We read a brief from the other side recently that claimed that Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), abolished implied preemption altogether. We kid you not. Under the heading, “Implied preemption is an unconstitutional intrusion into the dual sovereignty of the States,” plaintiffs made the following pitch:
The Supreme Court elucidated the contours of judicial deference and statutory construction in Loper Bright v. Raimondo, 144 S. Ct. 2244 (2024). A reading of Wyeth[ v. Levine, 555 U.S. 555 (2009)], in the framework of Loper Bright, together with deference to the police powers of the States recognized in both Wyeth and Dobbs v. Jackson Women’s Health Organization, affirms [plaintiff’s] position: if Congress wants to make a law, or to displace a State law, it must explicitly say so.
In re Suboxone (Buprenorphine/Naloxone) Film Products Liability Litigation, PLC’S Response to Partial Motion to Dismiss for Failure to State a Claim (ECF No. 126), Br. at pp. 41-51 (filed Aug. 23, 2024).
In our latest Loper Bright post, back in November, we predicted p-side “attempts to use Loper Bright for nefarious purposes,” but we expected something more nuanced than this sort of meat-axe approach. But that kind of extreme position only makes our job easier.
Implied preemption stems directly from the Constitution’s Supremacy Clause, which holds that “the Laws of the United States” and other federal enactments “shall be the supreme Law of the Land, and the Judges in every State shall be bound thereby” regardless of “any Thing in the Constitution or Laws of any State.” U.S. Const, Art, IV. Implied preemption – that federal enactments overturn conflicting state law without any express language to that effect − has been recognized for over 200 years, since McCulloch v. Maryland, 17 U.S. 316 (1819). In McColloch, as any first-year law student should have learned, a federal statute establishing a national bank with a Maryland branch impliedly preempted due to conflict – “repugnant,” id. at 425 – a state law seeking to tax that federal institution. Preemption by conflict stemmed directly from the Supremacy Clause, without the need for any statutory clause to that effect:
This great principle is, that the constitution and the laws made in pursuance thereof are supreme; that they control the constitution and laws of the respective States, and cannot be controlled by them. From this, which may be almost termed an axiom, other propositions are deduced as corollaries. . . . These are, first that a power to create implies a power to preserve. Second. That a power to destroy, if wielded by a different hand, is hostile to, and incompatible with these powers to create and to preserve. Third. That where this repugnancy exists, that authority which is supreme must control, not yield to that over which it is supreme.
McColloch, 17 U.S. at 426 (emphasis added). Thus, the Supremacy Clause alone can be sufficient for preemption in a case of “repugnancy” (the modern term being “conflict”) between federal and state law. McColloch made no mention of any preemptive language in the relevant federal statute. To the extent, as plaintiffs argued in Suboxone (Br. at 48) that Dobbs stands for the general proposition that “courts must ground decisions in ‘text, history, or precedent,’” 597 U.S. at 270, McColloch, and its two centuries of extensive, preemptive progeny, demonstrate that implied preemption is on firm ground, and that plaintiffs’ arguments are not.
Taking the timeline in the other direction, Loper Bright was only decided last June, at the end of the Supreme Court term, so there haven’t been many Supreme Court preemption (or any) decisions since then. But in Moyle v. United States, 603 U.S. 324 (2024), three justices concurring in the dismissal of a petition as improvidently granted also invoked implied preemption principles, “[a federal statute] requires hospitals to provide abortions that [state] law prohibits. When that is so, [state] law is preempted.” Id. at 328. Just as in McColloch, over 200 years before, there was no mention in Moyle of any preemptive language in the federal statute.
The notion that Loper Bright, either alone or together with the other two (Levine and Dobbs) of the other side’s suddenly favorite Supreme Court cases, somehow sub silentio overruled 200+ years of implied preemption precedent is, as our title indicates, absurd. Loper Bright was about one thing – statutory interpretation – and the only mention of preemption in Loper Bright was a fleeting reference in a concurring opinion. Even that reference specifically contrasted “traditional canon[s] of construction” with the Chevron doctrine, specifically because those traditional propositions were “centuries old[].” 603 U.S. at 435 n.5. “Centuries old” describes McColloch to a T.
Plaintiff’s anti-preemption argument also contends, citing nothing, that “[u]nder the Tenth Amendment, Congressional silence cannot serve as a basis to invalidate State laws under the Supremacy Clause.” Br. at 41. First, neither Loper Bright, nor Levine − nor even Dobbs − relies at any point, or even cites to, the Tenth Amendment. Second, the Tenth Amendment is a residuary clause, dealing with rights and powers not mentioned elsewhere in the Constitution:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
U.S. Const. Amdt. 10 (emphasis added). The Supremacy Clause specifically provides that federal statutes (and other enactments) are “supreme” and that “Judges in every State shall be bound thereby.” Since supremacy is a power specifically delegated to federal law elsewhere in the constitution itself, the Tenth Amendment facially does not apply to preemption, express or implied.
Indeed, the only appellate decision that we’re aware of (at least during the 17 years that this Blog has existed) that ever purported to interpose the Tenth Amendment against federal preemption, is Gustafson v. Springfield, Inc., 2020 Pa. Super. Lexis 843 (Pa. Super. Sept. 28, 2020) (discussed here), which no longer exists. Reconsideration in Gustafson was granted and the original opinion withdrawn. When reconsidered by the full en banc court, a majority of the nine judges expressly rejected the kooky Tenth Amendment argument embraced by the prior panel. Gustafson v. Springfield, Inc., 282 A.3d 739, 763, 772-74, 783 Pa. Super. 2022), appeal pending, 296 A.3d 560 (Pa. 2023).
Plaintiff’s Loper Bright argument went off the rails almost immediately, when it attempted to go beyond that decision’s focus on statutory interpretation. It describes Loper Bright as “signal[ing] a full embrace of the Framers’ understanding of the judicial function: to interpret acts of Congress to ascertain the parties’ rights.” Br. at 44.
Umm. . . . No. That is way overbroad. Loper Bright is a significant decision, but not about preemption. Rather, Loper Bright relied on the Administrative Procedures Act, 5 U.S.C. §701, et seq. (“APA”), to reject the proposition that administrative agencies were better positioned to interpret their organic statutes than the courts.
[The APA] specifies that courts, not agencies, will decide “all relevant questions of law” . . . − even those involving ambiguous laws − and set aside any such action inconsistent with the law as they interpret it. And it prescribes no deferential standard for courts to employ in answering those legal questions. That omission is telling, because [APA] Section 706 does mandate that judicial review of agency policymaking and factfinding be deferential.
603 U.S. at 392. That involved an “unremarkable . . . proposition,” that “courts decide legal questions by applying their own judgment,” id. − not the overturning of 200+ years of preemption precedent. Moreover, as we discussed, in a prior post, that “deferential” review of agency actions that Loper Bright contrasted with pure statutory interpretation has unanimously been applied to FDA requirements imposed via that agency’s approvals of prescription medical products.
Another reason Loper Bright cited for overruling the Chevron doctrine was that it had become encrusted with many exceptions. Discussing the many twists and turns that had been encrusted on the Chevron decision that Loper Bright was overruling, the majority referenced the so-called “major questions” doctrine:
Chevron does not apply if the question at issue is one of “deep ‘economic and political significance.’ We have instead expected Congress to delegate such authority “expressly” if at all, for “[e]xtraordinary grants of regulatory authority are rarely accomplished through ‘modest words,’ ‘vague terms,’ or ‘subtle device[s].’”
603 U.S. at 405 (citing King v. Burwell, 576 U. S. 473, 486 (2015), and West Virginia v. EPA, 597 U. S. 697, 723 (2022)). Plaintiffs’ argument puts the rabbit in the hat by applying this “expressly if at all” language to preemption, Br. at 45-46, which neither Loper Bright nor any Supreme Court preemption decision ever has. That sought to turn the “major questions” doctrine fully on its head, as plaintiffs tried to find an elephant − abolition of implied preemption – in the mousehole of Loper Bright’s application of the APA to a case about fishing.
Having utterly miscited Loper Bright, the plaintiffs’ argument followed with the remarkable claim that “[i]f Congress has not provided an express preemption clause in a statute, that must be the end of the matter.” Br. 46. That statement was remarkable because it is contrary to multiple, directly on point, Supreme Court decisions – which, of course, plaintiffs never acknowledged, let alone addressed, in their brief. Our favorite of those decisions is Buckman Co. v. Plaintiffs Legal Committee, 531 U.S. 341 (2001), which held:
[Plaintiff] also suggests that we should be reluctant to find a pre-emptive conflict here because Congress included an express pre-emption provision. . . . To the extent [plaintiff] posits that anything other than our ordinary pre-emption principles apply under these circumstances, that contention must fail in light of our conclusion . . . that neither an express pre-emption provision nor a saving clause ‘bar[s] the ordinary working of conflict pre-emption principles.’
Id. at 353.
Buckman cited Geier v. American Honda Motor Co., 529 U.S. 861, 869 (2000), which held:
We now conclude that the saving clause (like the express pre-emption provision) does not bar the ordinary working of conflict pre-emption principles. Nothing in the language of the saving clause suggests an intent to save state-law tort actions that conflict with federal regulations.
Id. at 869. Geier also explained why plaintiffs’ no-implied-preemption argument makes no sense under our federal system of government:
Why, in any event, would Congress not have wanted ordinary pre-emption principles to apply where an actual conflict with a federal objective is at stake? Some such principle is needed. In its absence, state law could impose legal duties that would conflict directly with federal regulatory mandates. . . . Insofar as [plaintiffs’] argument would permit common-law actions that “actually conflict” with federal regulations, it would take from those who would enforce a federal law the very ability to achieve the law’s congressionally mandated objectives that the Constitution, through the operation of ordinary pre-emption principles, seeks to protect.
Id. at 871-72 (citation omitted).
Geier relied in part on a third decision, Freightliner Corp. v. Myrick, 514 U.S. 280 (1995). Myrick rejected outright the same sort of “implied preemption cannot exist” argument on facts stronger for plaintiffs than mere silence – a statute having an express preemption clause that did not cover the case in question. Myrick held instead:
The fact that an express definition of the pre-emptive reach of a statute “implies” − i.e., supports a reasonable inference − that Congress did not intend to pre-empt other matters does not mean that the express clause entirely forecloses any possibility of implied pre-emption. . . . At best, [there is] an inference that an express pre-emption clause forecloses implied pre-emption; it does not establish a rule.
Id. at 288-89 (citations omitted). Implied preemption failed in Myrick because there was no conflict, not because of the statute’s preemption language (or lack of it). Id. at 289. See also, e.g., Williamson v. Mazda Motor, Inc., 562 U.S. 323, 329 (2011) (“neither can the statute’s saving clause foreclose or limit the operation of ordinary conflict pre-emption principles”); Altria Group, Inc. v. Good, 555 U.S. 70, 67-77 (2008) (the existence of an “express pre-emption clause . . . does not immediately end the inquiry because . . . [p]re-emptive intent may also be inferred . . . if there is an actual conflict between state and federal law”).
Indeed, that is all that plaintiffs’ long-time favorite case Wyeth v. Levine, 555 U.S. 555 (2009), did. Levine nowhere held that the absence of an express preemption clause in the prescription drug provisions of the FDCA precluded the operation of implied preemption. Levine simply applied the sort of “inference” discussed in Myrick. Levine “recognize[d] that some state-law claims might well frustrate the achievement of congressional objectives,” and thus would be “impliedly preempted by virtue of that conflict,” but Levine was “not such a case.” 555 U.S. at 518. Rather, according to Levine, implied preemption required “clear evidence that the FDA would not have approved a change to [a drug’s] label” that the plaintiff in a particular case was demanding. Id. at 571.
In all three of its prescription drug preemption decisions since Levine, the Court has rejected the sort of absolutist positions that plaintiffs advocated in the Suboxone brief. Indeed, the Court found implied preemption in two of them. See PLIVA, Inc. v. Mensing, 564 U.S. 604, 621 (2011) (implied impossibility preemption exists where the defendant cannot “independently do under federal law what state law requires of it”; rejecting the plaintiffs’ “argument [that] would render conflict pre-emption largely meaningless”); Mutual Pharmaceutical Co. v. Bartlett, 570 U.S. 472, 488-89 (2013) (claim that defendant could avoid liability by stopping the sale of its FDA-approved drug was “incompatible with our pre-emption jurisprudence” because, it would mean that “the vast majority − if not all − of the cases in which the Court has found impossibility pre-emption, were wrongly decided”); Merck Sharp & Dohme Corp. v. Albrecht, 587 U.S. 299, 316 (2019) (preemption, including implied preemption, is a legal question for courts to decide; implied preemption exists in cases of “actual conflict between state and federal law”).
Plaintiff’s Suboxone argument against implied preemption as a constitutional concept is simply old wine in a new, Loper Bright/Dobbs bottle. The same argument has already been made, and rejected, in Albrecht, Bartlett, Mensing, Levine, Buckman, Geier, and Myrick (and probably in more cases if we looked further). Not surprisingly, that argument received the back of the judicial hand in In re Suboxone Buprenorphine/Naloxone Film Products Liability Litigation, 2024 U.S. Dist. Lexis 234771 (N.D. Ohio Dec. 31, 2024):
Plaintiff argues that the Court should consider the constitutionality of preemption doctrine, particularly based on the Supreme Court’s recent decision in Loper Bright. . . . That case says little, if anything, about preemption doctrine. Instead, Loper Bright involves questions of deference to agency interpretations of ambiguous statutes, and preemption involves determining the intent of Congress, not an agency. . . . Therefore, preemption of State-law claims requiring the marketing of a product following agency approval flows from the congressional intent expressed in the statute. In any event, Supreme Court and Sixth Circuit precedent compel application of preemption doctrine unless and until one or both courts say otherwise.
Id. at *43 (citation omitted).