preemption

In a 5-4 decision in Kansas v. Garcia the Supreme Court held that the Immigration Reform and Control Act (IRCA) does not preempt state statutes that provide a basis for identity theft prosecutions when someone uses another person’s Social Security Number on their state and federal tax-withholding forms.

The IRCA requires employers to verify, using a federal work-authorization form, that an employee is authorized to work in the United States....

In Rutledge v. Pharmaceutical Care Management Association the Supreme Court will decide whether states’ attempts to regulate pharmacy benefit managers’ (PBMs) drug-reimbursement rates are preempted by the Employee Retirement Income Security Act (ERISA).

PBMs are an intermediary between health plans and pharmacies. Among other things, they set reimbursement rates to pharmacies dispensing generic drugs. Contracts between PBMs and pharmacies create pharmacy networks. According to the Eighth Circuit, “[b]ased upon these contracts and in order to participate in a preferred network, some pharmacies choose to accept lower reimbursements for dispensed prescriptions.” So, in some instance pharmacies lose money.

Arkansas passed a law requiring that pharmacies “be reimbursed for generic drugs at a price equal to or higher than the pharmacies’ cost for the drug based on the invoice from the wholesaler.”

The D.C. Circuit upheld most of the Federal Communications Commission’s 2018 order retreating from net neutrality. But the court struck down the portion of the order disallowing states and local governments from adopting measures preempting the order. Numerous states and local governments challenged the legality of the order. 

Net neutrality requires internet service providers to treat all Internet communications the same and not block, speed up or slow down any content. Net neutrality was federal policy until the 2018 order.

The Supreme Court held 6-3 in Virginia Uranium v. Warren that Virginia’s statute prohibiting uranium mining isn’t preempted by the federal Atomic Energy Act (AEA).

The State and Local Legal Center (SLLC) filed an amicus brief arguing for this result. The SLLC brief encouraged the Court to not inquire into the intent of the Virginia legislature in deciding whether the statute was preempted. Justice Gorsuch, writing for himself and Justices Thomas and Kavanaugh, went to such great length discussing “the perils of inquiring into legislative motive,” that Justices Ginsburg, joined by Justices Sotomayor and Kagan, only joined his plurality opinion as to its result (not its reasoning).

Atlantic Richfield Co. v. Christian is a complicated case raising three legal issues which the Supreme Court has agreed to decide. To summarize the case in one sentence, the owners of a Superfund site object to having to take remedial action not required by the Environment Protection Agency (EPA) to benefit landowners located within the bounds of the site.   

The Anaconda Smelter, now owned by ARCO, processed copper ore from Butte for nearly one hundred years before shutting down in 1980. That same year Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) or Superfund law. The purpose of this law is to “foster the cleanup of sites contaminated by hazardous waste, and to protect human health and the environment.”

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