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Tuesday, March 10, 2009

Justice Thomas' struggle to reconcile textualism & federalism in Wyeth

Last week, the Court struck an unexpected blow for federalism, deciding in Wyeth v. Levine that Diana Levine's state-law claim for negligent failure to warn was not preempted by the FDA's regulation of Phenergan's labeling under the Food, Drug, and Cosmetic Act. Among the many interesting aspects of this unexpected (by me, at least) 6-3 victory for federalism was Justice Thomas' concurrence -- a concurrence that contradicts the popular notion that conservative justices are indifferent to federalism when preemption benefits industry. But while Justice Thomas' rejection of implied preemption seems to me to be a principled legal theory, it also strikes me as utterly misguided effort -- less a capitalist plot than a textualist blunder.

Justice Thomas' Wyeth concurrence argues that implied "frustration-of-purpose" preemption should be rejected, because the inquiry into statutory purpose is somehow untethered to text. Thomas' dissent in Altria Group v. Good argued that "no explanation [of statutory purpose] is necessary [to explain the scope of the cigarette Labeling Act's preemption clause, because] the text speaks for itself." In short, Thomas seems to draw a sharp line between statutes that have preemption clauses and statutes that do not, adhering to a presumption against preemption only for the latter.

This theory, however, pulls the hat lining out of a hat and calls it a rabbit: Preemption clauses do not magically resolve questions of preemption unless they are themselves clear -- and they rarely are. Generally, such clauses provide that a vaguely defined category of state laws (e.g., "requirements") may not bear a vaguely defined connection to ("related to," "with respect to," "based on", etc) a vaguely defined category of federally protected activities. These clauses do not specify in their text that the presumption against preemption should not be used to interpret the clause's own scope. How, then, is it especially 'textualist' to read them as rejecting a presumption about which their text is silent? Likewise, there is no textualist reason to reject implied "frustration-of-purpose" preemption: If a statute's text, fairly interpreted, bars anyone from interfering with some private activity, then a textualist ought not to think that an additional clause is needed to specify that "anyone" includes "states." Where a federal regulatory requirement is best read as a ceiling on further interference with the regulated activity, then that requirement is itself a sufficient preemption clause -- at least, if you take text seriously.

Justice Thomas' theory, in other words, treats preemption clauses as self-interpreting, even when they are as clear as malted milk. (Justice Thomas authored one of the more egregious ERISA preemption opinions in Egelhof v. Egelhof, 532 U.S. 141 (2001), in which he adopted the fiction that ERISA "plainly" preempted a state probate code having no special relationship to employment benefit plans). This sort of textualism treats the preemption clause as a ventriloquist's dummy: The judge puts words into the statute and blames some wooden prepositional phrase -- "related to," "with respect to," "based on," etc -- for the result, when any 1L can see that the clause cries out for as much explanation as any theory of implied preemption. Frankly, I'd prefer preemption based on a libertarian's love of free markets over preemption based on worship of empty text: At least the former takes responsibility for its policy choices.

Posted by Rick Hills on March 10, 2009 at 09:37 AM in Constitutional thoughts | Permalink

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Professor Hills writes,

"Where a federal regulatory requirement is best read as a ceiling on further interference with the regulated activity, then that requirement is itself a sufficient preemption clause -- at least, if you take text seriously."

I may be going out on a limb here by assuming that the professor believes that the FDA's labeling requirements are "best read as a ceiling on further interference with the regulated activity," but if that is the case, I think it requires greater explanation. It makes just as much sense to assert that the FDA's requirements are best read as a floor, and the minimum needed for a drug to go to market. More sense, even, if you read Vladeck & Kessler's piece on FDA preemption in the Georgetown Law Journal last year.

Posted by: AJ | Mar 23, 2009 1:03:22 PM

Among other points, Prof Hills asks: "[Preemption] clauses do not specify in their text that the presumption against preemption should not be used to interpret the clause's own scope. How, then, is it especially 'textualist' to read them as rejecting a presumption about which their text is silent?" However, if we are meant to be looking at the issue from a textualist perspective, then this is the wrong question. Indeed, not only is it the wrong question, but it makes a completely invalid assumption. The fundamental issue at stake here is actually whether this so-called presumption against preemption has any textual basis. The answer, of course, is that it has none. So it should have no place in the textualist's toolkit for interpreting statutes.

Freed of such baseless restrictions, we are left with (a) the point that federalism makes tort law a matter for the states; and (b) the Supremacy Clause that allows Congress to preempt such state law. But this is a power of Congress, not of the judicial branch. So, in order for the latter to be prepared to recognize that Congress has indeed preempted state law by federal statute, Congress must make such intention explicit. Ideally, of course, we'd like Congress to be clear as well, but in reality a degree of interpretation will always be required. Still, without explicit preemption, there is nothing for a textualist to apply.

Posted by: Tim Kaye | Mar 14, 2009 12:47:37 PM

Profs. Hills and Greve,

I've just been reading Caleb Nelson's "Preemption" piece, 86 Va. L. Rev. 225 (2000), and it looks like Justice Thomas essentially endorses the very reforms that Prof. Nelson does there.

As for Gibbons v. Ogden, well, that is an easy case under Prof. Nelson's analysis (and the presumed analysis of Justice Thomas). And indeed, it seems you've already hit the nail on the head yourself. It *will* do to say that the state-monopoly grant conflicted with a federal right because whether or not federal law gave a right to enter State ports (and not whether or not Congress's purpose would be furthered by preempting state law) *was* precisely what was at issue. In other words, there's no need to create an obstacles-to-congressional-purpose jurisprudence for Gibbons because that case relied on the statutory text itself to determine what right, if any, Congress was conferring with its law. See 9 Wheat. at 215 ("The object of the license, then, Cannot be to ascertain the character of the vessel, but to do what it professes to do-that is, to give permission to a vessel already proved by her enrolment to be American, to carry on the coasting trade."). I could pull out other quotations from Gibbons if you like, but reading Chief Justice Marshall's opinion makes the point that Gibbons was a direct-conflict case pretty darned clear to me (and he did not, of course, apply the ahistorical presumption against preemption).

(I'd also argue that it's impossible to read Gibbons as a dormant Commerce Clause case because Chief Justice Marshall specifically says it is not: "In discussing the question, whether this power is still in the States, in the case under consideration, we may dismiss from it the inquiry, whether it is surrendered by the mere grant to Congress, or is retained until Congress shall exercise the power. We may dismiss that inquiry, because it has been exercised, and the regulations which Congress deemed it proper to make, are now in full operation." 9 Wheat. at 200.)

Posted by: Anonymous Skeptic | Mar 13, 2009 11:30:48 AM

Could Rick, or the anonymous skeptic, or somebody else explain to me why under the Thomas opinion in Wyeth, Gibbons v. Ogden was correctly decided? What was that case IF NOT a "frustration of purpose" case (FWIW, of a purpose Congress quite probably never had)? It won't do to answer that the monopoly grant "conflicted" w/ a federal right, because the scope of that right was precisely what was at issue. Nor will it do do read Gibbons as a dormant Commerce Clause case: it wasn't, and besides, Justice Thomas doesn't believe in that construct, either.

Posted by: Mike Greve | Mar 11, 2009 11:41:59 AM

Prof. Hills,

I believe you're casting an unfair shadow on Justice Thomas's jurisprudence in this area (at least with regard to *Altria* and *Wyeth*, I have not read *Egelhof* and thus cannot comment there). And in discussing the issues, you conflate two very different points that he has made.

First, with respect to *Altria*, you are surely right that some preemption clauses are "as clear as malted milk" and "do not specify in their text that the presumption against preemption should not be used to interpret the clause's own scope." To the extent that the court-created presumption against preemption displaces Congressional intent it is, of course, already invalid, so not using it to interpret express preemption clauses is not a problem. More importantly though, the presumption against preemption best reflects Congressional intent when Congress has not clearly expressed any preference on the issue -- thus after determining the scope of any statutory section using the usual tools of interpretation, the court turns to the question of whether Congress intended that statutory section to preempt state law and should start with the presumption that it doesn't. In the express preemption case, however, the court already knows (a) that Congress actually considered the issue of preemption, (b) that Congress specifically intended to preempt state law in a given area, and (c) that Congress deliberately chose words that may be very broad and vague. However one should muddle through the "malted milk" clarity of express preemption clauses, it seems like an uphill battle to argue that Congress intended for courts to take a cramped and crabbed interpretation of the broad and sweeping language Congress deliberately used.

Second, regarding *Wyeth*, I think Justice Thomas would agree with your statement that "If a statute's text, fairly interpreted, bars anyone from interfering with some private activity, then a textualist ought not to think that an additional clause is needed to specify that 'anyone' includes 'states.'" Indeed, it appears that you are paraphrasing Thomas's concurrence in *Wyeth*:

"[I]f federal law gives an individual the right to engage in certain behavior that state law prohibits, the laws would give contradictory commands notwithstanding the fact that an individual could comply with both by electing to refrain from the covered behavior." Op. at 9.

Thus Justice Thomas agrees with you that state law should be preempted if it "directly conflict[s]" with federal law. Op. at 8-10. His argument is not that federal law can never be a ceiling on state law, but that the inquiry should be premised on the "text of the statutory provisions . . . and the regulations promulgated thereunder," Op. at 11, rather than the "legislative history, broad atextual notions of congressional purpose, and even congressional inaction" used by past courts to effect the obstacle-to-Congressional-purposes test for implied preemption, Op. at 13.

In other words, one could read Justice Thomas as being fine with the obstacle-to-Congressional-purposes test so long as that test is strictly based on textual considerations (such as whether "a federal regulatory requirement is best read as a ceiling on further interference with the regulated activity"). But looking over the history, the justice believes that such a textually-based text was already encompassed in the "direct conflict" jurisprudence of the Court. In his view, the only reason the Court formulated an obstacle-to-Congressional-purposes test was to avoid the strictures of textual exegesis so that it could "embark[] on its own freeranging speculation about what the purposes of the federal law must have been." Op. at 15; see also Op. at 13-21 (explaining the atextual approach of the two lead cases that have defined that test).

I look forward to your thoughts, and especially to hearing if there is a wedge between you and Justice Thomas on *Wyeth* that I missed here.

Posted by: Anonymous Skeptic | Mar 11, 2009 11:07:21 AM

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