Earlier today, a 5-4 Supreme Court reached the somewhat bizarre conclusion that generic drug manufacturers are immune from state lawsuits claiming that they failed to warn their consumers of potential risks, but brand name drug makers are not. The five conservatives concluded that a federal law requiring generic drug makers to use the same FDA-approved warning label as their brand name counterparts preempts any state laws requiring stronger labels, while the four more progressive justices believed the drug makers must first ask the FDA to consider ordering a new label before they can invoke lawsuit immunity.
The heart of this case is a legal doctrine known as “preemption,” which says that federal law trumps state law when the two conflict. For decades, the Supreme Court applied this doctrine very sparingly. Invalidating a state law is, after all, a direct assault on a state’s right to govern itself, and so most state laws come to the courts with a presumption that they should not be preempted.
Given the right’s apparent love affair with states rights, one would expect conservative justices to be especially cautious about preempting state laws. As it turns out, however, their regard for states rights ends the minute corporate America starts asking them to invalidate state laws. With the occasional exception of Justice Clarence Thomas, the Court’s right flank could hardly be more aggressive in wielding preemption to knock out state laws.
Today’s opinion (which Thomas wrote), takes these justices’ fair-weather federalism to an entirely new level. Despite the longstanding presumption against preemption, four of the Court’s five conservatives joined a plurality opinion claiming for that presumption to be reversed outright:
Moreover, the text of the Clause—that federal law shall be supreme, “any Thing in the Constitution or Laws of any State to the Contrary notwithstanding”—plainly contemplates conflict pre-emption by describing federal law as effectively repealing contrary state law. The phrase “any[state law] to the Contrary notwithstanding” is a non obstante provision. Eighteenth century legislatures used non obstante provisions to specify the degree to which a new statute was meant to repeal older, potentially conflicting statutes in the same field. A non obstante provision “in a new statute acknowledged that the statute might contradict prior law and instructed courts not to apply the general presumption against implied repeals.”
Fortunately, Justice Anthony Kennedy recognized this as a drastic departure from existing law, so he joined the rest of the opinion without providing the fifth vote to create a presumption against states being able to enact consumer protections that go beyond federal minimums. Nevertheless, his four fellow conservatives sent a very clear message: they care about states rights, except when they care about something else.