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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Friday, March 06, 2009 ::
    Wyeth v. Levine

    Phenergan's wake -- and the national economy's

    If you had to narrow down to a mere two the reasons why we moved from the Articles of Confederation to the Constitution, it would probably come down to the international weakness of thirteen separate nations or three smaller confederacies, and the economic mayhem wrought by conflicting regulations in different states. Foreign policy and interstate commerce -- the two things that would have to be determined at the federal level, even if nothing else was.

    Even as Obamanomics expands federal power in ways the Founders did not intend, the Supreme Court has started diminishing it, and vindicating state power in ways many of the founder were positively afraid of. The result will not be "federalism" -- it will be the concurrent hyper-regulatory state that New Deal Justices have dreamed of since they developed what has since been called the "presumption against pre-emption" in Rice v. Santa Fe Elevator Corp. in 1947.

    Perhaps the FDA honks. Perhaps there shouldn't be an FDA. Perhaps the FDCA is unconstitutional after all, as not being a regulation of interstate commerce, but rather of manufacture (I'm sure Justice Thomas would find this line of argument appealing). But short of such radical conclusions that are not even being proposed, FDA approval of labelling constituted, until this week, a safe harbor that made the interstate market hospitable to cutting-edge medicine.

    Now, FDA approval, complicated and demanding as it is, will not be enough: every medicine (and probably device as well) will also have to run the gantlet of trial lawyers representing injured clients (the benefitted majority not being in court) in front of non-medically-trained juries. These, not the FDA, will now impose standards -- and not, to head off a standard canard, just for their own states. No manufacturer can afford to produce for fifty different tort standards, each of which could change with the next case. A judgment in one state has nationwide impact, but without nationwide input, just as Maryland's taxing of the Bank did in McCulloch.

    What's up with Justice Thomas's concurrence? Remember, he renounced the Dormant Commerce Doctrine, back in his dissent in the Camp Newfoundland case in 1997; with it, he renounced (we now discover) the idea that the Court can or should do anything (at least under the Commerce Clause) to police the state-federal regulatory boundary. That's why for him, if compliance with both the FDA mandate and the state jury-imposed standard is physically possible -- no conflict. No conflict, no preemption.

    This leaves out of account whether Congress has "occupied the field" in a manner that should, in the interest of the U.S. as an economic unity, displace state policymaking. He has some good points about the Court's use of slender evidence to establish Congress's purpose, but even if one ignores (as one should) legislative history, internal administrative deliberations, and post hoc rationalizations of agency counsel, the very existence of the FDCA (assuming it's constitutional) says something that Thomas doesn't want to hear.

    Hamilton to Thomas. Hamilton to Thomas. Please pick up.

    Walter Olson's take at Overlawyered.com is here, with many valuable links, especially this essay by Michael Greve.

    :: David M. Wagner 5:33 PM [+] ::

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