Preemption
Case Analysis
April
23, 2007
If
one were to read only the brief of the State of Michigan and amicus curiae briefs
on both sides of the issue, one could reasonably have concluded that the issue
in this case was the wisdom of state consumer protection laws.
However,
the majority opinion does not even touch on that issue; only the dissenters do,
briefly, near the end of the dissent.
Nor
does the decision provide any guidance as to the level of deference to be accorded
federal agency rules that implicate the balance of power between the states and
the federal government. Again, only the dissent briefly discusses that issue.
As
a result, much of the bar’s interest in this case will be left unsatisfied.
Nevertheless,
the decision will be frequently cited by parties seeking exemption from state
regulation, arguing express federal preemption.
They
should be prepared for disappointment, however.
Noticeably
absent from the majority opinion is any reference at all to the general presumption
against federal preemption. Neither Cipollone v. Liggett Group, Inc., 505 U.S.
504, 112 S.Ct.2608, 2618 (1992), nor Medtronic, Inc. v. Lohr, 518 U.S. 470, 485,
116 S.Ct. 2240 (1996), are even cited in the majority opinion; only the dissent
cites them and the presumption against preemption.
Normally,
an opinion considering express federal preemption would, at a minimum, include
some reference to the presumption as part of its exposition setting forth the
applicable standard of review.
Had
the majority intended that its opinion would in any way change the standards governing
federal preemption, it surely would have made some citation to Cipollone and Medtronic.
Instead,
the court’s analysis exclusively references other cases that concern national
banking. The first sentence cites the seminal case of McCulloch v. Maryland, 4
Wheat. 316 (1819)(establishing federal law supreme over state law with respect
to national banking), and the court never departs from banking law.
As
a result, attempts to use this decision outside of the realm of banking law, and
expand its application to federal preemption law generally, are likely to fail.
Click
here for Main Story.
David
Ziemer can be reached by email.
