Ghouls and goblins

America's paper of record has an editorial trying to whip up horror and fear about (we infer) Rigel v. Medtronic. But as tales of the undead go, it's more Mel Brooks' take on Frankenstein than Kenneth Branagh's.

For right or wrong, there's much federal law regulating the medical field, including drugs and paraphernalia; catheters were at issue in Medtronic, for example. Medtronic and similar cases have denied tort claims arising from state statutory and common law that was, we were told, at odds with the federal statutory and regulatory framework. The Times doesn't like this, of course, because it thinks that all sympathetic litigants should prevail no matter what (cf. Sen. Durbin's "big guy vs. little guy" remarks during the Roberts hearings), and it says that Evil McBushco's dastardly plan "to prevent consumers from filing damage suits for injuries caused by federally approved drug products ... may soon get a helping hand from the Supreme Court, which has already barred many suits over faulty medical devices."

The putative villain of the piece, according to the NYT, is a "perverse legal doctrine" that must not be allowed to "continue[] to spread" lest "the public ... be deprived of a vital tool for policing companies and unearthing documents that reveal their machinations." And what is this dreadful new doctrine? What new evil has the Bush Supreme Court wrought on us (notwithstanding that Medtronic was decided 8-1)? It is, the Times tells us in a hushed and fearful whisper, "known as federal pre-emption."

(Cue Igor; cue horror movie organ SFX; cue wolves howling at the moon.)

But wait. This is a fairly implausible villain, even if we could buy into the plot or the hammy script. Federal preemption is hardly some dastardly new conservative plot; that intra vires federal law displaces state law to the contrary isn't novel doctrinal invention, it's Article VI of the Constitution. It's what the Supremacy Clause means when it says that not only the federal Constitution, but also "the laws of the United States which shall be made in pursuance thereof ... shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding." Moreover, it may have escaped the Times' notice, but most conservatives want to reduce the scope and content of federal law - which, in turn, means less federal preemption. The article starts to ring pretty hollow, and the eye is led to another oddity (since this is a thoroughly modern horror movie, it has the obligatory ironic twist ending). When the hell did the left generally, and the Times particularly, become believers in state diversity and the efficaciousness of state power vs. federal?

What has happened to civics education in this country that a major newspaper is so ignorant (or is able to presume the ignorance of its audience) on a very basic aspect of the Constitution and the structure of government it prescribes for our nation?

Post facto:
Ten things that aren't changing (11/5/08)