Friday, December 05, 2008

Irrelevance of Pending Legislation

We've seen plaintiffs argue in post-Riegel medical device preemption cases - and if we win Levine, we expect we'll see it in drug cases as well - that preemption should be denied because there is legislation pending in Congress, but not enacted, that would overturn binding Supreme Court precedent.

Not only is that a facially bogus argument, but there is also precedent rejecting it. See United States v. Mauro, 436 U.S. 340, 356 n.24 (1978) ("we deem it irrelevant that bills currently pending in Congress" might change statute); Davis v. United States, 569 F. Supp.2d 91, 98 (D.D.C. 2008) ("proposed bill does not carry the force of law. . . . The pending legislation is therefore irrelevant").

That's our Friday present to you.

1 comment:

Beck/Herrmann said...

One of our readers looked our little gift horse squarely in the mouth and told us that the NJ Supreme Court rejected a similar argument in the context of pending state legislation in Rowe v. Hoffman-La Roche, Inc., 917 A.2d 767 (N.J. 2007). Having only considered federal cases, we took a look at Rowe. It wasn't exactly the same thing, but it was close.

Plaintiffs argued in Rowe that the court should stay its decision pending legislative consideration of a pending bill. The court refused. "Because of the uncertain duration and predictability of legislative activity, however, we decline to accede to [this]suggestion." 917 A.2d at 630 n.1.