While we’re waiting for the Supreme Court to issue its preemption ruling in the Bartlett case (possibly as early as 10:00 a.m. today), we thought we’d examine the Court’s recent preemption decisions in non-drug/medical device cases, Hillman v. Maretta, 2013 U.S. Lexis 4167 (U.S. June 3, 2013) (also available in slip here), and in Arizona v. Inter Tribal Council of Arizona, No. 12-71, slip op.(U.S. June 17, 2013). Both are quite far afield from our sandbox: Hillmaninvolved the extent to which state legal standards can be used to change listed beneficiaries on federal government workers’ life insurance policies under a statute called the Federal Employees’ Group Life Insurance Act (“FEGLIA”); Arizona involved the Elections Clause, not the Supremacy Clause, of the Constitution, and concerned whether Arizona could restrict the ability of its citizens to register to vote in federal elections in ways not provided in the National Voter Registration Act.

In Hillman, it’s interesting that, while FEGLIA had an express preemption clause, any express preemption issue didn’t survive the march to the Supreme Court. 2013 U.S. Lexis 4167, at *13. So Hillmanonly addresses implied preemption issues. Arizona is also a conflict (and thus an implied) preemption case. Slip op. at 12 (citing Buckman Co. v. Plaintiffs Legal Committee, 531 U.S. 341 (2001)), but under a different clause of the constitution. What do they tell us – since we don’t have any particular substantive interest – about implied preemption in general?

A fair amount, actually, particularly about the“presumption against preemption.” As we mentioned in some of our posts discussiong PLIVA v. Mensing, 131 S. Ct. 2567 (2011) (although at Dechert, we were limited in what we could say about that case), the presumption against preemption seems to be teetering on the verge of abolition. Four of the justices recognizing preemption in Mensing (Thomas, joined by Roberts, Scalia, and Alito) were ready to get rid of it. Four other justices (Sotomayor, joined by Ginsburg, Breyer, and Kagan) wanted to keep it. Justice Kennedy was silent.

We can tell from Hillman that any broad application of the presumption against preemption (in implied preemption cases, anyway) remains problematic. Hillmanavoided that issue by invoking only a narrow presumption limited to “domestic relations:”

The regulation of domestic relations is traditionally the domain of state law. There is therefore a “presumption against pre-emption”of state laws governing domestic relations.

2013 U.S. Lexis 4167, at *14 (citations omitted). That’s a long way from the sweeping presumption language in Wyeth v. Levine, 555 U.S. 555 (2009).

In Arizona Justice Scalia was able to induce five other justices (Roberts, Ginsburg, Breyer, Sotomayor, and Kagan) to avoid the presumption issue by distinguishing between preemption under the Election Clause and preemption under the Supremacy Clause. Arizona held that there’s no preemption under the Election Clause without having to deal with the Supremacy Clause – except to state vaguely that such a presumption is “sometimes invoked” in Supremacy cases. Slip op. at 10-12. More significantly, this dodge prompted a response from Justice Kennedy – the single justice not expressing an opinion about the presumption in the 4-4 Mensing decision. Justice Kennedy stated, in his concurrence inArizona:

If the Court is skeptical of the basic idea of a presumption against preemption as a helpful instrument of construction in express pre-emption cases, it should say so and apply that skepticism across the board. . . . The Court has . . . recognized that when the text of a pre-emption clause is susceptible of more than one plausible reading, courts ordinarily accept the reading that disfavors pre-emption. This principle is best understood, perhaps, not as a presumption but as a cautionary principle to ensure that pre-emption does not go beyond the strict requirements of the statutory command. . . .

Whether the federal statute concerns . . . any other subject proper for Congress to address, a court must not lightly infer a congressional directive to negate the States’ otherwise proper exercise of their sovereign power. . . . As already noted, it may be that a presumption against preemption is not the best formulation of this principle, but in all events the State’s undoubted interest in the [subject matter] must be taken into account and ought not to be deemed by this Court to be a subject of secondary importance.

Arizona, slip op., Kennedy concurrence at 1-3 (citations omitted) (emphasis added).

So, from Hillman and Arizona it is readily apparent that any broad Levine-style “presumption against preemption” remains severely imperiled – that even those justices who supported it in Levine appear willing to cut it back if that’s the price of winning a substantive preemption issue.

Hillmanalso found that its limited presumption against preemption was overcome, but without a hint of the Levine requirement of “clear evidence.” Rather, conflict preemption overcame the diminished presumption in Hillman because: (1) “Congress established a clear and predictable procedure” that state law would muddy up, 2013 U.S. Lexis 4167, at *21; and (2) a failure to preempt would create a statutory exception that Congress had not enacted, violating the maxim that where a statute “explicitly enumerates certain exceptions . . ., additional exceptions are not to be implied, in the absence of evidence of a contrary legislative intent.” Id. at *23-24 (citation and quotation marks omitted). If that’s “clear evidence” sufficient to overcome a “presumption,” then Levine was clearly a one-off, result oriented case. The FDCA has #1, and in #2 the Hillman court placed the burden on the party opposingpreemption by invoking the “absence of evidence” proposition.

Thus, it appears that the presumption against preemption remains one of those things used to justify a result, rather than having a principled basis for existence. Critically, Justice Kennedy seems quite willing to abandon the concept of “presumption” altogether, as long as in some way the federalism interests of the states are “not deemed” to be “of secondary importance.”

Hmmm…. Could this presage the Court in some way dispatching the “presumption” in Bartlett? We can only hope – that wasn’t a major issue in the grant of certiorari − but it’s still fun reading tea leaves.

A second implied preemption point that’s clearer than the fate of the presumption against preemption is that the “purposes and objectives” branch of implied preemption is alive and well. That was the basis for the ruling in Hillmanthat FEGLIA preempted the state-law litigation. 2013 U.S. Lexis 4167, at *14-15 (reciting the prong “when the state law‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress’”), *20 (finding preemption because state law “frustrates the deliberate purpose of Congress”). Seven justices joined that part of the opinion. Moreover, Justice Alito’s concurrence in Hillman is also expressly grounded in the “purpose or objective” of the statute. Id. at *34.

Hillman thus makes clear that Justice Thomas’ rejection of the “purposes and objectives” formulation of implied preemption is not shared by any other justice on the Court. See also Hillman, at *28 (lone concurrence that purposes and objectives preemption is “illegitimate”; finding preemption anyway due to “direct” conflict).

For now, however, the Bartlett watch continues – at least until later today (if not longer).