Starr, Kenneth W.

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Pepperdine Law ReviewVolume 33Issue 1 Symposium: Federal Preemption of State TortLaw: The Problem of Medical Drugs and DevicesArticle 112-15-2005Reflections on Hines v. Davidowitz: The Future ofObstacle PreemptionKenneth W. StarrFollow this and additional works at: http://digitalcommons.pepperdine.edu/plrPart of the Constitutional Law CommonsThis Symposium is brought to you for free and open access by the School of Law at Pepperdine Digital Commons. It has been accepted for inclusion inPepperdine Law Review by an authorized administrator of Pepperdine Digital Commons. For more information, please contactKevin.Miller3@pepperdine.edu.Recommended CitationKenneth W. Starr Reflections on Hines v. Davidowitz: The Future of Obstacle Preemption, 33 Pepp. L. Rev. 1 (2006)Available at: http://digitalcommons.pepperdine.edu/plr/vol33/iss1/1Reflections on Hines v. Davidowitz:The Future of Obstacle PreemptionKenneth W. Starr*For decades, the doctrine of preemption has been a fecund source ofconfusion and division. Preemption goes to the heart of our federal system,a fact which prompted Pepperdine School of Law to attempt to shed somelight on this vitally important arena of constitutional law and public policy.In April 2005, the School of Law hosted a symposium on the issue of federalpreemption of state tort law, specifically addressing the applicability of statelaw to medical drugs and devices.At one level, the rules as to preemption are reassuringly simple. Byvirtue of the Supremacy Clause, embodied in Article VI of the U.S.Constitution, the power of Congress to preempt state law in an enormousrange of regulatory activity cannot seriously be doubted.' This seems somanifestly obvious, and indeed so straightforward, that the subject hassparked limited scholarly, or even practical, treatment.Accordingly, scholars have fretted that the academy has been contentmerely to scratch the surface of this deep and abidingly important subject.One scholar noted that "[a]lthough as a topic, preemption has largely beenignored by constitutional law scholars, it is almost certainly the mostfrequently used doctrine of constitutional law in practice."2  Increasingly,scholars have questioned the easy assumptions that inform much of theseemingly settled, black-letter law of preemption.3In this questioning, scholars have rightly lamented that "the SupremeCourt's numerous preemption cases follow no predictable jurisprudential or* Dean and Professor of Law, Pepperdine University School of Law. The Author would like tothank Audrey Maness and Jamie Chanin for their assistance.1. U.S. CONST. art. VI, cl. 2.2. Stephen A. Gardbaum, The Nature of Preemption, 79 CORNELL L. REV. 767, 768 (1994).3. See generally Viet D. Dinh, Reassessing the Law of Preemption, 88 GEO. L.J. 2085 (2000)(arguing that, in contrast to existing belief, "federalism does not admit to a general presumptionagainst federal preemption of state law.").analytical pattern." 4 This seems ironic since easy categories are employed,such as express preemption, in which Congress includes a provision directlyaddressing the relationship of federal law to that of the states,5 or conflictpreemption, in which obedience to state law brings about a conflict withfederal law.6These ostensibly clear categories (albeit filled with their owninterpretive challenges) are complicated by a highly relevant, deliciouslyrich concept first articulated by the Supreme Court in 1941 in Hines v.Davidowitz.7  It is this case - and its progeny - that provides a deepreservoir from which to draw the more specific issue that brings thisconference together.The statute at issue in Hines was Pennsylvania's Alien Registration Act,which required aliens to register once a year for a nominal fee and carry anidentification card.8 Pennsylvania residents brought a representative actioncontesting the statutes's constitutionality. 9 The district court agreed with theplaintiffs, enjoining enforcement of the measure on two grounds: the Actdenied equal protection to aliens, and encroached upon federal powers.After the district court entered judgment, Congress enacted its ownAlien Registration Act. " This federal measure tailored the Supreme Court'sreview of Hines, as the Court was required to "pass upon the state Act inlight of the Congressional Act."' 2 As a result, the Court did not address thelower court's findings; instead, the Court focused solely on whethercongressional action had precluded state action.' 3 A review of the Hinesdecision leaves no doubt that a decidedly nationalist vision triumphed. 14Because no categorical preemption in the traditional sense was to befound, either in the form of express preemption or conflict preemption, theHines Court first reviewed the nature of the regulation in question.' 5 TheCourt discussed the importance alien regulation plays in comity to othernations, and determined that:4. Id.5. Of course, numerous complex interpretative questions emerge within this category ofpreemption, even when Congress has explicitly spoken. For example, what is the meaning of thefrequently used statutory term "requirements"? When the term is included as an express preemptionprovision, does it include not only statutes and regulations, but common law tort actions as well?6. See generally Gibbons v. Ogden, 22 U.S. 1 (1824) (introducing the concept of conflict orimplied preemption).7. 312 U.S. 52 (1941).8. Id. at 59.9. See id. at 60.10. Id.11. Id.12. Id. The federal statute provides for a single registration of aliens, at which time aliens wouldproduce detailed information and have their fingerprints taken. Id. Such information was to be heldin confidential federal files. Id. The statute required neither that aliens carry an identification cardnor that they exhibit the card to law enforcement. Id. at 60-61.13. Id. at 62.14. See id. at 62-63, 73-74.15. Id. at 62.[Vol. 33: 1, 2005] The Future of Obstacle PreemptionPEPPERDINE LAW REVIEW[T]he regulation of aliens is so intimately blended and intertwinedwith responsibilities of the national government that where it acts,and the state also acts on the same subject, 'the act of Congress, orthe treaty, is supreme; and the law of the State, though enacted inthe exercise of powers not controverted, must yield to it." 16After concluding that state law was subordinate in the arena of alienregulation, the Court then addressed whether congressional action hadprecluded enforcement of the Pennsylvania statute.17 The Court noted that"[flor many years Congress has provided a broad and comprehensive plan"with respect to alien regulation.18 In addition, some regulatory provisionsspecific to aliens had been routinely rejected by Congress on the basis thatsuch "requirements were at war with the fundamental principles of our freegovernment.... ."'9 Such regulations were noticeably absent from the 1940Federal Alien Registration Act.20 From this, the Hines Court concluded thatPennsylvania's law, which included some of these more restrictiveprovisions, stood as "an obstacle to the accomplishment and execution of thefull purposes and objectives of Congress.",2 1 "Obstacle preemption" thuswas born.This triumphantly nationalist conclusion by no means wentunchallenged. Three members of the Court dissented, including no lesserlights than Justice (and future Chief Justice) Harlan Fiske Stone and ChiefJustice Charles Evans Hughes. 22  The dissent reasoned that becauseCongress "may, if such is its will .... subtract from the powers which mightotherwise be exercised by the states," the Court must guard "against suchdiminution of state power by vague inferences as to what Congress mighthave intended if it had considered the matter or by reference to [the Court's]own conceptions of [Congressional] policy .. ,23 Because nothing in thefederal enactment made it clear that Congress intended to withdraw powerover aliens from the States, the dissent concluded that it would be whollyinappropriate for the Court to draw the inference that Congress intended tocreate an exclusive registration system. 24 The dissent also emphasized that16. Id. at 66 (quoting Gibbons v. Ogden, 22 U.S. 1, 211 (1824)).17. Id. at 68-69. It is interesting to note that, in determining whether Pennsylvania's law standsas an obstacle to the goals of Congress, the Court found it significant that this legislation is in a fieldaffecting international relations, stating that preemption is "the one aspect of our government thatfrom the first has been most generally conceded imperatively to demand broad national authority."Id. at 68.18. Id. at 69.19. Id. at 71.20. Id. at 72.21. Id. at 67.22. See id. at 74-81 (Stone, J., dissenting).23. Id. at 74-75.24. Id. at 75.the federal and state statutes were not inconsistent-an alien could complywith both.25 In the dissent's view, it was not within the judicial power tostrike down a state law in the absence of either express or conflictpreemption. 26For its part, the Hines majority was keenly aware that there was neitheran express preemption provision nor a conflict between the statute andfederal measures.27 Traditional preemption-triggering signs were noticeablylacking. However, the majority determined that the issue of alienregistration was peculiarly suited by its nature to national, not state,legislation.2 8 The Hines Court was purposefully driving this branch ofconstitutional law into the Hamiltonian tradition of national supremacy overstate-centered governance.29This Hamiltonian-Jeffersonian battleground remains active today. Thenationalist vision embodied in the Hines majority opinion has surely stoodthe test of time, but not without its vigorous detractors. The Court hasremained wedded to the Hines methodology, even in an era of textualismand structuralism in constitutional interpretation. Although the RehnquistCourt deeply valued anti-federalist principles, the prevailing view onpreemption issues has been (in the main) surprisingly Hamiltonian.A dramatic and deeply controversial illustration is Geier v. AmericanHonda Motor Co.30 There, the Court found preemption on Hines v.Davidowitz grounds. 3' Briefly stated, the case stemmed from a car accident- Alexis Geier hit a tree while driving her Honda Accord.3 2 She brought anegligence and product liability action against Honda because the car wasequipped only with a manual shoulder and lap belt, and not with an airbag orother passive restraint.33 In response to Ms. Geier's state tort law action,Honda maintained that the complaint was preempted by the National Trafficand Motor Vehicle Safety Act of 1966. 34 This argument posed no smallchallenge, since the statute contained both an express preemption provisionand a savings clause.35 What room, if any, remained for "obstacle"preemption?25. Id. at 79, 81.26. Id. at 78-81. See also id. at 75 (arguing that the Court should not strike down a state lawconcerning police power unless it "plainly and palpably violates some right granted or secured to thenational government by the Constitution or similarly encroaches upon the exercise of some authoritydelegated to the United States for the attainment of objects of national concern").27. Id. at 60-61 (majority opinion).28. Id. at 73.29. See THE FEDERALIST No. 32, at 187 (Alexander Hamilton) (Henry Cabot Lodge ed., 1894)(stating that Congress has the power to establish a "uniform rule," which precludes a State fromimposing a "distinct rule").30. Geier v. Am. Honda Motor Co., 529 U.S. 861 (2000).31. Id. at 881.32. Id. at 865.33. Id.34. Id.35. Id. The Court noted that a provision in 15 U.S.C. § 1392(d) (1988) expressly "pre-empts anysafety standard that is not identical to a federal safety standard applicable to the same aspect ofperformance." Id. (internal quotations omitted).[Vol. 33: 1, 2005] The Future of Obstacle PreemptionPEPPERDINE LAW REVIEWThe Geier Court vigorously embraced the Hines methodology,concluding that the state tort law created an obstacle to the achievement ofnational objectives, resulting in an actual conflict between state and federalmeasures.3 6 That is, Ms. Geier's tort action depended on her claim thatHonda had a duty to install an airbag.37 The federal regulation, in contrast,deliberately imposed particular measures designed to increase highwaysafety, but allowed for a gradual phase-in period for the requirement ofpassive restraints.38 Thus, the vehicle in question (the 1987 Accord) wascompliant under federal standards but was insufficiently equipped to satisfymore particularistic state standards. Relying on Hines, the Geier Courtconcluded that an immediately active statewide airbag requirement wouldpresent an obstacle to the goals sought by the federal regulation, andtherefore state action was preempted. 9This muscular employment of Hines v. Davidowitz triggered the ire ofJustice Stevens, even though he had paid his respects to the Hinesmethodology in his majority opinion in Medtronic, Inc. v. Lohr.4' In hisGeier dissent, Justice Stevens maintained that it was inappropriate for theCourt to "[rely] on history and regulatory commentary rather than eitherstatutory or regulatory text" in determining whether a state law ispreempted. 4' To the contrary, the dissent went on, a presumption ofpreemption should obtain.4 2 Such a presumption, the dissent suggested:serves as a limiting principle that prevents federal judges fromrunning amok with our potentially boundless (and perhapsinadequately considered) doctrine of implied conflict pre-emptionbased on frustration of purposes-i.e., that state law is pre-empted ifit "stands as an obstacle to the accomplishment and execution of thefull purposes and objectives of Congress., 4336. Id. at 874.37. Id.at881.38. Id. at 879; see id. at 874-81 (providing a detailed description of the federal regulations andthe goals meant to be achieved through these regulations).39. Id. at 881-82; see also Main R. Scordato, Federal Preemption of State Tort Claims, 35 U.C.DAVIS L. REv. 1, 18 (2001) (reasoning that "the viability of a state tort suit as the one at issue in [theGeier] case could well frustrate this purpose by allowing the states, through the threat of tortliability, to effectively mandate the immediate blanket installation of airbags.").40. 518 U.S. 470, 496 (1996) (stating that the FDA could determine if a state law should be pre-empted on the grounds that the law "stands as an obstacle to the accomplishment and execution ofthe full purposes and objectives of Congress") (quoting Hines v. Davidowitz, 312 U.S. 52, 67(1941)).41. Geier, 529 U.S. at 888 (Stevens, J., dissenting).42. Id.43. Id. at 907-08 (quoting Hines, 312 U.S. at 67).Specifically, the dissent suggested that in a case involvingadministrative regulations, preemption should occur only when the agencyclearly indicates preemptive intent. 44Responding to demand for an express statement of preemptive intent,Justice Breyer, countered for the Geier majority that "one can assume thatCongress or an agency ordinarily would not intend to permit a significantconflict. ' 45 Even without an express preemption statement, the reasoningwent, the Court should discern preemption when there is a considerableconflict between federal and state visions.46 The Court majority noted that"[w]hile we certainly accept the dissent's basic position that a court shouldnot find pre-emption too readily in the absence of clear evidence of aconflict, for the reasons set out above we find such evidence here."47Geier powerfully illustrates the Court's eager acceptance of the Hinesmethodology. Hines, in essence, added a rich (and broad) dimension topreemption: obstacle preemption continues to act in the ranks alongsideexpress and conflict preemption.Application of this extensive and complex grouping brings us to thetopic of the symposium. The articles that follow address one area ofapplication of preemption, and provide a comprehensive discussion on theapplicability of state law to medical drugs and devices. The articles morefully apply the concepts adumbrated above, and, more importantly,meaningfully contribute to the ongoing preemption debate in a vitallyimportant arena of our national life.We at Pepperdine University School of Law are grateful to thesedistinguished scholars and practitioners for their important contributions tothis enduring conversation in our federal republic.44. Id. at 908-10. But see id. at 884 (majority opinion) (criticizing the dissent for relying oncases which involved express preemption but not conflict preemption, which was the type at issue).45. Id. at 885.46. Id. at 884-85.47. Id. at 885 (internal citations omitted).

Reflections on Hines v. Davidowitz: The Future of Obstacle Preemption

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Reflections on Hines v. Davidowitz: The Future of Obstacle Preemption

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