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Are Supreme Court's 'Friends of Federalism' True Blue?

Los Angeles Daily Journal - Forum Column
March 24, 2004
Timothy J. Dowling


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 ideologically convenient."

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 it.

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 mention.

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 technology.

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 Act.

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 claims.

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 their resolution.

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 industry challenge.

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.


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