The five-justice majority in recent 11th Amendment and Commerce
Clause rulings has relied heavily on state sovereignty and
other federalist themes, earning them the moniker "The
Five Friends of Federalism."
The strength of that friendship will be tested this term in
two pre-emption cases, including a key challenge to air-pollution
controls in the Los Angeles basin.
Because the Five Friends - Chief Justice William Rehnquist
and Justices Sandra Day O'Connor, Antonin Scalia, Anthony
Kennedy, and Clarence Thomas - often invoke federalism in
rulings that restrict government regulation, some academics
contend that their federalist rhetoric is simply a stalking-horse
for a pro-business agenda.
Professor Frank Cross has gone so far as to argue, in his
"Realism About Federalism" article (74 New York
University Law Rev. 1304, 1999) that federalism "will
never have authentic legal significance as a principled constraint"
because it is "selectively invoked by courts only when
But in the two pre-emption cases now pending before the Supreme
Court, industry groups are arguing for federal uniformity
at the expense of state and local control. The outcomes could
provide an intriguing glimpse into whether federalism still
has friends on the court when business interests argue against
The first case arises out of the L.A. basin, where cars and
trucks produce most of the area's toxic soot and 80 percent
of the pollutants that form its notorious smog. The worst
air quality in the nation brings with it increased asthma,
heart disease, cancer, and other maladies too numerous to
To help address this public-health crisis, regional officials
issued rules requiring large public and private fleets to
purchase cleaner-running vehicles.
In Engine Manufacturers Ass'n v. South Coast Air Quality Management
District No. 02-1343 (U.S. cert. granted June 9, 2003), industry
groups are challenging these modest rules, arguing that the
Clean Air Act pre-empts them because it prohibits state and
local governments from adopting any "standard" relating
to the control of emissions. The Air District responds that
the term "standard" as used throughout the act's
motor-vehicle provisions applies only to limitations imposed
on manufacturers, not purchasers.
In addition to these important textual issues, the case presents
two very different views of our federal system. Industry basically
urges the court to read the Clean Air Act as creating a centralized
command-and-control regime under which the federal government
plays the leading role.
In contrast, the Air District argues that states and localities
may act, in the words of Justice Louis Brandeis, as laboratories
of democracy to pursue innovative air-pollution programs like
the fleet-purchase rules.
Just weeks ago, four of the Friends of Federalism (all except
O'Connor) seemed to align themselves with the air district's
vision of the Clean Air Act, declaring that under the act,
"States bear the primary role in controlling pollution."
In Alaska Department of Environmental Conservation v. Environmental
Protection Agency 124 S. Ct. 983 (2004), they issued a scathing
dissent blasting the majority's holding that the Clean Air
Act authorizes the U.S. Environmental Protection Agency to
block construction of a facility when EPA decides a state
has been unreasonably lax in specifying appropriate air-emission-control
The dissent lambasted the court for "relegating States
to the role of mere provinces or political corporations, instead
of co-equal sovereigns entitled to the same dignity and respect."
In Alaska DEC, EPA's longstanding reading of the Clean Air
Act tipped the interpretative scales in favor of federal authority.
In contrast, the pre-emption precedent that governs Engine
Manufacturers requires the court to uphold the fleet-purchase
rules unless there is unmistakably clear evidence that Congress
intended to pre-empt them.
If the Friends of Federalism adhere to the principles they
articulated in their Alaska DEC dissent, they should have
an easy time ruling for the Air District in Engine Manufacturers.
This term's second pre-emption case, Cigna Healthcare v. Calad
03-83 (cert. granted Nov. 3, 2003), raises the question of
whether state legislatures and state courts can protect you
when HMO cost-cutting is hazardous to your health.
Ruby Calad underwent a complicated hysterectomy performed
by a Cigna Healthcare physician. Although the doctor recommended
a longer hospital stay, Cigna's discharge nurse decided that
the standard, one-day stay would be sufficient. Calad returned
to the emergency room a few days later with serious complications,
which she attributes to her early release.
In a companion case, a doctor prescribed Vioxx to alleviate
Davila's arthritic pain, in part because Vioxx has a lower
rate of bleeding and ulceration than other pain relievers.
Before filling the prescription, Davila's HMO required him
to try two cheaper medications. After three weeks, he was
rushed to the emergency room with bleeding ulcers, which caused
a near heart attack.
Calad and Davila sued their HMOs in state court under a Texas
statute that allows patients to challenge negligent medical
decisions. California and nine other states have similar laws.
The HMOs argue that the state law is pre-empted by the federal
employee-benefits law, the Employee Retirement Income Security
What's more, they argue that under the rarely applied doctrine
of "complete pre-emption," the claims must be removed
to federal court, even though the complaints plead only state-law
There are few greater indignities for a state court than to
have a case snatched from its docket through complete pre-emption,
which precludes it from voicing any view on the state law
claims or the propriety of removal. Precedent makes clear
that in assessing the propriety of removal from state to federal
court, the state's dignitary interest deserves careful consideration.
In Beneficial Nat'l Bank v. Anderson 123 S. Ct. 2058 (2003),
Scalia and Thomas ridiculed the entire doctrine of complete
pre-emption, labeling its redefinition of state law claims
as federal claims as an "unprecedented act of jurisdictional
alchemy" that "represents a sharp break from our
long tradition of respect for the autonomy and authority of
our state courts."
Under the court's 1983 ruling in Franchise Tax Board v. Construction
Laborers Vacation Trust 463 U.S. 1 (1983), ERISA completely
pre-empts and requires removal of state-law claims only where
they are "in substance" federal claims that could
have been brought under ERISA; in others words, only where
they require an interpretation of ERISA or an ERISA plan for
Because the claims by Davila and Calad are independent of
ERISA and their health plans, precedent and principles of
federalism require rejection of the defendants' removal arguments.
Although federalism implicates an array of legal doctrines,
a proper limitation of pre-emption is one of the most important
aspects of genuine federalism. Breyer recently concluded that
pre-emption cases might well provide a better gauge of a commitment
to federalism than the Court's headline-grabbing rulings.
In his 2001 dissenting opinion in Egelhoff v. Egelhoff, 532
U.S. 141 (2001), he wrote:
"[T]he true test of federalist principle may lie, not
in the occasional constitutional effort to trim Congress'
commerce power at its edges, or to protect a State's treasury
from a private damages action, but rather in those many statutory
cases where courts interpret the mass of technical detail
that is the ordinary diet of the law."
This term's pre-emption cases provide a key opportunity for
the court to vindicate federalist principles in the face of
Timothy J. Dowling is chief counsel of Washington, D.C.'s
Community Rights Counsel, which filed amicus briefs supporting
federalist principles in Engine Manufacturers and Calad.