Two left-leaning legal scholars are wondering whether the debate over pre-emption could soon be turned on its head.
In a forum Friday at the Federalist Society’s convention in Washington, Walter Dellinger and Jeffrey Rosen suggested that the incoming Obama administration might deliver the change. Whereas Democrats—whom Dellinger called the “party of regulation”—have tended to favor aggressive state regulations during the deregulatory Bush administration, and Republicans have tended to oppose those state actions, the next four years could see Washington taking the lead on regulation.
The result could be a lot of advocates switching sides. “This is one way in which the balance between state and federal responsibilities will be up for debate,” said Dellinger (pictured above), a Duke University law professor and chair of the appellate practice at O’Melveny & Myers.
Rosen, a George Washington University law professor and an editor at The New Republic, said new regulations from the Obama administration will be a test of Justice Antonin Scalia’s commitment to defending federal authority.
Regulatory pre-emption cases have been in the spotlight, including in one of the most-watched Supreme Court cases this term, Wyeth v. Levine. That case was argued Nov. 3.
Dellinger and Rosen’s two sparring partners Friday weren’t as ready to expect a change in the pre-emption debate. Former solicitor general Paul Clement said the Supreme Court has decided several recent pre-emption cases by lopsided margins, focusing on issues of statutory construction. “If they’re explicit enough in what they want to do in pre-empting state law, Congress pretty much gets to do it,” Clement (pictured above right) said.
John Eastman, dean of the Chapman University law school, said other nuances—such as the application of the commerce clause to the specifics of the case—also affect pre-emption cases.