" and to review existing regs to ensure they meet these standards.

The memorandum marks a significant shift from the Bush administration attempts to preempt through the back door--adding preemption provisions into regulatory preambles and attempting to preempt without clear congressional intent or direct conflicts with federal law.  These attempts were most recently highlighted in Wyeth v. Levine, in which the Court ruled that FDA regulations did not preempt a state tort verdict.  (Recall that the Bush administration slipped a preemption clause into the preamble of the FDA regs, but this clause ultimately did not play a role in the case at the Supreme Court.  Instead, the Bush administration claimed that the state tort verdict conflicted with FDA regs and that FDA regulatory preemption reflected congressional intent.)

Preemption claims--but somewhat more modest claims--will be highlighted again, when the Court rules on Cuomo v. Clearing House Ass'n, the case argued on April 28, dealing with whether regulations of the Office of the Comptroller of the Currency, which interpret the National Bank Act to preempt state enforcement of state law against national banks, preempted New York's then AG Elliot Spitzer's investigation into lending practices of certain banks.  (The National Bank Act provides that "[n]o national bank shall be subject to any visitorial powers except as authorized by Federal law, vested in the courts of justice of such as shall be, or have been exercised or directed by Congress or by either House thereof."  OCC regs interpreted this to preempt state enforcement of state laws regulating national banks.)

Taking on some of the Bush administration backdoor preemption practices and broad preemption claims (as in Wyeth v. Levine), the memo lists two restrictions and an instruction for agencies:

1.  Heads of departments and agencies should not include in regulatory preambles statements that the department or agency intends to preempt State law through the regulation except where preemption provisions are also included in the codified regulation.

2.  Heads of departments and agencies should not include preemption provisions in codified regulations except where such provisions would be justified under legal principles governing preemption, including the principles outlined in Executive Order 13132.

3.  Heads of departments and agencies should review regulations issued within the past 10 years that contain statements in regulatory preambles or codified provisions intended by the department or agency to preempt State law, in order to decide whether such statements or provisions are justified under applicable legal principles governing preemption.  Where the head of a department or agency determines that a regulatory statement of preemption or codified regulatory provision cannot be so justified, the head of that department or agency should initiate appropriate action, which may include amendment of the relevant regulation.

How has the Obama administration done on this?

The administration defended the pro-preemption position in Cuomo based upon Chevron deference to OCC's interpretation of the "text, structure, and purposes" of the National Bank Act.  Its argument is much closer to the principles in EO 13132 than the Bush administration's practices and its arguments in Wyeth v. Levine.  EO 13132 states, in relevant part (Sec. 4): 

(a) Agencies shall construe, in regulations and otherwise, a Federal statute to preempt State law only where the statute contains an express preemption provision or there is some other clear evidence that the Congress intended preemption of State law, or where the exercise of State authority conflicts with the exercise of Federal authority under the Federal statute.

(b) Where a Federal statute does not preempt State law . . . agencies shall construe any authorization in the statute for the issuance of regulations as authorizing preemption of State law by rulemaking only when the exercise of State authority directly conflicts with the exercise of Federal authority under the Federal statute or there is clear evidence to conclude that the Congress intended the agency to have the authority to preempt State law.

The dispute in Cuomo turns in part on what Congress meant by "visitorial powers"--whether this phrase and other sections show "clear evidence to conclude that the Congress intended the agency to have the authority to preempt State law"--and not whether an agency can preempt by slipping a preemption clause into a regulatory preamble.  Still, while the "clear evidence" standard in (b) is closer in Cuomo v. Clearing House Ass'n than in Wyeth v. Levine, the evidence of congressional intent in Cuomo certainly isn't clear to everyone.

SDS

Fair Share and ERISA Preemption

Rick Hills started an interesting discussion at PrawfsBlawg on ERISA preemption of state and local "fair share" laws.  In general, these laws require employers to provide medical coverage for their employees, or to pay a tax (that goes into, e.g., a state health insurance fund).  In effect, employers gain a tax credit for providing health insurance to their employees. 

Employers have claimed that ERISA preempts these efforts, because, in the language of ERISA preemption, they "relate to" employers' ERISA plans.  Circuit have split on this argument: The Fourth Circuit ruled that ERISA preempts, while the Ninth Circuit ruled that it doesn't.

Hills's post and comments go beyond the narrow constitutional preemption arguments, though, and touch upon broader federalism and policy concerns.  Hills:

But here is where I am a die-hard lover of federalism: As dumb as employer mandates are, centralizing debate over health care through a broad construction of ERISA preemption is even dumber. Such centralization is an outrage against the democratic process both locally (by suppressing the efforts of those zany San Franciscans) and nationally (by letting Congress off the hook of confronting the relationship between health care and employment). San Francisco hurts no one but itself and its own residents by burdening business and driving away capital to the 'burbs. The claim that national businesses will suffer some external cost outside San Francisco from disuniform regulation is patently baloney: Any business that operates in any city already must uncontroversially incur the costs of researching and complying with local zoning codes, local taxes and fees, local building codes, local safety regulations, etc. The marginal cost of insuring that one's local branch complies with the local complying health care law is close to zero.

For another policy take, see Fisk and Oswalt's Preemption and Civic Democracy in the Battle over Wal-Mart in the Minn. L. Rev. and on ssrn.

Here's an area that begs for the kind of broader analysis that Hills, Fisk, Oswalt, and others bring.  With the failure of the federal government to lead on national health care, state and local governments have sought to fill the void, responding to the increasingly desperate needs of their citizens.  But they're (at least potentially) constrained by federal ERISA preemption.  In short, the federal government refuses itself to step up and address the health care crisis, and also curtails state and local efforts to solve the problem.

This problem is rich with preemption, federalism, distributional, and governance issues, and it makes a great case-study in some of the practical problems with constitutional preemption.

SDS

Court Rules on Cigarette Labeling Preemption

A sharply divided (5-4) Supreme Court ruled today in Altria Group, Inc. v. Good that plaintiffs' lawsuit against a cigarette manufacturer under a state fraud claim was not preempted by the Federal Cigarette Labeling and Advertising Act.  I previously posted on the case here.

Plaintiffs brought their state claim against the cigarette manufacturer for fraudulently advertising that their "light" cigarettes delivered less tar and nicotine than regular brands.  Defendants moved for summary judgment and won: the district court ruled that the federal Labeling Act preempted plaintiffs' fraud claim under the Maine Unfair Trade Practices Act.  The First Circuit reversed, and the Supreme Court today upheld.  The Court's ruling resolves the "apparent conflict" in the circuits as to whether state fraud claims were actually "warning neutralization" claims and thus expressly preempted by the Labeling Act under Cipollone v. Liggett Group, Inc. (1992).  The First Circuit's opinion in this case and the Fifth Circuit's 2007 opinion in Brown v. Brown & Williamson Tobacco Corp. represent the two sides of the circuit split.

The Labeling Act's preemption provision, sec. 5(b), reads as follows:

No requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this chapter.

In determining whether a state claim is preempted under 5(b), the Cipollone plurality looked to

whether the legal duty that is the predicate of the common-law damages action constitutes a "requirement or prohibition based on smoking and health . . . with respect to . . . advertising or pormotion," giving that clause a fair but narrow reading.

Here, the MUTPA is not a "requirement or prohibition based on smoking or health"; instead it simply creates a duty not to deceive.  This is true, even though any injuries included the harm to the plaintiffs' health from smoking "light" cigarettes.  The Court:

It is true, as petitioners argue, that the appeal of their advertising is based on the relationship between smoking and health.  And although respondents have expressly repudiated any claim for damages for personal injuries, their actual injuries likely encompass harms to health as well as the monetary injuries they allege.  These arguments are unavailing, however, because the text of [the preemption provision] does not refer to harms related to smoking and health.  Rather, it pre-empts only requirements and prohibitions--i.e., rules--that are based on smoking and health.  The MUTPA says nothing about either "smoking" or "health."

Thus under the plain language of the Labeling Act's preemption provision and the MUTPA, and under the Cipollone (plurality) test, plaintiffs' fraud claims were not expressly preempted.  (The Court declined the petitioners' invitation to reconsider the Cipollone test.)

Moreover, wrote the Court, the plaintiffs' claims were not impliedly preempted:

[The history of Federal Trade Commission labeling policies] shows that, contrary to petitioners' suggestion, the FTC has no longstanding policy authorizing collateral representations based on Cambridge Filter Method test results.  Rather, the FTC has endeavored to inform consumers of the comparative tar and nicotine content of different cigarette brands and has in some instances prevented misleading representations of Cambridge Filter Method test results.  The FTC's failure to require petitioners to correct their allegedly misleading use of "light" descriptors is not evidence to the contrary; agency nonenforcement of a federal statute is not the same as a policy of approval.

More telling are the FTC's recent statements regarding the use of "light" and "low tar" descriptors. . . .  "It d[id] not apply to other conduct or express or implied representations, even if they concern[ed] tar and nicotine yields."

Justice Thomas's dissent (joined by Chief Justice Roberts and Justices Scalia and Alito) focused on the unworkability of the Cipollone test.  Justice Thomas recommended Justice Scalia's test (from his Cipollone opinion) as a workable alternative for the lower courts:

The majority today ignores these problems and adopts the methodology of the Cipollone plurality as governing law.  As a consequence, the majority concludes that state-law liability for deceiving purchasers about the health effects of smoking light cigarettes is not a "requirement or prohibition based on smoking and health" under the Labeling Act.  The Court's fidelity to Cipollone is unwise and unnecessary.  The Court should instead provide the lower courts with a clear test that advances Congress' stated goals by interpreting sec. 5(b) to expressly pre-empt any claim that "imposes an obligation . . . because of the effect of smoking upon health."

The Court's ruling today simply means that the plaintiffs' lawsuit can go forward; it says nothing on the merits of their MUTPA claims.

SDS

Federalist Society: Supreme Court Retrospective

The Federalist Society published a special edition of Engage, its practice group journal, dedicated to a Supreme Court retrospective.  The full journal is here.

Pieces of particular interest:

Ronald A. Cass, The Supreme Court's Standing Problem, page 4

Daniel E. Troy & Rebecca K. Wood, Federal Preemption at the Supreme Court, page 7

Thomas W. Merrill, Judicial Deference to Agency Action, page 16

Nelson Lund, Justice Kennedy's Stricter Scrutiny and the Future of Racial Diversity Promotion, page 20

Robert A. Levy, Anatomy of a Lawsuit: District of Columbia v. Heller, page 27

William E. Thro, Respecting the Democratic Process: The Roberts Court and Limits on Facial Challenges, page 54

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Zieve on Preemption

Allison Zieve, a staff attorney at Public Citizen and counsel in some of the recent preemption cases at the Court, posted a review of the Court's preemption cases on the ACSBlog.  Zieve reviews the preemption issues in the recent cases and argues that there is a complementary relationship (not a conflict) between federal regulation and state tort claims.  This is well worth a look. 

I've also posted on the most recent preemption issues here. 

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Oral Argument in Wyeth v. Levine

The Supreme Court heard oral arguments today in Wyeth v. Levine, the case involving drug manufacturer Wyeth's federal preemption defense against a state tort claim.  SCOTUSwiki has an excellent overview here.  (Thank you.)  I've posted on related issues here and here.

The issue in the case is whether FDA's drug labelling requirement preempts--by conflict preemption--a state tort claim against a drug manufacturer for failure to warn of the dangers of its drug.  (The Federal Food, Drug, and Cosmetic Act has no express preemption provision, making this case different than last term's Riegel v. Medtronic, in which the Court held that federal law expressly preempted state claims against manufacturers of FDA-approved medical devices.)

The Constitutional and Administrative Law Scholar's amicus brief has a good argument (argument II, running from pages 18 to 26 of the brief, not the pdf).  This is well worth a look.

The oral argument transcript provides some nice back-and-forth (as you'd expect); look at the respondent's argument, starting on page 24, for exchanges that home in on the issues particularly well.  Much of the oral argument focused on whether Wyeth had new information about the drug--information that the FDA did not consider in its original action directing Wyeth's label (whether acquired before or after the original FDA action).  In other words:  Did Wyeth sit on information about the drug's harmful effects--even as the FDA failed to consider that information--and take advantage of the FDA's more lenient labelling requirement?  It did, respondent argues, and therefore the FDA labelling requirement does not preempt state tort claims for failure to warn. 

Wyeth's brief is here; Levine's brief is here; the government's amicus brief (supporting Wyeth and preemption) is here.

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FDA Staff Objected to Preemption

The House Oversight and Government Reform Committee released a report and supporting documents yesterday showing that career FDA staff objected to FDA drug labelling requirements preempting state consumer lawsuits against drug manufacturers.  (See my related post, Backdoor Preemption, here.)  The WSJ reports here; LA Times reports here.

The release comes just before the Supreme Court hears oral arguments in Wyeth v. Levine on Monday.  SCOTUSWiki collects the briefs--including an impressive array of amicus briefs--here.  (Thank you.)

The Committee posts its report and collects the documents here.  These documents illustrate the behind-the-scenes legal, political, and bureaucratic back-and-forth over preemption and other issues, offering a fascinating case study in how we get a claim of preemption via regulation in a case like this.  I recommend especially the report's Executive Summary, the Supporting Documents for Section A, and the Supporting Documents for Section E.

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Backdoor Preemption by Administrative Regulation?

The Wall Street Journal reported last week that Bush administration officials "are pushing to rewrite a wide array of federal rules with changes or additions that could block product-safety lawsuits by consumers and states."

At issue is the practice of administrative agencies writing preemption clauses into proposed regulations, sometimes at OMB's behest, even though authorizing legislation does not contain a preemption provision.  According to the WSJ, former administration domestic policy adviser Jay Lefkowitz said that the administration decided not to press its preemption agenda in Congress, because it might lose.  It apparently has decided to take matters into its own hands.

The administration has argued that the clauses are evidence of federal preemption of plaintiffs' state tort claims, as long as defendants comply with federal law, thus undermining plaintiffs' claims--and protecting corporate defendants--in areas where the federal government regulates. 

The Trial Lawyers Association (now the American Association for Justice) was quite critical in its report, after undercovering evidence of the practice through FOIA requests.  The Chamber of Commerce's Institute for Legal Reform has been supportive of administration preemption efforts.

The Court may weigh in next month in Wyeth v. Levine, a case involving the federal preemptive effects of the Federal Food, Drug, and Cosmetic Act's labelling requirements.  The FDA's preemption clause plays a bit role in briefing on the larger conflict preemption issue, but the administration's amicus brief addresses it squarely in Argument C.2., running from page 26 to page 27 (of the brief, not of the pdf file).  The administration writes:

In the preamble to a January 2006 rule concerning the labeling of drugs, FDA explained that the government's "long-standing view[]" is that "FDA approval of labeling under the [FDCA] * * * preempts conflicting or contrary State law," especially considering that "FDA interprets the [FDCA] to establish both a 'floor' and a 'ceiling'" for labeling.  71 Fed. Reg. at 3934, 3935. 

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Altria Group v. Good and Preemption

The U.S. Supreme Court heard oral arguments today in Altria Group v. Good, in which the petitioners Phillip Morris USA and its parent company Altria appealed a First Circuit ruling that federal law and practice did not preempt a state deceptive trade practices claim.

The plaintiffs, smokers of "light" cigarettes, brought their case against petitioners under Maine's Unfair Trade Practices Act, claiming that Phillip Morris had falsely represented some of its brands as "light."  The petitioners claimed that the Federal Cigarette Labeling and Advertising Act (FCLAA) expressly preempted plaintiffs' state law claim and that Federal Trade Commission (FTC) oversight and practice implicitly preempted the plaintiffs' claim.  (Petitioners all but gave up on their implicit preemption defense after the federal government intervened and argued that the FTC did not view the lawsuit as undermining its policies.)

The FCLAA preemption provision states that "[n]o requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this chapter." (Emphasis added.)  In the language of the First Circuit, the express preemption issue thus turned on whether plaintiffs "indeed alleged fraudulent misrepresentation claims" not "based on smoking and health" (which are therefore not preempted), or whether they "in reality alleged failure-to-warn or warning neutralization claims" (i.e., claims "based on smoking and health," which are therefore preempted).  The First Circuit ruled in favor of plaintiffs.

The case offers plenty of fodder for a class or exercises on federal preemption.  Start with a quick review of the facts:  Lyle Denniston previewed the case on the SCOTUS Blog here; Adam Liptak's story in the New York Times is here.  The oral argument covered mostly predictable ground; the Q&A with the plaintiff-respondents' (at pages 23 to 41) may be most useful to zero in on the issues around express preemption.  After reviewing this material, you might ask your students to draft a complaint on behalf of plaintiffs to avoid express preemption and to dodge some of the issues at oral argument.  (I haven't been able to track down the complaint.  I'll post it when I do.)  With the benefit of the argument transcript, can they do better than the attorneys in the case?  You might ask them then to switch sides and answer questions directed at the petitioners (at pages 3 to 23 of the transcript).  How do they match up against Theodore Olson's actual answers?

Finally, you may wish to assign the outstanding amicus brief filed on behalf of constitutional and administrative law scholars.  As you might expect, it provides an excellent forest (not trees) view of the case and an outstanding review of preemption principles.

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