It wasn’t an opinion, or a grant of certiorari, but it may be important nonetheless. In a concurrence in the denial of certiorari the other day, Justices Thomas and Gorsuch expounded on their view of how preemption works (or doesn’t work) in the context of a decision by a federal agency (not the FDA – this wasn’t a drug case) not to regulate. Lipschultz v. Charter Advanced Services (MN), LLC, ___ S. Ct. ___, 2019 WL 5300908 (U.S. Oct. 21, 2019). These two justices indicated an unwillingness to ascribe any preemptive power at all to a decision not to regulate:

It is doubtful whether a federal policy − let alone a policy of nonregulation − is “Law” for purposes of the Supremacy Clause. Under our precedent, such a policy likely is not final agency action. . . . Even if it were final agency action, the Supremacy Clause requires that pre-emptive effect be given only to those federal standards and policies that are set forth in, or necessarily follow from, the statutory text. . . .

Giving pre-emptive effect to a federal agency policy of nonregulation thus expands the power of both the Executive and the Judiciary. It authorizes the Executive to make “Law” by declining to act, and it authorizes the courts to conduct a freewheeling judicial inquiry into the facts of federal nonregulation.

Id. at *1-2 (citation and quotation marks omitted).

In the tort area, such a rationale is not that big a change, since the Supreme Court said as much back in 2002 in Spreitsma v. Mercury Marine, 537 U.S. 51 (2002). In Sprietsma the Court held, “although the Coast Guard’s decision not to require [the safety device in question] was undoubtedly intentional and carefully considered, it does not convey an ‘authoritative’ message of a federal policy against” that device. Id. at 528. So regulatory inaction has not been much of a source of preemption of product liability cases for quite some time.

However, in Lipschutz Justice Gorsuch appears to be signing onto a number of prior lone Thomas preemption opinions, including his concurrence in Wyeth v. Levine, 555 U.S. 555 (2009), rejecting the concept of so-called “obstacle” preemption. Lipschutz, 2019 WL 5300908, at *2. Moreover, if agency non-regulation is not “law” for purposes of the Supremacy Clause, that raises the question of whether even an express agency decision not to regulate something – under a statute with an express preemption clause – could have express (as opposed to implied, as in Sprietsma) preemptive effect.

Given how split the Supreme Court has been recently in tort preemption cases, Justice Gorsuch’s possible adherence to some of Justice Thomas’ unorthodox preemption views bears watching. If that is indeed where Justice Gorsuch is on preemption issues, Lipschutz also provides some insight into why the Court stopped with the procedural questions in Merck Sharp & Dohme Corp. v. Albrecht, 139 S. Ct. 1668 (U.S. 2019), and did not adjudicate the underlying preemption question itself. See Id. at 169 (“The Supremacy Clause grants ‘supreme’ status only to the ‘the Laws of the United States.’”) (emphasis original).