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We’ve got the expression “the dog that didn’t bark” stuck in our heads today, and it’s not just from that phrase being used in the recent Caplinger decision. See Caplinger v. Medtronic, Inc., ___ F.3d ___, 2015 WL 1786742, at *9 (10th Cir. April 21, 2015) (blogged about here). No, it’s also our reaction to another preemption decision handed down almost simultaneously with Caplinger – by the Supreme Court – in Oneok, Inc. v. Learjet, Inc., 2015 WL 1780926 (U.S. April 21, 2015).  Both Oneok and the majority’s opinion in Caplinger share something in common beyond being decided on the same day and being about preemption.  Neither so much as breathes a word about the embattled “presumption against preemption.”

That the Caplinger majority doesn’t mention any presumption (or assumption, or whatever) against preemption isn’t really surprising, since it affirmed preemption under Riegel v. Medtronic, Inc., 552 U.S. 312 (2008), in which the Supreme Court majority did likewise.  It is surprising that Oneok didn’t rely, or even reference, such a presumption.  FirstOneok found no preemption, and we’ve noted elsewhere, the presumption against preemption is one of those result-oriented things that tends to pop up when consistent with a no-preemption result and vanish where preemption is found.  SecondOneok is a field preemption case (one reason why nothing else in it is terribly pertinent), and field preemption is where the presumption against preemption originated.  As we said in one of our very first posts:

The presumption asserted by the Lohr plurality originated in preemption discussions involving neither express nor conflict preemption – but rather “field” preemption.  Thus, in Rice v. Santa Fe Elevator Corp., 331 U.S. 230 (1947), the Court noted, “the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.” Id. at 230 (citations omitted). . . .  Rice involved the most sweeping form of preemption – field, not conflict preemption.

The Rice assumption became a presumption in Hillsborough County v. Automated Medical Laboratories, Inc., 471 U.S. 707, 715-18 (1985), and Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977) (cases also cited in Lohr).  Both of these cases rejected field preemption before turning to additional preemption arguments raising actual conflicts with federal regulation.  Both courts invoked a “presumption” against preemption solely in their discussions of field preemption.

DDLaw, “The Presumption Against Preemption” (November 15, 2006) (emphasis added).  If the Court is no longer willing to rely upon a presumption against preemption, even in an opinion rejecting field preemption – the presumption’s heartland and origin − then one wonders if it still exists at all.

It might not.

As we also posted (only not so long ago) the 4-4 split on the presumption against preemption in PLIVA v. Mensing, 131 S. Ct. 2567 (2011), and a subsequent comment by Justice Kennedy (the missing vote in Mensing), suggest that the presumption teeters on the verge of abolition.

Maybe abolition has already occurred, sub silentio (“done silently”), since Justice Breyer, author of Oneok, was one of the presumption’s remaining adherents in Mensing, but then didn’t mention it in his dissent in Mutual Pharmaceutical Co. v. Bartlett, 133 S. Ct. 2466 (2013).  If Justice Breyer now doesn’t see fit to use the presumption, even in finding against field preemption, he may have also come around to concluding that it’s simply too toxic a concept and belongs to the dustbin of history.  Oneok was 7-2, so it’s not like the presumption was a bargaining chip needed to obtain a hotly contested  result.

We look forward to a formal interment.