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By F. Paul Bland, Jr., senior attorney at Public Justice.

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The consumer and civil rights communities are closely watching AT&T Mobility v. Concepcion, a case that will be argued in the Supreme Court this November. The case could decide the fate of most consumer and employee class actions for years to come.

The Concepcion case involves the widespread corporate practice of using standard-form contract terms that purport to prevent consumers and employees from ever participating in class proceedings. Consumers and employees rarely have time to read the lengthy agreements companies send them, let alone the ability to understand their dense legalese. And even if they did, few consumers or employees could negotiate the contracts' terms.

Many federal and state courts have held such class-action bans unenforceable under state laws providing that contract terms that block individuals from enforcing their rights under consumer protection and civil rights laws. Hoping to sweep aside many of those cases, AT&T Mobility ("ATTM") has asked the Supreme Court to find that at least some of that state law is preempted by the Federal Arbitration Act ("FAA").

Class-action bans dramatically undermine enforcement of consumer- and employee-protection laws. In many circumstances, very few individuals would ever bring a claim (in court, or in a small claims court, or in arbitration) even when those laws are broken. Many people never realize when their rights are violated, for example, and many people do not have the knowledge or skills to begin to pursue a case to protect their rights. For those who know to seek out a lawyer, very few lawyers will handle cases that are quite small, and few if any lawyers will handle fairly complex cases that involve only a few thousand dollars. There are many situations where a case will either be handled on a class action basis or it will never be brought at all.

In the worst case scenario, Concepcion could wipe away the vast majority of consumer and employee class actions for years to come. But that result is far from inevitable. For one thing, ATTM submitted a narrow question in its petition for certiorari, and if the Court sticks to the question presented (as it should), then the decision should be limited. On the merits, if the Court agrees with the vast majority of lower courts, then the decision will change little. If the Court uses this case to grant the fondest wishes of some corporate lawyers for immunity, however, then this case could have the kind of impact on class actions that an asteroid landing in Mexico millions of years ago had on dinosaurs.

For the court to rule for ATTM, it will have to sweep aside a widespread consensus of lower courts. Every single state supreme court to consider the enforceability of a class-action ban embedded in an arbitration clause has resolved the question of enforceability as a matter of state law. The last eight state supreme courts to consider the validity of class bans also happen to have struck them down, but even courts that have upheld class bans have done so by applying state law. In addition, federal circuit courts that have both struck down and upheld class action bans in unconscionability challenges have all examined the issue as one of state law. See here for a much longer blog offering case cites for these propositions.

The corporatist idea that the FAA preempts all state law limiting class-action bans hasn't caught on in the lower courts because there is no serious legal or intellectual basis for it. If the Supreme Court decides to completely federalize the law in this area, it will have to invent from whole cloth new federal law that is not supported by anything in the language of the FAA or in its history.

The only language in the FAA that relates to the question presented in Concepcion provides that agreements to arbitrate will be enforceable only if the agreement is not counter to laws that would lead to revocability of any contract. 9 U.S.C. § 2. In this case, the state laws at issue are the common-law doctrine that exculpatory get-out-of-jail-contract-terms that undermine statutes are unconscionable. This body of law applies to all contracts, does not mention or target arbitration, and thus does not conflict with the Federal "Arbitration" Act.

Also, the Supreme Court has said a number of times that arbitration clauses are only enforceable under the FAA if they let people "effectively vindicate their statutory legal rights." The Court will have to ignore those decisions if it's going to find that the FAA preempts state contract laws that insist that contract terms may not bar individuals from effectively vindicating their rights.

Will the majority of the Court abandon the humble role of umpire to invent sweeping and radical new law? Will scores of state and federal appellate cases be disregarded? Will the FAA be put on an inevitable collision course with the Congress? Or will the Court step back and do the right thing? No one will know for sure until the Court decides Concepcion next spring.

 

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By Steven D. Schwinn, Associate Professor of Law, The John Marshall Law School. Professor Schwinn is also co-editor of the Constitutional Law Prof Blog.

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There's a lot to criticize in Federal District Court Judge Henry Hudson's ruling earlier this week allowing Virginia's case challenging the individual health insurance mandate to move forward. For example, the ruling gave credence to the recently enacted Virginia Health Care Freedom Act, the state's effort to nullify the federal mandate through legislation that purports to exempt Virginians. The Act was a thinly disguised attempt to legislate standing for the state-to give Virginia an interest in defending its own state laws. But Virginia has no real interest other than making a political statement. Its manufactured standing mocks Article III's case-and-controversy requirement and risks inspiring other states to fabricate standing simply by enacting legislation anytime a majority in a state legislature objects to a federal law.

Then there's the ruling's apparent conflation of Congress's Commerce Clause authority and its taxing authority under the General Welfare Clause. The ruling runs uncomfortably close to saying that congressional authority to tax is cabined by its authority to regulate interstate commerce - a position flatly rejected by the Supreme Court since 1936. In fact the ruling says almost nothing about Congress's taxing power; instead, it falls back on the Commerce Clause, suggesting, with little analysis, that the mandate looks more like a "penalty" (enacted under the Commerce Clause) than a "tax" (enacted under the General Welfare Clause).

These and other similar concerns with the ruling are troubling, but they come at only a preliminary stage of the litigation. The court will have another opportunity to consider the substance of the constitutional arguments, and not merely whether Virginia adequately pleaded its constitutional case. And as Judge Hudson wrote, this court will almost certainly not have the final say in the matter.

Aside from these immediate and serious, but perhaps fleeting, doctrinal concerns, there is another problem with the ruling: The court embraced and legitimized Virginia's theory that the mandate amounts to "regulating non-action," and in so doing transformed a mere political argument into a budding constitutional doctrine.

This "non-action" theory is by now well known: Congress can't require individuals to purchase insurance, because this amounts to regulating non-action; and non-action is inherently non-commercial, beyond Congress's Commerce Clause authority. Opponents of the individual mandate routinely make this argument, and Virginia pressed it hard before the court. The court bit, framing the mandate as "forg[ing] new ground and extend[ing] Commerce Clause power beyond its current high watermark." It wrote that "this case raises a host of complex constitutional issues," but that "all seem to distill to the single question of whether or not Congress has the power to regulate -and tax- a citizen's decision not to participate in interstate commerce."

But the "non-action" theory is constitutionally hollow. The decision to purchase health care without insurance is undoubtedly economic activity within the ambit of the Commerce Clause. We all at one time or another purchase health care - this is different than purchasing three servings of vegetables, the hypothetical that Senator Tom Coburn used to bait Elena Kagan-and the only question is whether we do it with or without insurance. Moreover, the government argued that the mandate was a critical element of the new national health care scheme. Just as the Supreme Court upheld federal regulation of home-grown marijuana for personal medical use as part of a larger federal regulatory scheme in Gonzales v. Raich, so too the mandate should be upheld as a critical part of a larger regulatory scheme that itself is authorized by the Commerce Clause. Finally, the aggregative impact of "non-action" certainly has a substantial effect on interstate commerce. The mandate is every bit as much within congressional Commerce Clause authority as the regulation of home-grown wheat for personal use in Wickard v. Filburn and the regulation of home-grown marijuana for personal use in Raich.

This conclusion is buttressed by the Necessary and Proper Clause and the Court's ruling this spring in United States v. Comstock. In that case, the Court held (7-2) that the Necessary and Proper Clause authorized Congress to enact a law that allows a federal district court to order the civil commitment of a federal prisoner designated as "sexually dangerous," even beyond the term of the prisoner's sentence. The ruling underscores the substantial sweep of the Necessary and Proper Clause and, taken with the Commerce Clause, the vast power of Congress. Federal power may be limited (as in "enumerated"), but in a complex, interdependent society it is not, as we so often hear, limited (as in "slight").

Thus the "non-action" argument isn't a serious constitutional argument at all. Instead, it's merely a political argument. And here's the problem: When opponents of the mandate (or of health reform in general) masquerade their political argument as a constitutional one, they risk constitutionalizing their ephemeral ideals for the sake of short-term, opportunistic politics. As a result, opponents contribute to a constitutional creep-first one judge, then the next, until rhetoric becomes reality. (This strategy -constitutionalizing ordinary political arguments - is played out over several constitutional provisions in today's politics. For example, the so-called "Tenthers" have been pressing their strong and novel states-rights version of the Tenth Amendment through public rhetoric and court cases to challenge federal policies that they don't like. At some point, with sufficient organization and support, their rhetoric could creep into our constitutional reality.) This could lock us all into a Commerce Clause that nobody likes when a future federal policy - perhaps one designed by the mandate's opponents - comes down the pike. For the opponents of the mandate, today's alluring argument against the mandate may become tomorrow's disfavored argument against their own preferred federal policies.

This is - and ought to be - the stuff of ordinary politics, not constitutional law. The debate shouldn't be about whether Congress has authority to enact the mandate; it does. Instead, the debate should be about whether Congress ought to exercise the authority in this way.

But that's not how the court treated the case this week. Instead, the court moved to constitutionalize the "non-action" argument by framing the case in its terms. The decision this week thus represents a first serious step toward transforming this political argument into a constitutional principle.

 

Missouri voters in a primary with Republican contests grabbing the majority of statewide attention approved a measure, called Proposition C, which asserts that the state will flaunt a major provision of the landmark health care reform law once it takes effect in 2014. The proposition supported in an election with low voter turnout says the federal government's mandate that individuals purchase health care insurance or pay a fine would not apply to folks in Missouri. AOL News's Andrea Stone wonders whether such a "populist backlash," will survive court scrutiny.

Regardless of whether a so-called populist backlash exists, Simon Lazarus, public policy counsel for the National Senior Citizens Law Center (NSCLC) and author of an ACS Issue Brief on the constitutionality of the health care provision, told Stone the vote on Proposition C was likely to be quickly forgotten.

A string of lawsuits are already lodged against the health care reform law. A a federal judge, earlier this week, allowed the one out of Virginia to proceed. The federal courts are likely to determine the constitutionality of the health care reform law before 2014.

Lazarus said, "If federal courts decide it is unconstitutional, then laws like this one will be superfluous. It has no legal consequences. It's symbolic."

Lazarus, noting that the vote occurred during a Republican-dominated election, added that the vote was akin to a "straw poll of Republicans."

For more on the constitutionality of the health care reform law and the state lawsuits against it, watch an ACSblog interview with Lazarus. Also see a recent guest post from Lazarus and NSCLC Staff Attorney Sergio Munoz on the ruling by the federal judge in the Virginia lawsuit.

[image via commons.wikimedia.org]

In its first filing defending the Affordable Care Act, the Justice Department questions the plaintiffs' standing to bring suit. The response also argues that the law is within Congress' powers to tax and spend and clearly within congressional prerogative under the Commerce Clause.

The suit, filed in a Michigan federal court by the conservative Thomas Moore Law Center, seeks to enjoin the provision mandating health insurance coverage for individuals from being enforced. The DOJ, noting that the individual mandate does not go into effect until 2014, says that the plaintiffs "demonstrate no current injury, and merely speculate whether the law will harm them once it is in force."

Even if the plaintiffs were found to have standing, the DOJ writes, the suit's likelihood of success is minimal. Echoing points that have been made by constitutional law experts on the legality of the individual health care mandate, Justice Department attorneys cite congressional authority to tax and spend, and under the Commerce Clause, arguing that the Affordable Care Act falls well within Congress' powers under Article I of the Constitution. Arguments to the contrary "are flatly wrong," the DOJ's brief states.

A copy of the Justice Department's filing is below.

Defendant's Response 210cv11156 ED Mich

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By Alex Kreit, Assistant Professor of Law & Director of the Center for Law and Social Justice, Thomas Jefferson School of Law. Kreit is also Chair of the City of San Diego's Medical Marijuana Task Force & President of the San Diego Lawyer Chapter of ACS.

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Judging by the early election season news coverage a California ballot initiative to tax and control cannabis -- for recreational, not just medicinal, uses -- is poised to be one of the most closely watched races of the cycle. So, just what would this ballot initiative do and how likely is it to pass? This post will provide a primer on the law and politics of California's marijuana legalization initiative.

The aspect of the ballot initiative that I've found catches most folks by surprise is what it won't do: make the sale of marijuana legal in the state of California. That's right, despite being billed in media reports as a vote on marijuana legalization, the proposal would not directly legalize the commercial sale, cultivation, or distribution of marijuana. Instead, it would allow local governments to enact ordinances to tax and regulate the commercial sale of marijuana.

In other words, Amsterdam-style marijuana coffee shops would be legal only in cities or counties that wanted to permit them. And, in the cities and counties that did not take up the ballot measure's invitation, buying and selling marijuana would remain illegal. In the near term, it is likely only a relatively small percentage of localities would decide to opt-in and so marijuana would remain illegal to buy and sell in most of the state even if the initiative were to pass.

While the measure leaves commercial sale to the discretion of local governments it would have an immediate statewide impact by eliminating all civil and criminal penalties for the possession and cultivation of small amounts of marijuana for personal use. This part of the law would apply across the state and local governments could not opt out of it. Given that approximately 61,000 Californians were arrested for misdemeanor marijuana possession in 2008, this provision of the law would be likely to have a significant impact by freeing up those law enforcement resources for other purposes.

In a nutshell, then, the law would legalize the possession and cultivation of small amounts of marijuana across the state and allow local governments to make commercial sale and distribution legal within their area limits.

At this point, you may be thinking to yourself: "Let's assume the initiative does pass. Would it even matter? Won't marijuana still be illegal under federal law?" Yes, marijuana would remain illegal under federal law. But, that fact may be less of an obstacle to the California proposal than most people think. There are two main reasons for this.

The first is that the federal government cannot require a state to criminalize conduct. In an insightful recent article, Robert Mikos of Vanderbilt explains in detail why this is so, using state medical marijuana laws as an example. The article is well worth reading in its entirety. For our purposes, though, the key take-away is that the odds that a court would find the ballot initiative preempted by federal law are exceedingly small.

The second reason has less to do with the law and more to do with resources. While the federal government may have the legal authority to arrest and prosecute small-time marijuana users it does not have manpower. In 2008, only 626 simple marijuana possession cases were disposed of in federal court. DEA agents are not out patrolling the streets or issuing speeding tickets. Those tasks are performed by state and local law enforcement agencies. As a result, if California's ballot measure were to pass, there is not much the federal government could do when it comes to the possession and cultivation of small amounts of marijuana within the state.

Local governments that decide to establish a regulated system for the sale of marijuana may run into more difficulty vis a vis federal law. Not surprisingly, a store openly selling marijuana would be much easier for federal law enforcement to target than a person in growing a small amount of marijuana in their home. Even when it comes to marijuana storefronts, however, California's experience with medical marijuana indicates that practical reach of federal law enforcement may be somewhat limited. In 2008, before the Obama Administration announced it would no longer go after individuals in compliance with state medical marijuana laws, there were at least several hundred medical marijuana dispensaries operating openly throughout California.

That said, the federal response to localities that decide to allow the commercial sale of marijuana, is likely to present the most interesting political and legal issues if the initiative passes.

And that is a big if. While a recent Survey USA poll showed the measure polling at 56%, Chris Bowers at OpenLeft dug deeper into the poll's numbers and made a persuasive case that support among voters who are likely to turn out in midterm elections is actually more like 51%. In other words, it looks like a toss-up.

Whatever side of the issue one falls on, I think almost everyone would agree that between the near-even poll numbers and the symbolic impact that passage would have on our nation's forty-year war on drugs, this will be among the more interesting campaigns to watch this year.

[Image via Wikimedia Commons.]

The new Arizona law criminalizing being undocumented and permitting private citizens to sue for lax enforcement is likely to be struck down in court, according to The New York Times.

The Times reports:

"The law is clearly pre-empted by federal law under Supreme Court precedents," said Erwin Chemerinsky, an expert in constitutional law and the dean of the University of California, Irvine, School of Law.

Since the 1800s, the federal government has been in charge of controlling immigration and enforcing those laws, Professor Chemerinsky noted. And that is why, he argued, Arizona's effort to enforce its own laws is destined to fail.

But even some experts who say they are troubled by the law said it might survive challenges.

"My view of the constitutional question is that it is unconstitutional," said Hiroshi Motomura, co-author of leading casebooks on immigration law and a professor at the University of California, Los Angeles, School of Law. "But it's a far cry from predicting empirically what a judge who actually gets this case will do."

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The tests will come soon enough. Civil rights organizations are already planning their suits, said Lucas Guttentag, director of the immigrants' rights project of the American Civil Liberties Union. The law, Mr. Guttentag said, "will increase racial profiling and discrimination against Latinos and anyone who might appear to be an immigrant."

President Obama criticized Arizona's bill last week before it was signed, calling for a comprehensive immigration overhaul as an alternative to such "misguided" efforts. He also asked the Department of Justice to "examine the civil rights and other implications of this legislation."

On Tuesday, Attorney General Eric H. Holder Jr. said the department was considering several options, including a federal court challenge.

The major issue in those challenges will be whether federal law should trump state action

[Image via J. Stephen Conn.]

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By Thomas O. McGarity, Joe R. and Teresa Lozano Long Endowed Chair in Administrative Law, University of Texas at Austin & Member Scholar, Center for Progressive Reform

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The citizens of Minot, North Dakota suffered a grave injustice on January 18, 2002 when a train derailment bathed much of that small town in a toxic cloud of poisonous gas that killed one person and injured almost 1,500 others. A detailed investigation by the National Transportation Safety Board concluded that the derailment was most likely caused by fractures in temporary joints that the railroad had installed to repair the track.

When the victims sued the railroad for damages caused by its negligent maintenance, they found the courthouse doors locked. A federal district court held that their claims were preempted by the Federal Railroad Safety Act (FRSA) of 1970, which contained a "preemption" clause that Congress enacted to prevent states and localities from enacting regulations that were inconsistent with the regulations issued by the Federal Railroad Administration (FRA), the federal agency that Congress created to protect citizens from irresponsible railroads.

The court held that because Congress empowered the FRA to regulate railroad safety, injured citizens could not sue the railroads when they operated their trains unsafely -- whether or not they complied with FRA requirements. Other courts have issued similar decisions in cases involving train collisions, derailments and grade-crossing accidents.

During the Bush Administration, the FRA aggressively asserted its newfound power to protect railroads by preempting state common law. A new white paper issued by the Center for Progressive Reform (which I co-authored) explores the injustice inherent in this interpretation of the statute.

Proponents of preemption argue that the FRA is fully capable of protecting U.S. citizens without the help of juries applying vague common law standards to reach potentially inconsistent results in 50 different jurisdictions. The citizens of Minot know that's not true.

The 400 inspectors working for the Federal Railroad Administration are responsible for 1.2 million rail cars operating on nearly 300,000 miles of track. In 2003, the FRA fully investigated only four of the nearly 3,000 grade-crossing accidents that occurred and imposed fines for only about 2 percent of the violations it discovered. The agency's solution to its resource problem is to rely heavily upon the railroads themselves to inspect rolling stock and track for compliance with FRA safety regulations. That puts the fox firmly in charge of the henhouse, with predictable results.

The CPR report documents how the FRA has long been thoroughly "captured" by the industry it is supposed to be regulating. High-level agency officials and industry lawyers and executives move seamlessly through the agency's rapidly revolving door.

The notion that common law is unnecessary because the FRA does such a splendid job of guarding public safety is thus a cruel joke. The victims of irresponsible railroad behavior and their families have suffered in silence. And those of us who live near railroads or frequently encounter railroad crossings are at the mercy of railroad companies that know full-well that they are unlikely to be called to account by a resource-starved federal agency.

Congress reacted to this obvious injustice in 2007 by adding a proviso to the preemption section of the FRSA stating that it did not block citizens seeking damages in cases where the plaintiff alleged that the railroad had failed to comply with a federal standard, one of its own rules, or valid state law. This specific injunction should have sent a message to the FRA and the federal courts that they were to get out of the business of preempting state common law claims when the railroad violated valid state or federal requirements or one of its own safety regulations. Yet, an FRA regulation, issued in April 2008, stated that the amendment merely established "rare" exceptions to the general rule that state common law claims were preempted.

And in the early months of the Obama administration, when the president had not yet appointed the agency's new leaders, FRA continued to write broad preemption language in the preambles to its rules. Several lower court decisions have likewise narrowly limited the amendment and have continued to hold that valid common law claims are preempted. Last May, President Obama issued a memorandum to the agencies instructing them to preempt state common law only when they have a legal basis for doing so and only when the preemption satisfies the requirements of Executive Order 13132, which expresses a policy of respect for the authority of the state agencies and courts to regulate and adjudicate.

The FRA should heed the president's orders. And it should send a message to the courts by recanting previous preemption statements, repealing language in existing regulations preempting state common law claims, including provisions in future rules preserving state common law claims, and sending amicus briefs -- vigorously defending the right of plaintiffs to sue irresponsible railroads -- to courts that are asked to dismiss cases on preemption grounds. Our safety deserves no less.

[Image via Wade From Oklahoma.]

The U.S. Supreme Court today invited the Obama administration to weigh in on a case involving San Francisco's universal health care program. The case, Golden Gate Restaurant Association v. San Francisco, involves a challenge to a key provision of San Francisco's "Healthy San Francisco" law, which requires employers to provide minimum spending on their workers' healthcare insurance. The San Francisco law was challenged by the restaurant association in federal court, arguing that the Employee Retirement Income Security Act (ERISA) preempts San Francisco from requiring employers to invest in their employee healthcare benefits. The Bush administration got involved in the case lodging briefs supporting the restaurant association's position. The U.S. Court of Appeals for the Ninth Circuit ruled in favor of the San Francisco law concluding that it was not preempted by ERISA. The restaurant association has asked the Supreme Court to hear the case.

San Francisco City Attorney Dennis J. Herrera issued a statement (above, right) on the high court's action today, urging the Obama administration to take different approach to the case.

"The Bush Labor Department's position was not simply wrong as a matter of law, it was wrong for fundamentally ignoring the urgent need for health care reform," said Herrera, a member of the ACS Board of Directors. "I am hopeful that the new administration will not take such a knee-jerk position, but will instead thoroughly review the legal and policy implications of the case."

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By Robert A. Schapiro, Professor of Law, Emory Law & Author of Polyphonic Federalism: Toward the Protection of Fundamental Rights

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It has been a good spring for federalism. In recent years, the doctrine of preemption has stood as a prime enemy of federalism and an obstacle to state efforts to promote health, safety and environmental protection. For that reason, President Barack Obama's May 20 memorandum limiting federal assertions of preemption comes as welcome news. That memo, along with an important Supreme Court decision in March, signals a turn away from an aggressive policy of administrative agency preemption and recognition of the value of concurrent state and federal regulatory initiatives.

The basic principle of preemption, that state laws cannot interfere with the operation of the federal government, is an important and uncontroversial feature of our constitutional system. However, over the past 25 years, preemption has become a weapon to defeat state regulations aimed at improving health and safety, as well as state tort suits seeking to compensate victims of malfeasance. Back in 1992, the United States Supreme Court issued a fractured opinion in the Cipollone case, holding that federal regulation of cigarette labeling preempted some state tort actions against tobacco companies. In the succeeding years, the Supreme Court has found that law suits relating to seat belts, medical devices and other products must be tossed out because of federal regulation in the area.

Some assertions of preemption have succeeded. Others have failed. The judicial doctrine has not been clear. In this confusing area, the position of the President and his administration has proved significant.

The administration of President George W. Bush frequently urged courts to find state suits preempted based on the theory that they posed obstacles to agency regulations. Courts would often listen. In addition to filing legal briefs, federal agencies added preemption provisions to regulatory preambles. This practice wrote the preemptive language into the Federal Register, without the need for the more formal review process normally associated with the promulgation of regulations. Commentators labeled the practice, "silent tort reform," as it had the effect of barring various state law personal injury actions without the need for explicit congressional legislation.

The new memorandum from the Obama administration should spell the end to this kind of stealth preemption. The memo declares that regulatory preambles should not include preemptive statements, unless the underlying regulation contains a preemption provision. The memo further urges caution in promulgating regulations with preemptive language. Finally, the memo orders a review of preemptive statements issued by agencies within the past 10 years. Preemption will remain an essential component of our federal system, but the memo seeks to ensure that preemption provisions reflect a transparent and participatory administrative process.

This spring, the Supreme Court also expressed skepticism about preemption by administrative preamble. Wyeth v. Levine arose out of the tragedy suffered by Diana Levine. A professional musician, Levine received an injection of the drug Phenergan. The Phenergan infiltrated her artery, causing gangrene and the eventual amputation of her arm. She sued the manufacturer, Wyeth, alleging a failure to provide adequate warnings of the dangers of certain injection methods. A jury agreed with Levine and awarded her over $6 million in damages.

On appeal to the United States Supreme Court, Wyeth argued that the Federal Food and Drug Administration's approval of the drug's label had the effect of preempting Levine's suit. In support of its assertion, Wyeth pointed to the preamble to the FDA regulation, which included preemptive language added in 2006. The Bush Administration filed a brief urging the court to find Levine's claims preempted.

In a 6-3 decision, the Supreme Court rejected the preemption argument. Writing for the majority, Justice John Paul Stevens noted the value of concurrent state and federal approaches to the drug safety problem. In specific, the Court refused to defer to the regulatory preamble. Noting that the agency had not promulgated the preemptive language as part of the regular rulemaking process, the Court declared, "The agency's views on state law are inherently suspect in light of this procedural failure."

Taken together, the preemption memo and the Wyeth decision recognize the benefits of overlapping state and federal regulations and the concomitant peril of preemption. The memo and Wyeth emphasize the importance of protecting the values of federalism by providing adequate procedural safeguards. Congress of course retains the power to preempt by express language, but there are often good reasons not to preempt state law. Agencies should not rush in where Congress feared to tread.

In a memo released by the White House press secretary's office, President Barack Obama has announced his administration's policy "that preemption of State law by executive departments and agencies should be undertaken only with full consideratin of the legitimate prerogatives of the States and with a sufficient legal basis for preemption." The Obama administration's move today was urged by Prof. David C. Vladeck in his January, 2008 ACS Issue Brief "The Emerging Threat of Regulatory Preemption."

The announcement signals a clear break with the Bush administration's more heavy-handed policy. As explained by the Constitutional Accountability Center, who scooped the story on their blog Text & History:

In an assault on federalism and our Constitution, the Bush Administration quietly inserted preemptive language into a number of important regulations in an attempt to favor corporate interests at the expense of state laws protecting their citizens. Today the Obama Administration recognized that states serve as "laboratories of democracy" and often are the most aggressive defenders of public health, safety, and the environment.

Today's action follows yesterday's decision to adopt California's automobile emissions standards at the national level-a perfect example of how our country benefits when states act as policy innovators. The states led, the nation followed, and the broad coalition of industry leaders, state officials, and environmental advocates assembled at the White House yesterday showed our country at its best.