March 4, 2009 – Today is a great day for Diana Levine and for our Constitution.  The Constitution requires that the federal government and the Supreme Court respect the role of the States in protecting their citizens, and Justice Stevens’ opinion does just that.

As proposed in Constitutional Accountability Center’s brief, Justice Thomas’ concurring opinion forcefully advocates that the Court should abandon its “obstacle” preemption doctrine.  Justice Thomas is right, but the Court’s majority also goes a long way towards limiting the free-wheeling analysis by judges into the purposes, rather than the text, of federal statutes that CAC warned of in our brief. 

The dissent’s novel argument that the presumption against preemption should not apply in any preemption claims would open the door to sweeping, judge-created rulings that displace states and trial juries, contrary to our basic constitutional design.

More broadly, Constitutional Accountability Center has urged the Obama administration to review and reverse a number of Bush administration positions that inappropriately limit state authority and policy experimentation.  The Supreme Court’s pointed rejection of the Bush administration’s “preemption by preamble” approach here should convince President Obama of the need to return to a policy of respect for the constitutionally-protected role of states.   

Constitutional Accountability Center brief in Wyeth v. Levine.  Please call Doug Kendall at 202 296-6889, x3, or Elizabeth Wydra, 202 296-6889, x6 with any questions or request for further comment.