Posted by Jonathan Adler:
Is the Supreme Court Anti-Business?
http://volokh.com/archives/archive_2009_03_22-2009_03_28.shtml#1237865971
A year ago commentators regularly claimed that the Roberts Court was a
"pro-business" court. This year's two preemption decisions, [1]Altria
v. Good and (in particular) [2]Wyeth v. Levine, have [3]caused some to
reconsider. Michael Greve of the American Enterprise Institute goes
even farther, arguing the Wyeth decision is positively disastrous for
business and reflects a poor understanding of federalism. In an essay
posted today on NRO, [4]"Preemption Strike," Greve rips the Court for
extending "an open invitation to juries, state officials, and tort
lawyers to help themselves to even more of the diminishing proceeds of
America�s productive economy." As Greve notes, federal preemption
litigation is "asymmetric." Business wins when it can hold its ground,
but losses risk unleashing floods of new litigation, so one big loss
can overshadow a string of victories.
Greve is particularly critical of Justice Thomas' rejection of implied
preemption:
�If Congress wants to preempt, let it say so clearly,� rings the
refrain. Justice Thomas�s opinion is the most extreme expression of
that position to date. Yet its obtuseness borders on willful
denial. The states have every incentive and myriad ways to
circumvent federal law. Because Congress cannot possibly foresee
those stratagems, it cannot �clearly� preempt them. For example,
the clearest federal preemption provision of all prohibits states
from administering �a law or regulation related to fuel economy
standards.� California�s proposed greenhouse-gas standards do not
simply �relate to� fuel economy; they are fuel-economy standards.
Even so, federal courts have upheld them against preemption
challenges because California describes them as emission standards
instead. . . .
The Stevens and Thomas opinions in Wyeth teem with encomia to
�federalism� and the need to protect states against federal
overreach. The court, they say, should not favor Congress by
implying preemption. But the federalism analysis is a fantasy, and
the protestations of neutrality are false.
Federal usurpation? Never in our history have the states wielded
comparable power, and comparably destructive power, over the
commerce of the United States. What �federalism� has come to mean,
evidently, is the states� right to exploit the same branch of
interstate commerce 50 times over. That absurdity is but a facet of
a broader problem � the proliferation of fragmented,
semi-autonomous, faction-ridden agencies and entities, from
multi-state attorney-general �investigations� to local juries, all
of which exercise public power without coordination or effective
control. Implied preemption is, or was, one of the very few checks
on that tendency.
The court�s evisceration of that check is not an act of judicial
neutrality; it is an abject surrender of constitutional
responsibility. We are experiencing a malignant form of
institutional competition � a three-branch, 50-state race for first
prize in the gratuitous destruction of American business and
industry. After Wyeth, the Supreme Court is leading by a nose.
References
1. http://www.supremecourtus.gov/opinions/08pdf/07-562.pdf
2. http://www.supremecourtus.gov/opinions/08pdf/06-1249.pdf
3. http://volokh.com/posts/1236539841.shtml
4.
http://article.nationalreview.com/print/?q=YTE0N2ZjNDEyYmQ3MTAxYTQ0Y2I2Y2I4MmFiOGJlMmQ=
_______________________________________________
Volokh mailing list
[email protected]
http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
