Preemption Case Analysis

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If one were to read only the brief of the State of Michigan and amicus curiae briefs on both sides of the issue, one could reasonably have concluded that the issue in this case was the wisdom of state consumer protection laws.

However, the majority opinion does not even touch on that issue; only the dissenters do, briefly, near the end of the dissent.

Nor does the decision provide any guidance as to the level of deference to be accorded federal agency rules that implicate the balance of power between the states and the federal government. Again, only the dissent briefly discusses that issue.

As a result, much of the bar’s interest in this case will be left unsatisfied.

Nevertheless, the decision will be frequently cited by parties seeking exemption from state regulation, arguing express federal preemption.

They should be prepared for disappointment, however.

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Noticeably absent from the majority opinion is any reference at all to the general presumption against federal preemption. Neither Cipollone v. Liggett Group, Inc., 505 U.S. 504, 112 S.Ct.2608, 2618 (1992), nor Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 S.Ct. 2240 (1996), are even cited in the majority opinion; only the dissent cites them and the presumption against preemption.

Normally, an opinion considering express federal preemption would, at a minimum, include some reference to the presumption as part of its exposition setting forth the applicable standard of review.

Had the majority intended that its opinion would in any way change the standards governing federal preemption, it surely would have made some citation to Cipollone and Medtronic.

Instead, the court’s analysis exclusively references other cases that concern national banking. The first sentence cites the seminal case of McCulloch v. Maryland, 4 Wheat. 316 (1819)(establishing federal law supreme over state law with respect to national banking), and the court never departs from banking law.

As a result, attempts to use this decision outside of the realm of banking law, and expand its application to federal preemption law generally, are likely to fail.

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David Ziemer can be reached by email.