The Expansion of States' Rights and Federal Preemption Arguments at the U.S. Supreme Court

Admittedly, when I first hear the phrase "states' rights" I immediately think of Gone With the Wind.  Maybe you'll remember that scene early in the film, where in the smokey front parlor of Twelve Oaks,  Charles Hamilton challenges Rhett Butler to a duel after a heated debate amidst the gentlemen over whether or not the South can win a war against the Northern States. 

Yes, yes, it does apply:  today, we think of the Civil War as a fight over slavery but at the time, freedom of the individual wasn't the sole focus.  For many, the War Between the States was fought over states' rights and the South's stance that the federal government should not have the legal power to dictate whether or not an individual state had the right to condone ownership of slaves. 

We all know how that turned out.  However, states' rights survives today and I'm wondering how intense this round of states' rights assertions are going to get.  After all, Texas Governor Rick Perry's already written a best-selling book on it.  It's a hot topic. 

So, it's with some serious interest that I'm following the federal preemption decisions that are being made now by the United States Supreme Court in four (4) cases:  Bruesewitz v. Wyeth; Williamson v. Mazda Motors; U.S. Chamber of Commerce v. Whiting; and AT&T Mobility LLC v. Concepcion.

On their face, these cases don't seem to have much in common with each other - until you get the idea that ribboning through all of them is a fight over power to control something: state or federal.   In legal terms, they are federal preemption cases and the High Court will be opining on the Supremacy Clause of the U.S. Constitution as it applies in some very different scenarios. 

Isn't it interesting that writ was granted on these four matters? Is the U.S. Supreme Court about to tell all of us ordinary folk something about how big the Federal Government is, and will be?

1.  Wyeth: the Power of Pennsylvania Personal Injury Law

Bruesewitz v. Wyeth comes to the Supreme Court after the petitioners lost their fight at the U.S. Court of Appeals for the Third Circuit: the lower federal appellate court ruled that parents could not seek legal damages under state law for the damages allegedly sustained by their daughter from a vaccine manufactured by Wyeth because their claim was barred by federal statute.

2.  Williamson: the Power of Utah's Wrongful Death State Law

In Williamson, a wrongful death action was filed under Utah state law by the grieving husband of Thanh Williamson, who died from injuries sustained from the lap seat belt she was wearing when their Mazda minivan crashed back in 2002.  Mazda's successful defense thus far is that it followed the federal safety regulations in place at the time (enacted by the National Highway Traffic Safety Administration), therefore Mazda met the minimum safety standards.  Federal law therefore preempts the state wrongful death case based upon Mazda being negligent in placing a lap belt in the rear passenger seat. There's no causation.  (In 2007, NHTSA upped its requirements, and now shoulder-strapped belts are required for these passengers.) 

3.  U.S. Chamber of Commerce: Arizona's Ability to Regulate Hiring Illegal Immigrants 

In U.S. Chamber of Commerce, a specific state statute passed into law by the Arizona legislature is at issue: the Arizona state law imposes sanctions on companies that hire illegal immigrants and additionally requires the employer to undertake a federal employment verification program that is voluntary under federal law.  Is the regulation of any activity dealing with sanctioning illegal immigration going to held as exclusively the federal government's?

4.  AT&T Mobility: the Power of California's State Sales Tax Regulation

In AT&T Mobility, the issue is whether or not the Federal Arbitration Act takes precedence over a state law passed in California that prohibits a phone company from giving away free phones to those who contract for the company's phone service and still charging the customer a sales tax for the freebie.   The case arguably could result in dooming consumer class action lawsuits.

These Cases Will Be Supreme Court Expansion of States' Rights -- or Affirming Federal Power

Big deal?  Yes. These cases are big deals.  Lots of folk in lots of places are watching these preemption cases, and wondering what the impact of the High Court's decisions will be.  Each of them will be used to apply in all sorts of matters where states' rights are at issue -- arguably, none can be read to their four corners, at least lots of assumptions are already being made that these will be far-reaching precedents.

I Voted and I Prayed - Did You?

I voted absentee last week, over at my branch library. You would have thought from the parking lot (I got the last slot) that there would be a long wait, a line of folk winding between the stacks.  Nope. 

When I went inside, there was no line at all.  No one knew, and several people were puzzled, about where those cars came from.  Political hijinks?  Who knows, it's been a crazy year here in San Antonio, election-wise.  Not to mention, nationally.

I do know that I don't remember an election where more was at issue, where voting was more important.  Some are disgusted, some are disappointed, some are disillusioned.  All responses to be respected given the realities we face today. 

If there were easy answers, if there were a Cavalry to be called or a wand to be waved, we'd do it.  We'd be there.  It's a bad time for all of us. 

Me? I studied the law at one of the best law schools in the country.  I practiced law in one of the most litigious states in the United States for over 20 years.  I write about the law and legal affairs professionally today. 

It is from this background of education and experience that I find I remain respectful of the system without being enamoured with it.  You're right: my vote isn't much at all, numbers-wise, but it's proactive. It's a tiny light, but it's what I've got, what I've been given. 

I know that evil can triumph only if the good do nothing - what Burke wrote is true, in my experience. 

And your voice needs to be heard.  You need to participate because you are important here.  Please go vote today.  And then, please join me in praying for our United States of America - our country's in trouble, and I think this is one thing that all of us - Independent, Liberatarian, Republican, Green, Democrat - can agree upon.