Monday status conference: Busy week on the Hill

January 26, 2009

capitolfrontAs President Barack Obama begins his first full week as president, Congress will be squarely focused on the economy this week, as lawmakers hold confirmation hearings on the president’s pick to head the Treasury Department and consider economic stimulus legislation. And orders and/or opinions could be coming from the Supreme Court this morning.


It’s more easy being green: Today President Obama will announce plans to give states more leeway in imposing automobile emissions standards. The move is a sharp departure from the Bush administration, whose refusal to grant states the ability to impose tighter greenhouse gas emissions led to a lawsuit between the EPA and 13 states. (NYT)

More to Holder holdup: One of the issues holding up the confirmation of attorney general pick Eric Holder? Some lawmakers want to know whether or not he plans to seek criminal probes of former Bush administration officials over CIA tapes depicting harsh interrogation methods used against two al-Qaeda suspects. (WaPo)

Obama’s labor team: Meanwhile, Obama has named his picks to head the federal agencies in charge of enforcing private sector labor laws and enforcing federal employment discrimination laws. (Lawyers USA)

More Supreme nomination Chatter: If a Supreme Court vacancy opens up this summer, who might get the nod? SCOTUSBlog’s Tom Goldstein thinks that newly-named SG pick Elena Kagan is in a good spot, as are two female federal judges. (SCOTUSBlog)

Peanut butter recall grows: The FDA is continuously adding to the list of peanut putter-containing products that may be tainted with salmonella. Meanwhile food producers like Kellogg are pulling more products from the shelves voluntarily. (MarketWatch)


Lawyers and AGs to Obama: Put preemption on front burner

January 13, 2009

obamablueThe American Association for Justice isn’t the only group urging President-elect Barack Obama to make the reversal of Bush era policies preempting state laws a high priority – even with other pressing matters like the economy and foreign policy afoot.

The National Association of Attorneys General also is urging the incoming administration to make preemption a top issue. Doing so will go hand-in-hand with dealing with some of the other pressing problems facing the nation, according to the top legal officials of the 50 states, the District of Columbia and the nation’s territories.

“In the current, failing economy, with housing prices plunging, and the number of foreclosures soaring, it is critical that the state Attorneys General continue to be the ’56 cops on the beat’ and be given the necessary regulatory authority to impose appropriate standards on lending institutions,” states a briefing paper released yesterday by NAAG describing its agenda for the new administration.

“State Attorneys General have traditionally resisted federal preemption of state laws, whether by Congress, the Courts or the Executive Branch,” the paper states. “Rather, state Attorneys General have supported a more pure federalism, a dual sovereignty whereby state governments and the federal government each retain and actively exercise the powers and functions of government at the same time.”

See the entire paper here.

High Court rules in favor of federal preemption

February 20, 2008

Today, the Supreme Court issued five decisions, three of which hold that federal law preempts certain state regulations, state claims, or claims of jurisdiction by state administrative authorities.

In a decision that surely disappoints the plaintiff’s bar, the Supreme Court held in Riegel v. Medtronic, No. 06-179, that state law tort claims challenging the safety of FDA-approved medical devices are barred by federal law.

The opinion, authored by Justice Antonin Scalia, was based on the rationale that the Food and Drug Administration and federal laws covering device pre-market approval create a carefully-crafted balancing system for ensuring that safe products are on the market, while assuring that devices needed by patients are accessible. Federal regulators – not state authorities, and certainly not juries seated in state court trials – are in the best position to weigh the risks and benefits in this scheme.

“When state common law requires a recalculation of that balance, it frustrates” the regulatory scheme, Scalia said in comments this morning from the bench. “Leaving [it] to a jury [is] even worse.”

In Preston v. Ferrer, No. 06-1463, the Court held that the Federal Arbitration Act precluded the attempt by television’s “Judge Alex” Ferrer to go to a state court seeking a ruling that his contract with his former manager was void, rendering the contract’s arbitration clause void as well. He also sought to have the case heard before a state labor commission, claiming it held exclusive jurisdiction.

The opinion by Justice Ruth Bader Ginsburg held that once parties agree to arbitrate all disputes arising out of a contract, as Ferrer and his manager did, the Federal Arbitration Act preempts state administrative agencies, and the parties must arbitrate the dispute.
Allowing parties to go to state courts first “would likely [create] long delays, and Congress enacted the FAA to avoid delays,” Ginsburg said from the bench.

The court also ruled in favor on federal preemption in Justice Stephen Breyer’s opinion in Rowe v. New Hampshire Motor Transport Ass’n, No. 06-457, that federal law trumps two state laws requiring carriers delivering tobacco products to ensure that the recipients of the packages were of legal age to buy tobacco products.

In the other two opinions, both penned by Justice John Paul Stevens, the Court held that ERISA does not provide a remedy for individual injuries distinct from plan injuries for an administrator’s failure to follow the plan holder’s investment directions. But, the Court held that it does authorize recovery for for fiduciary breaches that impair the value of the entire plan. (LaRue v. DeWolff Boberg & Associates, No. 06-856) and that state courts can adopt broader rules of criminal procedure than those required by the U.S. Supreme Court (Danforth v. Minnesota, No. 06-8273).

More on these cases on coming up on this blog over the next few days, tomorrow on Lawyers USA‘s website, and in the next print edition of Lawyers USA.

Friday morning docket: Pre-Turkey Day edition

November 16, 2007

THE SUPREMES: There are no oral arguments scheduled for next week. The justices will conference on Tuesday, and they may decide whether to take up the constitutional challenges to Washington D.C.’s handgun ban.

Elsewhere inside the beltway:

A bill that would create a state-based licensing system for residential mortgage originators in an effort to stem the subprime mortgage lending bust passed the House, despite some Republican opposition. (Reuters via Yahoo! News)

And President Bush isn’t too thrilled with some aspects of the bill, particularly a provision that give borrowers the right to sue firms that repackage loans. (WaPo).

Rep. Dennis Hastert, the longest-serving Republican Speaker of the House, will leave Congress before his current term is up. In his farewell address, he urged his colleagues to play nice. (Chicago Tribune)

President Bush said that Congress’ approach to judicial confirmations is “search and destroy.” (ABA Journal)

The president also announced his picks for five Justice Department posts. He has tapped Chicago federal District Judge Mark R. Filip as deputy attorney general. No word yet on a confirmation process timeline. (NYT).

Conservative jurists party like it’s their birthday. (BLT)

Green groups get first power plant CO2 victory

October 19, 2007

As Lawyers USA reported, environmentalists have had no success trying to use the Supreme Court decision in Massachusetts v. EPA to push energy companies to curb carbon dioxide emissions at power plants.

Until now.

The Kansas Department of Health and Environment rejected a permit for a new power plant based on enironmenal concerns over CO2 emissions. The Washington Post has more.