The power of Congress to expressly preempt state-law tort claims also includes a symmetrical right to overtly signal retreat by repealing preemption provisions. Congress giveth the defense of express preemption; so Congress can also taketh that tort immunity away.
Shouldn’t the same symmetry of Congressional power to signal a legislative retreat also apply to the judge-made doctrine of implied preemption?
Yes, according to Implied Reverse Preemption, a new article by Professor Anita Bernstein in Brooklyn Law Review (2009).
The notion that Congress sometimes silently signals its intent to completely block certain state-law tort claims as being inconsistent with the goals of some federal legislation is, by now, deeply chiseled into our case law.
Judges sometimes infer that Congress silently intended to occupy an entire field of law; while in other cases judges occasionally conclude that Congress intended to bar state-law claims as being inconsistent with regulations imposed by federal administrators.
Because Congress is sometimes deemed as calling for preemption without expressly saying so, Professor Bernstein argues that judges should also acknowledge that Congress can also impliedly signal that it has changed its mind on implied preemption.
Pointing to the changing Congressional attitudes on federal regulation of consumer-product safety – where Congress started out strong in 1972 with the Consumer Product Safety Act; turned around and steadily marched backwards during the anti-regulatory era; and is now moving toward stronger regulation, with the Consumer Product Safety Improvement Act of 2008 – Bernstein argues that the judge-made doctrine of implied preemption “calls for a complementary judicial inference to recognize the abandonment of an earlier regulatory design.”
“Any court empowered to infer that Congress intended to occupy a field or impose a scheme, when Congress did not announce this path expressly, is also empowered to infer a Congressional retreat,” according to Bernstein.
Just as Congress can expressly repeal express preemption, Bernstein says, “Similar reasoning should govern implied preemption. Any congressional scheme to occupy a field or establish comprehensive regulation can be abandoned.”
This is an important point because, if Congress impliedly abandoned an implied intent to block certain state-law tort claims, then judges should now permit the previously barred lawsuits. Earlier decisions that invoked implied preemption can become “obsolete” in light of subsequently inferred Congressional intent.
“Just as courts find preemption where circumstances warrant, Bernstein explains, “they must also, again only where circumstances warrant, infer a retreat from implied preemption.” This retreat is what Bernstein calls implied reverse preemption.
Bernstein discusses “markers of congressional intent” which point to the conclusion that “Congress has pulled back from an inferred early agenda and no longer forecloses tort liability.” For example, Congress can impliedly retreat signal a retreat from implied preemption by dropping the level of appropriations for a regulatory program such as product safety, or by or enacting amendments “that contract or undermine the original regulatory endeavor.” And when an agency exercises delegated authority to regulate an industry, “Reduced rulemaking activity, budgetary passivity, and a subdued public presence all manifest retreat from a regulatory agenda.”
The history of product-safety regulation provides a good illustration of reverse implied preemptions, Bernstein says, because, “at some point during a period of seventeen years, Congress ceased to intend, if it ever did, to assert a federal safety-regulatory stance that precluded tort liability for injuries attributed to consumer products. This absence or withdrawal or preemption left consumer product safety open to the powers and prerogatives of state law, especially state tort liability.”
While Bernstein acknowledges that tort liability might obstruct a “national scheme of safety regulation,” she argues that, without the doctrine of implied reverse preemption, there can be an “unprincipled gift of immunity to the injuring sector.” To counteract this unjustified tort immunity, and “enhance public welfare” in cases where Congress or an administrative agency have impliedly retreated from a regulatory program, we need state-law tort remedies.
There is a “sweet spot between” between tort claims and administrative regulation as methods for promoting general social welfare. “Courts attuned to this balance,” Bernstein concludes, “will find implied reverse preemption just as fundamental as preemption.”
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