We’ve seen plaintiffs argue in post-Riegel medical device preemption cases – and if we win Levine, we expect we’ll see it in drug cases as well – that preemption should be denied because there is legislation pending in Congress, but not enacted, that would overturn binding Supreme Court precedent.
Not only is that a facially bogus argument, but there is also precedent rejecting it. See United States v. Mauro, 436 U.S. 340, 356 n.24 (1978) (“we deem it irrelevant that bills currently pending in Congress” might change statute); Davis v. United States, 569 F. Supp.2d 91, 98 (D.D.C. 2008) (“proposed bill does not carry the force of law. . . . The pending legislation is therefore irrelevant”).
That’s our Friday present to you.