Preemption: The Courts, the Executive, and Congress

There are three relevant actors in the preemption play: the courts, the executive, and the Congress. For various reasons, the mood of the Supreme Court at the present time is to limit tort actions generally. “Tort reform,” generally unsuccessful in state legislatures and Congress, is being implemented by the Supreme Court unilaterally. Daubert requirements for expert testimony, substantive due process limitations on punitive damages, and preemption of state tort law are three of the ways the Supreme Court is attempting to handcuff plaintiffs in tort actions. The present administration, despite its continuance in effect of Executive Order 13132 that attempts to limit preemption, has adopted a policy of having agencies assert preemption claims as amici in courts as well as in preambles to new regulations. Congress, the actor with the most power in this play, has been incapacitated by the lack of a filibuster-proof majority in the Senate and the lack of veto-proof majority in both houses.

A major test of the Supreme Court will be next term’s Wyeth v. Levine, in which a drug manufacturer is claiming with administration support that the Food, Drug and Cosmetic Act impliedly preempts a state tort claim regarding any drug meeting the Food and Drug Administration’s requirements. The Las Vegas odds for the plaintiff to prevail here are very low, in light of the Supreme Court’s 8-1 decision finding preemption in another FDA case last term, Riegel v. Medtronic, and its 4-4 split in yet another drug preemption case this past term, Warner-Lambert v. Kent, in which Justice Alito, who normally votes in favor of preemption did not participate. While these cases can be distinguished, the drum beat of preemptive decisions by the Court in recent years is deadening.

The Bush administration is nearly over, and neither John McCain nor Barack Obama have made public announcements about their policies concerning preemption, but if history tells us anything, it is that Republicans will act to protect industry and Democrats will try to protect consumers. But even a tort-friendly President will be limited in what he can accomplish so long as the current Supreme Court is interpreting statutes with a thumb on the scales toward finding preemption.

This all means that Congress must act for there to be relief for plaintiffs to avoid preemption of suits for damages caused by unduly dangerous products. The constitutional power is there, as David earlier noted. Even this Court has never suggested that Congress cannot make policy in this realm. But Congress has to know what it is doing, and the preemption language in the current Consumer Product Safety Improvement Act bill does not bode well. It directs itself not to the courts, which actually make the preemption determinations, but to the agencies – telling them that they are not allowed to construe the Consumer Product Safety Commission’s statutes as preempting state tort law. Would that Congress would so direct the courts (in appropriate language)!