It always seems to happen – even with a site recommended by the Supreme Court’s own website.  In our users’ guide post last week to the defense-side (we’ll stay away from jargon like “top” and “bottom”) briefs in the Bruesewitz Vaccine Act preemption case, we missed one – the Chamber of Commerce’s amicus brief.  Fortunately, one of the authors of that brief is a follower of our blog, and he passed it along.
The Chamber’s brief is different – focusing strongly on the “now you see it, now you don’t” presumption against preemption.  It addresses the role of the presumption in cases of express preemption, arguing “that there is less to the presumption than meets the eye and that there is little basis for applying a presumption against preemption once Congress has expressly stated its intent to preempt state law.”  CoC br. at 2.
The Chamber’s arguments seeking to oust such a presumption in cases where Congress spoke directly to the issue of preemption make the following points:

• “Applying the presumption in the presence of an express preemption provision conflicts with the central, universally acknowledged rule governing preemption cases:  pre-emption fundamentally is a question of congressional intent.”  Br. at 7 (all internal quotation marks omitted).
• “It is settled that if the intent of Congress is clear, that is the end of the matter; for the court must give effect to the unambiguously expressed intent of Congress,” so that “any presumption against preemption dissolves once there is conclusive evidence of intent to pre-empt in the express words of the statute itself.” Id. at 8-9.
• “In light of the primacy of congressional intent, it is hard to discern what work the presumption actually does in practice.”  Id. at 9.  Further, both Supreme Court and lower court precedents are a muddle.  Id. at 10-12.
• There are no federalism concerns that justify a presumption against preemption where Congress has expressly spoken on the subject.  Id. at 13-19.
• “If a power is delegated to Congress in the Constitution, the Tenth Amendment expressly disclaims any reservation of that power to the States.”  Id. at 14.
• “[T]he issue of constitutional magnitude implicated by the presumption against preemption is not the vertical structure of federal-state relations. . .for the Framers of our Constitution provided that the federal law must prevail,” but “[r]ather, the presumption against preemption aggrandizes the judicial branch over the political branches—a classic horizontal clash of authority.  Id. at 15-16 (emphasis original).
• “Because the Supremacy Clause of the Constitution points in favor of, not against, preemption, a clear statement rule is not appropriate in the express preemption context.”  Id. at 16-17 (emphasis original).
• “The appropriate function of the courts in this, as in any other, issue of statutory interpretation, is to identify the best (i.e., most plausible) reading of the actual statute not to approach the statute with a blue pencil and chide Congress for failing to “speak with the discrimination of an Oxford don.”  Id. at 19.

If express preemption is part of your defense strategy, the Chamber’s amicus brief has a lot of good approaches to the presumption against preemption.