Preemption and the Health, Welfare, and Morals...

There is good reason to wonder about what drives the Supreme Court's thinking about the issue of preemption. Briefly, preemption is about federalism and suggests that powers assigned by the Constitution to Congress necessarily preempts a concurrent power in the states. The first significant case concerning this arose in Sturges v. Crowninshield in 1819. In that famously big term (think McCulloch v. Maryland, Dartmouth College v. Woodward), John Marshall helped empower the U.S. government over that of the states, thus giving judicial sanction to questionable congressional legislation and restricting the power of states over corporations. Although by far the most equivocal of the opinions, Sturges contained the seeds of the powerful doctrine of preemption. This would have far reaching consequences beyond those presented by the bankruptcy statute in question in Sturges.

This might seem just a matter of historical curiosity, but it is not. Preemption has been at issue in a number of cases in the twentieth century, and is front-and-center in the case of Warner-Lambert Co. v. Kent, which is to be argued on Monday, February 25. The issue is tort liability and whether the state of Michigan can pass laws allowing state residents harmed by pharmaceutical companies to sue them in state courts. They do so to protect state residents (claim the states) even though drugs have been approved by the Food and Drug Administration. In order to get into court, the plaintiffs must prove a "fraud on the FDA." Pharmaceutical companies have argued (successfully in the past, particularly in Buckman Co. v. Plaintiff's Legal Comm.) that such liability claims conflicted with federal law and were thus void.

There are several collateral issues here that are worth attention. The first has to do with whether the states possess authority to protect their residents' "health, welfare, and morals," (the police power, traditionally) or whether such power has been surrendered to the federal government. The Tenth Amendment would suggest not, but modern constitutional law has not been kind to such claims.

In a complicated federal system, preemption is a major issue. In this case, it does not appear that the Michigan statute will stand, although the respondent in the case (plaintiffs in the original case) plead that Michigan will probably repeal the statute anyway, and as such the Supreme Court should not get involved. Nevertheless, the current Supreme Court is not made up of members who have been particularly kind to the over-assertive federal government. It might well be worth watching what the Court does in this little-noticed case.