National Association of Attorneys General
The Supreme Court Term's Other Cases: Important Cases That May Not Make Headlines
By the end of June, the U.S. Supreme Court will have completed its Term and once again embroiled itself in some of our nation’s most contentious issues: same-sex marriage, affirmative action, and voting rights. As far as most of the general public knows, that is all the Court will have done this Term. As we lawyers know, however, the blockbuster cases are only the tip of the iceberg. The Court will end up issuing around 80 opinions this Term and many of the less heralded ones will have a significant impact on the states. With that in mind, here are some musings on the Term, at its halfway mark.
Preemption is Back
The federalism issue that states most often litigate is whether state laws are preempted by federal statutes. The Supreme Court issued major pronouncements on preemption a few Terms ago in Wyeth v. Levine, 555 U.S. 555 (2009), and Altria Group, Inc. v. Good, 555 U.S. 70 (2008). The Court’s preemption docket has been relatively quiet since then. No more. This Term the Court is hearing no less than six preemption cases ─ and that doesn’t count Adoptive Couple v. Baby Girl, No. 12-399, which addresses the scope of the Indian Child Welfare Act, whose provisions can override state family law rules.
The preemptive scope of the federal drug approval laws is before the Court once again, in Mutual Pharmaceutical Co. v. Bartlett, No. 12-142. The case is a follow-up of sorts to PLIVA, Inc. v. Mensing, 131 S. Ct. 2567 (2011), where the Court held that the federal statutes and regulations governing drug labeling preempt state failure-to-warn claims against generic drug manufacturers. The Court found that it would be impossible for generic drug makers to comply with both state- and federal-law requirements because federal drug regulations bar generic drug manufacturers “from independently changing their generic drugs’ safety labels.” By contrast, brand-name manufacturers can change their labels, meaning that failure-to-warn suits against them are not preempted. Under review here is a First Circuit decision holding that federal law does not preempt state law design-defect claims against generic drug manufacturers. Of particular note, the United States filed an amicus brief supporting the drug manufacturer ─ even though in PLIVA it supported the plaintiff.
Two cases address the preemptive scope of the misleadingly named Federal Aviation Administration Authorization Act (also known as FAAAA or, as practitioners like to say, “F quad A”). The FAAAA deals with far more than aviation, and expressly preempts state laws “related to a price, route, or service of any motor carrier.” It already reared its ugly head in Rowe v. New Hampshire Motor Transport Association, 552 U.S. 364 (2008), which held that the law preempted a Maine statute intended to prevent the delivery of tobacco products to minors. Now the Court will decide whether the FAAAA preempts state-law tort actions against a tow truck company based on its disposal of a towed car, Dan’s City Used Cars, Inc. v. Pelkey, No. 12-52; and whether it preempts various requirements the Port of Los Angeles imposes on motor carriers who provide drayage services (i.e., who transport cargo to customers or other shippers), American Trucking Association v. Los Angeles, No. 11-798.
Probably the highest profile preemption case this Term is Arizona v. Inter Tribal Council of Arizona, No. 12-71, which represents the third immigration-related case the Court is hearing out of Arizona in three years. This time the Court will decide whether the National Voter Registration Act ─ which requires states to “accept and use” the federal mail-in form ─ preempts an Arizona law that requires prospective voters to provide evidence of U.S. citizenship in order to register to vote. The United States has weighed in against Arizona, as it has in all three of the immigration cases.
The other preemption cases are a bit more obscure, addressing the preemptive scope of the Federal Employees Group Life Insurance Act (Hillman v. Maretta, No. 11-1221) and the anti-lien provision of the Medicaid Act (Delia v. E.M.A., No. 12-98). But what often matters most in preemption cases is the Court’s pronouncements on preemption doctrine ─ whether or when the presumption against preemption applies; what deference federal agency pronouncements on preemption should receive; how certain types of tort claims (such as failure-to-warn and design-defect) should be viewed; how broadly courts should read the phrase “related to” in an express preemption, etc. This could prove an important year, indeed, for the law of preemption.
Few cases in the Court’s history were as monumental as last Term’s health care case. And history books will surely take note of whether the Court, later this Term, upholds or strikes down Section 5 of the Voting Rights Act. A bit lower on the radar screen is a very important case about congressional power that arises from the most pedestrian of facts. Before turning to those facts, a bit of history is in order.
More than 90 years ago, Justice Holmes wrote the opinion for the Court in Missouri v. Holland, 252 U.S. 416 (1920), upholding the Migratory Bird Treaty Act of 1918. That law implemented a treaty between the United States and Great Britain designed to protect certain birds that migrated between the two countries. Among its provisions, the Act imposed limits on the killing, capturing, and selling of the migratory birds. The state of Missouri filed suit to prevent a U.S. game warden from enforcing the Act in its borders. According to Missouri, “the statute is an unconstitutional interference with the rights reserved to the States by the Tenth Amendment” and threatened to “invade the sovereign right of the State.” In the course of rejecting that argument, the Supreme Court issued a statement that scholars have been debating ever since. The Court did not simply hold (as it probably would have if the case arose 50 years later) that protection of wildlife that travels across state lines falls within Congress’s Commerce Clause power. Instead, the Court stated that “if [a] treaty is valid there can be no dispute about the validity of the statute [implementing that treaty] under Article I, Section 8, as a necessary and proper means to execute the powers of the Government.” This appears to mean that the structural limits on federal authority don’t apply so long as Congress is implementing an otherwise valid treaty. Does this mean a federal statute banning the states from imposing the death penalty would be constitutional if it implemented a Death Penalty Prohibition Treaty?
The Supreme Court will have a chance to revisit what it said in Missouri v. Holland in a case called Bond v. United States, which will probably be argued in late April. Carol Anne Bond sought revenge on her former best friend, who had an affair with her husband. So she obtained some toxic chemicals and spread them on her ex-friend’s car door, mail box, and doorknob. Nothing worse than a minor burn came of it, but the postal inspectors were called in and uncovered Bond’s scheme. Federal prosecutors not only made a federal case of it, they charged Bond with violating the Chemical Weapons Convention Implementation Act, which implements the Chemical Weapons Convention, an international treaty intended to address the proliferation of chemical weapons. In defense, Bond asserted that Congress lacks the power under Article I to make a crime of ordinary, intrastate poisoning. Whether Congress has that power under the Commerce Clause is an interesting question. But the Third Circuit never reached it, holding instead that Missouri v. Holland resolved the case. The Chemical Weapons Convention is a valid treaty, and the Chemical Weapons Convention Implementation Act reasonably implements it. Under Holland, the Act is therefore constitutional.
Bond’s cert petition argues that, “[g]iven the proliferation of treaties covering all manner of subjects, including those not traditionally thought of as matters of international concern, the Third Circuit’s broad reading of Holland opens a loophole through which Congress can circumvent the limits on its enumerated powers.” I suspect the Court will have similar concerns and will “clarify” or disown what it said in Holland. This is certainly a case to keep an eye on.
The Fourth Amendment
Preemption is not the only topic the Court is hearing multiple times. By my count, the Court is hearing four cases involving plaintiffs’ ability to maintain class actions; and is hearing five cases involving the Fourth Amendment. Because the latter group of cases more directly bears on state attorneys general offices’ work, let me briefly provide some thoughts on them.
The conventional wisdom is that this is a conservative Supreme Court and a Supreme Court that, in particular, is conservative on criminal law issues. That may be true over the full run of cases. The Court has limited the exclusionary rule’s application, has narrowed the protections afforded by Miranda, and has repeatedly chastised lower courts for wrongly granting habeas corpus relief. As oral argument during this Term’s Fourth Amendment cases shows, however, the Justices’ approach to law enforcement issues is not monolithic.
The first Fourth Amendment case the Court heard argument on was Florida v. Jardines, No. 11-564, which asked whether the police violate the Fourth Amendment when they bring a drug-detection dog to the front door of a home. One could be forgiven for thinking this was an easy case for the government. The Court had held in a series of cases that dog sniffs are not searches within the meaning of the Fourth Amendment because the sole knowledge a dog obtains by sniffing is the presence of contraband ─ and people don’t have a reasonable expectation of privacy in contraband. This is sometimes called the “contraband exception.” That logic does not depend on the location of the dog sniff and would seemingly apply to a dog sniff on the porch of a home. Alas, the Court was having none of that.
Justice Kennedy asked the very first question of the argument ─ to express his view that the “contraband exception” is circular and he, for one, doesn’t buy it. A short time later, Justice Scalia started piling on, saying that police officers can’t enter the curtilage of a home and use binoculars to look into a house, and bringing a drug-detection dog “right up to the . . . door of the house” is “the same thing.” Not surprisingly, the liberal Justices weren’t any friendlier to Florida’s counsel, pointing out (among other things) that just because homeowners impliedly consent to Girl Scouts or mailmen coming to their porches does not mean they impliedly consent to police officers coming to their front doors with drug-detections dogs. All in all, the Court looks likely to rule for the defendant.
The Court did rule for the defendant in Bailey v. United States, No. 11-770, which involved the rule announced in Michigan v. Summers, 452 U.S. 692 (1981), that police officers executing a search warrant may detain the premise’s occupants while the search is conducted. Officers saw Bailey leaving the apartment about to be searched so they followed him in their squad car for about a mile before pulling him over and seizing him. They then brought him back to the apartment, by which time enough evidence had been found in the search to justify arresting him. The question presented was whether the Summers rule ─ established to ensure officer safety during searches and to facilitate their orderly completion ─ justified this seizure of a former occupant of a residence about a mile from the scene of the search. By a 6-3 vote, the Court answered that question “no.” This was no surprise in light of the oral argument, which was highlighted by Justice Scalia’s response to the government attorney’s statement that seizures like this one help law enforcement. Justice Scalia said, “All law enforcement would be a lot easier if we didn’t have the doggone Fourth Amendment. I mean, the Fourth Amendment is an impediment to law enforcement. Of course it is.”
Nor does it appear the government will convince the Court in Missouri v. McNeely, No. 11-1425, that police officers always are entitled to obtain a blood sample, without obtaining a warrant, from a person arrested for drunk driving. Missouri and the United States argued that the dissipation of alcohol in the bloodstream is an exigency that necessitates taking the blood sample without the delay of obtaining a warrant (at least where the driver refuses to take a breathalyzer). The best it appears the government is going to get is a rule saying the officer has to try to get a warrant. Then, if it takes too long for the warrant to issue (if, say, an hour passes), only then may the officer take a warrantless blood sample.
All of this is enough to cause worry as oral argument approaches in what may be the most important Fourth Amendment case this Term, Maryland v. King, No. 12-207. At issue is whether the government may collect and analyze DNA from people arrested and charged with ─ but not yet convicted of ─ serious crimes. On the one hand, it would be passing strange if persons who are arrested can be subjected to strip searches and myriad other restrictions on their rights while in jail yet could not be “subjected” to a simple cheek swab to obtain DNA. On the other hand, the cheek swab is a suspicionless search (i.e., the search isn’t conducted to obtain evidence of the crime of arrest), which are generally disfavored by the Fourth Amendment. Given the vital role DNA databases play in law enforcement today, we should follow this case closely.