Guess Who Promoted Constitutional Principles in Supreme Court Case on Preemption



I’ve discussed the anti-Constitutional nature of federal preemption of state law several times, most recently with respect to preemption in the financial services arena. The Supreme Court has furthered the preemption cause several times, notably in the regulation of certain high-risk medical devices such as pacemakers, with the effect of ending most lawsuits for defects, regardless of the harm to the device user. The Court is hearing several cases this term which could further aid the preemption cause and negate our Constitutional rights. One of them is truly illuminating, because it shows just who cares most about our 7th Amendment rights in front of the highest court in the land.

In Brusewitz v. Wyeth, argued before the Court on October 14, the issue was whether the National Childhood Vaccine Injury Act of 1986 immunizes vaccine manufacturers against lawsuits brought in state court for design defects. One section of the law immunizes vaccine makers from lawsuits “if the injury or death resulted from side effects that were unavoidable” (quoting the law). Hannah Bruesewitz was immunized as a baby, then suffered multiple seizures and is now severely developmentally impaired. Hannah’s parents filed a petition for compensation in a special court created under the 1986 law. The court dismissed the family’s claim on the grounds that they had not proved that the vaccine caused Hannah’s injuries. The family then filed suit in a state court against the vaccine maker, Wyeth, which removed the case to federal court. The federal court dismissed the family’s claim on the grounds that it was preempted by the 1986 law. The parties disagreed about the meaning of the term ‘unavoidable” and whether Congress intended to immunize vaccine makers from virutally all lawsuits. The Center for Disease Control and the Obama Administration supported the notion that the policy behind the 1986 law supports immunity from state common law suits.

There is no question which side depended on and referred to the Constitution and Bill of Rights. The amicus brief submitted by the Obama Justice Department makes no reference to Constitutional principles and ignores not only the 7th Amendment, but the 10th Amendment also; states’ rights are plowed over. In contrast, the brief submitted by the trial lawyers’ group, the American Association for Justice, and two other groups notes the Founders’ intent. “Indeed, the right to recover damages for wrongful personal injury is among the “absolute rights of individuals” that the Founders intended to guarantee to all Americans.” That brief also noted the critical weight that numerous Supreme Courts have placed in state law, respecting the 10th Amendment, in the following passage:

“While this Court has recognized Congress’ authority to preempt state tort laws entirely, it has also recognized that Congress rarely expressly preempts state tort law… The court considers such sweeping preemption ‘unusually powerful.’… (T)he presumption against preemption applies ‘in all pre-emption cases’ and can be overcome only by a showing of ‘clear and manifest’ purpose to preempt… Under this presumption, the Court assumes that the historic police powers of the State are not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.”

The trial lawyers’ brief then asserted that not all lawsuits should be preempted by the 1986 law; I refer you to other websites for the legalese. The Obama Justice Department didn’t even mention the Constitutionally-based presumption against preemption of state law – not a word.

Think about this a moment: the liberals’ favorite President defended giving federal bureaucrats and vaccine makers unchecked power over the drugs which immunize us from serious diseases, by promising to kill state suits. His Justice Department apparently doesn’t care about the rights enumerated in the Constitution. And the trial lawyers, the group that the business community and modern conservatives hate, stuck to the Constitution and the Bill of Rights, and defended the local jury system as the best means to assign responsibility for defective and dangerous drugs. Imagine that!