hey, tea bagging 10thers: 10th Amendment Drama Fit for Daytime TV

[boutons_deux]

http://www.nytimes.com/2010/10/19/us/19bar.html?_r=1&partner=rss&emc=rss&pagewanted=print

Which way do you want your right-wing activist SCOTUS extremists to vote?

[Wild Cobra]

To uphold the tenth amendment.

[vy65]

To uphold the tenth amendment.

What does the 10th Amendment have to say about federal pre-emption of state law?

[vy65]

BTW, the idea that Congress lacks the authority, per the 10th Amendment, to enter into and ratify international weapons protocols because that power is not "expressly given to the national government" in the Constitution is beyond fucking retarded.

[ElNono]

BTW, the idea that Congress lacks the authority, per the 10th Amendment, to enter into and ratify international weapons protocols because that power is not "expressly given to the national government" in the Constitution is beyond fucking retarded.

Time to secede! :dramaquee

[boutons_deux]

NY TIMEs

October 18, 2010

The Court’s Pre-emption Test

In the Supreme Court last week, oral arguments in a case called Bruesewitz v. Wyeth turned on the meaning of the word “unavoidable,” but the real issue was something much bigger. The case is about whether the family of a girl, who they said was badly injured by a vaccine, can sue the manufacturer in a state court. Or are they barred by a 24-year-old federal law that blocks this sort of lawsuit if “the injury or death resulted from side effects that were unavoidable?”

That prohibition is called pre-emption, a hot issue in constitutional law because it is at the heart of the balance of power between states and the federal government — the meaning of federalism. At stake is the ability of states to protect their citizens, by regulating health, safety, the environment, and other primary interests and by giving victims of wrongdoing redress in court, as long as a state law doesn’t conflict with a federal law.

The vaccine issue is only one area where pre-emption disputes have enormous practical effect. The Bush administration declared the pre-emption of state law scores of times where Congress said nothing about it. It tried to stop California from raising the bar on auto emissions and giving greater protection to consumers.

After reviewing this brazen record, President Obama issued a memorandum halting the practice. The difference is sometimes explained by saying Mr. Bush favored shielding corporations from liability while Mr. Obama backs consumers. That’s half-right: the Obama administration recognizes the legitimacy of pre-emption as a way to avoid conflicts between state and federal law and enforce national standards when the federal government has set them.

Most statutes, however, don’t include clear statements about pre-emption. That’s the source of the controversy. The issue is of sufficient gravity that the American Bar Association recommended last summer that Congress address “foreseeable pre-emption issues clearly and explicitly” when it passes a law that has the potential to displace state law.

There is one big problem with this approach. Even when Congress is not as dysfunctionally partisan as it is now, it is rarely deliberative enough to get to that level of lawmaking. It would be unrealistic to expect Congress to address, or anticipate, each instance that state law is pre-empted. That leaves an important role for courts to engage in statutory construction, the close analysis used to decide what a statute means, to glean the purpose of a federal law and whether it pre-empts state law.

When the Roberts court, the most conservative in half a century, rules on pre-emption cases, the more conservative justices have sometimes taken an anti-federalist position in support of business, the more liberal ones a federalist stance in favor of vindicating people’s rights in state courts.

Because almost every pre-emption case turns on the particulars of the statute in question, however, these cases provide an important test: whether the court’s members can do what justices do at their best by reasoning their way through challenging thickets and, in each instance, winning the public’s confidence that the ruling strikes the right balance of power.

Supreme Court law provides a significant element of guidance: as the reach of federal law was extended, the court articulated a principle called the presumption against pre-emption. Under the Constitution’s supremacy clause, state laws can’t interfere with the operation of the federal government. But where state efforts to protect citizens and compensate victims don’t conflict with federal law, pre-emption should not be used as a weapon to defeat them.


http://www.nytimes.com/2010/10/19/opinion/19tue1.html?ref=opinion&pagewanted=print

==========

My guess is the extreme radical activist Roberts majority will rule to protect corporations' profits as they injure and kill citizens.

With conservatives, institutions ALWAYS take precedence over citizens.

I expect BigPharma to push again for a "shield law" (if the FDA approved a drug, no citizen can sue the mfr from being maimed or killed by the drug).

[vy65]

NY TIMEs

October 18, 2010

The Court’s Pre-emption Test

In the Supreme Court last week, oral arguments in a case called Bruesewitz v. Wyeth turned on the meaning of the word “unavoidable,” but the real issue was something much bigger. The case is about whether the family of a girl, who they said was badly injured by a vaccine, can sue the manufacturer in a state court. Or are they barred by a 24-year-old federal law that blocks this sort of lawsuit if “the injury or death resulted from side effects that were unavoidable?”

That prohibition is called pre-emption, a hot issue in constitutional law because it is at the heart of the balance of power between states and the federal government — the meaning of federalism. At stake is the ability of states to protect their citizens, by regulating health, safety, the environment, and other primary interests and by giving victims of wrongdoing redress in court, as long as a state law doesn’t conflict with a federal law.

The vaccine issue is only one area where pre-emption disputes have enormous practical effect. The Bush administration declared the pre-emption of state law scores of times where Congress said nothing about it. It tried to stop California from raising the bar on auto emissions and giving greater protection to consumers.

After reviewing this brazen record, President Obama issued a memorandum halting the practice. The difference is sometimes explained by saying Mr. Bush favored shielding corporations from liability while Mr. Obama backs consumers. That’s half-right: the Obama administration recognizes the legitimacy of pre-emption as a way to avoid conflicts between state and federal law and enforce national standards when the federal government has set them.

Most statutes, however, don’t include clear statements about pre-emption. That’s the source of the controversy. The issue is of sufficient gravity that the American Bar Association recommended last summer that Congress address “foreseeable pre-emption issues clearly and explicitly” when it passes a law that has the potential to displace state law.

There is one big problem with this approach. Even when Congress is not as dysfunctionally partisan as it is now, it is rarely deliberative enough to get to that level of lawmaking. It would be unrealistic to expect Congress to address, or anticipate, each instance that state law is pre-empted. That leaves an important role for courts to engage in statutory construction, the close analysis used to decide what a statute means, to glean the purpose of a federal law and whether it pre-empts state law.

When the Roberts court, the most conservative in half a century, rules on pre-emption cases, the more conservative justices have sometimes taken an anti-federalist position in support of business, the more liberal ones a federalist stance in favor of vindicating people’s rights in state courts.

Because almost every pre-emption case turns on the particulars of the statute in question, however, these cases provide an important test: whether the court’s members can do what justices do at their best by reasoning their way through challenging thickets and, in each instance, winning the public’s confidence that the ruling strikes the right balance of power.

Supreme Court law provides a significant element of guidance: as the reach of federal law was extended, the court articulated a principle called the presumption against pre-emption. Under the Constitution’s supremacy clause, state laws can’t interfere with the operation of the federal government. But where state efforts to protect citizens and compensate victims don’t conflict with federal law, pre-emption should not be used as a weapon to defeat them.


http://www.nytimes.com/2010/10/19/opinion/19tue1.html?ref=opinion&pagewanted=print

==========

My guess is the extreme radical activist Roberts majority will rule to protect corporations' profits as they injure and kill citizens.

With conservatives, institutions ALWAYS take precedence over citizens.

I expect BigPharma to push again for a "shield law" (if the FDA approved a drug, no citizen can sue the mfr from being maimed or killed by the drug).


Pretty interesting stuff. One of the most important law treatises from the last 100 years is Hart and Weschler's "The Federal Courts and the Federal System." One of their arguments is that a robust state court system is important because they might be able to provide relief in cases where the federal courts cannot (i.e. congress strips federal courts of jurisdiction to heart and remedy certain types of rights violations). It seems like that is what the presumption against pre-emption is getting it - where the state courts/laws provide some measure of legal right/relief, the presumption or default should be in favor of state law.

That's something that gets lost in all this tea-bag bullshit. Being serious about reducing the size of the federal government doesn't necessarily mean that the size of government has decrease. Local government tends to be more efficient than national government; if a decrease in the size of the federal government was met with an increase in the size of local government, you could (a) ensure that the needs of people were still met (i.e., administering welfare as a state, not federal, program) and (b) reducing the overall cost of the federal government.

[Wild Cobra]

What does the 10th Amendment have to say about federal pre-emption of state law?
The 10th is simple and clear.

[Wild Cobra]

BTW, the idea that Congress lacks the authority, per the 10th Amendment, to enter into and ratify international weapons protocols because that power is not "expressly given to the national government" in the Constitution is beyond fucking retarded.
That is clearly outside the 10th. Stop twisting things. Such things are covered in the process of treaties.

[Wild Cobra]

If I take the article at face value, here are my thoughts:


In the Supreme Court last week, oral arguments in a case called Bruesewitz v. Wyeth turned on the meaning of the word “unavoidable,” but the real issue was something much bigger. The case is about whether the family of a girl, who they said was badly injured by a vaccine, can sue the manufacturer in a state court. Or are they barred by a 24-year-old federal law that blocks this sort of lawsuit if “the injury or death resulted from side effects that were unavoidable?”

I wonder if a lawsuit will be allowed against the manufacturer. The manufacturer is compelled by the government to do this under a certain timeframe.


That prohibition is called pre-emption, a hot issue in constitutional law because it is at the heart of the balance of power between states and the federal government — the meaning of federalism.

This is different than suing the manufacture for government requirements. I'm wondering if the author understands what is going on.


At stake is the ability of states to protect their citizens, by regulating health, safety, the environment, and other primary interests and by giving victims of wrongdoing redress in court, as long as a state law doesn’t conflict with a federal law.

How is this concluded? Looks like someone didn't read the 10th.


The vaccine issue is only one area where pre-emption disputes have enormous practical effect. The Bush administration declared the pre-emption of state law scores of times where Congress said nothing about it. It tried to stop California from raising the bar on auto emissions and giving greater protection to consumers.

In this case, it does affect interstate commerce. Now I disagree with this application, and I don't like how strict California gets.


After reviewing this brazen record, President Obama issued a memorandum halting the practice. The difference is sometimes explained by saying Mr. Bush favored shielding corporations from liability while Mr. Obama backs consumers. That’s half-right: the Obama administration recognizes the legitimacy of pre-emption as a way to avoid conflicts between state and federal law and enforce national standards when the federal government has set them.

But it has no right to set national standards outside of interstate commerce. The 10th overrides in this case.


When the Roberts court, the most conservative in half a century, rules on pre-emption cases, the more conservative justices have sometimes taken an anti-federalist position in support of business, the more liberal ones a federalist stance in favor of vindicating people’s rights in state courts.
If anyobne should be sued here, it's the federal government. Not the manufacturer for making a product asked for.


Supreme Court law provides a significant element of guidance: as the reach of federal law was extended, the court articulated a principle called the presumption against pre-emption. Under the Constitution’s supremacy clause, state laws can’t interfere with the operation of the federal government. But where state efforts to protect citizens and compensate victims don’t conflict with federal law, pre-emption should not be used as a weapon to defeat them.
But... ferderal law cannot trump constitutional rights.


My guess is the extreme radical activist Roberts majority will rule to protect corporations' profits as they injure and kill citizens.

It wont be a ruling to protect them, but to not hold them liable for the federal governments requirements.


With conservatives, institutions ALWAYS take precedence over citizens.

Not true. What a way to spin. The little guy shouldn't win just because someone else can pay. That seems to be the liberal MO.


I expect BigPharma to push again for a "shield law" (if the FDA approved a drug, no citizen can sue the mfr from being maimed or killed by the drug).
It is the FDA's responsibility... They told the government, which compelled citizens to take it, that it was safe.