Yes, West Virginia, there is a Supremacy Clause. It exists as certainly as Congress and taxes and purse strings exist.

And that goes for you too, Montana and Pennsylvania and California.

In a quartet recent opinions the court asserted federal power, twice in unanimous opinions whacking errant state supreme courts for stepping out of bounds.

After the break a brief discussion of:

• Marmet Health Care Center, Inc. v. Brown, holding that states may not carve specific classes of claims out of the Federal Arbitration Act;
• PPL Montana, LLC v. Montana, holding (remarkably) that river segments that you can't navigate are non-navigable and thus federal;
• Kurns v. Railroad Friction Products, holding that an 85-year-old, field preemption case, which likely would be decided differently today, nonetheless preempts a claim for alleged asbestos exposure resulting in mesothelioma;and 
• National Meat Association v. Harris holding that California's slaughterhouse regulations were preempted by the Federal Meat Inspection Act.

Enjoy!

The blockbuster case for the October 2011 term probably has to be Obamacare---er, The Affordable Healthcare Act case. But court's docket is full of cases delineating federal legislative power.

In Marmet, the West Virginia Supreme Court held as a matter of public policy that nursing home injuries and deaths were non-arbitrable, notwithstanding arbitration clauses in the admission agreement. The West Virginia court (of Caperton v. A.T Massey Coal Co. fame) characterized the Supreme Court's interpretation of the FAA and its preemptive scope "tendentious" and "created from whole cloth."

But see, there is a reason the high court is called the SUPREME court. And "tendentious" or not, precedents are precedents. Cranky old Judge Per Curiam set them straight:

The West Virginia court’s interpretation of the FAA was both incorrect and inconsistent with clear instruction in the precedents of this Court. The FAA provides that a “written provision in . . . a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction. . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U. S. C. §2. The statute’s text includes no exception for personal-injury or wrongful-death claims. It “requires courts to enforce the bargain of the parties to arbitrate.” . . . 
As this Court reaffirmed last Term, “[w]hen state law prohibits outright the arbitration of a particular type of claim, the analysis is straightforward: The conflicting rule is displaced by the FAA.” . . . That rule resolves these cases.

In PPL Montana, the question was who owned the riverbeds. Navigable means Montana does, so it could tax the utility that had been operating hydroelectric dams on them for years. Non-navigable means the feds do, so that the state could not impose the taxes.

The Montana Supreme Court was apparently untroubled by the fact that hydroelectric dams are often built where one finds falls and fast moving water, nor that Lewis and Clark had to portage those very sections of the river due to impassable rapids that they described in their journals. Lo and behold it held in favor of its own taxing authorities.

But Justice Kennedy set them straight, citing enough ancient law to make the point (none too gently) that Montana was not only wrong now, it had been wrong for a couple of hundred years at least:

The Montana Supreme Court discounted the segment-by-segment approach of this Court’s cases, calling it “a piecemeal classification of navigability—with some stretches declared navigable, and others declared nonnavigable.” 355 Mont., at 440–442, 229 P. 3d, at 448–449. This was error. The segment-by-segment approach to navigability for title is well settled, and it should not be disregarded. . . .

* * * 

Applying its “short interruptions” approach, the Montana Supreme Court decided that the Great Falls reach was navigable because it could be managed by way of land route portage. . . .The court noted in particular the portage of Lewis and Clark’s expedition. Ibid. Yet that very portage reveals the problem with the Montana Supreme Court’s analysis. Leaving behind their larger boats, Lewis and Clark transported their supplies and some small canoes about 18 miles over land, which took at least 11 days and probably more. See Lewis and Clark Journals 126–152; 9 Journals of the Lewis & Clark Expedition 173; Dear Brother 109. Even if portage were to take travelers only one day, its significance is the same: it demonstrates the need to bypass the river segment, all because that part of the river is nonnavigable.

Kurns involved a plaintiff complaining of asbestos exposure while servicing and maintaining railroad engines. The Locomotive Inspection Act did not itself contain a preemption clause, but an 85-year-old precedent, Napier v. Atlantic Coast Line R. Co., 272 U. S. 605 (1926) found that Congress intended to exclusively occupy the field of the design, the construction and the material of every part of the locomotive and tender and of all appurtenances.

Justice Thomas, writing for the majority applied the precedent to the plaintiffs' claim, which would not have even been scientifically recognizable when the statute was passed. But for me the interesting thing was Justice Kagan's concurrence, which applied stare decisis, even while recognizing that the case might have come out the other way if the court were to consider preemption of that federal statute as a matter of first impression:

I doubt this Court would decide Napier v. Atlantic Coast Line R. Co., 272 U. S. 605 (1926), in the same way today. The Napier Court concluded that Congress had “manifest[ed] the intention to occupy the entire field of regulating locomotive equipment,” based on nothing more than a statute granting regulatory authority over that subject matter to a federal agency. Id., at 611. Under our more recent cases, Congress must do much more to oust all of state law from a field. . . . Viewed through the lens of modern preemption law, Napier is an anachronism.

But Napier governs so long as Congress lets it—and that decision provides a straightforward way to determine whether state laws relating to locomotive equipment are preempted.

Unlike the Locomotive Inspection Act, the Federal Meat Inspection Act in the National Meat case does have a preemption clause, which precludes states from imposing requirements that are “within the scope” of the FMIA, relate to slaughterhouse “premises, facilities and operations,” and are “in addition to, or different than those made under” the FMIA. Notwithstanding an extensive structure of federal regulations, California attempted to dictate what slaughterhouses must do with pigs that cannot walk.

Justice Kagan, writing for the court in this case, held that the state scheme was preempted, using a very practical approach: (1) the federal statute was to be exclusive, and (2) the state requirements are different from the federal ones.

The FMIA’s preemption clause . . . prevents a State from imposing any additional or different—even if non-conflicting—requirements that fall within the scope of the Act and concern a slaughterhouse’s facilities or operations. And at every turn §599f imposes additional or different requirements on swine slaughterhouses. . . . In essence, California’s statute substitutes a new regulatory scheme for the one the FSIS uses. Where under federal law a slaughterhouse may take one course of action in handling a nonambulatory pig,under state law the slaughterhouse must take another.

Much of the rest of the opinion demonstrates in detail how slaughterhouses would be required to take one specific course of action under the federal act an another under state law.

So, four contests between state and federal power. So far, the score is:

Feds: 4

States: 0

Healthcare is still to come, involving both federalism and ennumerated powers. Is the federal government going to bat 1000?