Today’s guest post is by Tucker Ellis‘ Dick Dean, a longtime friend of the blog and our most prolific non-Reed Smith guest blogger.  This post is a follow-on to the Blog’s discussions of purposes and objectives preemption in light of increasing skepticism about this aspect of preemption by some members of the Supreme Court.  As always, our guest posters are 100% responsible for their writings, entitled to all the credit and any blame.

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To paraphrase Bexis, I would not have even read the Supreme Court’s recent decision in Kansas v. Garcia, ____S.Ct.____, 2020 WL 1016170 (U.S. March 3, 2020), but for the fact that it tripped my automatic searches for cases citing Buckman Co. v. Plaintiffs’ Legal Comm., 475 U.S. 282 (1986), and implied preemption.  See opening paragraph of “Will Agency Deference Ruling Affect Preemption” July 15, 2019.  And I was drafting this post about Garcia when Bexis struck again on March 12, pointing out the concurrences by Justices Thomas and Gorsuch noting their skepticism of purposes-and-objectives preemption and urging use of “logical contradiction” analysis in addition to the traditional purposes-and-objectives preemption argument.  See Nov. 4, 2019 post.  That is both true and important, but I was headed in another direction.

Interestingly, the four Mensing dissenters (Ginsburg, Breyer, Sotomayor and Kagan) were also in dissent in Garcia, but they all supported a finding of purposes-and-objectives preemption.  (So that is four Justices who believe in the concept of purposes-and-objectives preemption; and we know that Chief Justice Roberts and Justice Alito also believe in it from their dissent in Wyeth v. Levine, 555 U.S. 555 (2009).  Seeing how the Garcia dissenters got there makes the case informative to those of us in the pharma space.  It presents an aggressive purposes and objectives argument.

Garcia affirmed a criminal conviction on state-law identity theft charges in an immigration context.  Garcia is a follow-up case to Arizona v. United States, 567 U.S. 387 (2012), where the court relied on obstacle preemption to bar states from making criminal what the federal government had failed to make criminal with regard to alien employment verification.  The question presented in Garcia was whether states could use state statutes not directly addressing alien employment verification to prosecute conduct within that area—or, more precisely, not use because of preemption.

In Garcia, three aliens were charged with a violation of Kansas’s identity theft statutes by falsely using the identity of other persons when they completed I-9 forms (federal proof of legal status to obtain employment) and related W-4s (federal withholding forms) and K-4s (state withholding forms), both of which contain social security information.  Those convictions seem straightforward on their face (false social security information was used to verify employment eligibility), but the Kansas Supreme Court reversed, holding that 8 U.S.C. §1324 a(b)(5) prohibits a state from using “any information contained within [an] I-9 as the basis for a state law identity theft prosecution of an alien who uses another’s Social Security information within an I-9.”  The U.S. Supreme Court reversed and upheld the convictions.  All nine justices found that there was no express preemption (those arguments were incredibly technical, and a tour through the dictionary, and are not discussed here).  But the Garcia Court split sharply on the implied preemption issue.

The majority rejected conflict preemption, noting that the fact Kansas’s laws “overlap to some degree with federal criminal provisions does not even begin to make a case for conflict preemption.”  And in their concurrence, Justices Thomas and Gorsuch noted their dubious views of purposes-and-objectives preemption.  The dissent, written by Justice Breyer, first found that federal immigration laws showed “that Congress has occupied at least the narrow field of policing fraud committed to demonstrate federal work authorization.”  2020 WL 101617020, at *13 (citing Arizona, 567 U.S. at 400).  We know that field preemption decisions are few and far between.  But the dissent did not stop there.

There is much obstacle preemption language and analysis here.  The decision was premised on the obstacle preemption holding in Arizona.  If the states could not make criminal what the federal government had failed to criminalize with respect to alien employment verification, then similarly, the dissenters concluded that criminal enforcement in this area therefore fell to the federal government alone.  By contrast, the dissenters noted that the false social security numbers could have been used by the state in a prosecution for other crimes, for example, hiding a criminal history or paying less in taxes than lawfully owed.  The dissenters cited Buckman for the proposition that even “facially neutral state laws [like identity theft statutes] may be preempted when applied in a particular factual context in particular way.”  In summary, the dissent saw a clear Congressional purpose and that state prosecutions were outside that purpose.  As I was reading this, I was reminded of Justice Breyer’s majority opinion in Geier v. American Honda Motors Co., 529 U.S. 861 (2000), the high-water mark of purposes-and-objectives preemption.

To be sure there are different judicial perspectives on preemption depending on the underlying subject matter, e.g.., tort liability versus immigration enforcement.  Mensing was an impossibility preemption case; Arizona and Garcia were obstacle preemption cases.  But the dissent here is worth a careful read and possible use as we frame our arguments down the road in the pharma space when we advance an obstacle preemption argument.  It shows an aggressive use of a purposes argument to find preemption of an otherwise neutral statute.  Those arguments are not that common in our space.  But they exist. Zogenix, Inc. v. Patrick, 2014 WL 1454696 (D. Mass. 2014) (holding state cannot prohibit sale and distribution of drug approved by FDA) (case was not appealed since state revised its policies) (discussed here).  That case was decided on traditional purposes-and-objectives grounds but it does offer a good example of how Bexis’ logical contradiction argument could be advanced.  One key to that argument is showing that the federal interest does not “wander far from the statutory text.”  Wyeth v. Levine, 555 U.S. at 583 (Thomas, J., concurring).  But federal statutes are very clear that it is only the federal government, more precisely the FDA, that can decide which drugs may be marketed in this country.  It would indeed be a logical contradiction to permit states to invade that exclusive process.