Constitutional Law Prof Blog

Texas Law Requiring Parental Notice and Consent for Contraception Not Preempted by Title X

The Fifth Circuit ruled today that Title X does not preempt a Texas law that requires parental notice and consent when a child tries to access contraceptives.

The ruling leaves the Texas law on the books, but also leaves open the question whether a federal regulation is valid and may preempt it.

The case, Deanda v. Becerra, arose when a father claimed that Texas law gave him the right to consent before his minor daughters obtained contraceptives, and that the Secretary unlawfully administered Title X by funding grantees who provide contraception to minors without parental notification and consent. The government argued that Title X preempted Texas law.

The Fifth Circuit disagreed. The court noted that Title X says, "To the extent practical, entities which receive grants or contracts [to provide contraception] shall encourage family participation in projects assisted under this subsection." The court said that there's "no real conflict" between that provision and Texas law:

The federal text plainly conveys the overarching goal of encouraging family participation in adolescents' family planning decisions. The Texas law pursues the same goal through more specific means: requiring parental consent before minors obtain contraceptives. Those objectives reinforce each other. As Deanda argues, Title X establishes a "floor" for grantees' participation (encouraging family participation), and Texas law establishes a specific means of achieving that goal (obtaining parents' consent). So, far from undermining Title X's purposes, Texas law concretely furthers them.

But there's a hitch. After Deanda sued, HHS implemented a regulation that prohibits Title X projects from "requir[ing] consent of parents or guardians for the provision of services to minors." (The regulation codifies long-standing HHS practice.) The regulation, if valid, would independently preempt Texas law. The district court vacated the reg, but the Fifth Circuit reversed that portion of the ruling, noting that Deanda never challenged the reg, and the district court never assessed it under the APA. (That's not surprising, because HHS issued the reg after Deanda sued.)

The upshot: the court says that Title X does not preempt Texas law, but leaves opens the question whether the HHS reg does. Both the Texas law and the HHS reg stay on the books, awaiting the next challenge.

Court Says NLRA Doesn't Preempt Employer's State Lawsuit Against Union

The Supreme Court ruled last week that the National Labor Relations Act didn't preempt an employer's state lawsuit against a union for damages resulting from a strike. The ruling is a blow to employees' right to strike under the NLRA and the role of the National Labor Relations Board in determining the scope of that right.

The case, Glacier Northwest, Inc. v. Teamsters, arose when employees of Glacier, a cement company, began a strike when they were slated to deliver cement. Because wet cement dries quickly, Glacier had to figure out how to save or dispose of cement already in the trucks, and what to do to protect its trucks.

Glacier sued the union in state court for lost cement, but the union argued that the employees' right to strike in the NLRA preempted the suit. The state supreme court sided with the union, and Glacier took the case to the Court.

The Court, in an 8-1 ruling by Justice Barrett, reversed. The Court ruled that the right to strike in the NLRA was a qualified (not absolute) right, and, citing NLRB precedent, that it didn't protect workers who failed to take "reasonable precautions" to protect the employer's property. The Court acknowledged that under Court precedent the NLRB preempts state law even when the two only arguably conflict--Garmon preemption, after San Diego Building Trades Council v. Garmon--but it held that the union's strike wasn't even arguably protected, because the employees so clearly failed to take "reasonable precautions" to protect Glacier's property (at least on Glacier's complaint, as this was all on the pleadings).

The ruling allows Glacier's case to move forward in the state courts.

Still, there may be a hitch. That's because after the state supreme court ruled, the NLRB general counsel filed an unfair labor practices complaint with the NLRB on behalf of Glacier's employees. The complaint alleged that Glacier violated the employee's right to strike under the NLRA. The NLRB hasn't yet ruled on the complaint. But if it concludes that Glacier violated the employees' right to strike, any state court ruling for Glacier would conflict, and under ordinary conflict preemption, the state case would have to be dismissed. (The NLRB could conclude that the employees have a right to strike, even though the Supreme Court said the opposite, because the NLRB will conduct a full adversarial hearing on the evidence, while the Court ruled only on Glacier's complaint.)

Justice Thomas concurred, joined by Justice Gorsuch, and argued that the Court should reconsider Garmon preemption in an appropriate case. Justice Alito also concurred, joined by Justices Thomas and Gorsuch, arguing that the case was even easier than the majority said, because the employees intentionally damaged Glacier's property.

Justice Jackson filed a lone dissent. She argued that the Court had no business hearing the case until the NLRB ruled on the complaint (because that's how Garmon preemption is supposed to work, and a ruling for the employees would mean that the NLRA and state tort liability would at least arguably conflict), and that in any event the Court misapplied the "reasonable precaution" rule.

Federal Government Asks Supreme Court to Halt Texas's Antiabortion Law

Steven D. Schwinn, University of Illinois Chicago School of Law

The federal government yesterday asked the Supreme Court to reinstate a lower court injunction against Texas's S.B. 8, the state law that effectively shut down nearly all abortions in the state. The move came after the Fifth Circuit stayed the district court's injunction pending appeal.

This'll be the second trip that S.B. 8 makes to the high court. Recall that the Court in an earlier pre-enforcement lawsuit allowed S.B. 8 to go into effect. The Court ruled that the plaintiffs in that earlier case sued the wrong defendants, state judicial officers and private individuals who said that they'd enforce S.B. 8.

The federal government's suit is tailored to navigate that procedural problem in the earlier case and put the issue of S.B. 8's constitutionality squarely before the Court.

In order to do this, the federal government sued Texas itself (not its officers or judges, and no private individuals). The government argues that it can do this in order "to vindicate two distinct sovereign interests":

First, to the extent S.B. 8 interferes with the federal government's own activities, it is preempted and violates the doctrine of intergovernmental immunity. Second, S.B. 8 is an affront to the United States' sovereign interests in maintaining the supremacy of federal law and ensuring that the traditional mechanisms of judicial review endorsed by Congress and this Court remain available to challenge unconstitutional state laws. The United States has authority to seek equitable relief to vindicate both interests.

(That first interest goes to government obligations to assist certain individuals, like those incarcerated in federal prison, in getting an abortion. If the government honors that obligation for incarcerated women in Texas, it can be subject to civil suit under S.B. 8 in Texas courts. According to the government, this means that S.B. 8 is preempted by those federal obligations, and that S.B. 8, in allowing suits against the United States, violates the government's immunity.)

As a result, the government argues that its suit avoids the wrong-defendant problem in the earlier suit. After all, Texas itself created the mechanism that outsourced enforcement of S.B. 8 to private parties, and so Texas itself must be accountable in court.

The government asked the Court to vacate the Fifth Circuit's stay, or to grant cert. before judgment and set the case for argument this Term.

Ninth Circuit Upholds California's Worker-Contractor Classification Law Against Federal Preemption

Steven D. Schwinn, University of Illinois Chicago School of Law

The Ninth Circuit ruled that the Federal Aviation Administration Authorization Act did not preempt California's law that classifies workers as either employees or independent contractors. The ruling means that the state law stays on the books.

The case is a win for workers, because employers are much more likely to have to treat their workers as "employees" under state law (with all the attendant benefits) rather than contractors.

The case splits with the First Circuit, which held in Schwann v. FedEx that the FAAAA did not preempt an identical Massachusetts law.

The case, California Trucking Association v. Bonta, arose when the CTA sued the state AG to halt to the state's enforcement of its "AB-5 test" for classifying workers as either employees or independent contractors. The AB-5 test says that workers are "employees," not independent contractors, "unless the hiring entity demonstrates that all of the following conditions are satisfied":

(A) the person is free from the control and direction of the hiring entity in connection with the performance of the work . . . . (B) The person performs work that is entirely outside the usual course of the hiring entity's business. (C) The person is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.

As compared to prior state law, the test leans heavily in favor of "employee," because it presumes a worker is an employee unless a "hiring entity" could establish all three parts of the test, one of which (part (B)) was previously only a factor (not a determinate element) in the analysis.

According to CTA, SB-5 would increase its members' costs "by as much as 150% or more," because they'd have to treat more workers as "employees."

CTA claimed that the FAAAA preempted SB-5. It pointed to the FAAAA's express preemption clause, which says that the federal act preempts any state law "related to a price, route, or service of any motor carrier . . . with respect to the transportation of property."

The Ninth Circuit rejected the claim. The court ruled that AB-5 applies across industries (and doesn't single out the trucking industry) and only affects the employment relation, not "a price, route, or service" (at least not directly).

Because AB-5 is a generally applicable law that impacts a motor carrier's business at the point where the motor carrier interacts with its workers, and the law affects motor carriers' relation with their workers in a manner analogous to the worker classification laws we have previously upheld . . . AB-5 is not significantly related to rates, routes, or services. Therefore, we conclude that the [FAAAA] does not preempt AB-5 as applied to motor carriers.

Judge Bennett dissented, arguing that "the majority's rule ignores the possibility [as here] that a state law might affect a motor carrier's relationship with its workforce and have a significant impact on that motor carrier's prices, routes, or services . . . ."

Court Upholds State Pharmacy Reimbursement Regulation Against ERISA Preemption Claim

Steven D. Schwinn, University of Illinois Chicago Law School

The Supreme Court on Friday upheld Arkansas's law regulating the price that pharmacy benefit managers reimburse pharmacies for the cost of drugs covered by drug-prescription plans against an ERISA preemption challenge. The ruling leaves Arkansas's law in place.

The case, Rutledge v. Pharmaceutical Care Management Association, tested Arkansas's Act 900. That Act requires pharmacy benefit managers (PBMs, who act as intermediaries between prescription-drug plans and pharmacies that use them) to reimburse pharmacies (under the PBMs' maximum allowable cost schedules) at or above the rate that pharmacies paid to buy the drug from a wholesaler. The law was designed to ensure that pharmacies, particularly rural and independent pharmacies, could cover their costs and stay in business.

A national trade association of PBMs sued, arguing that the provision was preempted by the federal Employee Retirement Income Security Act. ERISA pre-empts "any and all State laws insofar as they may not or hereafter relate to any employee benefit plan" covered by ERISA.

The Supreme Court disagreed. Justice Sotomayor wrote for a unanimous Court (except Justice Barrett, who did not participate) that "ERISA does not pre-empt state rate regulations that merely increase costs or alter incentives for ERISA plans without forcing plans to adopt any particular scheme of substantive coverage." She said that Act 900, which is "merely a form of cost regulation," is just such a plan. Moreover, she said that Act 900 doesn't "refer to" ERISA, because it doesn't "act[] immediately and exclusively upon ERISA plans or where the existence of ERISA plans is essential to the law's operation." In short, "it applies to PBMs whether or not they manage an ERISA plan." 

Justice Thomas concurred, and wrote separately to again express "doubt" as to "our ERISA pre-emption jurisprudence." 

Feds Seek to Crack Down on Immigration, Sanctuary Policies in Three Lawsuits

Steven D. Schwinn, UIC John Marshall Law School

The Department of Justice yesterday filed three separate lawsuits seeking to halt various immigration-related and sanctuary policies in California, New Jersey, and King County, Washington.

The three suits are directed as different policies, as so plead slightly different violations, but they all plead some form of federal supremacy and preemption in immigration policy.

In the California case, DOJ takes on California's ban on the operation of private detention facilities in the state. In short, DOJ says that "California, of course, is free to decide that it will no longer use private detention facilities for its state prisoners and detainees. But it cannot dictate that choice for the Federal Government, especially in a manner that discriminates against the Federal Government and those with whom it contracts." Here's the complaint; here's the motion for a preliminary and permanent injunction.

In the King County case, DOJ seeks to halt a local order that closes the airport for the "deportation of immigration detainees (except for federal government aircraft), to the maximum extent permitted by applicable law." Here's the complaint.

Finally, in the New Jersey case, DOJ takes on a law enforcement directive that limits state and local cooperation with "federal immigration authorities." Here's the complaint.

 

SCOTUS Upholds Virginia's Ban on Uranium Mining

Steven D. Schwinn, John Marshall Law School

The Supreme Court today upheld Virginia's ban on uranium mining against a federal preemption challenge by a mining company. The ruling says that the federal Atomic Energy Act does not preempt Virginia's ban.

The case, Virginia Uranium, Inc. v. Warren, arose when Virginia Uranium sought to mine raw uranium ore from a site near Coles Hill, Virginia. The problem: Virginia law prohibits uranium mining in the Commonwealth. So Virginia Uranium sued, arguing that the ban was preempted under the federal AEA.

The Court ruled 6-3 that the AEA did not preempt the Commonwealth's ban. Justice Gorsuch wrote the lead opinion, joined by Justices Thomas and Kavanaugh. He wrote that the AEA, by its plain terms, regulated milling and waste disposal, but not mining. So the AEA doesn't field-preempt Virginia's ban, and it doesn't obstacle-preempt Virginia's ban. Justice Gorsuch emphasized a textual approach, because, he argued, considering state legislative purposes (in a field preemption analysis) and congressional purposes (in an obstacle preemption analysis) would be fraught with difficulties and uncertainties.

Justice Ginsburg wrote a concurring opinion, joined by Justices Sotomayor and Kagan. She agreed with Justice Gorsuch, but argued that "his discussion of the perils of inquiring into legislative motive sweeps well beyond the confines of this case, and therefore seems to me inappropriate in an opinion speaking for the Court, rather than for individual members of the Court." Moreover, "Virginia Uranium's obstacle preemption arguments fail under existing doctrine, so there is little reason to question, as Justice Gorsuch does, whether that doctrine should be retained."

Chief Justice Roberts dissented, joined by Justices Breyer and Alito. He argued that Virginia sought an end-run around the AEA by banning mining (which the AEA doesn't regulate), but for the purpose of banning milling and waste (which the AEA does regulate).

Thus, the question before us is whether, consistent with the AEA and our precedents, the Commonwealth may purport to regulate a non-preempted field (mining safety) with the purpose and effect of indirectly regulating a preempted field (milling and [waste]). That should have made for an easy case.

Under our AEA precedents, a state law is preempted not only when it "conflicts with federal law," but also when its purpose is to regulate within a preempted field.

Court Says Federal Law Does Not Borrow State Labor Law on Outer Continental Shelf

Steven D. Schwinn, John Marshall Law School

The Supreme Court ruled today that federal law does not borrow state labor law on the Outer Continental Shelf. The unanimous ruling reverses the Ninth Circuit.

Given the unusual statutory provision at issue, and given the federal enclave status of the OCS, the ruling is quite narrow, based only on the particular statutory language, and does not say anything more general about the Court's preemption or federalism jurisprudence.

The case, Parker Drilling Management Services, Ltd. v. Newton, tested an unusual provision in federal law that applies to the OCS. That provision says that the laws of the adjacent state will apply to the OCS "[t]o the extent that they are applicable and not inconsistent with [federal law]." In other words, federal law applies on the OCS, and federal law borrows state law when it's "applicable and not inconsistent with" federal law.

So what happens when state law is more generous to workers than federal law? Does the state law apply (as it would under ordinary preemption analysis), or does the federal law apply?

A unanimous Supreme Court said that federal law applies. Justice Thomas, writing for the Court, noted first that the OCS is a federal enclave, where only federal law applies. (Remember, under the Act federal law borrows state law as its own.) He said that in that situation, ordinary preemption analysis doesn't apply; instead, the Court needs to determine what the phrase "applicable and not inconsistent" means in a location where the default is that only federal law applies.

Taken together, these provisions convince us that state laws can be "applicable and not inconsistent" with federal law under [the Act] only if federal law does not address the relevant issue. As we have said before, [the Act] makes apparent "that federal law is 'exclusive' in its regulation of [the OCS], and that state law is adopted only as surrogate federal law." [The Act] extends all federal law to the OCS, and instead of also extending state law writ large, it borrows only certain state laws. These laws, in turn, are declared to be federal law and are administered by federal officials. Given the primacy of federal law on the OCS and the limited role of state law, it would make little sense to treat the OCS as a mere extension of the adjacent State, where state law applies unless it conflicts with federal law. That type of pre-emption analysis is applicable only where the overlapping, dual jurisdiction of the Federal and State Governments makes it necessary to decide which law takes precedence. But the OCS is not, and never was, part of a State, so state law has never applies of its own force.

Court Clarifies Preemption Standard in Pharmaceutical Failure-to-Warn Cases

Steven D. Schwinn, John Marshall Law School

The Supreme Court ruled on Monday that a drug manufacturer, in order to escape state-tort failure-to-warn liability, must show that "it fully informed the FDA of the justifications for the warning required by state law and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve changing the drug's label to include that warning." The Court also ruled that this was a legal question for a judge, not an evidentiary (factual) question for the jury.

The ruling clarifies the standard that the Court set for "impossibility" preemption cases ten years ago in Wyeth v. Levine. In that case, the Court held that in order to show that a drug manufacturer could not simultaneously comply with federal and state requirements on drug warning labels--and that federal law therefore preempted state law--the manufacturer had to show "clear evidence" that the FDA would not have approved a change to the drug label (even as state law required it). Lower courts had trouble with the "clear evidence" standard--what it meant, and who (judge or jury) should apply it. Monday's case, Merck Sharp & Dohme Corp. v. Albrecht, clarified things a little.

The issue pits the FDA's authority to approve the contents of drug-label warnings, or to say that a manufacturer cannot include certain warnings, against state tort standards that require warnings in order to avoid failure-to-warn liability. As the Court explained:

The central issue in this case concerns federal preemption, which as relevant here, takes place when it is "impossible for a private party to comply with both state and federal requirements." The state law that we consider is state common law or state statutes that require drug manufacturers to warn drug consumers of the risks associated with drugs. The federal law that we consider is the statutory and regulatory scheme through which the FDA regulates the information that appears on brand-name prescription drug labels.

The Court in Wyeth v. Levine held that a manufacturer had to show "clear evidence" that the FDA would not have approved a warning in order to demonstrate that it couldn't simultaneously comply with federal law (rejecting a warning) and state law (requiring it). The Court on Monday elaborated:

In a case like Wyeth, showing that federal law prohibited the drug manufacturer from adding a warning that would satisfy state law requires the drug manufacturer to show that it fully informed the FDA of the justifications for the warning required by state law and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve changing the drug's label to include that warning.

But the Court said that this isn't a traditional evidentiary or factual standard. Instead, it's a legal question, and it goes to the judge, not the jury. At bottom, then, a judge has to decide "whether the relevant federal and state laws 'irreconcilably conflic[t]."

This could be tough for manufacturers, given FDA labeling options. Under FDA regs there are at least two ways that a manufacturer might add a warning: through the FDA approval process; or through the "changes being effected" ("CBE") process, which allows a manufacturer unilaterally to strengthen a warning when there is "newly acquired information" about the drug (subject to later FDA review and approval). Moreover, the Court has been clear: the manufacturer bears ultimate responsibility for appropriate and sufficient warnings.

In this case, Merck went back and forth with the FDA on adding a warning about atypical femoral fracture to its label for Fosamax, an oral drug that slows the breakdown of old bone cells and thus helps postmenopausal women avoid osteoporotic fractures. Merck added a "precaution" about "low-energy femoral shaft fracture" through the FDA-approval process, but the FDA rejected Merck's request to cross-reference a longer discussion that focused on "the risk of stress fractures associated with Fosamax." (The FDA explained that "[i]dentification of 'stress fractures' may not be clearly related to the atypical subtrochanteric fractures that have been reported in the literature.") Merck added that change itself through the CBE process, but made no changes to the "Precautions" section of the label--the section at issue in this case.

On remand, then, the judge will have to apply the refined Wyeth v. Levine standard to these facts.

Justice Breyer wrote the majority opinion, joined by Justices Ginsburg, Sotomayor, Kagan, and Gorsuch.

Justice Thomas concurred, expressing his "skeptic[ism] that 'physical impossibility' is a proper test for deciding whether a direct conflict exists between federal and state law." Instead, he would look to a "logical contradiction" between the two.

Justice Alito, joined by Chief Justice Roberts and Justice Kavanaugh, concurred in the judgment only. He wrote to emphasize that Congress enacted legislation after Wyeth v. Levine that may bear on the preemption analysis, and to argue that the facts are somewhat more complicated than the majority opinion reflects. (Justice Alito dissented in Wyeth v. Levine. He was joined by Chief Justice Roberts and Justice Scalia.)

Ninth Circuit Rebuffs Government's Challenge to California's Sanctuary Laws

Steven D. Schwinn, John Marshall Law School

The Ninth Circuit ruled yesterday that the federal government was unlikely to succeed in its challenge to certain California "sanctuary" laws that protect undocumented immigrants from federal immigration enforcement. The ruling denies the government's motion for a preliminary injunction against these laws. At the same time, the court remanded one particular provision to the lower court for further consideration.

The ruling, while preliminary, is yet another blow to the federal government's efforts to clamp down on sanctuary jurisdictions.

The case, United States v. California, tested three of California's "sanctuary" provisions. The federal government argued that they violated the doctrine of intergovernmental immunity (which prohibits state governments from regulating the federal government) and that federal law preempted them. 

The first, AB 450, prohibits public and private employers in the state from providing consent to an immigration enforcement agent to enter any nonpublic area of their property and to review their employment records without a subpoena or warrant. It also requires employers to provide employees with a notice of inspection by an immigration agency within 72 hours of receiving the notice. The court rejected the government's intergovernmental immunity claim, because "AB 450 is directed at the conduct of employers, not the United States or its agents, and no federal activity is regulated." It rejected the obstacle-preemption argument, because the provision regulates the relationship between employers and their employees, not between federal immigration authorities and the employees they regulate, and therefore it "imposes no additional or contrary obligations that undermine or disrupt the activities of federal immigration authorities." 

The second, AB 103, requires the California attorney general to inspect "county, local, or private" detention facilities where immigrants are housed and to review the conditions of confinement, including the "standard of care and due process provided to" detainees, and "the circumstances around their apprehension and transfer to the facility." The court ruled that the government was unlikely to succeed on its intergovernmental immunity argument as to the provision's burdens that duplicated preexisting inspection requirements, including the due process provision. But it ruled that the government was likely to succeed as to the provision's excessive burdens that fell uniquely on the federal government (the requirement that the state ag examine the circumstances surrounding the apprehension and transfer of immigration detainees). The court ruled that the government was not likely to succeed on the merits of its preemption claim, because "California possesses the general authority to ensure the health and welfare of inmates and detainees in facilities within its borders," and the government failed to show that Congress intended to supersede this authority.

The final provision, SB 54, restricts law enforcement from cooperating with federal immigration authorities in immigration enforcement. The court held that the federal government's preemption claim runs headlong into the Tenth Amendment's anti-commandeering principle. That's because the federal government can't force the state or its officers into participating in federal immigration enforcement, even if "SB 54 may well frustrate the federal government's enforcement efforts." The court rejected the federal government's intergovernmental immunity argument, because accepting that claim "would imply that California cannot choose to discriminate against federal immigration authorities by refusing to assist their enforcement efforts--a result that would be inconsistent with the Tenth Amendment and the anticommandeering rule." Finally, the court ruled that SB 54 does not directly conflict with 8 U.S.C. Sec. 1373, which prohibits state and local governments from prohibiting their officers from communicating with federal immigration officials about the immigration status of any person.

High Court Says Tribal Treaty Preempts State Fuel-Transportation Tax

Steven D. Schwinn, John Marshall Law School

The Supreme Court ruled today that a treaty between the United States and the Yakama Nation preempts Washington's tax on "motor vehicle fuel importer[s]" who bring fuel into the state by "ground transportation." The ruling in Washington State Dept. of Licensing v. Cougar Den, Inc. means that Washington can't apply its tax to Yakama Nation members who import fuel. 

The case pits a provision of the treaty against the state tax. The treaty provision reserves Yakamas' "right, in common with citizens of the United States, to travel upon all public highways," while Washington taxes "the importation of fuel, which is the transportation of fuel." The Court held, 5-4, that the treaty provision preempts the state tax. (Justice Gorsuch joined the progressives; the other four conservatives dissented.)

Justice Breyer wrote for a plurality that included Justices Sotomayor and Kagan. As to the tax, he wrote that it applies to transportation of fuel, and not just the possession of fuel, and thus implicated the treaty's right to travel. As to the treaty, he said that the the language "in common with citizens of the United States" was more than just an equality clause. (Mere equality would have meant only that Yakamas enjoyed the same right to travel as U.S. citizens, and not an especial right to travel to trade goods.) Justice Breyer wrote that prior Court decisions interpreting similar clauses in the treaty gave it broader sweep, and that this was based on the Yakamas' understanding of the treaty when it was signed. Moreover, he said that "the historical record adopted by the agency and the courts below indicates that the right to travel includes a right to travel with goods for sale or distribution." Finally, he wrote that imposing a tax on "traveling with certain goods burdens that travel." Putting the these points together, he concluded that the treaty provision preempts the state tax.

Justice Gorsuch wrote separately, joined by Justice Ginsburg, in a somewhat more muscular opinion--and one even more overtly favoring the Yakamas. In addition to making points similar to Justice Breyer's, he pointed out that the state court relied on factual findings from an earlier case as to the Yakamas' understanding of the treaty (which was broader than mere equality), and ruled that Washington was estopped from challenging those findings. He said that the findings were binding on the Court as well. Justice Gorsuch ended with this:

Really, this case just tells an old and familiar story. The State of Washington included millions of acres that the Yakamas ceded to the United States under significant pressure. In return, the government supplied a handful of modest promises. The State is now dissatisfied with the consequences of one of those promises. It is a new day, and now it wants more. But today and to its credit, the Court holds the parties to the terms of their deal. It is the least we can do.

Chief Justice Roberts, joined by Justices Thomas, Alito, and Kavanaugh, dissented. He argued that the state tax applied to possession of fuel, not to transportation, and therefore didn't implicate the treaty's right to travel at all. Justice Kavanaugh separately dissented, joined by Justice Thomas. He argued that the treaty's plain language only protected an equal right to travel, not an especial right to travel.

Ninth Circuit Upholds Santa Monica's Regulation on Home Rental Sites

Steven D. Schwinn, John Marshall Law School

The Ninth Circuit rebuffed federal preemption and First Amendment challenges by Airbnb and HomeAway.com to Santa Monica's regulations on vacation home rentals. The ruling means that Santa Monica's regs can stay in place, and gives a green light to other jurisdictions that similarly seek to regulate these services.

The case, HomeAway.com v. City of Santa Monica, involves Santa Monica's efforts to regulate the Internet vacation home-rental market. The city first prohibited all short-term home rentals of 30 consecutive days or less, except licensed "home-sharing" (rentals where residents remain on-site with guests). It later added four requirements for Internet hosting platforms for vacation rentals: (1) collecting and remitting "Transient Occupancy Taxes," (2) disclosing certain listing and booking information regularly, (3) refraining from completing any booking transaction for properties not licensed and listed on the City's registry, and (4) refraining from collecting or receiving a fee for "facilitating or providing services ancillary to a vacation rental or unregistered home-share." Under the ordinance, if a platform complies with these requirements, it's presumed to be in compliance with the law. Otherwise, violations carry a fine up to $500 or imprisonment for up to six months.

Airbnb and HomeAway.com sued, arguing that the requirements were preempted by the federal Communications Decency Act and violated free speech. The Ninth Circuit rejected these claims.

As to the CDA, the Ninth Circuit ruled that the regs didn't require the plaintiffs to act as a "publisher or speaker," which would have brought them within the CDA's immunity provision. (The CDA provides Internet companies immunity from certain claims and liability in order "to promote the continued development of the Internet and other interactive computer services.") The court said that Santa Monica's regs only prohibited the plaintiffs from processing transactions for unregistered parties, not to monitor third-party content. Moreover, it held that the regs didn't require the plaintiffs to remove third-party content (even if in practice the plaintiffs would). Finally, the court ruled that the regs "would not pose an obstacle to Congress's aim to encourage self-monitoring of third-party content," so wouldn't post an obstacle to congressional purposes under the Act.

As to the First Amendment, the court said that the ordinance doesn't regulate speech (it regulates conduct, a commercial exchange), it doesn't "singl[e] out those engaged in expressive activity," and "the incidental impacts on speech . . . raise minimal concerns."

District Court (Mostly) Validates California's Sanctuary Jurisidiction Laws

Steven D. Schwinn, John Marshall Law School

Judge John A. Mendez (E.D. Cal.) yesterday granted part, but denied most, of the federal government's motion for a preliminary injunction against California's sanctuary-jurisdiction laws. The ruling is only preliminary--so goes only to the likelihood of success on the merits, and not the actual success on the merits--but it nevertheless signals the court's likely approach if and when it gets to the actual merits.

This is just the latest ruling where a state promoting a progressive immigration agenda draws on conservative-Court-created structural features of the constitution (here, federalism). In particular, Judge Mendez writes that Section 1373 (the federal prohibition on states prohibiting their officers from communicating with the feds about detained individuals in order to determine their immigration status) likely violates the Court-created anticommandeering principle in Printz and (just recently) Murphy.

The case, United States v. State of California, is the federal government's challenge to California's several sanctuary laws. Here they are, with the court's analysis, one at a time:

Assembly Bill 103's Direction for State AG Review of Detention Facilities. This provision directs the state attorney general to review and report on county, local, and private locked detention facilities used by the federal government to house detainees in civil immigration proceedings in the state. The court rejected the government's argument that this provision interfered with the federal government's exclusive authority in the area of immigration detention (and was thus preempted), because the provision amounted merely to funding an authority the state AG already had. "The Court finds no indication . . . that Congress intended for States to have no oversight over detention facilities operating within their borders. Indeed, the detention facility contracts [California] provided to the Court expressly contemplate compliance with state and local law."

Assembly Bill 405's Prohibition on Consent. This provision prohibits (on pain of fine) public and private employers from providing voluntary consent to an immigration enforcement agent to enter nonpublic areas of a job-site or to access an employer's records on its employees. The court said that the consent prohibition violated intergovernmental immunity, because "[t]hese fines inflict a burden on those employers who acquiesce in a federal investigation but not on those who do not."

Assembly Bill 405's Notice Requirement. This provision requires employers to provide notice to their employees "of any inspections of I-9 Employment Eligibility Verification forms or other employment records conducted by an immigration agency within 72 hours of receiving notice of the inspection." The court said that this prohibition was likely valid: Federal immigration law "primarily imposes obligations and penalties on employers, not employees. . . . [T]he Court finds no indication--express or implied--that Congress intended for employees to be kept in the dark."

Assembly Bill 405's Reverification Requirement. This limits an employer's ability to reverify an employee's employment eligibility when not required by law. The court said that it likely "stand[s] as an obstacle" to federal immigration law and is thus preempted.

Senate Bill 54's Prohibition on State Law Enforcement Providing Immigration Information to the Feds. This provision prohibits state law enforcement from providing certain information to federal immigration officials relating to a detained person, except as required by federal law. The court wrote that Section 1373 (which prohibits states from prohibiting their officials from sharing this kind of information) likely violates the anticommandeering principle under Murphy (the Court's most recent foray into the principle, in the New Jersey sports-gambling case), because that case held that anticommandeering applies equally when Congress tells states what they may not do. But ultimately the court dodged the anticommandeering question by giving Section 1373 a narrow reading and recognizing that SB 54 contained an exception for complying with federal law--and thus holding that the two are not in conflict. The court went on to say that SB 54 also does not create an obstacle to federal enforcement, because it merely means that state officials don't cooperate with federal enforcement (and not that they actively stand in the way of federal immigration enforcement).

Sixth Circuit Narrows Window for State Failure-to-Warn Claims Against Generic Manufacturers

Steven D. Schwinn, John Marshall Law School

The Sixth Circuit ruled last week in McDaniel v. Upsher-Smith Labs, Inc., that the Federal Food, Drug, and Cosmetic Act preempted a plaintiff's state failure-to-warn claims against a generic drug manufacturer for failure to include a Medication Guide with the prescription drugs.

The case narrows the already wee-bit window left open for plaintiff claims against generic manufacturers by the Supreme Court in PLIVA v. Mensing. That case held that the FDCA preempted state tort law that required manufacturers to use a stronger label. As the McDaniel majority explained:

In Mensing, patients who had taken generic metoclopramide and developed tardive dyskinesia sued the generic manufacturers for failing to update the warning labels to adequately advise of the medication's risks. They claimed that state tort law obligated these manufacturers to use a stronger label. But FDA regulations require sameness between the warning labels of a brand-name drug and its generic counterpart. The generic manufacturers were in a bind. If they strengthened the label to satisfy state law, they'd run afoul of their federal duty of sameness; if they retained the label to satisfy federal law, they'd fall short of their state-law duty to provide adequate labeling. Finding it impossible for the generic manufacturers to comply with state and federal law, the Supreme Court held that state law must give way and the tort claims were preempted.

Mensing left a narrow opening for plaintiffs' state failure-to-warn claims: They have to be based on conduct that violates the FDCA, but can't be a critical element of the claim. Chief Judge Cole explained in partial concurrence, partial dissent:

Implied preemption leaves open a narrow gap for state failure-to-warn claims against generic drug manufacturers that resides between its two forms--impossibility and obstacle preemption. The claim must be premised on conduct that violates the FDCA to avoid impossibility preemption. This is so because the FDCA requires a generic drug to have the same warnings as its brand-name counterpart (under the federal duty of sameness), so that simultaneous compliance with any state duty to supply different warnings would be impossible. At the same time, to avoid obstacle preemption, the violation of the FDCA cannot be "a critical element" of the claim [because the FDCA authorizes only the federal government, not individual plaintiffs, to enforce the FDCA].

Circuit law recognizes that a plaintiff can thread this needle: in Fulgenzi v. PLIVA, the court held that a plaintiff's failure-to-warn claim survived preemption, because the claim "relie[d] upon the adequacy of the warnings and the causation of her injuries," and not the "[f]ailure to update from one adequate warning to another." "On the merits, whether PLIVA ha[d] violated its federal duties [was] irrelevant to the adequacy of its warnings."

But the court distinguished Fulgenzi here: "But here, as explained above, adequacy of the warnings is not the issue. Rather, it is Upsher-Smith's alleged failure to ensure the amiodarone Medication Guide's availability for distribution--the failure to comply with a federal regulation that only the Federal Government may enforce--that is the ballast steadying McDaniel's claim." The court pointed to repeated references in McDaniel's complaint that the defendant failed to meet FDCA standards.

Chief Judge Cole argued that Fulgenzi applied:

McDaniel's Tennessee failure-to-warn claims are no different. In her complaint, she alleges that Upsher-Smith violated the federal duty of sameness by failing to provide warnings in the form of a medication guide. But she cannot be faulted for doing so [in order to avoid impossibility preemption, described above]. . . .

McDaniel's claims are premised on a violation of an independent Tennessee duty to warn, not federal law. "The alleged breach arises from the same act"--namely, the failure to provide a medication guide. Indeed, it must arise from the same act to avoid impossibility preemption. "[B]ut the legal basis is different." McDaniel's claims depend on whether the warnings provided were inadequate and proximately caused her late husband's death. Because the fact of a federal-law violation is not a necessary element of those claims, they are not subject to obstacle preemption . . . .

District Court Strikes Kansas's Documentary Proof of Citizenship Requirment to Vote

Steven D. Schwinn, John Marshall Law School

Judge Julie A. Robinson (D. Kansas) ruled yesterday that Kansas's requirement that motor-voter applicants provide proof of citizenship violated the National Voter Registration Act and the constitutional right to vote. In addition, Judge Robinson took Kansas Secretary of State Kris Kobach to task for his conduct over the course of the case, and imposed a remarkable sanction against him.

The ruling should end Kansas's documentary-proof-of-citizenship law, but we'll likely see an appeal (even if almost certainly futile, given the record).

The case tests Kansas's law that motor-voters show proof of citizenship when registering to vote against the NVRA's requirement that states automatically register voters when they apply for a driver's license--and its prohibition on states requiring more information than "necessary to . . . enable State election officials to assess the eligibility of that applicant and to administer voter registration and other parts of the election process." Judge Robinson previously issued a temporary injunction against Kansas's law, upheld by the Tenth Circuit.

As to NVRA preemption, the court applied the Tenth Circuit's rule on NVRA preemption. That rule says that the attestation requirement in Section 5 presumptively satisfies the minimum-information requirement for motor-voter registration. In order to rebut the presumption, the defendant has to show that "they cannot enforce their voter qualifications because a substantial number of noncitizens have successfully registered using the Federal Form" in order to adopt more strenuous information requirements.

The court said that Kobach simply didn't prove that a substantial number of noncitizens have successfully registered using the Federal Form, and that there wasn't another, less burdensome way to enforce the state's citizenship requirement:

Defendant was given the opportunity to retain experts and marshal evidence to meet his burden of demonstrating that "a substantial number of noncitizens have successfully registered to vote under the attestation requirement" in order to rebut the presumption that attestation meets the minimum-information requirement of Section 5 and that nothing less than DPOC is sufficient to meet his eligibility-assessment and registration duties under the NVRA. As described below, the Court finds that on the trial record Defendant has failed to make a sufficient showing on the first inquiry. Moreover, even if Defendant could demonstrate a substantial number of noncitizen registrations, he has not demonstrated that nothing less than the DPOC law is sufficient to enforce the State's citizenship eligibility requirement.

As to the right to vote, Judge Robinson weighed DPOC's benefits and burdens, distinguished the balance in Crawford v. Marion County, and ruled that DPOC violated the right to vote. "Instead, the DPOC law disproportionately impacts duly qualified registration applicants, while only nominally preventing noncitizen voter registration."

Finally, Judge Robinson found that Kobach engaged in a repeated "pattern and practice . . . of flaunting disclosure and discovery rules that are designed to prevent prejudice and surprise at trial." "[G]iven the repeated instances involved, and the fact that Defendant resisted the Court's rulings by continuing to try to introduce such evidence after exclusion, the Court finds that further sanctions are appropriate . . . ." The court ordered Kobach to attend six additional CLE hours (over and above the state's regular requirements), pertaining to federal or Kansas civil rules of procedure or evidence.

Fifth Circuit Rules on Texas Anti-Sanctuary Law

Steven D. Schwinn, John Marshall Law School

The Fifth Circuit earlier this week upheld most of Texas's SB4, the state law banning local jurisdictions from adopting sanctuary-city policies. The ruling means that most of SB4 stays in place and applies to Texas jurisdictions.

The ruling is a victory for Texas, which adopted the measure in order to crack-down on sanctuary cities in the state. It's only preliminary--so goes to the plaintiffs' likelihood of success on the merits, and not (necessarily) the merits themselves--but, given the nature of the (facial challenge) case, is certainly the same as a ruling on the merits.

SB4 has three provisions at issue in the case: (1) the "materially limit" provision, which bans local jurisdictions from "prohibit[ing] or materially limit[ing]" an officer from asking a lawfully detained individual's immigration status, from sharing that status with federal agencies, and from assisting federal agencies in enforcement; (2) the "detainer" provision, which requires local officers to comply with federal immigration detainers; and the "endorsement" provision, which prohibits local officers from endorsing sanctuary policies.

Here's what the court said:

The "Materially Limit" Provision

The court rejected the plaintiffs' claims that federal law preempted these prohibitions and that "materially limit" is unconstitutionally vague. As to preemption, the court said that federal law didn't field-preempt, because "SB4 and the federal statutes involve different fields": "Federal law regulates how local entities may cooperate in immigration enforcement; SB4 specifies whether they cooperate." The court said that it "could perhaps define the field broadly enough to include both SB4 and federal legislation, but the relevant field should be defined narrowly." It also said that Congress didn't state a clear purpose to field-preempt. Finally, the court said that the Tenth Amendment points against field preemption:

The plaintiffs acknowledge that the Tenth Amendment prevents Congress from compelling Texas municipalities to cooperate in immigration enforcement. Congress could not pass a federal SB4. But if that is so, it seems impossible that Congress has occupied the field that SB4 regulates.

The court also held that the requirements weren't conflict preempted, because, under the requirements, local officers could comply with both federal law and SB4. In particular, the court said that any authority (or requirement) that SB4 imposed upon local officers did not conflict with the allowable cooperation between local and federal officers under federal immigration law, and the authority of federal immigration officials.

Finally, the court held that "materially limit" isn't unconstitutionally vague, especially in the context of this facial challenge.

The "Detainer" Provision

The court held that this provision, which requires local officers to notify federal officials when they release an alien and to maintain custody of the alien up to 48 hours after the preexisting release date so that DHS can assume custody, did not violate the Fourth Amendment on its face (although the court didn't, and couldn't, say whether it might violate the Fourth Amendment in any particular case).

The "Endorse" Prohibition

The court held that SB4's provision that a "local entity or campus police department" may not "endorse a policy under which the entity or department prohibits or materially limits the enforcement of immigration laws" violated the First Amendment. The court rejected a narrowing construction of "endorse" offered by the state. The court noted, however, that "[t]his conclusion does not . . . insulate non-elected officials and employees, who may well be obliged to follow the dictates of SB4 as 'government speech.'" But this issue wasn't before the court (because the plaintiffs "do not represent the public employees putatively covered by Garcetti and the government speech doctrine.")

Sessions Sues California Over Sanctuary Provisions

Steven D. Schwinn, John Marshall Law School

The Justice Department filed suit yesterday against California seeking declaratory and injunctive relief against the enforcement of three state provisions that, says DOJ, frustrate the federal government's enforcement of immigration laws. The government argues that the three state provisions violate the Supremacy Clause and thus are preempted and invalid.

AG Sessions has previously moved to clamp down on sanctuary jurisdictions through withholding of the federal JAG Grant. This is the first time DOJ has sued a jurisdiction for sanctuary policies.

The first provision, AB 450, prohibits  private employers in the state from providing consent to federal immigration officers to search a workplace or employment records without a subpoena or warrant. DOJ contends that this "interfer[es] with the enforcement of the INA and IRCA's prohibition on working without authorization," and thus is preempted.

The next one, AB 103, requires the state AG "to engage in reviews of county, local, or private locked detention facilities in which noncitizens are being housed or detained for purposes of civil immigration proceedings in California" and to examine the "due process provided" to civil immigration detainees. DOJ argues that this "commands an improper, significant intrusion into federal enforcement of the immigration laws."

The final provision, SB 54, prohibits state and local law enforcement officials (other than employees of the California Department of Corrections) from "[p]roviding information regarding a person's release date or responding to requests for notification by providing release dates or other information." The provision also requires that federal officials get a "judicial warrant or judicial probable cause determination" before the state or locality may transfer an immigrant to DHS for enforcement. DOJ says this about these requirements:

These provisions impermissibly prohibit even the most basic cooperation with federal officials. As noted above, federal law contemplates that criminal aliens in state custody who may be subject to removal will complete their state or local sentences first before being detained by the United States, but that federal immigration detention for immigration proceedings or for removal will begin upon the alien's release from state custody. Additionally, federal law contemplates that DHS will be able to inspect all applicants for admission and take all appropriate action against those found to be inadmissible to the United States, even those that may have been transferred to the custody of state and local law enforcement pending such a state and local prosecution. And, to facilitate coordination between state and local officials and the United States, Congress expressly prohibited any federal, state, or local government entity or official from prohibiting, or in any way restricting, any government entity or official from sending to, or receiving from, DHS "information regarding the citizenship or immigration status of an individual."

***

[The transfer restriction] also conflicts with federal law, which establishes a system of civil administrative warrants as the basis for immigration arrest and removal, and does not require or contemplate use of a judicial warrant for civil immigration enforcement.

 

Second Circuit Upholds NY Attorney General Regs Requiring Donor Disclosure

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In its opinion in Citizens United v. Schneiderman, the Second Circuit rejected a challenge to the New York Attorney General's regulations requiring non‐profit organizations that solicit donations in NY to disclose their donors on a yearly basis.

The plaintiffs - - - Citizens United Foundation, a 501(c)(3)organization and Citizens United, a 501(c)(4) organization - - -have not been complying with the Attorney General's regulations requiring donor disclosure.  Both organizations must submit to the IRS Form 990 with each year’s tax returns, which includes a Schedule B including the organization’s donors, the donors’ addresses, and the amounts of their donations. The Attorney General’s regulations have long required that a charitable organization’s annual disclosures include a copy of the IRS Form 990 and all of its schedules. 13 N.Y.C.R.R. § 91.5(C)(3)(1)(a). But the Citizens United organizations have only ever "submitted the first page of their Schedules B—omitting the parts identifying donors," which apparently went without objection until 2013. 

The Citizens United organizations claimed that the New York disclosure requirements violated the First Amendment as chilling donors' speech, both facially and as applied. They also argued that the New York regulations were a prior restraint under the First Amendment. Additionally, they argued that the regulations violated due process and were preempted by the Internal Revenue Code.

NY Attorney General Eric Schneiderman

The opinion by Judge Rosemary Pooler held that all of these challenges lacked merit. On the chilled speech claim, Judge Pooler's opinion for the unanimous panel found that the plaintiffs' reliance on National Association for the Advancement of Colored People v. State of Alabama ex rel. Patterson (1958) was misplaced. The court applied exacting scrutiny, not the strict scrutiny that the Citizens United organizations advocated, and found the government interests of preventing fraud and self‐dealing in charities were important and the regulations made it easier to accomplish these goals. In the as-applied challenge, the Citizens United charities argued essentially that the current New York Attorney General was hostile to them, but the court stated:

In this case, all we have to go on is a bare assertion that the Attorney General has a vendetta against Appellants. Appellants have not even pled that the Attorney General will turn that alleged bile into untoward interference with the material support for Appellants’ expression. That is a far cry from the clear and present danger that white supremacist vigilantes and their abettors in the Alabama state government presented to members of the NAACP in the 1950s.

While Judge Pooler's opinion noted that it might be a closer case if the donor lists were to be made public, she noted that the IRC mandates that they remain confidential, and the NY regulations incorporate this requirement. The argument that NY might not follow this, or that there have been leaks, was not sufficient.

The court also found that the prior restraint challenge was without merit:

Facially content‐neutral laws that require permits or licenses of individuals or entities engaged in certain forms of expression only constitute prior restraints when they (1) disallow that expression unless it has previous permission from a government official and (2) vest that official with enough discretion that it could be abused.

Here, neither of those circumstances were met.

What Appellants complain of is not a proto‐censorship regime but the inevitability of prosecutorial discretion with finite enforcement resources. Prevention of their solicitation can only arise if they fail to comply with content‐neutral, unambiguous, and narrowly drawn standards for disclosure—they need only submit a document they already prepare and submit to the IRS—and then only after warning and opportunity to cure. It is, in other words, a remedial measure, not ex ante censorship. Moreover, without any indication of bias in application, we cannot view the Attorney General’s discretion to determine which groups receive deficiency notices or face penalties for failing to file Schedule B as anything but a necessary manifestation of the need to prioritize certain enforcement efforts over others.

While the district judge had found the due process challenge was not ripe, the Second Circuit reversed that conclusion, and decided on that the claim had not merit.  Affirming the district judge, the Second Circuit found there was no preemption.

Thus, the Citizens United charitable organizations will need to disclose the same information to New York and they do to the IRS or else face penalties. But it may be that they use some of their donations to petition the United States Supreme Court for review.

Daily Read: Marijuana, Federalism, and Preemption

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In a Memorandum on January 4, Attorney General Jeff Sessions has rescinded previous Department of Justice instructions to United States Attorneys relating to enforcement of federal laws criminalizing marijuana as "unnecessary" in favor of a well-established rule of general guided discretion.  The DOJ press release describes it as a "return to the rule of law," but it arguably makes the legal rules more subject to discretion and even more unclear.  The legalization of marijuana by states while the federal government maintains marijuana on its schedule of controlled substances pertinent to criminal laws presents complicated problems of federalism and preemption. 

An excellent primer on these issues is Lea Brilmayer's article A General Theory of Preemption: With Comments on State Decriminalization of Marijuana, appearing in a recent symposium on Marijuana and Federalism in Boston College Law Review.

Brilmayer does provide some background on the marijuana controversies, including a discussion of the Supreme Court's failure to provide clear answers on the state-federal conflicts regarding marijuana.  But, as her title indicates, marijuana is an example rather than a primary focus.  She explains the principles and open questions in the doctrines of vertical and horizontal preemption, then uses concrete examples involving marijuana.  Her ultimate conclusion is that there is a weak case for preemption in the marijuana decriminalization context.

 This is a terrific introduction for understanding the issues surrounding the issues raised by the Sessions memo regarding state marijuana decriminalization.  At 35 pages, with accessible hypotheticals, this could be a great assignment for Constitutional Law classes this semester.

 

Ninth Circuit Says California's Foie Gras Force-Feeding Law Not Preempted

Steven D. Schwinn, John Marshall Law School

The Ninth Circuit ruled on Friday that the federal Poultry Products Inspection Act did not preempt California's ban on force-feeding ducks and geese for foie gras production. The ruling means that California's ban stays on the books; this is definitely one for the birds.

In 2004, California joined a growing list of countries that ban force-feeding ducks and geese to produce foie gras. The California law doesn't ban foie gras itself, just the force-feeding method of production. Foie gras producers sued, arguing that California's ban was preempted by the federal Poultry Products Inspection Act.

The Ninth Circuit disagreed. The court said that the federal law didn't expressly preempt the California ban, because the federal law's prohibition on states from imposing "ingredient requirements" that are "in addition to, or different than" the PPIA or its regs applied to "the physical composition of poultry products," and not the way animals are raised or how they're fed (which the California ban covers). According to the court, California law

does not require that foie gras be made with different animals, organs, or physical components. Nor does it require that foie gras consist of a certain percentage of bird liver. It simply seeks to prohibit a feeding method that California deems cruel and inhumane. [The law] therefore addresses a subject entirely separate from any "ingredient requirement": how animals are treated long before they reach the slaughterhouse gates.

Moreover, the court said that the PPIA didn't field-preempt California law, because the PPIA doesn't occupy the field (and in fact allows for "extensive" state regulation). It also said that the PPIA didn't obstacle preempt California law, because California law doesn't interfere with the federal food-regulation scheme and its purposes.

Unless and until producers come up with a different way to make foie gras, this ruling will keep it out of California.